EXHIBIT 10.2
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CREDIT AGREEMENT
AMONG
TENNECO PACKAGING, INC.,
VARIOUS LENDERS,
X.X. XXXXXX SECURITIES INC.
AND
BT ALEX. XXXXX INCORPORATED,
AS CO-LEAD ARRANGERS,
BANKERS TRUST COMPANY,
AS SYNDICATION AGENT
AND
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
AS ADMINISTRATIVE AGENT
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DATED AS OF APRIL 12, 1999
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$1,460,000,000
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XXXXXXX XXXXX CREDIT PARTNERS L.P.
AND
THE CHASE MANHATTAN BANK,
AS CO-DOCUMENTATION AGENTS
TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . . . . . . . .1
1.01 The Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.02 Minimum Amount of Each Borrowing; Limitation on Number of
Borrowings. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1.03 Notice of Borrowing. . . . . . . . . . . . . . . . . . . . . . . . .5
1.04 Disbursement of Funds. . . . . . . . . . . . . . . . . . . . . . . .6
1.05 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
1.06 Conversions. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
1.07 Pro Rata Borrowings. . . . . . . . . . . . . . . . . . . . . . . . 10
1.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.09 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.10 Increased Costs, Illegality, etc.. . . . . . . . . . . . . . . . . 12
1.11 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1.12 Change of Lending Office . . . . . . . . . . . . . . . . . . . . . 15
1.13 Replacement of Lenders . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2. Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.01 Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . . 17
2.02 Letter of Credit Requests, etc.. . . . . . . . . . . . . . . . . . 18
2.03 Letter of Credit Participations. . . . . . . . . . . . . . . . . . 19
2.04 Agreement to Repay Letter of Credit Drawings . . . . . . . . . . . 21
2.05 Increased Costs. . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3. Commitment Commission; Fees; Reductions of Commitment. . . . . . . . . 23
3.01 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.02 Voluntary Termination or Reduction of Unutilized Revolving
Loan Commitments. . . . . . . . . . . . . . . . . . . . . . . . 24
3.03 Mandatory Reduction of Commitments . . . . . . . . . . . . . . . . 25
SECTION 4. Prepayments; Payments; Taxes . . . . . . . . . . . . . . . . . . . . . 26
4.01 Voluntary Prepayments. . . . . . . . . . . . . . . . . . . . . . . 26
4.02 Mandatory Repayments and Commitment Reductions . . . . . . . . . . 27
4.03 Method and Place of Payment. . . . . . . . . . . . . . . . . . . . 37
4.04 Net Payments; Taxes. . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5. Conditions Precedent to Loans. . . . . . . . . . . . . . . . . . . . . 40
5.01 Execution of Agreement; Notes. . . . . . . . . . . . . . . . . . . 40
5.02 Fees, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(i)
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5.03 Opinions of Counsel. . . . . . . . . . . . . . . . . . . . . . . . 40
5.04 Corporate Documents; Proceedings; etc. . . . . . . . . . . . . . . 41
5.05 Employee Benefit Plans; Shareholders' Agreements;
Management Agreements; Debt Agreements; Tax Sharing
Agreements; Employment Agreements; Collective Bargaining
Agreements and Material Contracts. . . . . . . . . . . . . . . . 41
5.06 Capitalization; Contribution; etc. . . . . . . . . . . . . . . . . 43
5.07 Refinancing; Existing Indebtedness . . . . . . . . . . . . . . . . 43
5.08 Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.09 Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.10 Security Agreement . . . . . . . . . . . . . . . . . . . . . . . . 45
5.11 Mortgages; Title Insurance; Surveys; etc.. . . . . . . . . . . . . 46
5.12 Consent Letter . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.13 Material Adverse Change, etc.. . . . . . . . . . . . . . . . . . . 47
5.14 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.15 Solvency Certificate; Insurance. . . . . . . . . . . . . . . . . . 47
5.16 Pro Forma Balance Sheet; Financial Statements; Projections . . . . 48
5.17 Market Disruption, etc.. . . . . . . . . . . . . . . . . . . . . . 48
5.18 PCA Acknowledgement and Agreement . . . . . . . . . . . . . . . . 48
5.19 Bank Credit Agreement Assignment and Assumption Agreement. . . . . 48
SECTION 6. Conditions Precedent to All Credit Events. . . . . . . . . . . . . . . 48
6.01 No Default; Representations and Warranties . . . . . . . . . . . . 48
6.02 Notice of Borrowing; Letter of Credit Request. . . . . . . . . . . 49
SECTION 7A. Representations, Warranties and Agreements. . . . . . . . . . . . . . 49
7A.01 Corporate Status. . . . . . . . . . . . . . . . . . . . . . . . . 49
7A.02 Corporate Power and Authority . . . . . . . . . . . . . . . . . . 49
7A.03 No Violation. . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7A.04 Governmental Approvals. . . . . . . . . . . . . . . . . . . . . . 50
7A.05 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7A.06 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . . 50
7A.07 TPI Security Agreement. . . . . . . . . . . . . . . . . . . . . . 51
7A.08 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . 51
7A.09 Public Utility Holding Company Act. . . . . . . . . . . . . . . . 51
7A.10 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7A.11 Conditions to the Contribution. . . . . . . . . . . . . . . . . . 51
SECTION 7B. Representations, Warranties and Agreements. . . . . . . . . . . . . . 51
7B.01 Corporate Status. . . . . . . . . . . . . . . . . . . . . . . . . 52
7B.02 Corporate Power and Authority . . . . . . . . . . . . . . . . . . 52
7B.03 No Violation. . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7B.04 Governmental Approvals. . . . . . . . . . . . . . . . . . . . . . 52
7B.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc . . . . . . . . . . . . . . . . . 53
(ii)
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7B.06 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7B.07 True and Complete Disclosure. . . . . . . . . . . . . . . . . . . 54
7B.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . . 55
7B.09 Tax Returns and Payments. . . . . . . . . . . . . . . . . . . . . 55
7B.10 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . 55
7B.11 The Security Documents. . . . . . . . . . . . . . . . . . . . . . 57
7B.12 Representations and Warranties in Other Documents . . . . . . . . 58
7B.13 Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7B.14 Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . . 58
7B.15 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7B.16 Compliance with Statutes, etc.. . . . . . . . . . . . . . . . . . 59
7B.17 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . 59
7B.18 Public Utility Holding Company Act. . . . . . . . . . . . . . . . 59
7B.19 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . 60
7B.20 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . 60
7B.21 Patents, Licenses, Franchises and Formulas. . . . . . . . . . . . 61
7B.22 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7B.23 Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7B.24 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7B.25 Year 2000 Compliance. . . . . . . . . . . . . . . . . . . . . . . 62
7B.26 Special Purpose Corporation . . . . . . . . . . . . . . . . . . . 62
7B.27 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . 62
8.01 Information Covenants. . . . . . . . . . . . . . . . . . . . . . . 63
8.02 Books, Records and Inspections . . . . . . . . . . . . . . . . . . 66
8.03 Maintenance of Property; Insurance . . . . . . . . . . . . . . . . 66
8.04 Corporate Franchises . . . . . . . . . . . . . . . . . . . . . . . 67
8.05 Compliance with Statutes, etc. . . . . . . . . . . . . . . . . . . 67
8.06 Compliance with Environmental Laws . . . . . . . . . . . . . . . . 67
8.07 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.08 End of Fiscal Years; Fiscal Quarters . . . . . . . . . . . . . . . 69
8.09 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.10 Ownership of Subsidiaries. . . . . . . . . . . . . . . . . . . . . 70
8.11 Additional Security; Further Assurances; Surveys . . . . . . . . . 70
8.12 Interest Rate Protection . . . . . . . . . . . . . . . . . . . . . 72
8.13 Permitted Acquisitions . . . . . . . . . . . . . . . . . . . . . . 72
8.14 Foreign Subsidiaries Security. . . . . . . . . . . . . . . . . . . 74
8.15 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . . . 75
8.16 Permitted Receivables Facility Transaction . . . . . . . . . . . . 75
SECTION 9. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 76
9.01 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.. . . . . . 79
(iii)
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9.03 Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
9.04 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.05 Advances, Investments and Loans. . . . . . . . . . . . . . . . . . 86
9.06 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . 89
9.07 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . 90
9.08 Consolidated Interest Coverage Ratio . . . . . . . . . . . . . . . 91
9.09 Maximum Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . 92
9.10 Minimum Consolidated Net Worth . . . . . . . . . . . . . . . . . . 93
9.11 Limitation on Modifications of Indebtedness; Modifications
of Certificate of Incorporation, By-Laws and Certain Other
Agreements; etc. . . . . . . . . . . . . . . . . . . . . . . . . 94
9.12 Limitation on Certain Restrictions on Subsidiaries . . . . . . . . 95
9.13 Limitation on Issuance of Capital Stock. . . . . . . . . . . . . . 96
9.14 Limitation on Creation of Subsidiaries and Joint Ventures. . . . . 96
9.15 Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
9.16 Designated Senior Debt . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 10. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 97
10.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
10.02 Representations, etc. . . . . . . . . . . . . . . . . . . . . . . 97
10.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
10.04 Default Under Other Agreements. . . . . . . . . . . . . . . . . . 97
10.05 Bankruptcy, etc.. . . . . . . . . . . . . . . . . . . . . . . . . 98
10.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
10.07 Security Documents. . . . . . . . . . . . . . . . . . . . . . . . 99
10.08 Guaranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
10.09 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
10.10 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . 99
10.11 Permitted Receivables Facility. . . . . . . . . . . . . . . . . . 99
SECTION 11. Definitions and Accounting Terms. . . . . . . . . . . . . . . . . . .100
11.01 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . .100
SECTION 12. The Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141
12.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . .141
12.02 Nature of Duties. . . . . . . . . . . . . . . . . . . . . . . . .141
12.03 Lack of Reliance on the Administrative Agent and the
Syndication Agent . . . . . . . . . . . . . . . . . . . . . . .142
12.04 Certain Rights of the Administrative Agent. . . . . . . . . . . .142
12.05 Reliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . .143
12.06 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . .143
12.07 Agents in their Individual Capacity . . . . . . . . . . . . . . .143
12.08 Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . .144
12.09 Resignation by the Agents . . . . . . . . . . . . . . . . . . . .144
12.10 Delegation of Duties. . . . . . . . . . . . . . . . . . . . . . .145
12.11 Exculpatory Provisions. . . . . . . . . . . . . . . . . . . . . .145
(iv)
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12.12 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . .145
12.13 Special Provisions Regarding the Co-Lead Arrangers and
Co-Documentation Agents . . . . . . . . . . . . . . . . . . . .146
SECTION 13. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . .146
13.01 Payment of Expenses, etc. . . . . . . . . . . . . . . . . . . . .146
13.02 Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . .147
13.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148
13.04 Benefit of Agreement. . . . . . . . . . . . . . . . . . . . . . .148
13.05 No Waiver; Remedies Cumulative. . . . . . . . . . . . . . . . . .150
13.06 Payments Pro Rata . . . . . . . . . . . . . . . . . . . . . . . .150
13.07 Calculations; Computations. . . . . . . . . . . . . . . . . . . .151
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . .151
13.09 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . .153
13.10 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . .153
13.11 Headings Descriptive. . . . . . . . . . . . . . . . . . . . . . .153
13.12 Amendment or Waiver; etc. . . . . . . . . . . . . . . . . . . . .153
13.13 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . .155
13.14 Domicile of Loans . . . . . . . . . . . . . . . . . . . . . . . .155
13.15 Limitation on Additional Amounts, etc.. . . . . . . . . . . . . .155
13.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . .156
13.17 Register. . . . . . . . . . . . . . . . . . . . . . . . . . . . .156
(v)
SCHEDULE I - COMMITMENTS
SCHEDULE II - LENDER ADDRESSES
SCHEDULE III - REAL PROPERTY
SCHEDULE IV - EXISTING LIENS
SCHEDULE V - EXISTING INDEBTEDNESS
SCHEDULE VI - INSURANCE
SCHEDULE VII - ERISA
SCHEDULE VIII - SUBSIDIARIES
SCHEDULE IX - PROJECTIONS
SCHEDULE X - TAXES
SCHEDULE XI - POST-CLOSING DELIVERIES
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B-1 Form of Tranche A Term Note
EXHIBIT B-2 Form of Tranche B Term Note
EXHIBIT B-3 Form of Tranche C Term Note
EXHIBIT B-4 Form of Revolving Note
EXHIBIT B-5 Form of Swingline Note
EXHIBIT C Form of Letter of Credit Request
EXHIBIT D Form of Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Form of Opinion of Jenner & Block
EXHIBIT E-2 Form of Opinion of Xxxxxxxx & Xxxxx
EXHIBIT F Form of Officer's Certificate
EXHIBIT G-1 Form of Subsidiaries Guaranty
EXHIBIT G-2 Form of Tenneco Guaranty
EXHIBIT H Form of Pledge Agreement
EXHIBIT I-1 Form of TPI Security Agreement
EXHIBIT I-2 Form of PCA Security Agreement
EXHIBIT J Form of Consent Letter
EXHIBIT K Form of Solvency Certificate
EXHIBIT L Form of Assignment and Assumption Agreement
EXHIBIT M Form of Subordination Provisions
EXHIBIT N Form of PCA Acknowledgement and Agreement
EXHIBIT O Form of Bank Credit Agreement Assignment and Assumption Agreement
(vi)
CREDIT AGREEMENT, dated as of April 12, 1999, among TENNECO
PACKAGING, INC., a Delaware corporation ("TPI"), the Lenders party hereto from
time to time, X.X. XXXXXX SECURITIES INC. and BT ALEX. XXXXX INCORPORATED, as
Co-Lead Arrangers (in such capacity, each a "CO-LEAD ARRANGER" and,
collectively, the "CO-LEAD ARRANGERS"), BANKERS TRUST COMPANY, as Syndication
Agent (in such capacity, the "SYNDICATION AGENT"), and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Administrative Agent (in such capacity, the
"ADMINISTRATIVE AGENT") (all capitalized terms used herein and defined in
Section 11 are used herein as therein defined).
W I T N E S S E T H :
WHEREAS, TPI and Packaging Corporation of America, a Delaware
corporation ("PCA"), have entered into the Contribution Agreement pursuant to
which TPI will, inter alia, contribute the Containerboard Business to PCA on the
terms and conditions set forth therein;
WHEREAS, TPI has requested that the Lenders make available to TPI
the credit facilities provided for herein for purposes including to enable TPI
to repay certain outstanding Indebtedness of TPI and its Subsidiaries prior to
(or concurrently with) the Contribution;
WHEREAS, upon the consummation of the Refinancing and pursuant to
the Contribution, TPI will contribute, and PCA will assume, all of TPI's rights,
liabilities and obligations under this Agreement and the other Credit Documents,
whereupon PCA shall become the Borrower for all purposes of this Agreement and
TPI shall be released from all obligations and liabilities as the Borrower;
WHEREAS, subject to and upon the terms and conditions herein set
forth, the Lenders are willing to make available to (i) TPI on the Initial
Borrowing Date and prior to the Contribution Effective Time and (ii) PCA on and
after the Contribution Effective Time, the respective credit facilities provided
for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 THE COMMITMENTS. (a) Subject to and upon the terms and
conditions set forth herein, each Lender with a Tranche A Term Loan Commitment
severally agrees to make, on the Initial Borrowing Date, a term loan (each, a
"TRANCHE A TERM LOAN" and, collectively, the "TRANCHE A TERM LOANS") to the
Borrower, which Tranche A Term Loans (i) except as hereafter provided, shall be
made and initially maintained as a single Borrowing of Base Rate Loans and after
the third Business Day following the Initial Borrowing Date, shall, at the
option of the Borrower, be maintained as, and/or converted into, Base Rate Loans
or Eurodollar Loans, provided, that (x) except as otherwise specifically
provided in Section 1.10(b), all Tranche A Term Loans made as part of the same
Borrowing shall at all times consist of Tranche A Term
-1-
Loans of the same Type and (y) unless the Syndication Date has occurred (at
which time this clause (y) shall no longer be applicable), no more than three
Borrowings of Tranche A Term Loans to be maintained as Eurodollar Loans may
be incurred prior to the 90th day after the Initial Borrowing Date (or, if
later, the last day of the Interest Period applicable to the third Borrowing
of Eurodollar Loans referred to below), each of which Borrowings of
Eurodollar Loans may only have an Interest Period of one month, and the first
of which Borrowings may only be made on or after the third Business Day after
the Initial Borrowing Date and on or prior to the fifth Business Day after
the Initial Borrowing Date, the second of which Borrowings may only be made
on the last day of the Interest Period of the first such Borrowing and the
third of which Borrowings may only be made on the last day of the Interest
Period of the second such Borrowing and (ii) shall be made by each Lender in
that initial aggregate principal amount as is equal to the Tranche A Term
Loan Commitment of such Lender on such date (before giving effect to any
reductions thereto on such date pursuant to Section 3.03(b)(i) but after
giving effect to any reductions thereto on or prior to such date pursuant to
Section 3.03(b)(ii)). Once repaid, Tranche A Term Loans incurred hereunder
may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth
herein, each Lender with a Tranche B Term Loan Commitment severally agrees to
make, on the Initial Borrowing Date, a term loan (each, a "TRANCHE B TERM LOAN"
and, collectively, the "TRANCHE B TERM LOANS") to the Borrower, which Tranche B
Term Loans (i) except as hereafter provided, shall be made and initially
maintained as a single Borrowing of Base Rate Loans and after the third Business
Day following the Initial Borrowing Date, shall, at the option of the Borrower,
be maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
PROVIDED, that (x) except as otherwise specifically provided in Section 1.10(b),
all Tranche B Term Loans made as part of the same Borrowing shall at all times
consist of Tranche B Term Loans of the same Type and (y) unless the Syndication
Date has occurred (at which time this clause (y) shall no longer be applicable),
no more than three Borrowings of Tranche B Term Loans to be maintained as
Eurodollar Loans may be incurred prior to the 90th day after the Initial
Borrowing Date (or, if later, the last day of the Interest Period applicable to
the third Borrowing of Eurodollar Loans referred to below), each of which
Borrowings of Eurodollar Loans may only have an Interest Period of one month,
and the first of which Borrowings may only be made on the same date as the
initial Borrowing of Tranche A Term Loans that are maintained as Eurodollar
Loans, the second of which Borrowings may only be made on the last day of the
Interest Period of the first such Borrowing and the third of which Borrowings
may only be made on the last day of the Interest Period of the second such
Borrowing and (ii) shall be made by each Lender in that initial aggregate
principal amount as is equal to the Tranche B Term Loan Commitment of such
Lender on such date (before giving effect to any reductions thereto on such date
pursuant to Section 3.03(c)(i) but after giving effect to any reductions thereto
on or prior to such date pursuant to Section 3.03(c)(ii)). Once repaid, Tranche
B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth
herein, each Lender with a Tranche C Term Loan Commitment severally agrees to
make, on the Initial Borrowing Date, a term loan (each, a "TRANCHE C TERM LOAN"
and, collectively, the "TRANCHE C TERM LOANS") to the Borrower, which Tranche C
Term Loans (i) except as hereafter provided, be made
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and initially maintained as a single Borrowing of Base Rate Loans and after
the third Business Day following the Initial Borrowing Date, shall, at the
option of the Borrower, be maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, PROVIDED, that (x) except as otherwise
specifically provided in Section 1.10(b), all Tranche C Term Loans made as
part of the same Borrowing shall at all times consist of Tranche C Term Loans
of the same Type and (y) unless the Syndication Date has occurred (at which
time this clause (y) shall no longer be applicable), no more than three
Borrowings of Tranche C Term Loans to be maintained as Eurodollar Loans may
be incurred prior to the 90th day after the Initial Borrowing Date (or, if
later, the last day of the Interest Period applicable to the third Borrowing
of Eurodollar Loans referred to below), each of which Borrowings of
Eurodollar Loans may only have an Interest Period of one month, and the first
of which Borrowings may only be made on the same date as the initial
Borrowing of Tranche A Term Loans that are maintained as Eurodollar Loans,
the second of which Borrowings may only be made on the last day of the
Interest Period of the first such Borrowing and the third of which Borrowings
may only be made on the last day of the Interest Period of the second such
Borrowing and (ii) shall be made by each Lender in that initial aggregate
principal amount as is equal to the Tranche C Term Loan Commitment of such
Lender on such date (before giving effect to any reductions thereto on such
date pursuant to Section 3.03(d)(i) but after giving effect to any reductions
thereto on or prior to such date pursuant to Section 3.03(d)(ii)). Once
repaid, Tranche C Term Loans incurred hereunder may not be reborrowed.
(d) Subject to and upon the terms and conditions set forth
herein, each Lender with a Revolving Loan Commitment severally agrees, at any
time and from time to time on and after the Initial Borrowing Date and the
Contribution Effective Time and prior to the Revolving Loan Maturity Date, to
make a revolving loan or revolving loans (each, a "REVOLVING LOAN" and,
collectively, the "REVOLVING LOANS") to the Borrower, which Revolving Loans (i)
except as hereafter provided, shall, at the option of the Borrower, be incurred
and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
PROVIDED, that (x) except as otherwise specifically provided in Section 1.10(b),
all Revolving Loans made as part of the same Borrowing shall at all times
consist of Revolving Loans of the same Type and (y) unless the Syndication Date
has occurred (at which time this clause (y) shall no longer be applicable), no
more than three Borrowings of Revolving Loans to be maintained as Eurodollar
Loans may be incurred prior to the 90th day after the Initial Borrowing Date
(or, if later, the last day of the Interest Period applicable to the third
Borrowing of Eurodollar Loans referred to below), each of which Borrowings of
Eurodollar Loans may only have an Interest Period of one month, and the first of
which Borrowings may only be made on the same date as the initial Borrowing of
Tranche A Term Loans that are maintained as Eurodollar Loans, the second of
which Borrowings may only be made on the last day of the Interest Period of the
first such Borrowing and the third of which Borrowings may only be made on the
last day of the Interest Period of the second such Borrowing, (ii) may be repaid
and reborrowed in accordance with the provisions hereof, (iii) shall not exceed
for any Lender at any time outstanding that aggregate principal amount which,
when added to the product of (x) such Lender's Adjusted Percentage and (y) the
sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive
of Unpaid Drawings which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) at such
time and (II) the aggregate principal amount of all Swingline Loans
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(exclusive of Swingline Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) then outstanding, equals the Available Revolving Loan Commitment of
such Lender at such time and (iv) shall not exceed for all Lenders at any
time outstanding that aggregate principal amount which, when added to (x) the
amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings
which are repaid with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Revolving Loans) at such time, and (y) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline
Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Total Available Revolving Loan Commitment at such
time.
(e) Subject to and upon the terms and conditions herein set
forth, the Swingline Lender in its individual capacity agrees to make at any
time and from time to time on and after the Initial Borrowing Date and the
Contribution Effective Time and prior to the Swingline Expiry Date, a revolving
loan or revolving loans (each, a "SWINGLINE LOAN" and, collectively, the
"SWINGLINE LOANS") to the Borrower, which Swingline Loans (i) shall be made and
maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance
with the provisions hereof, (iii) shall not exceed in aggregate principal amount
at any time outstanding, when added to (x) the aggregate principal amount of all
Revolving Loans made by Non-Defaulting Lenders then outstanding and (y) the
Letter of Credit Outstandings at such time, an amount equal to the Adjusted
Total Available Revolving Loan Commitment at such time (after giving effect to
any reductions to the Adjusted Total Available Revolving Loan Commitment on such
date), (iv) shall not exceed at any time outstanding the Maximum Swingline
Amount and (v) shall not be extended if the Swingline Lender receives a written
notice from the Administrative Agent or the Required Lenders that has not been
rescinded that there is a Default or an Event of Default in existence hereunder.
(f) On any Business Day, the Swingline Lender may, in its
sole discretion, give notice to the other Lenders that its outstanding Swingline
Loans shall be funded with a Borrowing of Revolving Loans (PROVIDED that such
notice shall be deemed to have been automatically given upon the occurrence of a
Default or an Event of Default under Section 10.05 or upon the exercise of any
of the remedies provided in the last paragraph of Section 10), in which case a
Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing,
a "MANDATORY BORROWING") shall be made on the immediately succeeding Business
Day by all Lenders with a Revolving Loan Commitment (without giving effect to
any reductions thereto pursuant to the last paragraph of Section 10) PRO RATA
based on each Lender's Adjusted Percentage (determined before giving effect to
any termination of the Revolving Loan Commitments pursuant to the last paragraph
of Section 10) and the proceeds thereof shall be paid directly to the Swingline
Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each
such Lender hereby irrevocably agrees to make Revolving Loans upon one Business
Day's notice pursuant to each Mandatory Borrowing in the amount and in the
manner specified in the preceding sentence and on the date specified in writing
by the Swingline Lender notwithstanding (i) that the amount of the Mandatory
Borrowing may not comply with the minimum amount for Borrowings otherwise
required hereunder, (ii) whether any conditions specified in Section 6 are then
satisfied, (iii) whether a Default or an Event of Default then exists,
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(iv) the date of such Mandatory Borrowing and (v) the amount of the Total
Revolving Loan Commitment, the Total Available Revolving Loan Commitment, the
Adjusted Total Revolving Loan Commitment or the Adjusted Total Available
Revolving Loan Commitment at such time. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower), then each
such Lender hereby agrees that it shall forthwith purchase (as of the date
the Mandatory Borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause such Lenders to share in such
Swingline Loans ratably based upon their respective Adjusted Percentages
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10), PROVIDED that (x)
all interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective participation is
required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date
and (y) at the time any purchase of participations pursuant to this sentence
is actually made, the purchasing Lender shall be required to pay the
Swingline Lender interest on the principal amount of participation purchased
for each day from and including the day upon which the Mandatory Borrowing
would otherwise have occurred to but excluding the date of payment for such
participation, at the overnight Federal Funds Rate for the first three days
and at the rate otherwise applicable to Revolving Loans maintained as Base
Rate Loans hereunder for each day thereafter.
1.02 MINIMUM AMOUNT OF EACH BORROWING; LIMITATION ON NUMBER OF
BORROWINGS. The aggregate principal amount of each Borrowing of Loans shall not
be less than the Minimum Borrowing Amount applicable thereto; PROVIDED that
Mandatory Borrowings shall be made in the amounts required by Section 1.01(f).
More than one Borrowing may be incurred on the same date, but at no time shall
there be outstanding more than fifteen Borrowings of Eurodollar Loans in the
aggregate under all Tranches.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower desires to
make Borrowing hereunder (excluding Borrowings of Swingline Loans and Mandatory
Borrowings), it shall give the Administrative Agent at its Notice Office at
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) of each Base Rate Loan and at least three Business Days'
prior written notice (or telephonic notice promptly confirmed in writing) of
each Eurodollar Loan to be made hereunder, PROVIDED that any such notice shall
be deemed to have been given on a certain day only if given before 11:00 A.M.
(New York time). Each such written notice or written confirmation of telephonic
notice (each, a "NOTICE OF BORROWING"), except as otherwise expressly provided
in Section 1.10, shall be irrevocable and shall be given by the Borrower in the
form of Exhibit A, appropriately completed to specify: (i) the aggregate
principal amount of the Loans to be made pursuant to such Borrowing, the date of
such Borrowing (which shall be a Business Day), (ii) whether the Loans being
made pursuant to such Borrowing shall constitute Tranche A Term Loans, Tranche B
Term Loans, Tranche C Term Loans or Revolving Loans, (iii) whether the Loans
being made pursuant to such Borrowing are to be initially maintained as Base
Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the
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initial Interest Period to be applicable thereto and (iv) in the case of a
Borrowing of Revolving Loans the proceeds of which are to be utilized to
finance, in whole or in part, the consideration for a Permitted Acquisition,
(x) a reference to the officer's certificate, if any, delivered in accordance
with Section 8.13, (y) the aggregate principal amount of such Revolving Loans
to be utilized in connection with such Permitted Acquisition and (z) the
Total Available Unutilized Revolving Loan Commitment then in effect after
giving effect to the respective Permitted Acquisition (and all payments to be
made in connection therewith). The Administrative Agent shall promptly give
each Lender which is required to make Loans of the Tranche specified in the
respective Notice of Borrowing, notice of such proposed Borrowing, of such
Lender's proportionate share thereof and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of
Swingline Loans hereunder, it shall give the Swingline Lender not later than
1:00 P.M. (New York time) on the date that a Swingline Loan is to be made,
written notice (or telephonic notice promptly confirmed in writing) of each
Swingline Loan to be made hereunder. Each such notice shall be irrevocable and
specify in each case (A) the date of Borrowing (which shall be a Business Day)
and (B) the aggregate principal amount of the Swingline Loans to be made
pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(f), with the Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of the Mandatory Borrowings as
set forth in Section 1.01(f).
(c) Without in any way limiting the obligation of the
Borrower to confirm in writing any telephonic notice of any Borrowing of Loans,
the Administrative Agent or the Swingline Lender, as the case may be, may act
without liability upon the basis of telephonic notice of such Borrowing,
believed by the Administrative Agent or the Swingline Lender, as the case may
be, in good faith to be from the Chief Executive Officer, the Chief Financial
Officer, the President or the Treasurer of the Borrower (or any other officer or
representative of the Borrower designated in writing to the Administrative Agent
and the Swingline Lender by the Chief Executive Officer, the Chief Financial
Officer, the President or the Treasurer as being authorized to give such notices
under this Agreement) prior to receipt of written confirmation. In each such
case, the Borrower hereby waives the right to dispute the Administrative Agent's
and the Swingline Lender's record of the terms of such telephonic notice of such
Borrowing of Loans, absent manifest error.
1.04 DISBURSEMENT OF FUNDS. Except as otherwise specifically
provided in the immediately succeeding sentence, no later than 12:00 Noon
(New York time) on the date specified in each Notice of Borrowing (or (x) in the
case of Swingline Loans, not later than 3:00 P.M. (New York time) on the date
specified pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory
Borrowings, not later than 12:00 Noon (New York time) on the date specified in
Section 1.01(f)), each Lender with a Commitment of the respective Tranche will
make available its PRO RATA portion of each such Borrowing requested to be made
on such date (or in the case of Swingline Loans, the Swingline Lender shall make
available the full amount thereof). All such
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amounts shall be made available in Dollars and in immediately available funds
at the Payment Office of the Administrative Agent, and, except in the case of
Mandatory Borrowings, the Administrative Agent will make available to the
Borrower at the Payment Office the aggregate of the amounts so made available
by the Lenders (for Loans other than Swingline Loans, prior to 1:00 P.M. (New
York time) on such day, to the extent of funds actually received by the
Administrative Agent prior to 12:00 Noon (New York time) on such day),
PROVIDED that all proceeds of the Term Loans shall be deposited by the
Administrative Agent in the Restricted Account and disbursed therefrom as
provided in the TPI Security Agreement. Unless the Administrative Agent shall
have been notified by any Lender prior to the date of Borrowing that such
Lender does not intend to make available to the Administrative Agent such
Lender's portion of any Borrowing to be made on such date, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date of Borrowing and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from
such Lender. If such Lender does not pay such corresponding amount forthwith
upon the Administrative Agent's demand therefor, the Administrative Agent
shall promptly notify the Borrower and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent. The Administrative
Agent shall also be entitled to recover on demand from such Lender or the
Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Lender, at the overnight Federal
Funds Rate and (ii) if recovered from the Borrower, the rate of interest
applicable to the respective Borrowing, as determined pursuant to Section
1.08. Nothing in this Section 1.04 shall be deemed to relieve any Lender
from its obligation to make Loans hereunder or to prejudice any rights which
the Borrower may have against any Lender as a result of any failure by such
Lender to make Loans hereunder.
1.05 NOTES. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made by each Lender shall, if requested by such
Lender, be evidenced (i) if Tranche A Term Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit B-1
with blanks appropriately completed in conformity herewith (each, a "TRANCHE A
TERM NOTE" and, collectively, the "TRANCHE A TERM NOTES"), (ii) if Tranche B
Term Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-2, with blanks appropriately completed in
conformity herewith (each, a "TRANCHE B TERM NOTE" and, collectively, the
"TRANCHE B TERM NOTES"), (iii) if Tranche C Term Loans, by a promissory note
duly executed and delivered by the Borrower substantially in the form of Exhibit
B-3, with blanks appropriately completed in conformity herewith (each, a
"TRANCHE C TERM NOTE" and, collectively, the "TRANCHE C TERM NOTES"), (iv) if
Revolving Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-4, with blanks appropriately
completed in conformity herewith (each, a "REVOLVING NOTE" and, collectively,
the "REVOLVING NOTES") and (v) if Swingline Loans, by a promissory note duly
executed and delivered by the Borrower
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substantially in the form of Exhibit B-5, with blanks appropriately completed
in conformity herewith (the "SWINGLINE NOTE").
(b) The Tranche A Term Note issued to each Lender with a
Tranche A Term Loan Commitment or outstanding Tranche A Term Loans shall (i) be
executed by the Borrower, (ii) be payable to the order of such Lender and be
dated the Initial Borrowing Date (or, in the case of Tranche A Term Notes issued
after the Initial Borrowing Date, be dated the date of the issuance thereof),
(iii) be in a stated principal amount equal to the Tranche A Term Loan made by
such Lender on the Initial Borrowing Date (or, in the case of any Tranche A Term
Note issued after the Initial Borrowing Date, be in a stated principal amount
equal to the outstanding principal amount of the Tranche A Term Loan of such
Lender on the date of the issuance thereof) and be payable in the principal
amount of Tranche A Term Loans evidenced thereby, (iv) mature on the Tranche A
Term Loan Maturity Date, (v) bear interest as provided in the appropriate clause
of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the
case may be, evidenced thereby, (vi) be subject to voluntary prepayment and
mandatory repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled
to the benefits of this Agreement and the other Credit Documents.
(c) The Tranche B Term Note issued to each Lender with a
Tranche B Term Loan Commitment or outstanding Tranche B Term Loans shall (i) be
executed by the Borrower, (ii) be payable to the order of such Lender and be
dated the Initial Borrowing Date (or, in the case of Tranche B Term Notes issued
after the Initial Borrowing Date, be dated the date of the issuance thereof),
(iii) be in a stated principal amount equal to the Tranche B Term Loan made by
such Lender on the Initial Borrowing Date (or, in the case of any Tranche B Term
Note issued after the Initial Borrowing Date, be in a stated principal amount
equal to the outstanding principal amount of the Tranche B Term Loan of such
Lender on the date of the issuance thereof) and be payable in the principal
amount of Tranche B Term Loans evidenced thereby, (iv) mature on the Tranche B
Term Loan Maturity Date, (v) bear interest as provided in the appropriate clause
of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the
case may be, evidenced thereby, (vi) be subject to voluntary prepayment and
mandatory repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled
to the benefits of this Agreement and the other Credit Documents.
(d) The Tranche C Term Note issued to each Lender with a
Tranche C Term Loan Commitment or outstanding Tranche C Term Loans shall (i) be
executed by the Borrower, (ii) be payable to the order of such Lender and be
dated the Initial Borrowing Date (or, in the case of Tranche C Term Notes issued
after the Initial Borrowing Date, be dated the date of the issuance thereof),
(iii) be in a stated principal amount equal to the Tranche C Term Loan made by
such Lender on the Initial Borrowing Date (or, in the case of any Tranche C Term
Note issued after the Initial Borrowing Date, be in a stated principal amount
equal to the outstanding principal amount of the Tranche C Term Loan of such
Lender on the date of the issuance thereof) and be payable in the principal
amount of Tranche C Term Loans evidenced thereby, (iv) mature on the Tranche C
Term Loan Maturity Date, (v) bear interest as provided in the appropriate clause
of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the
case may be, evidenced thereby, (vi) be subject to voluntary prepayment and
mandatory repayment as
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provided in Sections 4.01 and 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(e) The Revolving Note issued to each Lender with a Revolving
Loan Commitment shall (i) be executed by the Borrower, (ii) be payable to the
order of such Lender and be dated the Initial Borrowing Date (or, in the case of
Revolving Notes issued after the Initial Borrowing Date, be dated the date of
the issuance thereof), (iii) be in a stated principal amount equal to the
Revolving Loan Commitment of such Lender and be payable in the principal amount
of the Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment and mandatory
repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(f) The Swingline Note shall (i) be executed by the Borrower,
(ii) be payable to the order of the Swingline Lender and be dated the Initial
Borrowing Date (or, in the case of any Swingline Note issued after the Initial
Borrowing Date, be dated the date of the issuance thereof), (iii) be in a stated
principal amount equal to the Maximum Swingline Amount and be payable in the
principal amount of the outstanding Swingline Loans evidenced thereby, (iv)
mature on the Swingline Expiry Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans evidenced
thereby, (vi) be subject to voluntary prepayment and mandatory repayment as
provided in Sections 4.01 and 4.02 and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.
(g) Each Lender will note on its internal records the amount
of each Loan made by it and each payment in respect thereof and will prior to
any transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in any such notation or endorsement shall not affect
the Borrower's obligations in respect of such Loans.
(h) Notwithstanding anything to the contrary contained above
or elsewhere in this Agreement, Tranche A Term Notes, Tranche B Term Notes,
Tranche C Term Notes, Revolving Notes and the Swingline Note shall only be
delivered to Lenders which at any time specifically request the delivery of such
Notes and no Notes shall be delivered prior to the Contribution Effective Time.
No failure of any Lender to request or obtain a Note evidencing its Loans to the
Borrower shall affect or in any manner impair the obligations of the Borrower to
pay the Loans (and all related Obligations) which would otherwise be evidenced
thereby in accordance with the requirements of this Agreement, and shall not in
any way affect the security or guaranties therefor provided pursuant to the
various Credit Documents. Any Lender which does not have a Note evidencing its
outstanding Loans shall in no event be required to make the notations otherwise
described in preceding clause (g). At any time when any Lender requests the
delivery of a Note to evidence any of its Loans, the Borrower shall promptly
execute and deliver to the respective Lender the requested Note or Notes in the
appropriate amount or amounts to evidence such Loans.
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1.06 CONVERSIONS. The Borrower shall have the option to convert,
on any Business Day occurring on or after the third Business Day after the
Initial Borrowing Date, all or a portion of the outstanding principal amount of
Loans made pursuant to one or more Borrowings (so long as of the same Tranche)
of one or more Types of Loans into a Borrowing (of the same Tranche) of another
Type of Loan, PROVIDED that (i) except as provided in Section 1.10(b) or unless
the Borrower pays all breakage costs and other amounts owing to each Lender
pursuant to Section 1.11 concurrently with any such conversion, Eurodollar Loans
may be converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Loans being converted, (ii) no partial conversion of a
Borrowing of Eurodollar Loans shall reduce the outstanding principal amount of
the Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (iii) unless the Required Lenders otherwise
agree in writing, Base Rate Loans may only be converted into Eurodollar Loans if
no Default or Event of Default is in existence on the date of the conversion,
(iv) no conversion pursuant to this Section 1.06 shall result in a greater
number of Borrowings of Eurodollar Loans than is permitted under Section 1.02,
(v) unless the Syndication Date has occurred (at which time this clause (v)
shall no longer be applicable), prior to the 90th day after the Initial
Borrowing Date, conversions of Base Rate Loans into Eurodollar Loans may only be
made if any such conversion is effective on the first day of the first, second
or third Interest Period referred to in clause (y) of each of Sections
1.01(a)(i), 1.01(b)(i), 1.01(c)(i) and 1.01(d)(i) and so long as such conversion
does not result in a greater number of Borrowings of Eurodollar Loans prior to
the 90th day after the Initial Borrowing Date as are permitted under Sections
1.01(a)(i), 1.01(b)(i), 1.01(c)(i) and 1.01(d)(i) and (vi) Swingline Loans may
not be converted pursuant to this Section 1.06. Each such conversion shall be
effected by the Borrower by giving the Administrative Agent at its Notice Office
prior to 12:00 Noon (New York time) at least (x) in the case of a conversion to
Eurodollar Loans, three Business Days' prior written notice and (y) in the case
of a conversion to Base Rate Loans, one Business Day's prior written notice
(each, a "NOTICE OF CONVERSION"), specifying the Loans to be so converted, the
Borrowing(s) pursuant to which such Loans were made and, if to be converted into
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Lender prompt notice of any such proposed
conversion affecting any of its Loans.
1.07 PRO RATA BORROWINGS. All Borrowings of Tranche A Term
Loans, Tranche B Term Loans, Tranche C Term Loans and Revolving Loans under this
Agreement shall be incurred from the Lenders PRO RATA on the basis of their
Tranche A Term Loan Commitments, Tranche B Term Loan Commitments, Tranche C Term
Loan Commitments or Revolving Loan Commitments, as the case may be, PROVIDED
that all Borrowings of Revolving Loans made pursuant to a Mandatory Borrowing
shall be incurred from the Lenders PRO RATA on the basis of their Adjusted
Percentages. It is understood that no Lender shall be responsible for any
default by any other Lender of its obligation to make Loans hereunder and that
each Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans
hereunder.
1.08 INTEREST. (a) The Borrower shall pay interest in respect
of the unpaid principal amount of each Base Rate Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the maturity
(whether by acceleration or otherwise) of such
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Base Rate Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar
Loan pursuant to Section 1.06, at a rate per annum which shall be equal to
the sum of the relevant Applicable Margin PLUS the Base Rate, each as in
effect from time to time.
(b) The Borrower shall pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date the proceeds thereof are
made available to the Borrower until the earlier of (i) the maturity (whether by
acceleration or otherwise) of such Eurodollar Loan and (ii) the conversion of
such Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06, 1.09 or
1.10(b), as applicable, at a rate per annum which shall, during each Interest
Period applicable thereto, be equal to the sum of the relevant Applicable Margin
PLUS the Eurodollar Rate for such Interest Period, each as in effect from time
to time.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to the
greater of (x) 2% per annum in excess of the rate otherwise applicable to Base
Rate Loans of the respective Tranche of Loans from time to time (or, if such
overdue amount is not interest or principal in respect of a Loan, 2% per annum
in excess of the rate otherwise applicable to Base Rate Loans maintained as
Revolving Loans from time to time) and (y) the rate which is 2% in excess of the
rate then borne by such Loans, in each case with such interest to be payable on
demand.
(d) Accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on (x) the date
of any conversion into a Base Rate Loan pursuant to Section 1.06, 1.09 or
1.10(b), as applicable (on the amount converted) and (y) the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on any
repayment or prepayment (except repayments and prepayments of Base Rate Loans
which are Revolving Loans or Swingline Loans, in instances where the Total
Revolving Loan Commitment remains in effect in an amount greater than zero) on
the amount repaid or prepaid, at maturity (whether by acceleration or otherwise)
and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the Eurodollar Rate for each Interest Period applicable to
Eurodollar Loans and shall promptly notify the Borrower and the Lenders thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
(f) All computations of interest hereunder shall be made in
accordance with Section 13.07(b).
1.09 INTEREST PERIODS. At the time it gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or on the third Business Day prior to the expiration
of an Interest Period applicable to such Borrowing of Eurodollar Loans (in the
case of any subsequent Interest Period), the Borrower shall have the right to
elect, by giving the
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Administrative Agent written notice thereof, the interest period (each, an
"INTEREST PERIOD") applicable to such Eurodollar Loans, which Interest Period
shall, at the option of the Borrower (but otherwise subject to clause (y) of
the proviso to Sections 1.01(a)(i), 1.01(b)(i), 1.01(c)(i) and 1.01(d)(i) and
to clause (v) of the proviso to Section 1.06), be a one, two, three or six
month period or, to the extent agreed to by each Lender with Loans and/or
Commitments under the respective Tranche, a two-week or twelve month period,
PROVIDED that:
(i) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of
Eurodollar Loans shall commence on the date of such Borrowing (including
the date of any conversion thereto from a Borrowing of Base Rate Loans)
and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding Interest
Period applicable thereto expires;
(iii) if any Interest Period relating to a Borrowing of
Eurodollar Loans begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period, such Interest Period shall end on the last Business Day of such
calendar month;
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; PROVIDED, HOWEVER, that if any Interest
Period for a Borrowing of Eurodollar Loans would otherwise expire on a
day which is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day;
(v) unless the Required Lenders otherwise agree in writing,
no Interest Period may be selected at any time when a Default or Event of
Default is then in existence;
(vi) no Interest Period in respect of any Borrowing of any
Tranche of Loans shall be selected which extends beyond the respective
Maturity Date for such Tranche of Loans; and
(vii) no Interest Period in respect of any Borrowing of Tranche
A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as the case
may be, shall be selected which extends beyond any date upon which a
mandatory repayment of such Tranche of Term Loans will be required to be
made under Section 4.02(b), (c) or (d) as the case may be, if, after
giving effect to the election of such Interest Period, the aggregate
principal amount of Tranche A Term Loans, Tranche B Term Loans or Tranche
C Term Loans, as the case may be, which have Interest Periods which will
expire after such date will be in excess of the aggregate principal
amount of Tranche A Term Loans, Tranche B Term Loans or Tranche C Term
Loans, as the case may be, then outstanding LESS the aggregate amount of
such required prepayment.
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If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that
any Lender shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto but, with
respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loan because of (x) any change since the date
of this Agreement in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law) or
in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A) a
change in the basis of taxation of payment to any Lender of the principal
of or interest on such Eurodollar Loan or any other amounts payable
hereunder (except for changes in the rate of tax on, or determined by
reference to, the net income or profits of such Lender, or any franchise
tax based on the net income or profits of such Lender, in either case
pursuant to the laws of the United States of America, the jurisdiction in
which it is organized or in which its principal office or applicable
lending office is located or any subdivision thereof or therein), but
without duplication of any amounts payable in respect of Taxes pursuant
to Section 4.04(a), or (B) a change in official reserve requirements but,
in all events, excluding reserves required under Regulation D and/or (y)
other circumstances since the date of this Agreement affecting such
Lender or the interbank Eurodollar market or the position of such Lender
in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, and/or (y) impossible by compliance by any
Lender in good faith with any governmental request (whether or not having
force of law) or (z) impracticable as a result of a contingency occurring
after the date of this Agreement which materially and adversely affects
the interbank Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the
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case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given
by the Borrower with respect to Eurodollar Loans which have not yet been
incurred (including by way of conversion) shall be deemed instead to have
contained a request for Base Rate Loans, (y) in the case of clause (ii) above,
the Borrower shall, subject to the provisions of Section 13.15 (to the extent
applicable), pay to such Lender, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as shall be required to compensate such Lender for such increased
costs or reductions in amounts received or receivable hereunder (a written
notice as to the additional amounts owed to such Lender, showing in reasonable
detail the basis for and the calculation thereof, submitted to the Borrower by
such Lender in good faith shall, absent manifest error, be final and conclusive
and binding on all the parties hereto, although the failure to give any such
notice shall not release or diminish any of the Borrower's obligations to pay
additional amounts pursuant to this Section 1.10(a) upon the subsequent receipt
of such notice) and (z) in the case of clause (iii) above, the Borrower shall
take one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law. Each of the
Administrative Agent and each Lender agrees that if it gives notice to the
Borrower of any of the events described in clause (i) or (iii) above, it shall
promptly notify the Borrower and, in the case of any such Lender, the
Administrative Agent, if such event ceases to exist. If any such event
described in clause (iii) above ceases to exist as to a Lender, the obligations
of such Lender to make Eurodollar Loans and to convert Base Rate Loans into
Eurodollar Loans on the terms and conditions contained herein shall be
reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and,
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii), shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Lender
or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if
the affected Eurodollar Loan is then outstanding, upon at least three Business
Days' written notice to the Administrative Agent, require the affected Lender to
convert such Eurodollar Loan into a Base Rate Loan on the earlier of the date
required by law or the last day of the Interest Period applicable to such
Eurodollar Loans, PROVIDED that, if more than one Lender is affected at any
time, then all affected Lenders must be treated the same pursuant to this
Section 1.10(b).
(c) If at any time after the date of this Agreement any
Lender determines that the introduction of or any change in any applicable law
or governmental rule, regulation, order, guideline, directive or request
(whether or not having the force of law) concerning capital adequacy, or any
change in interpretation or administration thereof by any governmental
authority, central bank or comparable agency, in each case introduced or changed
after the date hereof, will have the effect of increasing the amount of capital
required or requested to be maintained by such Lender or any corporation
controlling such Lender based on the existence of such Lender's Commitments
hereunder or its obligations hereunder, then the Borrower shall, subject to the
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provisions of Section 13.15 (to the extent applicable), pay to such Lender, upon
its written demand therefor, such additional amounts as shall be required to
compensate such Lender or such other corporation for the increased cost to such
Lender or such other corporation or the reduction in the rate of return to such
Lender or such other corporation as a result of such increase of capital. In
determining such additional amounts, each Lender will act reasonably and in good
faith and will use averaging and attribution methods which are reasonable,
PROVIDED that such Lender's determination of compensation owing under this
Section 1.10(c) shall, absent manifest error, be final and conclusive and
binding on all the parties hereto. Each Lender, upon determining that any
additional amounts will be payable pursuant to this Section 1.10(c), will give
prompt written notice thereof to the Borrower, which notice shall show in
reasonable detail the basis for and calculation of such additional amounts,
although the failure to give any such notice shall not release or diminish the
Borrower's obligation to pay additional amounts pursuant to this Section 1.10(c)
upon the subsequent receipt of such notice.
1.11 COMPENSATION. The Borrower shall, subject to the provisions
of Section 13.15 (to the extent applicable), compensate each Lender, upon its
written request (which request shall set forth in reasonable detail the basis
for requesting and the calculation of such compensation), for all losses,
expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Lender to fund its Eurodollar Loans but excluding
any loss of anticipated profit) which such Lender may sustain: (i) if for any
reason (other than a default by such Lender or the Administrative Agent) a
Borrowing of, or conversion from or into, Eurodollar Loans does not occur on a
date specified therefor in a Notice of Borrowing or Notice of Conversion
(whether or not withdrawn by the Borrower or deemed withdrawn pursuant to
Section 1.10(a)); (ii) if any repayment (including any repayment made pursuant
to Section 4.02 or as a result of an acceleration of the Loans pursuant to
Section 10) or conversion of any of its Eurodollar Loans occurs on a date which
is not the last day of an Interest Period with respect thereto; (iii) if any
prepayment of any of its Eurodollar Loans is not made on any date specified in a
notice of prepayment given by the Borrower; or (iv) as a consequence of (x) any
other default by the Borrower to repay its Loans when required by the terms of
this Agreement or any Note held by such Lender or (y) any election made pursuant
to Section 1.10(b). Each Lender's calculation of the amount of compensation
owing pursuant to this Section 1.11 shall be made in good faith. A Lender's
basis for requesting compensation pursuant to this Section 1.11 and a Lender's
calculation of the amount thereof, shall, absent manifest error, be final and
conclusive and binding on all parties hereto.
1.12 CHANGE OF LENDING OFFICE. Each Lender agrees that on the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending
office for any Loans or Letters of Credit affected by such event, PROVIDED that
such designation is made on such terms that, in the sole judgment of such
Lender, such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section. Nothing in this
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Section 1.12 shall affect or postpone any of the obligations of the Borrower or
the right of any Lender provided in Sections 1.10, 2.05 and 4.04.
1.13 REPLACEMENT OF LENDERS. (x) If any Lender becomes a
Defaulting Lender or otherwise defaults in its obligations to make Loans or fund
Unpaid Drawings, (y) upon the occurrence of any event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or
Section 4.04 with respect to any Lender which results in such Lender charging to
the Borrower increased costs in excess of those being generally charged by the
other Lenders, or (z) in the case of certain refusals by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as provided in
Section 13.12(b), the Borrower shall have the right, if no Default or Event of
Default then exists or would exist immediately after giving effect to the
respective replacement, to either replace such Lender (the "REPLACED LENDER")
with one or more other Eligible Transferee or Transferees, none of whom shall
constitute a Defaulting Lender at the time of such replacement (collectively,
the "REPLACEMENT LENDER") and each of whom shall be reasonably acceptable to the
Administrative Agent or, at the option of the Borrower, to replace only (a) the
Revolving Loan Commitment (and outstandings pursuant thereto) of the Replaced
Lender with an identical Revolving Loan Commitment provided by the Replacement
Lender or (b) in the case of a replacement as provided in Section 13.12(b) where
the consent of the respective Lender is required with respect to less than all
Tranches of its Loans or Commitments, the Commitments and/or outstanding Term
Loans of such Lender in respect of each Tranche where the consent of such Lender
would otherwise be individually required, with identical Commitments and/or
Loans of the respective Tranche provided by the Replacement Lender, PROVIDED
that:
(i) at the time of any replacement pursuant to this Section
1.13, the Replacement Lender shall enter into one or more Assignment and
Assumption Agreements pursuant to Section 13.04(b) (and with all fees
payable pursuant to said Section 13.04(b) to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire all of the
Commitments and outstanding Loans (or, in the case of the replacement of
only (a) the Revolving Loan Commitment, the Revolving Loan Commitment and
outstanding Revolving Loans or (b) the outstanding Term Loans of one or
more Tranches, the outstanding Term Loans of the respective Tranche or
Tranches) of, and in each case (except for the replacement of only the
outstanding Term Loans of one or more Tranches of the respective Lender)
participations in Letters of Credit by, the Replaced Lender and, in
connection therewith, shall pay to (x) the Replaced Lender in respect
thereof an amount equal to the sum (without duplication) of (A) an amount
equal to the principal of, and all accrued interest on, all outstanding
Loans (or, in the case of the replacement of only (I) the Revolving Loan
Commitment, the outstanding Revolving Loans or (II) the Term Loans of one
or more Tranches, the outstanding Term Loans of such Tranche or Tranches)
of the Replaced Lender, (B) except in the case of the replacement of only
the outstanding Term Loans of one or more Tranches of a Replaced Lender,
an amount equal to all Unpaid Drawings that have been funded by (and not
reimbursed to) such Replaced Lender, together with all then unpaid
interest with respect thereto at such time and (C) an amount equal to all
accrued, but
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theretofore unpaid, Fees owing to the Replaced Lender (but only with
respect to the relevant Tranche, in the case of the replacement of
less than all Tranches of Loans then held by the respective Replaced
Lender) pursuant to Section 3.01, (y) except in the case of the
replacement of only the outstanding Term Loans of one or more Tranches
of a Replaced Lender, the respective Issuing Bank n amount equal to
such Replaced Lender's Adjusted Percentage (for this purpose,
determined as if the adjustment described in clause (y) of the
immediately succeeding sentence had been made with respect to such
Replaced Lender) of any Unpaid Drawing (which at such time remains an
Unpaid Drawing) to the extent such amount was not theretofore funded
by such Replaced Lender and (z) in the case of any replacement of
Revolving Loan Commitments, the Swingline Lender an amount equal to
such Replaced Lender's Adjusted Percentage of any Mandatory Borrowing
to the extent such amount was not theretofore funded by such Replaced
Lender; and
(ii) all obligations of the Borrower owing to the Replaced
Lender (other than those (a) specifically described in clause (i) above
in respect of which the assignment purchase price has been, or is
concurrently being, paid or (b) relating to any Tranche of Loans and/or
Commitments of the respective Replaced Lender which will remain
outstanding after giving effect to the respective replacement) 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, the recordation of
the assignment on the Register by the Administrative Agent pursuant to Section
13.17 and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Note or Notes executed by the Borrower,
(x) the Replacement Lender shall become a Lender hereunder and, unless the
respective Replaced Lender continues to have outstanding Term Loans and/or a
Revolving Loan Commitment hereunder, the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification provisions
under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05,
4.04, 13.01 and 13.06), which shall survive as to such Replaced Lender and (y)
in the case of a replacement of a Defaulting Lender with a Non-Defaulting
Lender, the Adjusted Percentages of the Lenders shall be automatically adjusted
at such time to give effect to such replacement (and to give effect to the
replacement of a Defaulting Lender with one or more Non-Defaulting Lenders).
SECTION 2. LETTERS OF CREDIT.
2.01 LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request that any Issuing Bank
issue, at any time and from time to time after the Initial Borrowing Date and
the Contribution Effective Time and prior to the date which is 30 days prior to
the Revolving Loan Maturity Date, (x) for the account of the Borrower and for
the benefit of any holder (or any trustee, agent or other similar representative
for any such holders) of L/C Supportable Indebtedness of the Borrower or any of
its Subsidiaries, an irrevocable sight standby letter of credit, in a form
customarily used by such Issuing Bank or in such other form as has been approved
by such Issuing Bank (each such standby letter of credit, a
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"STANDBY LETTER OF CREDIT") in support of such L/C Supportable Indebtedness
and (y) for the account of the Borrower and for the benefit of sellers of
goods or materials to the Borrower or any of its Subsidiaries, an irrevocable
sight commercial letter of credit in a form customarily used by such Issuing
Bank or in such other form as has been approved by such Issuing Bank (each
such commercial letter of credit, a "TRADE LETTER OF CREDIT", and each such
Trade Letter of Credit and each Standby Letter of Credit, a "LETTER OF
CREDIT") in support of trade obligations of the Borrower and its Subsidiaries
that arise in the ordinary course of business.
(b) Subject to the terms and conditions contained herein,
each Issuing Bank hereby agrees that it will, at any time and from time to time
on or after the Initial Borrowing Date and the Contribution Effective Time and
prior to the date which is 30 days prior to the Revolving Loan Maturity Date,
following its receipt of the respective Letter of Credit Request, issue for the
account of the Borrower one or more Letters of Credit (x) in the case of Standby
Letters of Credit, in support of such L/C Supportable Indebtedness of the
Borrower or any of its Subsidiaries as is permitted to remain outstanding
without giving rise to a Default or Event of Default hereunder and (y) in the
case of Trade Letters of Credit, in support of sellers of goods or materials as
referenced in Section 2.01(a), PROVIDED that the respective Issuing Bank shall
be under no obligation to issue any Letter of Credit of the types described
above if at the time of such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or restrain
such Issuing Bank from issuing such Letter of Credit or any requirement
of law applicable to such Issuing Bank or any request or directive
(whether or not having the force of law) from any governmental authority
with jurisdiction over such Issuing Bank shall prohibit, or request that
such Issuing Bank refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon
such Issuing Bank with respect to such Letter of Credit any restriction
or reserve or capital requirement (for which such Issuing Bank is not
otherwise compensated) not in effect on the date hereof, or any
unreimbursed loss, cost or expense which was not applicable, in effect or
known to such Issuing Bank as of the date hereof and which such Issuing
Bank in good xxxxx xxxxx material to it; or
(ii) such Issuing Bank shall have received notice from any
Lender prior to the issuance of such Letter of Credit of the type
described in the second sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $50,000,000 or (y) when added to (I) the aggregate principal
amount of all Revolving Loans made by Non-Defaulting Lenders and then
outstanding and (II) the principal amount of all Swingline Loans then
outstanding, an amount equal to the Adjusted Total Available Revolving Loan
Commitment at such time, (ii) each Letter of Credit shall be denominated in
Dollars, (iii) each Letter of Credit shall by its terms terminate (x) in the
case of Standby Letters of Credit, on or before the earlier of (A) the date
which occurs 12 months
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after the date of the issuance thereof (although any such Standby Letter of
Credit may be automatically extendible for successive periods of up to 12
months, but not beyond the 5th Business Day prior to the Revolving Loan
Maturity Date, on terms acceptable to the Issuing Bank thereof) and (B) the
5th Business Day prior to the Revolving Loan Maturity Date, and (y) in the
case of Trade Letters of Credit, on or before the earlier of (A) the date
which occurs 180 days after the date of issuance thereof and (B) the date
which is 10 days prior to the Revolving Loan Maturity Date and (iv) the
Stated Amount of each Letter of Credit upon issuance shall be not less than
$50,000 or such lesser amount as is acceptable to the respective Issuing Bank.
(d) Notwithstanding the foregoing, in the event a Lender
Default exists, no Issuing Bank shall be required to issue any Letter of Credit
unless the respective Issuing Bank has entered into arrangements satisfactory to
it and the Borrower to eliminate such Issuing Bank's risk with respect to the
participation in Letters of Credit of the Defaulting Lender or Lenders,
including by cash collateralizing such Defaulting Lender or Lenders' Adjusted
Percentage of the Letter of Credit Outstandings, as the case may be.
2.02 LETTER OF CREDIT REQUESTS, ETC. (a) Whenever the Borrower
desires that a Letter of Credit be issued for its account, the Borrower shall
give the Administrative Agent and the respective Issuing Bank written notice
thereof prior to 12:00 Noon (New York time) at least three Business Days' (or
such shorter period as is acceptable to the respective Issuing Bank) prior to
the proposed date of issuance (which shall be a Business Day). Each notice
shall be in the form of Exhibit C (each, a "LETTER OF CREDIT REQUEST").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.01(c). Unless the respective Issuing Bank has received notice
from any Lender before it issues a Letter of Credit that one or more of the
conditions specified in Section 5 or Section 6, as applicable, are not then
satisfied, or that the issuance of such Letter of Credit would violate Section
2.01(c), then such Issuing Bank shall issue the requested Letter of Credit for
the account of the Borrower in accordance with such Issuing Bank's usual and
customary practices.
(c) Each Issuing Bank shall, promptly after each issuance of,
or amendment or modification to, a Standby Letter of Credit issued by it, give
the Administrative Agent (and the Administrative Agent shall in turn promptly
forward same to each Participant and the Borrower) written notice of the
issuance of, or amendment or modification to, such Standby Letter of Credit,
which notice shall be accompanied by a copy of the Standby Letter of Credit or
Standby Letters of Credit issued by it and each such amendment or modification
thereto.
(d) Each Issuing Bank (other than Xxxxxx Guaranty) shall
deliver to the Administrative Agent, promptly on the first Business Day of each
week, by facsimile transmission, the aggregate daily Stated Amount available to
be drawn under the outstanding Trade Letters of Credit issued by such Issuing
Bank for the previous week. The Administrative Agent shall, within 10 days
after the last Business Day of each calendar month, deliver to each Participant
a report setting forth for such preceding calendar month the aggregate daily
Stated
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Amount available to be drawn under all outstanding Trade Letters of Credit
during such calendar month.
2.03 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by any Issuing Bank of any Letter of Credit, such Issuing Bank shall be
deemed to have sold and transferred to each Lender with a Revolving Loan
Commitment, other than such Issuing Bank (each such Lender, in its capacity
under this Section 2.03, a "PARTICIPANT"), and each such Participant shall be
deemed irrevocably and unconditionally to have purchased and received from such
Issuing Bank, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's Adjusted Percentage, in such
Letter of Credit, each drawing made thereunder and the obligations of the
Borrower under this Agreement with respect thereto (although Letter of Credit
Fees shall be payable directly to the Administrative Agent for the account of
the Participants as provided in Section 3.01(b) and the Participants shall have
no right to receive any portion of any Facing Fees with respect to such Letters
of Credit), and any security therefor or guaranty pertaining thereto. Upon any
change in the Revolving Loan Commitments or Adjusted Percentages of the Lenders
pursuant to Section 1.13 or 13.04 or as a result of a Lender Default, it is
hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings, there shall be an automatic adjustment to the participations pursuant
to this Section 2.03 to reflect the new Adjusted Percentages of the assignor and
assignee Lender or of all Lenders with Revolving Loan Commitments, as the case
may be.
(b) In determining whether to pay under any Letter of Credit,
no Issuing Bank shall have any obligation relative to the other Lenders other
than to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Subject to
the provisions of the immediately preceding sentence, any action taken or
omitted to be taken by any Issuing Bank under or in connection with any Letter
of Credit if taken or omitted in the absence of gross negligence or willful
misconduct, as determined by a court of competent jurisdiction, shall not create
for such Issuing Bank any resulting liability to any Credit Party or any Lender.
(c) In the event that any Issuing Bank makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to such Issuing Bank pursuant to Section 2.04(a), such Issuing
Bank shall promptly notify the Administrative Agent, which shall promptly notify
each Participant, of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Bank the amount of such Participant's
Adjusted Percentage of such unreimbursed payment in Dollars and in same day
funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York
time) on any Business Day, any Participant required to fund a payment under a
Letter of Credit, such Participant shall make available to such Issuing Bank in
Dollars such Participant's Adjusted Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such Participant
shall not have so made its Adjusted Percentage of the amount of such payment
available to such Issuing Bank, such Participant agrees to pay to such Issuing
Bank, forthwith on demand such amount, together with interest thereon, for each
day from such date until the date such amount is paid to such Issuing Bank at
the overnight Federal Funds Rate. The failure of any Participant to
-20-
make available to such Issuing Bank its Adjusted Percentage of any payment
under any Letter of Credit shall not relieve any other Participant of its
obligation hereunder to make available to such Issuing Bank its Adjusted
Percentage of any Letter of Credit on the date required, as specified above,
but no Participant shall be responsible for the failure of any other
Participant to make available to such Issuing Bank such other Participant's
Adjusted Percentage of any such payment.
(d) Whenever any Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Bank shall forward such
payment to the Administrative Agent, which in turn shall distribute to each
Participant which has paid its Adjusted Percentage thereof, in Dollars and in
same day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the
respective participations.
(e) Upon the request of any Participant, each Issuing Bank
shall furnish to such Participant copies of any Letter of Credit issued by it
and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to
each Issuing Bank with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Issuing Bank, any Participant, or
any other Person, whether in connection with this Agreement, any Letter
of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
or any of its Subsidiaries and the beneficiary named in any such Letter
of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
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2.04 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The
Borrower hereby agrees to reimburse the respective Issuing Bank, by making
payment to the Administrative Agent in immediately available funds at the
Payment Office, for any payment or disbursement made by such Issuing Bank under
any Letter of Credit (each such amount, so paid until reimbursed, an "UNPAID
DRAWING"), immediately after, and in any event on the date of such payment or
disbursement, with interest on the amount so paid or disbursed by such Issuing
Bank, to the extent not reimbursed prior to 12:00 Noon (New York time) on the
date of such payment or disbursement, from and including the date paid or
disbursed to but excluding the date such Issuing Bank was reimbursed by the
Borrower therefor at a rate per annum which shall be the Base Rate in effect
from time to time PLUS the Applicable Margin for Revolving Loans maintained as
Base Rate Loans as in effect from time to time, such interest to be payable on
demand; PROVIDED, HOWEVER, to the extent such amounts are not reimbursed prior
to 12:00 Noon (New York time) on the third Business Day following receipt of
notice of such payment or disbursement, interest shall thereafter accrue on the
amounts so paid or disbursed by such Issuing Bank (and until reimbursed by the
Borrower) at a rate per annum which shall be the Base Rate in effect from time
to time PLUS the Applicable Margin for Revolving Loans maintained as Base Rate
Loans as in effect from time to time PLUS 2%, in each such case, with interest
to be payable on demand. The respective Issuing Bank shall give the Borrower
prompt notice of each Drawing under any Letter of Credit issued by it, PROVIDED
that the failure of, or delay in, giving any such notice shall in no way affect,
impair or diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04
to reimburse the respective Issuing Bank with respect to drawings on Letters of
Credit (each, a "DRAWING") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower or any of its
Subsidiaries may have or have had against any Lender (including in its capacity
as issuer of the Letter of Credit or as Participant), or any nonapplication or
misapplication by the beneficiary of the proceeds of such Drawing, the
respective Issuing Bank's only obligation to the Borrower being to confirm that
any documents required to be delivered under such Letter of Credit appear to
have been delivered and that they appear to substantially comply on their face
with the requirements of such Letter of Credit. Subject to the provisions of
the immediately preceding sentence, any action taken or omitted to be taken by
any Issuing Bank under or in connection with any Letter of Credit if taken or
omitted in the absence of gross negligence or willful misconduct as determined
by a court of competent jurisdiction, shall not create for such Issuing Bank any
resulting liability to the Borrower or any other Credit Party.
2.05 INCREASED COSTS. If at any time after the date of this
Agreement, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Issuing Bank or
any Participant with any request or directive by any such authority (whether or
not having the force of law), shall either (i) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement against
letters of credit issued by any Issuing Bank or participated in by any
Participant, or (ii) impose on any Issuing Bank or any Participant any other
conditions relating, directly or indirectly, to this Agreement, any Letter of
Credit or such Participant's participation
-22-
therein; and the result of any of the foregoing is to increase the cost to
any Issuing Bank or any Participant of issuing, maintaining or participating
in any Letter of Credit, or reduce the amount of any sum received or
receivable by any Issuing Bank or any Participant hereunder or reduce the
rate of return on its capital with respect to Letters of Credit (except for
changes in the rate of tax on, or determined by reference to, the net income
or profits of such Issuing Bank or such Participant, or any franchise tax
based on the net income or profits of such Issuing Bank or Participant, in
either case pursuant to the laws of the United States of America, the
jurisdiction in which it is organized or in which its principal office or
applicable lending office is located or any subdivision thereof or therein),
but without duplication of any amounts payable in respect of Taxes pursuant
to Section 4.04(a), then, upon demand to the Borrower by such Issuing Bank or
any Participant (a copy of which demand shall be sent by such Issuing Bank or
such Participant to the Administrative Agent) and subject to the provisions
of Section 13.15 (to the extent applicable), the Borrower shall pay to such
Issuing Bank or such Participant such additional amount or amounts as will
compensate such Issuing Bank or such Participant for such increased cost or
reduction in the amount receivable or reduction on the rate of return on its
capital. Any Issuing Bank or any Participant, upon determining that any
additional amounts will be payable pursuant to this Section 2.05, will give
prompt written notice thereof to the Borrower, which notice shall include a
certificate submitted to the Borrower by such Issuing Bank or such
Participant (a copy of which certificate shall be sent by such Issuing Bank
or such Participant to the Administrative Agent), setting forth in reasonable
detail the basis for and the calculation of such additional amount or amounts
necessary to compensate such Issuing Bank or such Participant. The
certificate required to be delivered pursuant to this Section 2.05 shall, if
delivered in good faith and absent manifest error, be final and conclusive
and binding on the Borrower, although the failure to deliver any such
certificate shall not release or diminish the Borrower's obligations to pay
additional amounts pursuant to this Section 2.05 upon subsequent receipt of
such certificate.
SECTION 3. COMMITMENT COMMISSION; FEES; REDUCTIONS OF COMMITMENT.
3.01 FEES. (a) The Borrower shall pay the Administrative
Agent for distribution to each Non-Defaulting Lender with a Revolving Loan
Commitment a commitment commission (the "COMMITMENT COMMISSION") for the
period from the Effective Date to and including the Revolving Loan Maturity
Date (or such earlier date as the Total Revolving Loan Commitment shall have
been terminated), computed at a rate for each day equal to the relevant
Applicable Margin then in effect on the daily average Unutilized Revolving
Loan Commitment of such Non-Defaulting Lender. Accrued Commitment Commission
shall be due and payable quarterly in arrears on each Quarterly Payment Date
and on the Revolving Loan Maturity Date (or such earlier date upon which the
Total Revolving Loan Commitment is terminated).
(b) The Borrower shall pay to the Administrative Agent for
PRO RATA distribution to each Non-Defaulting Lender with a Revolving Loan
Commitment (based on their respective Adjusted Percentages), a fee in respect of
each Letter of Credit issued hereunder (the "LETTER OF CREDIT FEE"), for the
period from and including the date of issuance of such Letter of Credit to and
including the termination of such Letter of Credit, computed at a rate per annum
equal to the Applicable Margin then in effect for Revolving Loans maintained as
Eurodollar
-23-
Loans on the daily average Stated Amount of such Letter of Credit. Accrued
Letter of Credit Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and upon the first day on or after the termination of
the Total Revolving Loan Commitment upon which no Letters of Credit remain
outstanding.
(c) The Borrower shall pay to each Issuing Bank, for its own
account, a facing fee in respect of each Letter of Credit issued by such Issuing
Bank hereunder (the "FACING FEE"), for the period from and including the date of
issuance of such Letter of Credit to and including the termination of such
Letter of Credit, computed at a rate equal to 1/4 of 1% per annum of the daily
average Stated Amount of such Letter of Credit (or such lesser percentage as
shall be agreed by the respective Issuing Bank). Facing Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the date upon
which the Total Revolving Loan Commitment has been terminated and such Letter of
Credit has been terminated in accordance with its terms.
(d) The Borrower shall pay to each Issuing Bank, upon each
payment under, issuance of, or amendment to, any Letter of Credit issued by such
Issuing Bank, such amount as shall at the time of such event be the
administrative charge which such Issuing Bank is generally imposing in
connection with such occurrence with respect to letters of credit issued by it.
(e) PCA shall pay to each Agent, for its own account, such
other fees as have been agreed to in writing by PCA Holdings and/or PCA and such
Agent.
3.02 VOLUNTARY TERMINATION OR REDUCTION OF UNUTILIZED REVOLVING
LOAN COMMITMENTS. (a) Upon at least three Business Days' prior notice to the
Administrative Agent at its Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Lenders), the Borrower shall have the
right, at any time or from time to time, without premium or penalty, to
terminate the Total Unutilized Revolving Loan Commitment, in whole or in part,
in integral multiples of $5,000,000 in the case of partial reductions to the
Total Unutilized Revolving Loan Commitment, PROVIDED that (i) each such
reduction shall apply proportionately to permanently reduce the Revolving Loan
Commitment of each Lender with such a Commitment and (ii) no reduction to the
Total Unutilized Revolving Loan Commitment shall be in an amount which would
cause the Revolving Loan Commitment of any Lender to be reduced (as required by
preceding clause (i)) by an amount which exceeds the remainder of (x) the
Unutilized Revolving Loan Commitment of such Lender as in effect immediately
before giving effect to such reduction MINUS (y) such Lender's Adjusted
Percentage of the aggregate principal amount of Swingline Loans then
outstanding. If at the time of any reduction to the Total Unutilized Revolving
Loan Commitment pursuant to the preceding provisions of this Section 3.02(a) the
amount of the Blocked Commitment is in excess of $0, the Borrower may specify
(in its notice of the reduction to the Total Unutilized Revolving Loan
Commitment pursuant to this Section 3.02(a)) that the amount of the reduction
shall also apply to reduce the amount of the Blocked Commitment as then in
effect (in which case the amount of the Blocked Commitment shall be so reduced)
by an amount equal to the lesser of (x) the amount of the Blocked Commitment as
in effect prior to the reduction pursuant to this sentence and (y) the amount of
the reduction to the Total Unutilized Revolving Loan Commitment then being
effected to this
-24-
Section 3.02(a); PROVIDED that if at any time the amount of the Blocked
Commitment is in excess of $0 and, as a result of any reduction to the Total
Unutilized Revolving Loan Commitment pursuant to this Section 3.02(a), any
repayment of Loans or establishment of cash collateral arrangements would be
required pursuant to Section 4.02(a), the Borrower shall make any such
required repayment or establish such cash collateral arrangements
concurrently with any such reduction.
(b) In the event of certain refusals by a Lender to consent
to certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as provided in
Section 13.12(b), the Borrower may, subject to the requirements of said Section
13.12(b), upon five Business Days' prior written notice to the Administrative
Agent at its Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), terminate all of the Revolving Loan Commitment
of such Lender so long as all Loans, together with accrued and unpaid interest,
fees and all other amounts, owing to such Lender (including all amounts, if any,
owing pursuant to Section 1.11 but excluding amounts owing in respect of any
Tranche of Term Loans maintained by such Lender, if such Term Loans are not
being repaid pursuant to Section 13.12(b)) are repaid concurrently with the
effectiveness of such termination (at which time Schedule I shall be deemed
modified to reflect such changed amounts), and at such time, unless the
respective Lender continues to have outstanding Term Loans hereunder, such
Lender shall no longer constitute a "Lender" for purposes of this Agreement,
except with respect to indemnification provisions under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and
13.06), which shall survive as to such repaid Lender.
3.03 MANDATORY REDUCTION OF COMMITMENTS. (a) The Total
Commitments (and the Tranche A Term Loan Commitment, the Tranche B Term Loan
Commitment, the Tranche C Term Loan Commitment and the Revolving Loan Commitment
of each Lender) shall terminate in its entirety on June 30, 1999 unless the
Initial Borrowing Date shall have occurred on or prior to such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche A Term Loan Commitment (and the
Tranche A Term Loan Commitment of each Lender with such a Commitment) shall (i)
terminate in its entirety on the Initial Borrowing Date (after giving effect to
the making of the Tranche A Term Loans on such date) and (ii) prior to the
termination of the Total Tranche A Term Loan Commitment as provided in clause
(i) above, be reduced from time to time to the extent required by Section 4.02.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche B Term Loan Commitment (and the
Tranche B Term Loan Commitment of each Lender with such a Commitment) shall (i)
terminate in its entirety on the Initial Borrowing Date (after giving effect to
the making of the Tranche B Term Loans on such date) and (ii) prior to the
termination of the Total Tranche B Term Loan Commitment as provided in clause
(i) above, be reduced from time to time to the extent required by Section 4.02.
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(d) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Tranche C Term Loan
Commitment (and the Tranche C Term Loan Commitment of each Lender with such a
Commitment) shall (i) terminate in its entirety on the Initial Borrowing Date
(after giving effect to the making of the Tranche C Term Loans on such date)
and (ii) prior to the termination of the Total Tranche C Term Loan Commitment
as provided in clause (i) above, be reduced from time to time to the extent
required by Section 4.02.
(e) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Revolving Loan Commitment
(and the Revolving Loan Commitment of each Lender with such a Commitment)
shall terminate in its entirety on the Revolving Loan Maturity Date.
(f) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, on each date after the Initial
Borrowing Date upon which a mandatory repayment of Term Loans pursuant to any
of Sections 4.02(e) through (j), inclusive, is required (and exceeds in
amount the aggregate principal amount of Term Loans then outstanding) or
would be required if Term Loans were then outstanding, the Total Revolving
Loan Commitment shall be permanently reduced by the amount, if any, by which
the amount required to be applied pursuant to said Sections (determined as if
an unlimited amount of Term Loans were actually outstanding) exceeds the
aggregate principal amount of Term Loans then outstanding.
(g) In addition to any other mandatory commitment reduction
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Lender with such a Commitment) shall
terminate in its entirety at 5:00 P.M. (New York time) on the Initial
Borrowing Date unless the Contribution Effective Time shall have occurred
prior to such time.
(h) Each reduction to the Total Tranche A Term Loan
Commitment, the Total Tranche B Term Loan Commitment, the Total Tranche C
Term Loan Commitment and the Total Revolving Loan Commitment pursuant to this
Section 3.03 shall be applied proportionately to reduce the Tranche A Term
Loan Commitment, the Tranche B Term Loan Commitment, the Tranche C Term Loan
Commitment or the Revolving Loan Commitment, as the case may be, of each
Lender with such a Commitment.
SECTION 4. PREPAYMENTS; PAYMENTS; TAXES.
4.01 VOLUNTARY PREPAYMENTS. The Borrower shall have the right
to prepay the Loans, without premium or penalty except as provided by law, in
whole or in part, at any time and from time to time on the following terms
and conditions: (i) the Borrower shall give the Administrative Agent prior
to 12:00 Noon (New York time) at its Notice Office (x) at least one Business
Day's prior written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay Term Loans or Revolving Loans maintained as
Base Rate Loans, (y) same day prior written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay Swingline Loans and
(z) at least three Business Days' (or in the case of a prepayment of
Eurodollar Loans at the end of the Interest Period therefor, one Business
Day's) prior written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay Eurodollar
-26-
Loans, whether Tranche A Term Loans, Tranche B Term Loans, Tranche C Term
Loans, Revolving Loans or Swingline Loans shall be prepaid, the amount of
such prepayment, the Types of Loans to be prepaid and, in the case of
Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which
made, which notice the Administrative Agent shall (except in the case of
Swingline Loans) promptly transmit to each of the Lenders; (ii) each
prepayment shall be in an aggregate principal amount of at least $1,000,000
(or $50,000 in the case of Swingline Loans) and, in each case, if greater, in
integral multiples of $100,000 (or $50,000 in the case of Swingline Loans)
(or, in each case, such lesser amount of a Borrowing which is outstanding),
PROVIDED that if any partial prepayment of Eurodollar Loans made pursuant to
any Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, then such Borrowing may not be continued as a Borrowing of
Eurodollar Loans and any election of an Interest Period with respect thereto
given by the Borrower shall have no force or effect; (iii) at the time of any
prepayment of Eurodollar Loans pursuant to this Section 4.01 on any date
other than the last day of the Interest Period applicable thereto, the
Borrower shall pay the amounts required pursuant to Section 1.11; (iv) in the
event of certain refusals by a Lender as provided in Section 13.12(b) to
consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Required Lenders,
the Borrower may, upon five Business Days' prior written notice to the
Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Lenders) repay all Loans,
together with accrued and unpaid interest, Fees, and other amounts owing to
such Lender (or owing to such Lender with respect to each Tranche which gave
rise to the need to obtain such Lender's individual consent) in accordance
with said Section 13.12(b) so long as (A) in the case of the repayment of
Revolving Loans of any Lender pursuant to this clause (iv), the Revolving
Loan Commitment of such Lender is terminated concurrently with such repayment
(at which time Schedule I shall be deemed modified to reflect the changed
Revolving Loan Commitments) and (B) the consents required by Section 13.12(b)
in connection with the repayment pursuant to this clause (iv) have been
obtained; (v) except as expressly provided in the preceding clause (iv), each
voluntary prepayment of Term Loans pursuant to this Section 4.01 shall be
applied, subject to modification of such application as set forth in Section
4.02(o), to the Tranche A Term Loans, Tranche B Term Loans and the Tranche C
Term Loans on a PRO RATA basis (based upon the then outstanding principal
amount of Tranche A Term Loans, Tranche B Term Loans and Tranche C Term
Loans); (vi) except as expressly provided in the preceding clause (iv), each
prepayment in respect of any Loans made pursuant to a Borrowing shall be
applied PRO RATA among the Loans comprising such Borrowing; PROVIDED that at
the Borrower's election in connection with any prepayment of Revolving Loans
pursuant to this Section 4.01, such prepayment shall not be applied to any
Revolving Loan of a Defaulting Lender; and (vii) each prepayment of principal
of any Tranche of Term Loans pursuant to this Section 4.01 shall be applied
to reduce the then remaining Scheduled Repayments of the respective Tranche
of Term Loans PRO RATA based upon the then remaining principal amounts of the
Scheduled Repayments of the respective Tranche after giving effect to all
prior reductions thereto; PROVIDED that unless the Borrower notifies the
Administrative Agent in writing that it does not desire that prepayments be
applied as provided in this proviso, any such prepayment of the respective
Tranche of Term Loans shall first be applied in direct order of maturity to
those Scheduled Repayments of the respective Tranche which are due within 24
months after the date of such prepayment (based upon the then
-27-
remaining principal amounts of such Scheduled Repayments after giving effect
to all prior reductions thereto), with any excess amount of such prepayment
to be applied to the then remaining Scheduled Repayments of the respective
Tranche of Term Loans on a PRO RATA basis as otherwise provided in this
clause (vii) above.
4.02 MANDATORY REPAYMENTS AND COMMITMENT REDUCTIONS. (a)(i)
On any date on which the sum of the aggregate outstanding principal amount of
the Revolving Loans made by Non-Defaulting Lenders, the outstanding principal
amount of the Swingline Loans and the Letter of Credit Outstandings on such
date exceeds the Adjusted Total Available Revolving Loan Commitment as then
in effect, the Borrower shall prepay on such date the principal of Swingline
Loans and, after the Swingline Loans have been repaid in full, Revolving
Loans of Non-Defaulting Lenders in an amount equal to such excess. If, after
giving effect to the prepayment of all outstanding Swingline Loans and all
outstanding Revolving Loans of Non-Defaulting Lenders, the aggregate amount
of the Letter of Credit Outstandings exceeds the Adjusted Total Available
Revolving Loan Commitment as then in effect, the Borrower shall pay to the
Administrative Agent at the Payment Office on such date an amount in cash
and/or Cash Equivalents equal to the amount of such excess (up to a maximum
amount equal to the Letter of Credit Outstandings at such time), such cash
and/or Cash Equivalents to be held as security for all obligations of the
Borrower to Non-Defaulting Lenders hereunder in a cash collateral account to
be established by the Administrative Agent pursuant to a cash collateral
agreement to be entered into in form and substance reasonably satisfactory to
the Administrative Agent.
(ii) On any date on which the aggregate outstanding
principal amount of the Revolving Loans made by any Defaulting Lender exceeds
the Revolving Loan Commitment of such Defaulting Lender, the Borrower shall
prepay on such date principal of Revolving Loans of such Defaulting Lender in
an amount equal to such excess.
(b) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date set forth
below, the Borrower shall be required to repay that principal amount of
Tranche A Term Loans, to the extent then outstanding, as is set forth
opposite such date (each such repayment, as the same may be reduced as
provided in Sections 4.01 and 4.02(k), a "TRANCHE A SCHEDULED REPAYMENT," and
each such date, a "TRANCHE A SCHEDULED REPAYMENT DATE"):
Tranche A
Scheduled Repayment Date Amount
------------------------ ------
September 30, 1999 $8,000,000
December 31, 1999 $8,000,000
March 31, 2000 $10,000,000
June 30, 2000 $10,000,000
September 30, 2000 $10,000,000
December 31, 2000 $10,000,000
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March 31, 2001 $15,000,000
June 30, 2001 $15,000,000
September 30, 2001 $15,000,000
December 31, 2001 $15,000,000
March 31, 2002 $22,500,000
June 30, 2002 $22,500,000
September 30, 2002 $22,500,000
December 31, 2002 $22,500,000
March 31, 2003 $25,000,000
June 30, 2003 $25,000,000
September 30, 2003 $25,000,000
December 31, 2003 $25,000,000
March 31, 2004 $30,000,000
June 30, 2004 $30,000,000
September 30, 2004 $30,000,000
December 31, 2004 $30,000,000
Tranche A Term Loan Maturity Date $34,000,000
(c) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date set forth
below, the Borrower shall be required to repay that principal amount of
Tranche B Term Loans, to the extent then outstanding, as is set forth
opposite such date (each such repayment, as the same may be reduced as
provided in Sections 4.01 and 4.02(k), a "TRANCHE B SCHEDULED REPAYMENT," and
each such date, a "TRANCHE B SCHEDULED REPAYMENT DATE"):
Tranche B
Scheduled Repayment Date Amount
------------------------ ------
September 30, 1999 $937,500
December 31, 1999 $937,500
March 31, 2000 $937,500
June 30, 2000 $937,500
September 30, 2000 $937,500
December 31, 2000 $937,500
March 31, 2001 $937,500
June 30, 2001 $937,500
September 30, 2001 $937,500
December 31, 2001 $937,500
March 31, 2002 $937,500
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June 30, 2002 $937,500
September 30, 2002 $937,500
December 31, 2002 $937,500
March 31, 2003 $937,500
June 30, 2003 $937,500
September 30, 2003 $937,500
December 31, 2003 $937,500
March 31, 2004 $937,500
June 30, 2004 $937,500
September 30, 2004 $937,500
December 31, 2004 $937,500
March 31, 2005 $937,500
June 30, 2005 $937,500
September 30, 2005 $937,500
December 31, 2005 $937,500
March 31, 2006 $937,500
June 30, 2006 $87,421,875
September 30, 2006 $87,421,875
December 31, 2006 $87,421,875
Tranche B Term Loan Maturity Date $87,421,875
(d) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date set forth
below, the Borrower shall be required to repay that principal amount of
Tranche C Term Loans, to the extent then outstanding, as is set forth
opposite such date (each such repayment, as the same may be reduced as
provided in Sections 4.01 and 4.02(k), a "TRANCHE C SCHEDULED REPAYMENT," and
each such date, a "TRANCHE C SCHEDULED REPAYMENT DATE"):
Tranche C
Scheduled Repayment Date Amount
------------------------ ------
September 30, 1999 $937,500
December 31, 1999 $937,500
March 31, 2000 $937,500
June 30, 2000 $937,500
September 30, 2000 $937,500
December 31, 2000 $937,500
March 31, 2001 $937,500
June 30, 2001 $937,500
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September 30, 2001 $937,500
December 31, 2001 $937,500
March 31, 2002 $937,500
June 30, 2002 $937,500
September 30, 2002 $937,500
December 31, 2002 $937,500
March 31, 2003 $937,500
June 30, 2003 $937,500
September 30, 2003 $937,500
December 31, 2003 $937,500
March 31, 2004 $937,500
June 30, 2004 $937,500
September 30, 2004 $937,500
December 31, 2004 $937,500
March 31, 2005 $937,500
June 30, 2005 $937,500
September 30, 2005 $937,500
December 31, 2005 $937,500
March 31, 2006 $937,500
June 30, 2006 $937,500
September 30, 2006 $937,500
December 31, 2006 $937,500
March 31, 2007 $937,500
June 30, 2007 $86,484,375
September 30, 2007 $86,484,375
December 31, 2007 $86,484,375
Tranche C Term Loan Maturity Date $86,484,375
(e) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which the Borrower or any of its Subsidiaries receives
any proceeds from any sale or issuance of equity of (or cash capital
contributions to) the Borrower or any of its Subsidiaries (other than (v) the
Secondary Common Equity Issuance, (w) issuances of Borrower Common Stock to
management of the Borrower and its Subsidiaries (including, without
limitation, as a result of the exercise of options with respect to Borrower
Common Stock), (x) the Preferred Equity Issuance, (y) the issuance of
Exchange Borrower PIK Preferred Stock in accordance with the requirements of
the definition thereof and (z) the issuance of the Preferred Stock referred
to in clause (iii) of the first sentence of Section 7B.14 on the Initial
Borrowing Date) an amount equal to 50% of the cash proceeds of the respective
sale or issuance (net of underwriting discounts and commissions and other
direct
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costs associated therewith, including, without limitation, legal fees and
expenses) shall be applied as a mandatory repayment of principal of
outstanding Term Loans (or, if the Initial Borrowing Date has not yet
occurred, such amounts shall be applied as a mandatory reduction to the Total
Term Loan Commitment) in accordance with the requirements of Sections 4.02(k)
and (l).
(f) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Effective Date upon which the Borrower or any of its Subsidiaries receives
any proceeds from any incurrence by the Borrower or any of its Subsidiaries
of Indebtedness (other than (x) at any time prior to the Contribution
Effective Time, Indebtedness existing pursuant to this Agreement and the
Subordinated Promissory Notes and (y) at any time thereafter, Indebtedness
permitted to be incurred pursuant to Section 9.04), an amount equal to the
cash proceeds (net of underwriting discounts and commissions and other costs
associated therewith including, without limitation, legal fees and expenses)
of the respective incurrence of Indebtedness shall be applied as a mandatory
repayment of principal of outstanding Term Loans (or, if the Initial
Borrowing Date has not yet occurred, such amounts shall be applied as a
mandatory reduction to the Total Term Loan Commitment) in accordance with the
requirements of Sections 4.02(k) and (l).
(g) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Contribution Effective Time upon which the Borrower or any of its
Subsidiaries receives any Net Asset Sale Proceeds, an amount equal to 100% of
such Net Asset Sale Proceeds shall be applied as a mandatory repayment of
principal of outstanding Term Loans in accordance with the requirements of
Sections 4.02(k) and (l); PROVIDED that:
(I) the Net Asset Sale Proceeds received by the Borrower or any of
its Subsidiaries in connection with a sale or other disposition of a
Converting Plant shall not give rise to a mandatory repayment on the date
of the receipt of such Net Asset Sale Proceeds so long as (i) no Default
or Event of Default shall have occurred and be continuing on the date of
receipt of such Net Asset Sale Proceeds, (ii) the aggregate amount of Net
Asset Sale Proceeds from such sale or other disposition of such
Converting Plant, when added to the aggregate amount of Net Asset Sale
Proceeds from all other sales or dispositions of Converting Plants
consummated in the twelve-month period prior to the respective sale or
disposition of such Converting Plant, does not exceed $60,000,000 and
(iii) the Borrower delivers an officer's certificate to the
Administrative Agent on or before the date of receipt of such Net Asset
Sale Proceeds stating that the conditions set forth in clauses (i) and
(ii) are satisfied, and that an amount equal to such Net Asset Sale
Proceeds shall be used to purchase or invest in other Converting Plants
within one year following the date of receipt of such Net Asset Sale
Proceeds (which certificate shall set forth the estimates of the proceeds
to be so expended, the proposed use of such Net Asset Sale Proceeds and
such other information with respect to such reinvestment as the
Administrative Agent may reasonably request);
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(II) the Net Asset Sale Proceeds received by the Borrower or
any of its Subsidiaries in connection with any Asset Sale (other than
a Timberlands Disposition, any Asset Sale pursuant to a Permitted
Sale-Leaseback Transaction and an Asset Sale constituting a sale or
disposition of a Converting Plant) shall not give rise to a mandatory
repayment on the date of the receipt of such Net Asset Sale Proceeds
so long as (i) no Default or Event of Default shall have occurred and
be continuing on the date of receipt of such Net Asset Sale Proceeds,
(ii) the aggregate amount of Net Asset Sale Proceeds (exclusive of the
Excluded Proceeds) from the Contribution Effective Time to (and
including) the date of receipt of such Net Asset Sale Proceeds does
not exceed 5.0% of Total Relevant Assets (as determined on the last
day of the most recently ended fiscal quarter for which financial
statements have been made available to the Lenders) and (iii) the
Borrower delivers an officer's certificate to the Administrative Agent
on or before the date of receipt of such Net Asset Sale Proceeds
stating that the conditions set forth in clauses (i) and (ii) are
satisfied, and that an amount equal to such Net Asset Sale Proceeds
shall be used to purchase equipment or other productive assets of the
general type used in a Permitted Business (including capital stock of
a corporation engaged in such business) of the Borrower and its
Subsidiaries (such equipment and other assets being "ELIGIBLE ASSETS")
within one year following the date of receipt of such Net Asset Sale
Proceeds (which certificate shall set forth the estimates of the
proceeds to be so expended, the proposed use of such Net Asset Sale
Proceeds and such other information with respect to such reinvestment
as the Administrative Agent may reasonably request); and
(III) up to the Excluded Timberlands Proceeds Maximum Amount of
the Net Asset Sale Proceeds from the Timberlands Disposition (or such
lesser amount of the Net Asset Sale Proceeds from the Timberlands
Disposition as may remain after giving effect to such additional
repayments of Term Loans with such Net Asset Sale Proceeds as may be
required to establish compliance with the Leverage Ratio specified
below) (the amount of any such Net Asset Sale Proceeds excluded from
the repayment requirements of this Section 4.02(g) by virtue of this
clause (III), the "EXCLUDED TIMBERLANDS DISPOSITION PROCEEDS") shall
not give rise to a mandatory repayment on the date of receipt of such
Net Asset Sale Proceeds, so long as (i) no Default or Event of Default
shall have occurred and be continuing on the date of receipt of such
Net Asset Sale Proceeds, (ii) at least $500,000,000 of the Net Asset
Sale Proceeds received by the Borrower and its Subsidiaries from
Timberlands Dispositions have first been applied as a mandatory
repayment of principal of Term Loans as provided in this Section
4.02(g) (without regard to this proviso), (iii) the Leverage Ratio for
the Test Period then most recently ended prior to the Timberland
Dispositions resulting in such Excluded Timberlands Disposition
Proceeds is less than or equal to 4.5:1.0 after giving effect, on a
PRO FORMA Basis, to the sale of all Timberland Properties theretofore
consummated and the Capitalized Lease Obligations and operating lease
obligations, if any, incurred in connection with any leasing
arrangements with respect to Timberland Properties theretofore sold
pursuant to the Timberlands Dispositions, any increase or decrease in
fiber, stumpage or similar costs as a result of the Timberlands
Disposition and the application of such Excluded Timberlands
Disposition Proceeds as contemplated by clause (iv) below (with the
requirements described in preceding clauses (i), (ii) and (iii) being
herein called the
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"TIMBERLANDS DISPOSITION RECAPTURE/RESTRICTED PAYMENTS REQUIREMENTS")
and (iv) the Borrower delivers an officer's certificate to the
Administrative Agent on or before the date of receipt of such Excluded
Timberlands Disposition Proceeds stating that the Timberlands
Disposition Recapture/Restricted Payments Requirements are satisfied
and that such Excluded Timberlands Disposition Proceeds are to be
applied within 60 days of receipt of such Excluded Timberlands
Disposition Proceeds to the cash redemption of, or payment of cash
Dividends in respect of Borrower Common Stock, the cash redemption of
Borrower PIK Preferred Stock and/or the redemption of Senior
Subordinated Notes in accordance with the relevant provisions of this
Agreement;
PROVIDED, that (x) if all or any portion of such Net Asset Sale Proceeds
referred to in preceding clauses (I) and (II) are not so used within the one
year period following the date of the respective receipt of such Net Asset
Sale Proceeds (or, in any such case, if during such one year period the
Borrower delivers to the Administrative Agent an officer's certificate
certifying that the Board of Directors of the Borrower has adopted an
investment plan to so use such portion of such Net Asset Sale Proceeds within
the two year period following the date of the respective receipt of such Net
Asset Sale Proceeds, within such two year period), such remaining portion not
so used shall be applied on the last day of such one year (or two year, as
the case may be) period as a mandatory repayment of principal of outstanding
Term Loans in accordance with the requirements of Sections 4.02(k) and (l)
and (y) if all or any portion of the Excluded Timberlands Disposition
Proceeds are not applied as contemplated by the preceding clause III(iv) by
the 60th day following the receipt of such Excluded Timberlands Disposition
Proceeds, such remaining portion not so used shall be applied on such
Business Day as a mandatory prepayment of principal of outstanding Term Loans
in accordance with the requirements of Section 4.02(k) and (l). The use of
the Net Asset Sale Proceeds pending the reinvestment thereof pursuant to
clause (I) and (II) above shall be subject to Section 4.02(p). If the
Borrower is required to apply any portion of asset sale proceeds to prepay or
offer to prepay Indebtedness evidenced by the Senior Subordinated Notes
(under the terms of the Senior Subordinated Notes Indenture), then
notwithstanding anything contained in this Agreement to the contrary the
Borrower shall apply such asset sale proceeds as a mandatory prepayment of
the principal of outstanding Term Loans in accordance with requirements of
Sections 4.02(k) and (l).
(h) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, within 10 days following
each date after the Contribution Effective Time on which the Borrower or any
of its Subsidiaries receives any Net Insurance/Condemnation Proceeds, an
amount equal to 100% of such Net Insurance/Condemnation Proceeds shall be
applied as a mandatory repayment of principal of outstanding Term Loans in
accordance with the requirements of Sections 4.02(k) and (l); PROVIDED that
the Net Insurance/Condemnation Proceeds received by the Borrower or any of
its Subsidiaries shall not give rise to a mandatory repayment within such 10
day period so long as (i) no Default or Event of Default shall have occurred
and be continuing and (ii) to the extent that (a) the amount of such Net
Insurance/Condemnation Proceeds, together with other cash available to the
Borrower and its Subsidiaries and permitted to be spent by them on Capital
Expenditures during the relevant period, equals at least 100% of the cost of
replacement or restoration of the properties or assets in respect of which
such Net Insurance/Condemnation Proceeds were paid as determined by the
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Borrower and as supported by such estimates or bids from contractors or
subcontractors or such other supporting information as the Administrative
Agent may reasonably accept, (b) the Borrower delivers an officer's
certificate to the Administrative Agent within such 10 day period (x) stating
that such Net Insurance/Condemnation Proceeds have been or shall be used
(and, if not so used, have been committed to be used) within one year of such
date of receipt of such Net Insurance/Condemnation Proceeds to replace or
restore any properties or assets in respect of which such Net
Insurance/Condemnation Proceeds were paid, (y) setting forth the proposed use
of Net Insurance/Condemnation Proceeds and such other information with
respect to such proposed use as the Administrative Agent may reasonably
request and (z) certifying its determination as required by preceding clause
(a) and the sufficiency of business interruption insurance as required by
succeeding clause (c), if applicable, and (c) if the amount of such Net
Insurance/Condemnation Proceeds exceeds $100,000,000, the Borrower delivers
such evidence as the Administrative Agent may reasonably request in form and
substance reasonably satisfactory to the Administrative Agent establishing
that the Borrower has sufficient business interruption insurance and will
receive payment thereunder in such amounts and at such times as are necessary
to satisfy all obligations and expenses of the Borrower (including, without
limitation, all debt service requirements, including pursuant to this
Agreement), without any delay or extension thereof, for the period from the
date of the respective casualty, condemnation or other event giving rise to
the receipt of such Net Insurance/Condemnation Proceeds and continuing
through the completion of the replacement or restoration of respective
properties or assets; PROVIDED HOWEVER, that if all or any portion of such
Net Insurance/Condemnation Proceeds not required to be applied as a mandatory
repayment pursuant to the preceding proviso are not so used within one year
after the date of the receipt of such Net Insurance/Condemnation Proceeds
(or, in any such case, if during such one year period the Borrower delivers
an officer's certificate to the Administrative Agent certifying that the
Board of Directors of the Borrower has adopted an investment plan to so use
such portion of such Net Insurance/Condemnation Proceeds within the two year
period following the date of the respective receipt of such Net
Insurance/Condemnation Proceeds, within such two year period), then such
remaining portion not so used shall be applied on the last day of such one
year (or two year, as the case may be) period to prepay Term Loans in
accordance with the requirements of Sections 4.02(k) and (l). The use of the
Net Insurance/Condemnation Proceeds pending the application thereof as
contemplated above shall be subject to Section 4.02(p).
(i) In addition to any other mandatory repayments pursuant
to this Section 4.02, on each Excess Cash Payment Date, an amount equal to
the Applicable Excess Cash Flow Percentage of the Excess Cash Flow for the
relevant Excess Cash Payment Period shall be applied as a mandatory repayment
of principal of outstanding Term Loans in accordance with the requirements of
Sections 4.02(k) and (l).
(j) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, (i) on the Permitted
Receivables Facility Transaction Date an amount equal to the Initial
Permitted Receivables Facility Proceeds received by the Receivables Sellers
on such date and (ii) on each date after the Permitted Receivables Facility
Transaction Date upon which the Attributed Receivables Facility Indebtedness
is incurred, the amount (if any) by which the aggregate Attributed
Receivables Facility Indebtedness at such time exceeds
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the Permitted Receivables Facility Threshold Amount as then in effect, in
each case shall be applied as a mandatory repayment of principal of
outstanding Term Loans in accordance with the requirements of Sections
4.02(k) and (l).
(k) Each amount required to be applied to Term Loans (or to
the Total Term Loan Commitment) pursuant to Sections 4.02(e), (f), (g), (h),
(i) and (j) shall be applied, subject to modification of such application as
set forth in Section 4.02(o), PRO RATA to each Tranche of Term Loans based
upon the then remaining principal amounts of the respective Tranches (with
each Tranche of Term Loans to be allocated that percentage of the amount to
be applied as is equal to a fraction (expressed as a percentage) the
numerator of which is the then outstanding principal amount of such Tranche
of Term Loans (or, if the Initial Borrowing Date has not yet occurred, the
aggregate Term Loan Commitments of the Lenders with respect to such Tranche)
and the denominator of which is equal to the then outstanding principal
amount of all Term Loans (or, if the Initial Borrowing Date has not yet
occurred, the then Total Term Loan Commitment)). Any amount required to be
applied to any Tranche of Term Loans pursuant to Sections 4.02(e), (f), (g),
(h), (i) and (j) shall be applied to repay the outstanding principal amount
of Term Loans of the respective Tranche then outstanding (or, if the Initial
Borrowing Date has not yet occurred, to reduce the Total Tranche A Term Loan
Commitment, the Total Tranche B Term Loan Commitment or the Total Tranche C
Term Loan Commitment, as the case may be). The amount of each principal
repayment of Term Loans (and the amount of each reduction to the Term Loan
Commitments) made as required by Sections 4.02(e), (f), (g), (h), (i) and (j)
shall be applied to reduce the then remaining Scheduled Repayments of the
respective Tranche on a PRO RATA basis (based upon the then remaining
principal amounts of the Scheduled Repayments of the respective Tranche after
giving effect to all prior reductions thereto); PROVIDED that unless the
Borrower notifies the Administrative Agent in writing that it does not desire
that such repayment (or reduction) be applied as provided in this proviso,
any such repayment (or reduction) shall first be applied in direct order of
maturity to reduce the then remaining Scheduled Repayments of the respective
Tranche of Term Loans which are due within 24 months after the date of such
repayment (or reduction), with any excess amount of such repayment (or
reduction) to be applied to the then remaining Scheduled Repayments on a PRO
RATA basis as otherwise provided above in this sentence.
(l) With respect to each repayment of Loans required by
this Section 4.02, the Borrower may designate the Types of Loans of the
respective Tranche which are to be repaid and, in the case of Eurodollar
Loans, the specific Borrowing or Borrowings of the respective Tranche
pursuant to which made, PROVIDED that: (i) repayments of Eurodollar Loans
pursuant to this Section 4.02 may only be made on the last day of an Interest
Period applicable thereto unless all Eurodollar Loans of the respective
Tranche with Interest Periods ending on such date of required repayment and
all Base Rate Loans of the respective Tranche have been paid in full; (ii) if
any repayment of Eurodollar Loans made pursuant to a single Borrowing shall
reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount with respect thereto, such
Borrowing shall be converted at the end of the then current Interest Period
into a Borrowing of Base Rate Loans; and (iii) each repayment of any Loans
made pursuant to a Borrowing shall be applied PRO RATA among such Loans. In
the
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absence of a designation by the Borrower as described in the preceding
sentence, the Administrative Agent shall, subject to the above, make such
designation in its sole discretion.
(m) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (i) all then outstanding Swingline Loans shall
be repaid in full on the Swingline Expiry Date and (ii) all other then
outstanding Loans shall be repaid in full on the respective Maturity Date for
such Loans.
(n) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, all then outstanding Loans shall be repaid in
full at 5:00 P.M. (New York time) on the Initial Borrowing Date unless the
Contribution Effective Time shall have occurred prior to such time.
(o) Notwithstanding anything to the contrary contained in
this Section 4.02 or elsewhere in this Agreement, (x) the Borrower shall have
the option, in its sole discretion, to give the Lenders with outstanding
Tranche B Term Loans (the "TRANCHE B TERM LENDERS") and Tranche C Term Loans
(the "TRANCHE C TERM LENDERS") the option to waive a voluntary prepayment of
such Loans pursuant to Section 4.01 (a "WAIVABLE VOLUNTARY REPAYMENT") and
(y) the Tranche B Lenders and Tranche C Lenders shall have the option,
without the consent of the Borrower, to waive a mandatory repayment of such
Loans pursuant to Section 4.02(e), (f), (g), (h), (i) and/or (j) (other than
a mandatory repayment of such Loans pursuant to Section 4.02(g) required to
be made with the Net Asset Sale Proceeds of the Timberlands Dispositions)
(each such repayment, a "WAIVABLE MANDATORY REPAYMENT") upon the terms and
provisions set forth in this Section 4.02(o). The Borrower shall give the
Administrative Agent written notice at least five Business Days prior to (i)
the date of each Waivable Voluntary Repayment, if it elects to exercise the
option in clause (x) of the immediately preceding sentence and (ii) the date
of each Waivable Mandatory Repayment, which notice the Administrative Agent
shall promptly forward to all Tranche B Term Lenders and Tranche C Term
Lenders (indicating in such notice the amount of such repayment to be applied
to each such Lender's outstanding Term Loans under such Tranches). The
Borrower's offer to permit such Lenders to waive any such Waivable Voluntary
Prepayment may apply to all or part of such repayment, PROVIDED that any
offer to waive part of such repayment must be made ratably to such Lenders on
the basis of their outstanding Tranche B Term Loans and Tranche C Term Loans.
In the event any such Tranche B Term Lender or Tranche C Term Lender desires
to waive such Lender's right to receive any such Waivable Voluntary Repayment
or Waivable Mandatory Repayment, as the case may be, in whole or in part,
such Lender shall so advise the Administrative Agent no later than the close
of business two Business Days after the date of such notice from the
Administrative Agent, which notice shall also include the amount such Lender
desires to receive in respect of such repayment. If any Lender does not
reply to the Administrative Agent within such two Business Day period, it
will be deemed not to have waived any part of such repayment. If any Lender
does not specify an amount it wishes to receive, it will be deemed to have
accepted 100% of the total payment. In the event that any such Lender waives
all or part of such right to receive any such Waivable Voluntary Repayment or
Waivable Mandatory Repayment, the Administrative Agent shall apply 100% of
the amount so waived by such Lender to the Tranche A Term Loans in accordance
with Section 4.01 or Section 4.02(k), as the case may be. Notwithstanding
the foregoing, in no event
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shall the amount of a Waivable Repayment exceed the aggregate principal
amount of Tranche A Term Loans that will be outstanding after Lenders with
outstanding Tranche A Term Loans receive their respective shares of voluntary
prepayments or mandatory repayments, as the case may be, pursuant to Section
4.01 or 4.02(k), as the case may be (I.E., before giving effect to any
application of such Waivable Repayment to Tranche A Loans pursuant to this
Section 4.02(o)).
(p) Notwithstanding anything to the contrary set forth
above, if at any time the aggregate amount of Net Asset Sale Proceeds not
theretofore reinvested in Converting Plants or Eligible Assets as permitted
pursuant to clause (I) or (II) of Section 4.02(g), when added to the
aggregate amount of Net Insurance/Condemnation Proceeds not theretofore used
to replace or restore any properties or assets as provided in Section
4.02(h), exceeds $100,000,000, then the entire amount of such Net Asset Sale
Proceeds and/or Net Insurance/Condemnation Proceeds and not just the portion
in excess of $100,000,000 shall be deposited with the Administrative Agent in
a cash collateral account (the "CASH COLLATERAL ACCOUNT") pursuant to cash
collateral arrangements reasonably satisfactory to the Administrative Agent
whereby such proceeds shall be disbursed to the Borrower from time to time as
needed to pay or reimburse the Borrower or such Subsidiary for actual costs
incurred by it in connection with the purchase of Converting Plants or
Eligible Assets or the replacement or restoration of the respective
properties or assets giving rise to the receipt of such Net
Insurance/Condemnation Proceeds, as the case may be, PROVIDED that (1) at any
time while an Event of Default has occurred and is continuing, the Required
Lenders may direct the Administrative Agent (in which case the Administrative
Agent shall, and is hereby authorized by the Borrower to, follow said
directions) to apply any or all proceeds then on deposit in the Cash
Collateral Account to the repayment of Obligations hereunder in the same
manner as proceeds would be applied pursuant to the PCA Security Agreement
and (2) at the election of the Borrower (which election shall be notified in
writing to the Administrative Agent) all or a portion of the amount otherwise
required to be deposited in the Cash Collateral Account shall not be required
to be so deposited but instead shall be applied to repay outstanding
Revolving Loans (whereupon an amount equal to the aggregate principal amount
of Revolving Loans so repaid shall be added to the Blocked Commitment and a
portion of the Total Revolving Loan Commitment equal to the Blocked
Commitment then in effect shall automatically (and without further action) be
blocked), PROVIDED that the Borrower shall not have the right to make such an
election to the extent that, after giving effect thereto, the Total Revolving
Loan Commitment would not exceed the Blocked Commitment by at least
$50,000,000.
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Lender or
Lenders entitled thereto not later than 12:00 Noon (New York time) on the
date when due and shall be made in Dollars in immediately available funds at
the Payment Office. Any payments under this Agreement or under any Note
which are made later than 12:00 Noon (New York time) shall be deemed to have
been made on the next succeeding Business Day. Whenever any payment to be
made hereunder or under any Note shall be stated to be due on a day which is
not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
shall be payable at the applicable rate during such extension.
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4.04 NET PAYMENTS; TAXES. (a) All payments made by any
Credit Party hereunder or under any Note will be made without setoff,
counterclaim or other defense. Except as provided in Section 4.04(b), all
such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by
any jurisdiction or by any political subdivision or taxing authority thereof
or therein with respect to such payments (but excluding, except as provided
in the second succeeding sentence, any tax imposed on or measured by the net
income or net profits of a Lender pursuant to the laws of the jurisdiction in
which it is organized or the jurisdiction in which the principal office or
applicable lending office of such Lender is located or any subdivision
thereof or therein) and all interest, penalties or similar liabilities with
respect to such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges (all such non-excluded taxes, levies, imposts,
duties, fees, assessments or other charges being referred to collectively as
"TAXES"). If any Taxes are so levied or imposed, the Borrower agrees to pay
the full amount of such Taxes, and such additional amounts as may be
necessary so that every payment of all amounts due under this Agreement or
under any Note, after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein or in such Note.
If any amounts are payable in respect of Taxes pursuant to the preceding
sentence, the Borrower agrees to reimburse each Lender, upon the written
request of such Lender, for taxes imposed on or measured by the net income or
net profits of such Lender pursuant to the laws of the jurisdiction in which
such Lender is organized or in which the principal office or applicable
lending office of such Lender is located or under the laws of any political
subdivision or taxing authority of any such jurisdiction in which such Lender
is organized or in which the principal office or applicable lending office of
such Lender is located and for any withholding of taxes as such Lender shall
determine are payable by, or withheld from, such Lender, in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence. The Borrower will furnish to the Administrative
Agent within 45 days after the date the payment of any Taxes is due pursuant
to applicable law certified copies of tax receipts or, to the extent such tax
receipts are not available, other items reasonably evidencing such payment by
the Borrower. The Borrower agrees to indemnify and hold harmless each
Lender, and reimburse such Lender upon its written request, for the amount of
any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income
tax purposes agrees to deliver to the Borrower and the Administrative Agent
on or prior to the Effective Date, or in the case of a Lender that is an
assignee or transferee of an interest under this Agreement pursuant to
Section 1.13 or 13.04 (unless the respective Lender was already a Lender
hereunder immediately prior to such assignment or transfer), on the date of
such assignment or transfer to such Lender, (i) two accurate and complete
original signed copies of Internal Revenue Service Form 4224 or 1001 (or
successor forms) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments to be
made under this Agreement and under any Note, or (ii) if the Lender is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause
(i) above, (x) a certificate substantially in the form of Exhibit D (any such
certificate, a "SECTION
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4.04(b)(ii) CERTIFICATE") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note. In addition, each Lender agrees that from time
to time after the Effective Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in
any material respect, it will deliver to the Borrower and the Administrative
Agent two new accurate and complete original signed copies of Internal
Revenue Service Form 4224 or 1001, or Form W-8 and a Section 4.04(b)(ii)
Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Lender to a continued
exemption from or reduction in United States withholding tax with respect to
payments under this Agreement and any Note, or it shall immediately notify
the Borrower and the Administrative Agent of its inability to deliver any
such Form or Certificate, in which case such Lender shall not be required to
deliver any such Form or Certificate pursuant to this Section 4.04(b).
Notwithstanding anything to the contrary contained in Section 4.04(a), but
subject to Section 13.04(b) and the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or similar taxes imposed by the United States (or
any political subdivision or taxing authority thereof or therein) from
interest, Fees or other amounts payable hereunder for the account of any
Lender which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the
extent that such Lender has not provided to the Borrower U.S. Internal
Revenue Service Forms that establish a complete exemption from such deduction
or withholding and (y) the Borrower shall not be obligated pursuant to
Section 4.04(a) hereof to gross-up payments to be made to a Lender in respect
of income or similar taxes imposed by the United States if (I) such Lender
has not provided to the Borrower the Internal Revenue Service Forms required
to be provided to the Borrower pursuant to this Section 4.04(b) or (II) in
the case of a payment, other than interest, to a Lender described in clause
(ii) above, to the extent that such Forms do not establish a complete
exemption from withholding of such taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 13.04(b), the Borrower agrees to pay
any additional amounts and to indemnify each Lender in the manner set forth
in Section 4.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any Taxes deducted or
withheld by it as described in the immediately preceding sentence as a result
of any changes after the Effective Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of such Taxes.
(c) If the Borrower pays any additional amount under this
Section 4.04 to a Lender and such Lender determines in its sole discretion
that it has actually received or realized in connection therewith any refund
or any reduction of, or credit against, its tax liabilities in or with
respect to the taxable year in which the additional amount is paid (a "Tax
Benefit"), such Lender shall pay to the Borrower an amount that the Lender
shall, in its sole discretion, determine is equal to the net benefit, after
tax, which was obtained by the Lender in such year as a consequence of such
Tax Benefit; provided, however, that (i) any Lender may determine, in its
sole discretion consistent with the policies of such Lender, whether to seek
a Tax Benefit; (ii) any Taxes that are imposed on a Lender as a result of a
disallowance or reduction (including
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through the expiration of any tax credit carryover or carryback of such
Lender that otherwise would not have expired) of any Tax Benefit with respect
to which such Lender has made a payment to the Borrower pursuant to this
Section 4.04(c) shall be treated as a Tax for which the Borrower is obligated
to indemnify such Lender pursuant to this Section 4.04 without any exclusions
or defenses; and (iii) nothing in this Section 4.04(c) shall require the
Lender to disclose any confidential information to the Borrower (including,
without limitation, its tax returns).
(d) The provisions of this Section 4.04 are subject to the
provisions of Section 13.15 (to the extent applicable).
SECTION 5. CONDITIONS PRECEDENT TO LOANS. The obligation of
each Lender to make Loans, and the obligation of each Issuing Bank to issue
Letters of Credit, in each case on the Initial Borrowing Date, is subject at
the time of the making of such Loans or the issuance of such Letters of
Credit to the satisfaction of the following conditions:
5.01 EXECUTION OF AGREEMENT; NOTES. On or prior to the
Initial Borrowing Date (i) the Effective Date shall have occurred and (ii)
there shall have been delivered to the Administrative Agent for the account
of each Lender which has requested the same and for delivery after the
Contribution Effective Time, the appropriate Tranche A Term Note, Tranche B
Term Note, Tranche C Term Note and/or Revolving Note and to the Swingline
Lender if so requested, the Swingline Note, in each case executed by the
Borrower and in the amount, maturity and as otherwise provided herein.
5.02 FEES, ETC. On the Initial Borrowing Date, all costs,
fees and expenses and all other compensation (including, without limitation,
legal fees and expenses, title insurance premiums, survey charges and
recording taxes and fees) payable to the Agents, the Co-Lead Arrangers and
the Lenders shall have been paid to the extent then due and to the extent
that a statement or statements for such amounts shall have been provided to
the Borrower by no later than the Business Day immediately preceding the
Initial Borrowing Date.
5.03 OPINIONS OF COUNSEL. On the Initial Borrowing Date, the
Administrative Agent shall have received from (i) Jenner & Block, special
counsel to Tenneco and TPI and its Subsidiaries, an opinion addressed to the
Agents, the Collateral Agent and each of the Lenders and dated the Initial
Borrowing Date covering the matters set forth in Exhibit E-1 and such other
matters incident to the transactions contemplated herein as the Agents and
the Required Lenders may reasonably request and in form and substance
reasonably satisfactory to the Agents and the Required Lenders, (ii) Xxxxxxxx
& Xxxxx, special counsel to PCA and its Subsidiaries, which opinion shall
cover the matters contained in Exhibit E-2 and such other matters incident to
the transactions contemplated herein as the Agents and the Required Lenders
may reasonably request and in form and substance reasonably satisfactory to
the Agents and the Required Lenders, (iii) counsel rendering such opinions,
reliance letters addressed to each Agent and each of the Lenders and dated
the Initial Borrowing Date, with respect to certain other legal opinions
delivered in connection with the Transaction, which opinions shall cover such
matters as the Agents may reasonably request and be in form and substance
reasonably satisfactory to the Agents and (iv)
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local counsel satisfactory to the Administrative Agent, opinions each of
which (x) shall be addressed to each Agent, the Collateral Agent and each of
the Lenders and be dated the Initial Borrowing Date, (y) shall be in form and
substance reasonably satisfactory to the Agents and the Required Lenders and
(z) shall cover the perfection of security interests granted pursuant to the
PCA Security Agreement and the Mortgages and such other matters incident to
the transactions contemplated herein as the Agents may reasonably request.
5.04 CORPORATE DOCUMENTS; PROCEEDINGS; ETC. (a) On the
Initial Borrowing Date, the Administrative Agent shall have received a
certificate, dated the Initial Borrowing Date, signed by the Chairman of the
Board, the Chief Financial Officer, the President or any Vice President of
each Credit Party, and attested to by the Secretary or any Assistant
Secretary of such Credit Party, as the case may be, in the form of Exhibit F
with appropriate insertions, together with copies of the Certificate of
Incorporation and By-Laws (or equivalent organizational documents) of such
Credit Party and the resolutions of such Credit Party referred to in such
certificate, and the foregoing shall be reasonably satisfactory to the Agents.
(b) All corporate and legal proceedings and all material
instruments and agreements in connection with the transactions contemplated
by this Agreement and the other Documents shall be reasonably satisfactory in
form and substance to the Agents and the Required Lenders, and the
Administrative Agent shall have received all information and copies of all
documents and papers, including records of corporate proceedings,
governmental approvals, good standing certificates and bring-down telegrams
or facsimiles, if any, which any Agent reasonably may have requested in
connection therewith, such documents and papers where appropriate to be
certified by proper corporate or governmental authorities.
(c) On the Initial Borrowing Date and after giving effect
to the Transaction, the ownership and capital structure (including, without
limitation, the terms of any capital stock, options, warrants or other
securities issued by the Borrower or any of its Subsidiaries), and management
of PCA and its Subsidiaries shall be in form and substance satisfactory to
the Agents and the Required Lenders.
5.05 EMPLOYEE BENEFIT PLANS; SHAREHOLDERS' AGREEMENTS;
MANAGEMENT AGREEMENTS; DEBT AGREEMENTS; TAX SHARING AGREEMENTS; EMPLOYMENT
AGREEMENTS; COLLECTIVE BARGAINING AGREEMENTS AND MATERIAL CONTRACTS. (a) On
the Initial Borrowing Date, there shall have been made available or delivered
to the Administrative Agent true and correct copies, certified as true and
complete by an appropriate officer of PCA, of the following documents, in
each case as the same will be in effect on the Initial Borrowing Date after
the consummation of the Transaction:
(i) all Plans (and for each Plan that is required to file an
annual report on Internal Revenue Service Form 5500-series, a copy of the
most recent such report (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information), and for each Plan
that is a "single-employer plan," as defined in Section 4001(a)(15) of
ERISA, the most recently prepared actuarial valuation therefor) and any
other "employee benefit plans," as defined
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in Section 3(3) of ERISA, and any other material agreements, plans or
arrangements, with or for the benefit of current or former employees
of the PCA or any of its Subsidiaries or any ERISA Affiliate (provided
that the foregoing shall apply in the case of any multiemployer plan,
as defined in 4001(a)(3) of ERISA, only to the extent that any
document described therein is in the possession of TPI, PCA or any of
their respective Subsidiaries or any ERISA Affiliate or reasonably
available thereto from the sponsor or trustee of any such plan)
(collectively, the "EMPLOYEE BENEFIT PLANS").
(b) On the Initial Borrowing Date, there shall have been
delivered to the Administrative Agent true and correct copies, certified as true
and complete by an officer of PCA, of the following documents, in each case as
the same will be in effect on the Initial Borrowing Date after the consummation
of the Transaction:
(i) all agreements entered into by PCA or any of its
Subsidiaries governing the terms and relative rights of its capital stock
and any agreements entered into by shareholders relating to any such
entity with respect to its capital stock (collectively, the
"SHAREHOLDERS' AGREEMENTS");
(ii) all agreements with members of, or with respect to, the
management of PCA or any of its Subsidiaries after giving effect to the
Transaction (collectively, the "MANAGEMENT AGREEMENTS");
(iii) all agreements evidencing or relating to Indebtedness of
PCA or any of its Subsidiaries which is to remain outstanding immediately
after giving effect to the Transaction (collectively, the "DEBT
AGREEMENTS");
(iv) all tax sharing, tax allocation and other similar
agreements entered into by PCA or any of its Subsidiaries (collectively,
the "TAX SHARING AGREEMENTS");
(v) any material employment agreements to which PCA or any of
its Subsidiaries is a party after giving effect to the Transaction
(collectively, the "EMPLOYMENT AGREEMENTS");
(vi) all collective bargaining agreements applying or relating
to any employee of PCA or any of its Subsidiaries after giving effect to
the Transaction (collectively, the "COLLECTIVE BARGAINING AGREEMENTS");
and
(vii) all other material contracts and licenses of PCA and any
of its Subsidiaries after giving effect to the Transaction (collectively,
the "MATERIAL CONTRACTS");
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Debt Agreements, Tax Sharing Agreements, Employment Agreements,
Collective Bargaining Agreements and Material Contracts shall be in form and
substance reasonably satisfactory to the Agents and shall be in full force and
effect on the Initial Borrowing Date.
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5.06 CAPITALIZATION; CONTRIBUTION; ETC. (a) On or prior to
the Initial Borrowing Date, (i) PCA shall have received cash proceeds in an
amount equal to at least $236,500,000 from the issuance of Borrower Common
Stock to PCA Holdings and the Management Participants (the "INITIAL COMMON
EQUITY ISSUANCE"), (ii) TPI shall have received gross cash proceeds from the
issuance of the Subordinated Promissory Notes in an aggregate principal
amount of $550,000,000 and deposited the full amount of such proceeds in the
Sub Debt Restricted Account as security for the obligations of TPI under the
Subordinated Promissory Notes Documents, (iii) PCA shall have received gross
cash proceeds of approximately $100,000,000 from the issuance of Borrower PIK
Preferred Stock (the "PREFERRED EQUITY ISSUANCE"), (iv) the cash proceeds
received from the Initial Common Equity Issuance, the Preferred Equity
Issuance and the issuance of the Subordinated Promissory Notes, when added to
the aggregate principal amount of Term Loans and Revolving Loans incurred on
the Initial Borrowing Date, shall be sufficient to effect the Transaction and
to pay fees and expenses in connection therewith and (v) the amounts on
deposit in the Sub Debt Restricted Account and the Restricted Account shall
be sufficient to effect the Refinancing.
(b) On the Initial Borrowing Date, the Administrative Agent
shall have received true and correct copies of all Contribution Documents,
Common Equity Financing Documents, Borrower Preferred Stock Documents,
Subordinated Promissory Notes Documents and Senior Subordinated Notes
Documents, all of which shall be in full force and effect, and all terms and
conditions of the foregoing Documents (including, without limitation, in the
case of the Subordinated Promissory Notes Documents and the Senior
Subordinated Notes Documents, amortization, maturities, interest rates,
covenants, defaults, remedies, sinking fund provisions and subordination
provisions and, in the case of Borrower PIK Preferred Stock, maturity,
limitation on cash dividends payable, dividend rate, conversion features,
covenants and redemption provisions) shall be in form and substance
reasonably satisfactory to the Agents and Required Lenders.
(c) On the Initial Borrowing Date, all conditions precedent
to the consummation of the Transaction as set forth in the Contribution
Documents, the Common Equity Financing Documents, the Borrower Preferred
Stock Documents, the Subordinated Promissory Notes Documents and the Senior
Subordinated Note Documents shall have been satisfied in all material
respects, and not waived unless consented to by the Administrative Agent and
the Required Lenders, to the satisfaction of the Administrative Agent and the
Required Lenders except, (x) in the case of the Contribution Documents, the
consummation of the Refinancing from funds on deposit in the Sub Debt
Restricted Account and the Restricted Account and (y) in the case of the
Exchange, the consummation of the Refinancing and the Contribution.
(d) On the Initial Borrowing Date, each of the Initial
Common Equity Issuance, the Borrower Preferred Stock Issuance and the
issuance of the Subordinated Promissory Notes shall have been consummated in
accordance with the terms and conditions of the applicable Documents and all
applicable law.
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5.07 REFINANCING; EXISTING INDEBTEDNESS. (a) On the Initial
Borrowing Date (but prior to or concurrently with the consummation of the
Contribution and concurrently with the assumption of the Loans by PCA on such
date), all Indebtedness to be Refinanced shall have been repaid in full by
TPI and all commitments in respect thereof shall have been terminated and all
Liens and guaranties in connection therewith shall have been terminated (and
all appropriate releases, termination statements or other instruments of
assignment with respect thereto shall have been obtained) to the reasonable
satisfaction of the Agents. Without limiting the foregoing, there shall have
been delivered to the Administrative Agent (x) proper termination statements
(Form UCC-3 or the appropriate equivalent) for filing under the UCC of each
jurisdiction where a financing statement (Form UCC-1 or the appropriate
equivalent) was filed with respect to TPI or any of its Subsidiaries in
connection with the security interest created with respect to the
Indebtedness to be Refinanced and the documentation related thereto, (y)
terminations of all mortgages, leasehold mortgages and deeds of trust created
with respect to property of TPI or any of its Subsidiaries, in each case, to
secure the obligations under the Indebtedness to be Refinanced, all of which
shall be in form and substance satisfactory to the Agents and (z)
instructions to transfer, contemporaneously with the consummation of the
Contribution, funds on deposit in the Sub Debt Restricted Account and the
Restricted Account to the holders of Indebtedness to be Refinanced which
shall have not been repaid in full.
(b) On the Initial Borrowing Date and after giving effect
to the Transaction, the Borrower and its Subsidiaries shall have no
Indebtedness or preferred stock outstanding other than (i) the Loans, (ii)
the Senior Subordinated Notes, (iii) the Borrower PIK Preferred Stock and
(iv) certain other indebtedness existing on the Initial Borrowing Date
acceptable to the Agents and the Required Lenders as listed on Schedule V.A
hereto in an aggregate outstanding principal amount not to exceed $250,000
(with the Indebtedness described in this sub-clause (iv) being herein called
the "EXISTING INDEBTEDNESS"). On and as of the Initial Borrowing Date, all
of the Existing Indebtedness shall remain outstanding after giving affect to
the Transaction and the other transactions contemplated hereby without any
default or event of default existing thereunder or arising as a result of the
Transaction and the other transactions contemplated hereby (except to the
extent amended or waived by the parties thereto on terms and conditions
reasonably satisfactory to the Agents and the Required Lenders).
(c) On the Initial Borrowing Date, the Administrative Agent
shall have received evidence in form and substance reasonably satisfactory to
the Agents that the matters set forth in this Section 5.07 have been
satisfied.
5.08 GUARANTIES. (a) On the Initial Borrowing Date, each
Subsidiary Guarantor shall have duly authorized, executed and delivered a
Subsidiaries Guaranty in the form of Exhibit G-1 (as modified, supplemented
or amended from time to time, the "SUBSIDIARIES GUARANTY"), and the
Subsidiaries Guaranty shall automatically become effective upon the
consummation of the Contribution.
(b) On Initial Borrowing Date, Tenneco shall have duly
authorized, executed and delivered a Guaranty in a form of Exhibit G-2 (as
modified, supplemented or amended from time to time, the "TENNECO GUARANTY"),
and the Tenneco Guaranty shall be in full force and effect
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(it being understood that the Tenneco Guaranty shall be fully released at the
Contribution Effective Time).
5.09 PLEDGE AGREEMENT. On the Initial Borrowing Date, PCA and
each Subsidiary Guarantor shall have duly authorized, executed and delivered
a Pledge Agreement in the form of Exhibit H (as modified, supplemented or
amended from time to time, the "PLEDGE AGREEMENT"), and the Pledge Agreement
shall automatically become effective upon the consummation of the
Contribution.
5.10 SECURITY AGREEMENT. (a) On the Initial Borrowing Date,
TPI shall have duly authorized, executed and delivered a Security Agreement
in the form of Exhibit I-1 (as modified, supplemented or amended from time to
time, the "TPI SECURITY AGREEMENT") covering all of the TPI Security
Agreement Collateral, and the TPI Security Agreement shall be in full force
and effect (it being understood that the TPI Security Agreement shall be
fully released at the Contribution Effective Time).
(b) On the Initial Borrowing Date, each of PCA and each
Subsidiary Guarantor shall have duly authorized, executed and delivered a
Security Agreement in the form of Exhibit I-2 (as modified, supplemented or
amended from time to time, the "PCA SECURITY AGREEMENT") covering all of the
PCA Security Agreement Collateral, in each case together with:
(i) proper Financing Statements (Form UCC-1) fully executed
for filing under the UCC or other appropriate filing offices of each
jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported
to be created by the PCA Security Agreement upon the consummation of the
Contribution;
(ii) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, each of a recent date listing all
effective financing statements that name any Credit Party (other than
Tenneco) as debtor and that are filed in the jurisdictions referred to in
clause (a) above, together with copies of such other financing statements
(none of which shall cover the Collateral except to the extent evidencing
Permitted Liens or in respect of which the Collateral Agent shall have
received termination statements (Form UCC-3) or such other termination
statements as shall be required by local law) fully executed for filing;
(iii) evidence of execution for post-closing filing and
recordation of all other recordings and filings of, or with respect to,
the PCA Security Agreement as may be necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect the security
interests intended to be created by such PCA Security Agreement upon the
consummation of the Contribution; and
(iv) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the PCA
Security Agreement upon the consummation of the Contribution have been
taken;
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and the PCA Security Agreement shall automatically become effective upon the
consummation of the Contribution.
5.11 MORTGAGES; TITLE INSURANCE; SURVEYS; ETC. On the Initial
Borrowing Date, the Collateral Agent shall have received:
(a) fully executed counterparts of mortgages, deeds of trust
or deeds to secure debt, in each case in form and substance reasonably
satisfactory to the Collateral Agent (as amended, modified or
supplemented from time to time, each, a "MORTGAGE" and, collectively, the
"MORTGAGES"), which Mortgages shall cover such of the Real Property owned
or leased by PCA or any Subsidiary Guarantor (after giving effect to the
Transaction) as shall be designated as "Mortgaged Properties" on Schedule
III (each, a "MORTGAGED PROPERTY" and, collectively, the "MORTGAGED
PROPERTIES"), together with evidence that counterparts of the Mortgages
have been delivered to the title insurance company insuring the Lien of
the Mortgages (other than the Woodland Mortgages) for recording in all
places to the extent necessary or, in the reasonable opinion of the
Collateral Agent, desirable to effectively create (upon the consummation
of the Contribution) a valid and enforceable first priority mortgage
lien, subject only to Permitted Encumbrances, on each Mortgaged Property
in favor of the Collateral Agent (or such other trustee as may be
required or desired under local law) for the benefit of the Secured
Creditors;
(b) mortgagee title insurance policies (the "MORTGAGE
POLICIES") on each of the mill sites located in Valdosta, Georgia,
Counce, Tennessee, Filer City, Michigan and Tomahawk, Wisconsin
(collectively, the "XXXXX") issued by Chicago Title Insurance Company in
amounts satisfactory to the Collateral Agent and the Required Lenders and
assuring the Collateral Agent that, upon the consummation of the
Contribution, the Mortgages on the Xxxxx are valid and enforceable first
priority mortgage liens on the respective Xxxxx, free and clear of all
defects and encumbrances except Permitted Encumbrances, and such Mortgage
Policies shall otherwise be in form and substance reasonably satisfactory
to the Collateral Agent and (i) include the following endorsements (if
available); comprehensive, survey, contiguity, usury, creditor's rights,
subsequent advance, tax, doing-business, street, variable rate, zoning,
environmental protection, subdivision, tax deed, first loss, last dollar
and tie-in, (ii) shall not include an exception for mechanics' liens, and
(iii) shall provide for affirmative insurance and such reinsurance as the
Collateral Agent in its discretion may reasonably request;
(c) binding commitments to issue title insurance policies
from Chicago Title Insurance Company on each Mortgaged Property other
than the Xxxxx and the Woodland Properties;
(d) surveys in form and substance reasonably satisfactory to
the Collateral Agent of each of the Xxxxx, dated a recent date reasonably
acceptable to the Collateral Agent and certified in a manner reasonably
satisfactory to the Collateral Agent by a licensed professional surveyor
satisfactory to the Collateral Agent; and
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(e) duly authorized, fully executed, acknowledged and
delivered landlord-lender agreements or owner-lender agreements and
landlord consents and waivers and such other documents relating to the
Leaseholds and all the foregoing shall be in form and substance
reasonably satisfactory to the Collateral Agent.
5.12 CONSENT LETTER. On the Initial Borrowing Date, the
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, substantially
in the form of Exhibit J, indicating its consent to its appointment by each
of PCA and each Subsidiary Guarantor as its agent to receive service of
process as specified in Section 13.08 or the Subsidiaries Guaranty, as the
case may be.
5.13 MATERIAL ADVERSE CHANGE, ETC. (a) Since December 31,
1998, nothing shall have occurred which has had, or would reasonably be
expected to have, (i) a material adverse effect on the rights or remedies of
the Lenders or the Agents hereunder or under any other Credit Document or on
the ability of any Credit Party to perform its obligations to them hereunder
or under any other Credit Document, (ii) a material adverse effect on the
Transaction or (iii) a Material Adverse Effect.
(b) On or prior to the Initial Borrowing Date, all
necessary governmental (domestic and foreign), regulatory and third party
approvals and/or consents (including any necessary anti-trust approvals or
consents) in connection with the Transaction, the transactions contemplated
by the Documents and otherwise referred to herein or therein shall have been
obtained and remain in full force and effect, and all applicable waiting
periods shall have expired without any action being taken by any competent
authority which restrains, prevents or imposes materially adverse conditions
upon the consummation of the Transaction, the making of Loans or the
transactions contemplated by the Documents. Additionally, there shall not
exist any judgment, order, injunction or other restraint or a hearing seeking
injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon, or materially delaying, or
making economically unfeasible, the Transaction or the transactions
contemplated by the Documents.
5.14 LITIGATION. On the Initial Borrowing Date, no actions,
suits, proceedings or investigations by any entity (private or governmental)
shall be pending or threatened (a) with respect to this Agreement or any
other Document or the Transaction or (b) which would reasonably be expected
to have (i) a Material Adverse Effect or (ii) a material adverse effect on
the Transaction, the rights or remedies of the Lenders or the Agents
hereunder or under any other Credit Document or on the ability of any Credit
Party to perform its respective obligations to the Lenders or the Agents
hereunder or under any other Credit Document.
5.15 SOLVENCY CERTIFICATE; INSURANCE. On or before the
Initial Borrowing Date, the Borrower shall cause to be delivered to the
Administrative Agent (i) a solvency certificate from the chief financial
officer of PCA in the form of Exhibit K hereto, which shall be addressed to
the Agents and each of the Lenders and be dated the Initial Borrowing Date,
setting forth the conclusion that, after giving effect to the Transaction and
the incurrence of all the financings contemplated herein, the Borrower (on a
stand-alone basis) and the Borrower and its Subsidiaries
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(on a consolidated basis), in each case, are not insolvent and will not be
rendered insolvent by the indebtedness incurred in connection therewith, and
will not be left with unreasonably small capital with which to engage in its
or their businesses and will not have incurred debts beyond its or their
ability to pay debts as they mature and become due and (ii) certificates of
insurance complying with the requirements of Section 8.03 for the business
and properties of PCA and its Subsidiaries (including the Containerboard
Business), in scope, form and substance reasonably satisfactory to the Agents
and naming the Collateral Agent as an additional insured, mortgagee and/or
loss payee, and stating that such insurance shall not be canceled or revised
without 30 days' prior written notice by the insurer to the Collateral Agent.
5.16 PRO FORMA BALANCE SHEET; FINANCIAL STATEMENTS;
PROJECTIONS. On or prior to the Initial Borrowing Date, the Agents and the
Lenders shall have received true and correct copies of the financial
statements (including the PRO FORMA financial statements) and Projections
referred to in Sections 7B.05(a), (b) and (e), as applicable, together with a
related funds flow memorandum, and all of the foregoing shall be in form and
substance reasonably satisfactory to the Agents and the Required Lenders.
5.17 MARKET DISRUPTION, ETC. On or prior to the Initial
Borrowing Date, there shall have been no material change in or material
disruption of financial, bank syndication or capital market conditions (from
those which existed on January 25, 1999) that in the good faith judgment of
the Co-Lead Arrangers would reasonably be expected to have a material adverse
effect on syndication of the Loans and/or the Commitments.
5.18 PCA ACKNOWLEDGEMENT AND AGREEMENT. On or prior to the
Initial Borrowing Date, PCA shall have duly authorized, executed and
delivered an Acknowledgement and Agreement in the form of Exhibit N (as
modified, supplemented or amended from time to time, the "PCA ACKNOWLEDGEMENT
AND AGREEMENT"), and the PCA Acknowledgement and Agreement shall
automatically become effective upon the consummation of the Contribution.
5.19 BANK CREDIT AGREEMENT ASSIGNMENT AND ASSUMPTION
AGREEMENT. On or prior to the Initial Borrowing Date, TPI and PCA shall have
duly authorized, executed and delivered an Assignment and Assumption
Agreement in the form of Exhibit O (as modified, supplemented or amended from
time to time, the "BANK CREDIT AGREEMENT ASSIGNMENT AND ASSUMPTION
AGREEMENT"), and the Bank Credit Agreement Assignment and Assumption
Agreement shall automatically become effective upon the consummation of the
Contribution.
SECTION 6. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The
obligation of each Lender to make Loans (including Loans made on the Initial
Borrowing Date but excluding Mandatory Borrowings made thereafter, which
shall be made as provided in Section 1.01(f)), and the obligation of an
Issuing Bank to issue any Letter of Credit, is subject, at the time of each
such Credit Event (except as hereinafter indicated), to the satisfaction of
the following conditions:
6.01 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time
of each such Credit Event and also after giving effect thereto (i) there
shall exist no Default or Event of Default and (ii) all representations and
warranties contained herein or in any other Credit Document shall be true and
correct in all material respects with the same effect as though such
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representations and warranties had been made on the date of such Credit Event
(it being understood and agreed that any representation or warranty which by
its terms is made as of a specified date shall be required to be true and
correct in all material respects only as of such specified date).
6.02 NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. (a) Prior
to the making of each Loan (excluding Swingline Loans and Mandatory
Borrowings), the Administrative Agent shall have received the notice required
by Section 1.03(a). Prior to the making of any Swingline Loan, the Swingline
Lender shall have received the notice required by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Bank shall have received a
Letter of Credit Request meeting the requirements of Section 2.02(a).
The occurrence of the Initial Borrowing Date and the acceptance of the
proceeds of each Credit Event shall constitute a representation and warranty
by the Borrower to the Administrative Agent and each of the Lenders that all
the conditions specified in Section 5 and in this Section 6 and applicable to
such Credit Event have been satisfied as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 5 and in this Section 6, unless otherwise specified, shall be
delivered to the Administrative Agent at the Notice Office for the account of
each of the Lenders and, except for the Notes, in sufficient counterparts for
each of the Lenders and shall be in form and substance reasonably
satisfactory to the Administrative Agent.
SECTION 7A. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order
to induce the Lenders to enter into this Agreement and to make the Loans, and
issue (or participate in) the Letters of Credit as provided herein, TPI
hereby makes the following representations, warranties and agreements, in
each case after giving effect to each element of the Transaction being
consummated prior to the Contribution Effective Time, all of which shall
survive the execution and delivery of this Agreement and the Notes and the
making of the Loans and issuance of the Letters of Credit, with the
occurrence of the Initial Borrowing Date and each Credit Event on the Initial
Borrowing Date and prior to the Contribution Effective Time being deemed to
constitute a representation and warranty that the matters specified in this
Section 7A are true and correct in all material respects on and as of the
Initial Borrowing Date (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date):
7A.01 CORPORATE STATUS. Each of Tenneco and each of TPI and
its Subsidiaries (i) is a duly organized and validly existing corporation or
limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation and (ii) has the corporate or
other applicable power and authority to own its property and assets and to
transact the business in which it is engaged and presently proposes to engage.
7A.02 CORPORATE POWER AND AUTHORITY. Each Tenneco Party has the
corporate or other applicable power and authority to execute, deliver and
perform the terms and provisions of each of the Credit Documents to which it is
party and has taken all necessary corporate or other
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applicable action to authorize the execution, delivery and performance by it
of each of such Credit Documents. Each Tenneco Party has duly executed and
delivered each of the Credit Documents to which it is party, and each of such
Credit Documents constitutes the legal, valid and binding obligation of such
Tenneco Party enforceable in accordance with its terms, except to the extent
that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law)
and principles of good faith and fair dealing.
7A.03 NO VIOLATION. Neither the execution, delivery or
performance by any Tenneco Party of the Credit Documents to which it is a
party, nor compliance by it with the terms and provisions thereof, (i) will
contravene any provision of any applicable law, statute, rule or regulation
or any applicable order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict with or result in any breach
of any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation
to create or impose) any Lien (except pursuant to the TPI Security Documents
and the Lien on the Sub Debt Restricted Account securing the Subordinated
Promissory Notes) upon any of the properties or assets of any Tenneco Party
or any of its Subsidiaries pursuant to the terms of any indenture, mortgage,
deed of trust, credit agreement or loan agreement, or any other material
agreement, contract or instrument, to which any Tenneco Party or any of its
Subsidiaries is a party or by which it or any of its property or assets is
bound or to which it may be subject (including, without limitation, the
Subordinated Notes Purchase Agreement) or (iii) will violate any provision of
the Certificate of Incorporation or By-Laws (or equivalent organizational
documents) of any Tenneco Party or any of its Subsidiaries.
7A.04 GOVERNMENTAL APPROVALS. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except as have been obtained or made on or prior to the Initial
Borrowing Date (and which remain in full force and effect on the Initial
Borrowing Date) or, in the case of any filings or recordings in respect of
the TPI Security Documents executed on the Initial Borrowing Date, will be
made within 10 days thereof if the Contribution Effective Time has not
theretofore occurred), or exemption by, any foreign or domestic governmental
or public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with, (i) the execution, delivery and
performance of any Credit Document to which any Tenneco Party is a party or
(ii) the legality, validity, binding effect or enforceability of any such
Credit Document.
7A.05 LITIGATION. There are no actions, suits, proceedings or
investigations pending or, to the best knowledge of the Borrower, threatened
which allege any breach caused by entry into or performance of, or which may
enjoin or otherwise limit, any Document to which any Tenneco Party is a party
or the Transaction.
7A.06 USE OF PROCEEDS; MARGIN REGULATIONS. (a) All proceeds
of the Term Loans shall (x) contemporaneously with the Contribution Effective
Time, be released from the Restricted Account and used by TPI to effect the
Refinancing and (y) at the time of the
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Contribution Effective Time, be released from the Restricted Account to TPI
and used for general corporate purposes.
(b) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan nor
the use of the proceeds thereof nor the occurrence of any other Credit Event
prior to the Contribution Effective Time will violate or be inconsistent with
the provisions of Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
7A.07 TPI SECURITY AGREEMENT. The provisions of the TPI
Security Agreement are effective to create in favor the Collateral Agent for
the benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of TPI in the TPI Security
Agreement Collateral described therein and the TPI Security Agreement, upon
the filing of Form UCC-1 financing statements, mortgages or the appropriate
equivalent, create a fully perfected lien on, and security interest in, all
right, title and interest in all of the TPI Security Agreement Collateral
described therein, subject to no Liens other than TPI Permitted Liens to the
extent a security interest or Lien in such collateral can be perfected by the
filing of a financing statement or recording of a mortgage.
7A.08 INVESTMENT COMPANY ACT. Neither Tenneco nor TPI or any
of its Subsidiaries is an "investment company" or a company "controlled" by
an "investment company," within the meaning of the Investment Company Act of
1940, as amended.
7A.09 PUBLIC UTILITY HOLDING COMPANY ACT. Neither Tenneco nor
TPI or any of its Subsidiaries is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or
of a "subsidiary company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
7A.10 SUBORDINATION. The subordination provisions contained
in the Subordinated Promissory Notes Documents are enforceable against TPI,
Tenneco and the holders of the Subordinated Promissory Notes, and all
Obligations hereunder and the Tenneco Guaranty are within the definition of
"Senior Debt" included in such subordination provisions.
7A.11 CONDITIONS TO THE CONTRIBUTION. All conditions
precedent to TPI's obligation to consummate the Contribution pursuant to the
Contribution Documents have been satisfied or waived other than the making of
the Term Loans and the Refinancing. The cash proceeds of the Subordinated
Promissory Notes and the Term Loans are sufficient to consummate the
Refinancing.
SECTION 7B. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order
to induce the Lenders to enter into this Agreement and to make the Loans, and
issue (or participate in) the Letters of Credit as provided herein, PCA hereby
makes the following representations, warranties and agreements, in each case
both (x) after giving effect to each element of the Transaction (other than the
Contribution) and (y) after giving effect to the Transaction (including the
Contribution), all of which shall survive the execution and delivery of this
Agreement and the Notes and the making of the Loans and issuance of the Letters
of Credit, with the occurrence of
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the Initial Borrowing Date and the Contribution and each Credit Event on or
after the Initial Borrowing Date being deemed to constitute a representation
and warranty that the matters specified in this Section 7B are true and
correct in all material respects on and as of the Initial Borrowing Date, at
the time of the Contribution (after giving effect thereto) and on the date of
each such Credit Event (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date):
7B.01 CORPORATE STATUS. Each of PCA and its Subsidiaries (i)
is a duly organized and validly existing corporation or limited liability
company, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation, (ii) has the corporate or other applicable
power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (iii) is
duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the conduct of its business requires such
qualifications except for failures to be so qualified which, individually or
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
7B.02 CORPORATE POWER AND AUTHORITY. Each PCA Credit Party
has the corporate or other applicable power and authority to execute, deliver
and perform the terms and provisions of each of the Documents to which it is
party and has taken all necessary corporate or other applicable action to
authorize the execution, delivery and performance by it of each of such
Documents. Each PCA Credit Party has duly executed and delivered each of the
Documents to which it is party, and each of such Documents constitutes the
legal, valid and binding obligation of such PCA Credit Party enforceable in
accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws generally
affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law) and principles of good
faith and fair dealing.
7B.03 NO VIOLATION. Neither the execution, delivery or
performance by any PCA Credit Party of the Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will
contravene any provision of any applicable law, statute, rule or regulation
or any applicable order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict with or result in any breach
of any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation
to create or impose) any Lien (except pursuant to the Security Documents)
upon any of the properties or assets of any PCA Credit Party or any of its
Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust,
credit agreement or loan agreement, or any other material agreement, contract
or instrument, to which any PCA Credit Party or any of its Subsidiaries is a
party or by which it or any of its property or assets is bound or to which it
may be subject (including, without limitation, the Subordinated Notes
Purchase Agreement and the Senior Subordinated Notes Indenture) or (iii) will
violate any provision of the Certificate of Incorporation or By-Laws (or
equivalent organizational documents) of any PCA Credit Party or any of its
Subsidiaries.
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7B.04 GOVERNMENTAL APPROVALS. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except as have been obtained or made on or prior to the Initial
Borrowing Date (and which remain in full force and effect on the Initial
Borrowing Date) or, in the case of any filings or recordings in respect of
the Security Documents executed on the Initial Borrowing Date (other than the
TPI Security Documents), will be made within 10 days thereof except to the
extent otherwise provided in the Security Documents), or exemption by, any
foreign or domestic governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of any Document or (ii) the
legality, validity, binding effect or enforceability of any Document.
7B.05 FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED
LIABILITIES; PROJECTIONS; ETC. (a) The consolidated balance sheets of the
Containerboard Group for the fiscal years ended on December 31, 1996,
December 31, 1997 and December 31, 1998, respectively, and the related
consolidated statements of income, cash flows and interdivision account of
the Containerboard Group for the fiscal year ended on such dates, copies of
which have been furnished to the Lenders prior to the Effective Date, present
fairly in all material respects the financial position of the Containerboard
Group at the dates of such balance sheets and the results of the operations
of the Containerboard Group for the periods covered thereby. All of the
foregoing historical financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied.
(b) The unaudited PRO FORMA consolidated balance sheet and
related statement of income of PCA and its Subsidiaries (including the
Containerboard Business) as of December 31, 1998 and for the fiscal year
ended on such date, after giving effect to the Transaction, copies of which
have been furnished to the Lenders prior to the Effective Date, present
fairly in all material respects the PRO FORMA consolidated financial position
of PCA and its Subsidiaries as at December 31, 1998, and the PRO FORMA
consolidated results of operations of PCA and its Subsidiaries for the period
covered thereby (assuming the Contribution had occurred on December 31, 1998
(in the case of such balance sheet) and on January 1, 1998 (in the case of
the related income statement)).
(c) On and as of the Initial Borrowing Date, on a PRO FORMA
basis after giving effect to the Transaction and all other transactions
contemplated by the Documents and to all Indebtedness (including the Loans and
the Senior Subordinated Notes) being incurred or assumed, and Liens created by
each PCA Credit Party in connection therewith, with respect to each of PCA,
individually, and PCA and its Subsidiaries taken as a whole, (x) the sum of the
assets, at a fair valuation, of PCA, individually, and PCA and its Subsidiaries
taken as a whole, will exceed its (or their) debts; (y) it has (or they have)
not incurred and does (or do) not intend to incur, nor believes (or believe)
that it (or they) will incur debts beyond its (or their) ability to pay such
debts as such debts mature; and (z) it (or they) will have sufficient capital
with which to conduct its (or their) business. For purposes of this Section
7B.05(c), "debt" means any liability on a claim and "claim" means (i) right to
payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for
breach of
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performance if such breach gives rise to a payment, whether or not such right
to an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured.
(d) Except as fully disclosed in the financial statements
(including the PRO FORMA financial statements) delivered pursuant to Section
7B.05(a) and 7B.05(b), there were as of the Initial Borrowing Date no
liabilities or obligations with respect to (x) at any time prior to the
Contribution Effective Time, the Containerboard Business or (y) thereafter,
PCA or any of its Subsidiaries of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not due) which, either
individually or in the aggregate, would be adversely material to (x) at any
time prior to the Contribution Effective Time, the Containerboard Business or
(y) thereafter, PCA or any of its Subsidiaries. As of the Initial Borrowing
Date, none of the PCA Credit Parties knows of any basis for the assertion
against it or the Containerboard Business of any liability or obligation of
any nature that is not fully disclosed in the financial statements delivered
pursuant to Section 7B.05(a) and 7B.05(b) which, either individually or in
the aggregate, have or would reasonably be likely to have a Material Adverse
Effect.
(e) On and as of the Initial Borrowing Date, the
Projections which have been delivered to the Administrative Agent and the
Lenders on or prior to the Effective Date are based on good faith estimates
and assumptions believed by management of PCA to be reasonable as of the date
of such Projections. On the Initial Borrowing Date, PCA believes that the
Projections are reasonable and attainable (it being understood that nothing
contained in this Section 7B.05(e) shall constitute a representation that the
results forecasted in such Projections will in fact be achieved). There is
no fact known to PCA or any of its Subsidiaries which would have a Material
Adverse Effect which has not been disclosed herein or in such documents,
certificates and statements furnished to the Lenders for use in connection
with the transactions contemplated hereby.
(f) Since December 31, 1998 (but after giving effect to the
Transaction as if the same had occurred prior thereto), nothing has occurred
that has had or would reasonably be expected to have a Material Adverse
Effect.
(g) Substantially all of the assets and liabilities, and
the business, of the Containerboard Group are being acquired by PCA pursuant
to the Contribution and the assets being acquired comprise all of the assets
which are necessary to conduct the business of the Containerboard Group as
conducted during the period covered by the financial statements referred to
in Section 7B.05(a).
7B.06 LITIGATION. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of PCA, threatened (i) on the
Initial Borrowing Date with respect to any Document or the Transaction or
(ii) with respect to any Credit Party or any of its Subsidiaries (x) that
could reasonably be expected to have a Material Adverse Effect or (y) that
could reasonably be expected to have a material adverse effect on the rights
or remedies of the Agents or the Lenders or on the ability of any Credit
Party to perform its respective obligations
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in any material respect to the Agents or the Lenders hereunder and under the
other Credit Documents to which it is, or will be, a party.
7B.07 TRUE AND COMPLETE DISCLOSURE. All factual information
(taken as a whole) prepared by or on behalf of PCA or any of its Subsidiaries
and furnished in writing to any Agent or any Lender (including, without
limitation, all information contained in the Documents) for purposes of or in
connection with this Agreement, the other Credit Documents or any transaction
contemplated herein or therein is, and all other such factual information
(taken as a whole) hereafter prepared by or on behalf of any such Person and
furnished in writing to any Agent or any Lender will be, after giving effect
to any written corrections delivered to the Lenders and the Agents prior to
the date this representation is made or deemed made, true and accurate in all
material respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any fact necessary to make
such information (taken as a whole) not misleading in any material respect at
such time in light of the circumstances under which such information was
provided; PROVIDED that this representation shall not apply to non-Borrower
specific information furnished with an express disclaimer.
7B.08 USE OF PROCEEDS; MARGIN REGULATIONS. (a) All proceeds
of all Revolving Loans and all Swingline Loans shall be used for PCA's and
its Subsidiaries' general corporate and working capital purposes (including,
without limitation, to make Capital Expenditures and finance Permitted
Acquisitions) and shall not be used to finance the Transaction (other than
fees and expenses to the extent related to the period following the Initial
Borrowing Date and purchase price adjustments required to be paid after the
Initial Borrowing Date under the Contribution Agreement); PROVIDED that
proceeds of Revolving Loans and Swingline Loans in an aggregate principal
amount not exceeding $25,000,000 may be used to make payments owing in
connection with the Transaction (other than fees and expenses to the extent
related to the period following the Initial Borrowing Date and purchase price
adjustments required to be paid after the Initial Borrowing Date under the
Contribution Agreement).
(b) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock. Neither the making of any Loan nor
the use of the proceeds thereof nor the occurrence of any other Credit Event
will violate or be inconsistent with the provisions of Regulation T, U or X
of the Board of Governors of the Federal Reserve System.
7B.09 TAX RETURNS AND PAYMENTS. PCA and each of its
Subsidiaries has filed all federal income tax returns and all other material
tax returns, domestic and foreign, required to be filed by it and has paid
all material taxes and assessments payable by it which have become due,
except for those contested in good faith and adequately disclosed and fully
provided for on the financial statements of PCA and its Subsidiaries in
accordance with generally accepted accounting principles. PCA and each of
its Subsidiaries have at all times paid, or have provided adequate reserves
(in the good faith judgment of the management of PCA) for the payment of, all
material federal, state and foreign taxes applicable for all prior fiscal
years and for the current fiscal year to date. There is no action, suit,
proceeding, investigation, audit, or claim now pending or, to the knowledge
of PCA or any of its Subsidiaries, threatened by any authority
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regarding any material taxes relating to PCA or any of its Subsidiaries.
Neither PCA nor any of its Subsidiaries has entered into an agreement or
waiver or been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of material
taxes of PCA or any of its Subsidiaries, or is aware of any circumstances
that would cause the taxable years or other taxable periods of PCA or any of
its Subsidiaries not to be subject to the normally applicable statute of
limitations. Except as set forth in Schedule X, neither PCA nor any
Subsidiary has incurred, or will incur, any material tax liability in
connection with the Transaction.
7B.10 COMPLIANCE WITH ERISA. The following paragraphs only
apply to a Multiemployer Plan where specifically mentioned. In each other
instance, the following paragraphs apply to any Multiemployer Plan only to
the extent of the knowledge of PCA. In addition, the following paragraph
applies with respect to the Tenneco Retirement Plan and the TPI Hourly Plan
(the "TENNECO PENSION PLANS") only to the extent of the knowledge of PCA,
after the exercise of reasonable diligence and due inquiry. (i) Schedule VII
sets forth each Plan; each Plan (and each related trust, insurance contract
or fund) is in substantial compliance with its terms and with all applicable
laws, including, without limitation, ERISA and the Code; each Plan (and each
related trust, if any) which is intended to be qualified under Section 401(a)
of the Code has received or has timely applied for a determination letter
from the Internal Revenue Service to the effect that it meets the
requirements of Sections 401(a) and 501(a) of the Code; except as would not
result in a material liability no Reportable Event has occurred; to the
knowledge of Borrower, no Plan which is a Multiemployer Plan (as defined in
Section 4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has
an Unfunded Current Liability which, when added with the Unfunded Current
Liability of each other Plan could result in a material liability; no Plan
which is subject to Section 412 of the Code or Section 302 of ERISA has an
accumulated funding deficiency, within the meaning of such sections of the
Code or ERISA, or has applied for or received a waiver of an accumulated
funding deficiency or an extension of any amortization period, within the
meaning of Section 412 of the Code or Section 303 or 304 of ERISA; all
contributions required to be made with respect to a Plan or a Multiemployer
Plan have been timely made; neither (x) at any time prior to the Contribution
Effective Time, the Containerboard Business nor (y) thereafter, PCA, any of
its Subsidiaries or any ERISA Affiliate, has incurred any material liability
(including any indirect, contingent or secondary liability) to or on account
of a Plan or a Multiemployer Plan pursuant to Section 409, 502(i), 502(l),
515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971 or 4975 of the Code or expects to incur any such liability
under any of the foregoing sections with respect to any Plan; to the best
knowledge of PCA or any of its Subsidiaries, no condition exists which
presents a material risk to (x) at any time prior to the Contribution
Effective Time, the Containerboard Business or (y) thereafter, PCA or any of
its Subsidiaries or any ERISA Affiliate, of incurring a material liability to
or on account of a Plan or a Multiemployer Plan pursuant to the foregoing
provisions of ERISA and the Code; no proceedings have been instituted to
terminate or appoint a trustee to administer any Plan which is subject to
Title IV of ERISA; no material action, suit, proceeding, hearing, audit or
investigation with respect to the administration, operation or the investment
of assets of any Plan (other than routine claims for benefits) is pending, or
expected or threatened; using actuarial assumptions and computation methods
consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of (x)
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at any time prior to the Contribution Effective Time, the Containerboard
Business or (y) thereafter, PCA and of its Subsidiaries and its ERISA
Affiliates, to all Plans which are Multiemployer Plans (as defined in Section
4001(a)(3) of ERISA) in the event of a complete withdrawal therefrom, as of
the close of the most recent fiscal year of each such Plan ended prior to the
date of the most recent Credit Event, would not result in a material
liability; each group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) which covers or has covered employees or
former employees of (x) at any time prior to the Contribution Effective Time,
the Containerboard Business or (y) thereafter, PCA, any Subsidiary of PCA, or
any ERISA Affiliate, has at all times been operated in material compliance
with the provisions of Part 6 of subtitle B of Title I of ERISA and Section
4980B of the Code; no lien imposed under the Code or ERISA on the assets of
(x) at any time prior to the Contribution Effective Time, the Containerboard
Business or (y) thereafter, PCA or any Subsidiary of PCA or any ERISA
Affiliate, exists or is likely to arise on account of any Plan; and, except
with respect to a Plan maintained pursuant to a collective bargaining
agreement, PCA and its Subsidiaries may cease contribuions to or terminate
any Employee Benefit Plan maintained by any of them without a Material
Adverse Effect.
(ii) Each Foreign Pension Plan has been maintained in
substantial compliance with its terms and with the requirements of any and
all applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable regulatory
authorities. All contributions required to be made with respect to a Foreign
Pension Plan have been or will be timely made. Neither (x) at any time prior
to the Contribution Effective Time, the Containerboard Business nor (y)
thereafter, PCA or any of its Subsidiaries has incurred any material
obligation in connection with the termination of or withdrawal from any
Foreign Pension Plan. Except as would not result in a material liability, the
present value of the accrued benefit liabilities (whether or not vested)
under each Foreign Pension Plan, determined as of the end of PCA's most
recently ended fiscal year on the basis of actuarial assumptions, each of
which is reasonable, did not exceed the current value of the assets of such
Foreign Pension Plan allocable to such benefit liabilities.
7B.11 THE SECURITY DOCUMENTS. (a) On and after the Contribution
Effective Time, (i) the provisions of the PCA Security Agreement are effective
to create in favor of the Collateral Agent for the benefit of the Secured
Creditors a legal, valid and enforceable security interest in all right, title
and interest of the PCA Credit Parties in the PCA Security Agreement Collateral
described therein and (ii) the PCA Security Agreement, upon the filing of Form
UCC-1 financing statements or the appropriate equivalent (which filings, if this
representation is being made more than 10 days after the Contribution Effective
Time, have been made), creates a fully perfected first lien on, and security
interest in, all right, title and interest in all of the PCA Security Agreement
Collateral described therein as of the consummation of the Contribution, subject
to no other Liens other than Permitted Liens, to the extent a security interest
in such collateral can be perfected by the filing of a financing statement. The
recordation of the Grant of Security Interest in U.S. Patents and Trademarks in
the form attached to the PCA Security Agreement in the United States Patent and
Trademark Office, together with filings on Form UCC-1 made pursuant to the PCA
Security Agreement will be effective when recorded or filed (which recordings or
filings, if this representation is being made more than 10 days after the
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Contribution Effective Time, have been made), under applicable law, to
perfect the security interest granted to the Collateral Agent in the
trademarks and patents covered by the PCA Security Agreement and identified
in such Grant of Security Interest and the recordation of the Grant of
Security Interest in U.S. Copyrights in the form attached to the PCA Security
Agreement with the United States Copyright Office, together with filings on
Form UCC-1 made pursuant to the PCA Security Agreement, will be effective
when recorded or filed (which recordings or filings, if this representation
is being made more than 10 days after the Contribution Effective Time, have
been made) under federal law to perfect the security interest granted to the
Collateral Agent in the copyrights covered by the PCA Security Agreement and
identified in such Grant of Security Interest .
(b) On and after the Contribution Effective Time, assuming
the Collateral Agent continues to retain possession of the applicable Pledged
Securities, the security interests created in favor of the Collateral Agent,
as pledgee, for the benefit of the Secured Creditors under the Pledge
Agreement constitute first priority perfected security interests in the
Pledged Securities described in the Pledge Agreement, subject to no security
interests of any other Person. Assuming the Collateral Agent continues to
retain possession of the applicable Pledged Securities, no filings or
recordings are required in order to perfect (or maintain the perfection or
priority of) the security interests created in the Pledged Securities and the
proceeds thereof under the Pledge Agreement.
(c) On and after the Contribution Effective Time, the
Mortgages create, as security for the obligations purported to be secured
thereby, a valid and enforceable perfected security interest in and mortgage
lien on all of the Mortgaged Properties in favor of the Collateral Agent (or
such other trustee as may be required or desired under local law) for the
benefit of the Secured Creditors, superior to and prior to the rights of all
third persons (except that the security interest and mortgage lien created in
the Mortgaged Properties may be subject to the Permitted Encumbrances related
thereto) and subject to no other Liens (other than Permitted Liens). On and
after the Contribution Effective Time, PCA and each of its Subsidiaries have
good and indefeasible title to all fee-owned Mortgaged Properties and valid
leasehold title to all Leaseholds, in each case free and clear of all Liens
except those described in the first sentence of this subsection (c).
7B.12 REPRESENTATIONS AND WARRANTIES IN OTHER DOCUMENTS. All
representations and warranties of PCA and its Subsidiaries set forth in the
other Documents were true and correct in all material respects at the time as
of which such representations and warranties were made (or deemed made) and
shall be true and correct in all material respects as of the Initial
Borrowing Date and the Contribution Effective Time as if such representations
or warranties were made on and as of such date, unless stated to relate to a
specific earlier date, in which case such representations or warranties shall
be true and correct in all material respects as of such earlier date, in each
case except to the extent that the failure of any such representation and
warranty to be true and correct in all material respects, either individually
or in the aggregate with other such representations and warranties, is not
reasonably likely to have a Material Adverse Effect.
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7B.13 PROPERTIES. The Borrower and each of its Subsidiaries have
good and valid title to all properties owned by them, including, after the
Contribution Effective Time, all property reflected in the most recent balance
sheet referred to in Section 7B.05(a) (except as sold or otherwise disposed of
since the date of such balance sheet in accordance with the Contribution
Agreement and for the properties not being transferred to PCA pursuant to the
Contribution Agreement) and in the PRO FORMA balance sheet referred to in
Section 7B.05(b) (except as sold or otherwise disposed of since the Contribution
Effective Time in accordance with the terms of this Agreement), free and clear
of all Liens, other than Permitted Liens permitted by Section 9.01. On the
Initial Borrowing Date, Schedule III sets forth a true and complete description
of all Real Property owned or leased by the Borrower and/or its Subsidiaries
comprising part of the Containerboard Business and sets forth the direct owner
or lessee thereof.
7B.14 CAPITALIZATION. On the Initial Borrowing Date and after
giving effect to the Transaction, the authorized capital stock of PCA shall
consist of (i) 1,000,000 shares of common stock, $.01 par value per share (such
authorized shares of common stock, together with any subsequently authorized
shares of common stock of PCA, the "BORROWER COMMON STOCK"), all of which shares
shall be issued and outstanding, (ii) 3,000,000 shares of Borrower PIK Preferred
Stock, of which 1,000,000 shares shall be issued and outstanding and (iii) 100
shares of junior preferred stock, all of which shall be issued and outstanding.
All such outstanding shares have been duly and validly issued, are fully paid
and non-assessable and have been issued free of preemptive rights. On the
Initial Borrowing Date, PCA does not have any outstanding securities convertible
into or exchangeable for its capital stock or outstanding any rights to
subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock.
7B.15 SUBSIDIARIES. (a) Prior to the consummation of the
Transaction, PCA has no Subsidiaries.
(b) After giving effect to the Transaction, PCA will have no
Subsidiaries other than (i) those Subsidiaries listed on Schedule VIII and (ii)
new Subsidiaries created in compliance with Section 9.14. Schedule VIII
correctly sets forth, as of the Initial Borrowing Date and after giving effect
to the Transaction, the percentage ownership (direct and indirect) of PCA in
each class of capital stock or other equity interest of each of its Subsidiaries
and also identifies the direct owner thereof. On and after the Contribution
Effective Time, all outstanding shares of capital stock of each Subsidiary of
PCA have been duly and validly issued, are fully paid and non-assessable and
have been issued free of preemptive rights. No Subsidiary of PCA has any
outstanding securities convertible into or exchangeable for its capital stock or
outstanding any right to subscribe for or to purchase, or any options or
warrants for the purchase of, or any agreement providing for the issuance
(contingent or otherwise) of or any calls, commitments or claims of any
character relating to, its capital stock or any stock appreciation or similar
rights.
7B.16 COMPLIANCE WITH STATUTES, ETC. (x) At any time prior to
the Contribution Effective Time, the Containerboard Business and (y) thereafter,
each of PCA and each of its
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Subsidiaries, is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of the Containerboard
Business or its business, as applicable, and the ownership of the
Containerboard Business or its property, as applicable (excluding applicable
statutes, regulations, orders and restrictions relating to environmental
standards and controls, which are governed by Section 7B.19), except such
noncompliances as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
7B.17 INVESTMENT COMPANY ACT. Neither PCA nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7B.18 PUBLIC UTILITY HOLDING COMPANY ACT. Neither PCA nor any of
its Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7B.19 ENVIRONMENTAL MATTERS. (a) (x) At any time prior to the
Contribution Effective Time, the Containerboard Business and (y) thereafter, PCA
and each of its Subsidiaries has complied with, and on the date of each Credit
Event will be in compliance with, all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws. There are no
past, pending or, to the best knowledge of PCA after due inquiry, past or
threatened Environmental Claims against (x) at any time prior to the
Contribution Effective Time, the Containerboard Business or (y) thereafter, PCA
or any of its Subsidiaries or any Real Property owned or operated by PCA or any
of its Subsidiaries. There are no facts, circumstances, conditions or
occurrences in respect of (x) at any time prior to the Contribution Effective
Time, the Containerboard Business or (y) thereafter, any Real Property owned or
operated or occupied by PCA or any of its Subsidiaries that would reasonably be
expected (i) to form the basis of an Environmental Claim against the
Containerboard Business or PCA or any of its Subsidiaries or any such Real
Property, as the case may be, or (ii) to cause (x) at any time prior to the
Contribution Effective Time, the Containerboard Business or (y) thereafter, any
such Real Property to be subject to any restrictions on the ownership,
occupancy, use or transferability of the Containerboard Business or such Real
Property, as the case may be, by PCA or any of its Subsidiaries under any
applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from (x) at any time prior to
the Contribution Effective Time, any Real Property comprising part of the
Containerboard Business and (y) thereafter, any Real Property owned or operated
by PCA or any of its Subsidiaries, where such generation, use, treatment or
storage has violated or would reasonably be expected to violate any
Environmental Law or give rise to an Environmental Claim. Hazardous Materials
have not been Released on or from (x) at any time prior to the Contribution
Effective Time, any Real Property comprising part of the Containerboard Business
and (y) thereafter, any Real Property owned or operated by PCA or any of its
Subsidiaries, where such Release has violated or would reasonably be expected to
violate any applicable Environmental Law or give rise to an Environmental Claim.
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(c) Notwithstanding anything to the contrary in this Section
7B.19, the representations made in this Section 7B.19 shall only be untrue if
the aggregate effect of all failures and noncompliances of the types described
above would reasonably be expected to have a Material Adverse Effect.
(d) This Section 7B.19 sets forth the sole and exclusive
representations by the Borrower with respect to environmental matters, including
without limitations all matters arising under Environmental Laws.
7B.20 LABOR RELATIONS. Neither (x) at any time prior to the
Contribution Effective Time, the Containerboard Business nor (y) thereafter, PCA
or any of its Subsidiaries is engaged in any unfair labor practice that would
reasonably be expected to have a material adverse effect on the Containerboard
Business or PCA and its Subsidiaries taken as a whole, as the case may be, and
there is (i) no unfair labor practice complaint pending against (x) at any time
prior to the Contribution Effective Time, the Containerboard Business or (y)
thereafter, PCA or any of its Subsidiaries or, to the best knowledge of PCA,
threatened against any of them, before the National Labor Relations Board, and
no material grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against (x) at any time prior to
the Contribution Effective Time, the Containerboard Business or (y) thereafter,
PCA or any of its Subsidiaries or, to the best knowledge of PCA, threatened
against any of them, (ii) no strike, labor dispute, slowdown or stoppage pending
against (x) at any time prior to the Contribution Effective Time, the
Containerboard Business or (y) thereafter, PCA or any of its Subsidiaries or, to
the best knowledge of PCA, threatened against the Containerboard Business or PCA
or any of its Subsidiaries, as the case may be, and (iii) to the best knowledge
of PCA, no union representation proceeding is pending with respect to the
employees of (x) at any time prior to the Contribution Effective Time, the
Containerboard Business or (y) thereafter, PCA or any of its Subsidiaries,
except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as would not reasonably be
expected to have a Material Adverse Effect.
7B.21 PATENTS, LICENSES, FRANCHISES AND FORMULAS. (i) At any
time prior to the Contribution Effective Time, the Containerboard Business and
(ii) at any time on and after the Contribution Effective Time, each of PCA and
its Subsidiaries owns or has a valid license to use all material patents,
trademarks, permits, service marks, trade names, copyrights, licenses,
franchises and formulas, or rights with respect to the foregoing, and has
obtained assignments of all leases and other rights of whatever nature,
necessary for the present conduct of its business, without any known conflict
with the rights of others which, or the failure to own or obtain which, as the
case may be, would be reasonably likely to result in a Material Adverse Effect.
7B.22 INDEBTEDNESS. (a) Schedule V.A sets forth a true and
complete list of all Existing Indebtedness of PCA and its Subsidiaries as of the
Initial Borrowing Date and which is to remain outstanding after giving effect to
the Transaction, in each case showing the aggregate principal amount thereof and
the name of the respective borrower and any other entity which directly or
indirectly guaranteed such debt.
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(b) Schedule V.B sets forth a true and complete list of all
Indebtedness of TPI and its Subsidiaries to be Refinanced (the "INDEBTEDNESS TO
BE REFINANCED"), in each case showing the aggregate principal amount thereof,
the name of the respective borrower and any other entity which directly or
indirectly guaranteed such Indebtedness and the amount required to pay such
Indebtedness in full on the Initial Borrowing Date which amount does not exceed
in the aggregate $1,110,000,000.
7B.23 TRANSACTION. At the time of consummation thereof, each
element of the Transaction shall have been consummated in all material respects
in accordance with the terms of the respective Documents and all applicable
laws. At the time of consummation of each element of the Transaction, all
material consents and approvals of, and filings and registrations with (or, in
the case of any filing in respect of the Security Documents executed on the
Initial Borrowing Date (other than the TPI Security Agreement), will be made
within 10 days thereof), and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to make or
consummate the Transaction will have been obtained, given, filed or taken and
are or will be in full force and effect (or effective judicial relief with
respect thereto has been obtained). All applicable waiting periods with respect
thereto have or, prior to the time when required, will have, expired without, in
all such cases, any action being taken by any competent authority which
restrains, prevents, or imposes material adverse conditions upon the
Transaction. Additionally, there does not exist any judgment, order or
injunction prohibiting or imposing material adverse conditions upon any element
of the Transaction, or the occurrence of any Credit Event or the performance by
any Credit Party of its obligations under the respective Credit Documents. All
actions taken by each Credit Party pursuant to or in furtherance of the
Transaction have been taken in all material respects in compliance with the
respective Documents and all applicable laws.
7B.24 INSURANCE. Schedule VI sets forth a true and complete
listing of all insurance maintained by PCA and its Subsidiaries as of the
Initial Borrowing Date (after giving effect to the Contribution), and with the
amounts insured (and any deductibles) set forth therein.
7B.25 YEAR 2000 COMPLIANCE. PCA has reviewed its operations and
those of its Subsidiaries with a view to assessing whether its businesses, or
the businesses of any of its Subsidiaries, will be vulnerable to a Y2K Problem
or will be vulnerable in any material respect to the effects of a Y2K Problem
suffered by any of PCA or any of its Subsidiaries' major customers and
suppliers. PCA represents and warrants that it has a reasonable basis to
believe, and that it does believe, that no Y2K Problem will cause a Material
Adverse Effect.
7B.26 SPECIAL PURPOSE CORPORATION. PCA was formed to effect the
Transaction. Prior to the consummation of the Transaction, PCA had no
significant assets or liabilities (other than those liabilities under the
Contribution Documents).
7B.27 SUBORDINATION. (a) The subordination provisions contained
in the Senior Subordinated Notes Documents are enforceable against PCA, the
Subsidiary Guarantors and the holders of the Senior Subordinated Notes, and all
Obligations hereunder and under the other Credit Documents (including, without
limitation, pursuant to the Subsidiaries Guaranty) are
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within the definitions of "Senior Debt" and "Designated Senior Debt" included
in such subordination provisions.
(b) The subordination provisions contained in the
Subordinated Promissory Notes Documents are enforceable against the Borrower,
Tenneco and the holders of the Subordinated Promissory Notes, and all
Obligations hereunder and under the other Credit Documents (including, without
limitation, pursuant to the Guaranties) are within the definition of "Senior
Debt" included in such subordination provisions.
(c) There exists no Designated Senior Debt for purposes of,
and as defined in, the Senior Subordinated Notes Indenture (other than the
Obligations).
SECTION 8. AFFIRMATIVE COVENANTS. PCA hereby covenants and
agrees that in the case of the covenants described below on and after the
Contribution Effective Time and until the Total Commitments and all Letters of
Credit have terminated and the Loans, Notes and Unpaid Drawings, together with
interest, Fees and all other obligations incurred hereunder and thereunder are
paid in full (other than any indemnity, not then due and payable, which by its
terms shall survive such termination and payment):
8.01 INFORMATION COVENANTS. The Borrower will furnish to each
Lender:
(a) QUARTERLY FINANCIAL STATEMENTS. Within 45 days after the
close of the first three quarterly accounting periods in each fiscal year
of the Borrower, (i) the consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as at the end of such quarterly accounting
period and the related consolidated statements of income and cash flows,
in each case for such quarterly accounting period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly
accounting period, and in each case, setting forth comparative figures
for the related periods in the prior fiscal year (other than in the case
of the first fiscal year of PCA) and, after the delivery of the first
budget pursuant to Section 8.01(d), the budgeted figures for such
quarterly periods as set forth in the respective budget delivered
pursuant to Section 8.01(d), all of which shall be certified by the Chief
Financial Officer of the Borrower, subject to normal year-end audit
adjustments and (ii) management's discussion and analysis of the
important operational and financial developments during the fiscal
quarter and year-to-date periods.
(b) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the
close of each fiscal year of the Borrower, (i) the consolidated and
consolidating balance sheets of the Borrower and its Consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated and consolidating statements of income and retained earnings
and of cash flows for such fiscal year setting forth comparative figures
for the preceding fiscal year and (x) in the case of such consolidated
financial statements certified by Ernst & Young LLP, or such other
independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent, together with a report
of such accounting firm stating that in the course of its regular audit
of the financial statements of the Borrower and its Subsidiaries, which
audit was conducted in accordance with generally accepted auditing
standards, such accounting firm obtained no
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knowledge of any Default or Event of Default which has occurred and is
continuing or, if in the opinion of such accounting firm such a Default
or Event of Default has occurred and is continuing, a statement as to
the nature thereof, and (y) in the case of such consolidating financial
statements certified by the Chief Financial Officer of the Borrower,
and (ii) management's discussion and analysis of the important
operational and financial developments during such fiscal year.
(c) MANAGEMENT LETTERS. Promptly after the receipt thereof
by the Borrower or any of its Subsidiaries, a copy of any "management
letter" received by any such Person from its certified public accountants
and the management's responses thereto.
(d) BUDGETS. No later than 60 days following the
commencement of the first day of each fiscal year of the Borrower
(commencing with the fiscal year of the Borrower ended December 31,
2000), a budget of the Borrower and its Subsidiaries in form satisfactory
to the Administrative Agent prepared by the Borrower for each fiscal
quarter of such fiscal year prepared in detail, accompanied by the
statement of the Chief Financial Officer of the Borrower to the effect
that, to the best of his knowledge, the budget is a reasonable estimate
for the period covered thereby.
(e) OFFICER'S CERTIFICATES. At the time of the delivery of
the financial statements provided for in Section 8.01(a) and (b), a
certificate of the Chairman of the Board, the President or Chief
Financial Officer of the Borrower to the effect that, to the best of such
officer's knowledge, no Default or Event of Default has occurred and is
continuing or, if any Default or Event of Default has occurred and is
continuing, specifying the nature and extent thereof, which certificate
shall, in the case of any such financial statements delivered in respect
of a period ending on the last day of a fiscal quarter or year of the
Borrower, (x) set forth the calculations required to establish whether
the Borrower was in compliance with the provisions of Sections 4.02(e),
(f), (g), (h), (i) and (j) (but with respect to Section 4.02(i) only to
the extent delivered with the financial statements required by
Sections 8.01(b)), 9.02 and 9.04 through 9.10, inclusive, at the end of
such fiscal quarter or year, as the case may be, (y) set forth the
calculation of the Available J.V. Basket Amount and the Available
Permitted Acquisition Basket Amount at the end of the period covered by
such financial statements, and all sources and uses of proceeds relating
to the calculation thereof and (z) if delivered with the financial
statements required by Section 8.01(b), set forth (in reasonable detail)
the amount of, and the calculations required to establish the amount of,
Excess Cash Flow for the respective Excess Cash Payment Period.
(f) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any
event within three Business Days after an officer of the Borrower obtains
knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or Event of Default and (ii) any litigation or
governmental investigation or proceeding pending or threatened (x)
against the Borrower or any of its Subsidiaries which would reasonably be
expected to have a Material Adverse Effect, (y) with respect to any
Indebtedness in excess of $10,000,000 of the Borrower or any of its
Subsidiaries or (z) with respect to any Document.
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(g) OTHER REPORTS AND FILINGS. Promptly, copies of all financial
information, proxy materials and other information and reports, if any, which
the Borrower or any of its Subsidiaries shall file with the Securities and
Exchange Commission or any successor thereto (the "SEC") or deliver to
holders of its material Indebtedness (including the Senior Subordinated
Notes) pursuant to the terms of the documentation governing such Indebtedness
(or any trustee, agent or other representative therefor) and holders of their
capital stock (including the Borrower PIK Preferred Stock) in their capacity
as such.
(h) ENVIRONMENTAL MATTERS. Promptly upon, and in any event within
thirty days after, an officer of the Borrower or any of its Subsidiaries
obtains knowledge thereof, notice of one or more of the following
environmental matters which occurs after the Initial Borrowing Date, unless
such environmental matters would not, individually or when aggregated with
all other such environmental matters, be reasonably expected to have a
Material Adverse Effect:
(i) any Environmental Claim pending or threatened in writing
against the Borrower or any of its Subsidiaries or any Real Property
owned or operated or occupied by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned or operated or occupied by the Borrower or any of its
Subsidiaries that (a) results in noncompliance by the Borrower or any of
its Subsidiaries with any applicable Environmental Law or (b) would
reasonably be expected to form the basis of an Environmental Claim
against the Borrower or any of its Subsidiaries or any such Real
Property;
(iii) any condition or occurrence on any Real Property owned or
operated or occupied by the Borrower or any of its Subsidiaries that
would reasonably be expected to cause such Real Property to be subject to
any restrictions on the ownership, occupancy, use or transferability by
the Borrower or any of its Subsidiaries of such Real Property under any
Environmental Law; and
(iv) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Property owned or operated or occupied by the Borrower or any of its
Subsidiaries as required by any Environmental Law or any governmental or
other administrative agency; PROVIDED that in any event the Borrower
shall deliver to the Administrative Agent all material notices received
by it or any of its Subsidiaries from any government or governmental
agency under, or pursuant to, CERCLA.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Borrower's or such Subsidiary's response thereto. In addition, the Borrower
will provide the Lenders with copies of all material communications with any
government or governmental agency and all material communications with any
Person relating to any Environmental Claim of which notice is required to be
given pursuant to this Section 8.01(h), and such detailed
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reports of any such Environmental Claim as to which notice is required, as
may reasonably be requested by the Agents or the Lenders.
(i) ANNUAL MEETINGS WITH LENDERS. At the request of
Administrative Agent, the Borrower shall within 120 days after the close
of each fiscal year of the Borrower hold a meeting at a reasonable time
and place selected by the Borrower and acceptable to the Administrative
Agent with all of the Lenders at which meeting shall be reviewed the
financial results of the previous fiscal year and the financial condition
of the Borrower and its Subsidiaries and the budgets presented for the
current fiscal year of the Borrower and its Subsidiaries.
(j) PERMITTED RECEIVABLES FACILITY TRANSACTION DATE. The
Borrower shall provide the Administrative Agent 15 Business Days' prior
written notice of the Permitted Receivables Facility Transaction Date.
(k) NOTICE OF COMMITMENT REDUCTIONS AND MANDATORY REPAYMENTS.
On or prior to the date of any reduction to the Total Commitment or any
mandatory repayment of outstanding Term Loans pursuant to any of Sections
4.02(e) through (j), inclusive, the Borrower shall provide written notice
of the amount of the respective reduction or repayment, as the case may
be, to the Total Revolving Loan Commitment or the outstanding Term Loans,
as applicable, the calculation thereof (in reasonable detail) and the
event to which the respective reduction or repayment relates.
(l) OTHER INFORMATION. From time to time, such other
information or documents (financial or otherwise) with respect to the
Borrower or its Subsidiaries as any Agent or any Lender may reasonably
request in writing.
8.02 BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which are made full, true and correct entries in conformity with generally
accepted accounting principles and all requirements of law. The Borrower will,
and will cause each of its Subsidiaries to, permit officers and designated
representatives of any Agent or any Lender to visit and inspect, during regular
business hours and under guidance of officers of the Borrower, any of the
properties of the Borrower or such Subsidiary in whomsoever's possession, and to
examine the books of account of the Borrower or such Subsidiary and discuss the
affairs, finances and accounts of the Borrower or such Subsidiary with, and be
advised as to the same by, its and their officers and independent accountants,
all upon reasonable advance notice and at such reasonable times and intervals
and to such reasonable extent as such Agent or such Lender may request,
PROVIDED, that so long as no Default or Event of Default is then in existence,
the Borrower shall have the right to participate in any discussions of the
Agents or the Lenders with any independent accountants of the Borrower.
8.03 MAINTENANCE OF PROPERTY; INSURANCE. (a) The Borrower will,
and will cause each of its Subsidiaries to, (i) keep all material properties and
equipment used in its business in good working order and condition (ordinary
wear and tear and loss or damage by casualty or condemnation excepted), (ii)
maintain in full force and effect insurance with reputable and
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solvent insurance carriers on all its property in at least such amounts,
against at least such risks and with such deductibles or self-insured
retentions as is consistent and in accordance with industry practice and
(iii) furnish to each Lender, upon written request, full information as to
the insurance carried. In addition to the requirements to the immediately
preceding sentence, the Borrower will at all time cause insurance of the
types described in Schedule VI to be maintained with no less scope of
coverage or greater deductibles as are described in Schedule VI with respect
to the Containerboard Business immediately before the Effective Date, taking
into account the age and fair market value of equipment. Such insurance
shall include physical damage insurance on all real and personal property
(whether now or hereafter acquired) on an all risk basis and business
interruption insurance. The provisions of this Section 8.03 shall be deemed
supplemental to, but not duplicative of, the provisions of any Security
Documents requiring the maintenance of insurance.
(b) The Borrower will, and will cause its Subsidiaries to, at
all times keep their respective property insured in favor of the Collateral
Agent, and all policies (including the Mortgage Policies) or certificates (or
certified copies thereof) with respect to such insurance (and any other
insurance maintained by the Borrower or any of its Subsidiaries) (i) shall be
endorsed to the Collateral Agent's satisfaction for the benefit of the
Collateral Agent (as certificate holder, mortgagee and loss payee with respect
to Real Property, certificate holder and loss payee with respect to personal
property, additional insured with respect to general liability and umbrella
liability coverage and certificate holder with respect to workers' compensation
insurance), (ii) shall state that such insurance policies shall not be canceled
or materially revised without 30 days' prior written notice thereof by the
respective insurer to the Collateral Agent, and (iii) shall be deposited with
the Collateral Agent.
(c) If the Borrower or any of its Subsidiaries shall fail to
maintain all insurance in accordance with this Section 8.03, or if the Borrower
or any of its Subsidiaries shall fail to so endorse and deposit all policies or
certificates with respect thereto, the Administrative Agent and/or the
Collateral Agent shall have the right (but shall be under no obligation) to
procure such insurance and the Borrower agrees to reimburse the Administrative
Agent or the Collateral Agent as the case may be, for all costs and expenses of
procuring such insurance.
8.04 CORPORATE FRANCHISES. The Borrower will, and will cause
each of its Subsidiaries, to do or cause to be done, all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents used in its business; PROVIDED,
HOWEVER, that any transaction permitted by Section 9.02 will not constitute a
breach of this Section 8.04.
8.05 COMPLIANCE WITH STATUTES, ETC. The Borrower will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such noncompliances as could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
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8.06 COMPLIANCE WITH ENVIRONMENTAL LAWS. (a) The Borrower will
comply, and will cause each of its Subsidiaries to comply, in all respects with
all Environmental Laws applicable to the operation of its business or to the
ownership or use of Real Property now or hereafter owned or operated by the
Borrower or any of its Subsidiaries, will within a reasonable time period pay or
cause to be paid all costs and expenses incurred in connection with such
compliance (except to the extent being contested in good faith), and will
undertake all reasonable efforts to keep or cause to be kept all such Real
Property free and clear of any Liens imposed pursuant to such Environmental
Laws, except such noncompliances as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiaries will generate, use, treat, store, release or dispose
of, or permit the generation, use, treatment, storage, release or disposal of
Hazardous Materials on any Real Property now or hereafter owned or operated or
occupied by the Borrower or any of its Subsidiaries, or transport or permit the
transportation of Hazardous Materials to or from any such Real Property except
in compliance with all applicable Environmental Laws (except such noncompliances
as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect) and reasonably required in connection with the
operation, use and maintenance of any such Real Property or otherwise in
connection with their businesses.
(b) At the written request of the Administrative Agent or the
Required Lenders upon a reasonable belief by the Administrative Agent or the
Required Lenders that the Borrower or any of its Subsidiaries has breached any
representation or covenant contained herein relating to environmental matters,
which request shall specify in reasonable detail the basis therefor, the
Borrower will provide, at the Borrower's sole cost and expense, an environmental
site assessment report, reasonable in scope, concerning the subject matter of
such representation or covenant and any Real Property now or hereafter owned,
operated or occupied by the Borrower or any of its Subsidiaries, prepared by an
environmental consulting firm reasonably acceptable to the Administrative Agent,
indicating (if relevant to such breach) the presence or absence of Hazardous
Materials and the potential cost of any removal or remedial action in connection
with any Hazardous Materials on such Real Property; PROVIDED, that such request
may be made only if (i) there has occurred and is continuing an Event of
Default, (ii) the Administrative Agent or the Required Lenders reasonably
believe that the Borrower or any such Real Property is not in compliance with
Environmental Law and such circumstances would reasonably be expected to have a
Material Adverse Effect, or (iii) circumstances exist that reasonably could be
expected to form the basis of a material Environmental Claim against the
Borrower or any of its Subsidiaries or any such Real Property. If the Borrower
fails to provide the same within a reasonable period, not to exceed 90 days,
after such request was made, the Administrative Agent may order the same, and
the Borrower shall grant and hereby grants to the Administrative Agent and the
Lenders and their agents access to such Real Property and specifically grants
the Administrative Agent and the Lenders an irrevocable non-exclusive license,
subject to the rights of tenants, to undertake such an assessment, all at the
Borrower's expense.
8.07 ERISA. Except to the extent that the events described
herein are specifically made applicable to Multiemployer Plans, they shall
relate only to Plans which are not Multiemployer Plans. In each other instance,
the events described herein apply to Multiemployer Plans only to the extent of
the knowledge of PCA. In addition, with respect to the Tenneco
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Xxxxxxx Xxxxx, the reporting covenants described herein apply only to the
extent of the knowledge of PCA, after the exercise of reasonable diligence
and due inquiry. As soon as reasonably possible and, in any event, within
twenty (20) Business Days after the Borrower or any of its Subsidiaries or
any ERISA Affiliate knows or has reason to know of the occurrence of any of
the following, the Borrower will deliver to the Administrative Agent a
certificate of the chief financial officer of the Borrower setting forth the
full details as to such occurrence and the action, if any, that the Borrower,
such Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed by the
Borrower, the Subsidiary, the Plan administrator or the ERISA Affiliate, to
or with the PBGC, or any other government agency, or a Plan participant and
any notices received by such Borrower, such Subsidiary or ERISA Affiliate
from the PBGC or any other government agency, or a Plan participant with
respect thereto: that a Reportable Event has occurred (except to the extent
that the Borrower has previously delivered to the Lenders a certificate and
notices (if any) concerning such event pursuant to the next clause hereof);
that a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a
Plan subject to Title IV of ERISA is subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably
expected to occur with respect to such Plan within the following 30 days; that
an accumulated funding deficiency, within the meaning of Section 412 of the
Code or Section 302 of ERISA, has been incurred or an application may be or
has been made for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code or Section 303 or 304 of
ERISA with respect to a Plan; that any contribution required to be made with
respect to a Plan or Foreign Pension Plan has not been timely made; that a
Plan has been or may be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA; that a Plan has a material increase in an
Unfunded Current Liability; that proceedings may be or have been instituted
to terminate or appoint a trustee to administer a Plan which is subject to
Title IV of ERISA; that a proceeding has been instituted pursuant to Section
515 of ERISA to collect a delinquent contribution to a Plan; that the
Borrower, any of its Subsidiaries or any ERISA Affiliate will or is likely to
incur any material liability (including any indirect, contingent, or
secondary liability) to or on account of the termination of or withdrawal
from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA
or with respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the
Code or Section 409 or 502(i) or 502(l) of ERISA or with respect to a group
health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of
the Code) under Section 4980B of the Code; or that the Borrower, or any of
its Subsidiaries may incur any material liability pursuant to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) that provides
benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any Plan or any Foreign Pension. Upon
request, the Borrower will deliver to the Administrative Agent a complete
copy of the annual report (on Internal Revenue Service Form 5500-series) of
each Plan (including, to the extent required, the related financial and
actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the
Internal Revenue Service. In addition to any certificates or notices
delivered to the Administrative Agent pursuant to the third sentence hereof,
copies of annual reports and any records, documents or other information
required to be furnished to the PBGC, or any other government agency and any
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material notices received by the Borrower, any of its Subsidiaries or any
ERISA Affiliate with respect to any Plan or Foreign Pension Plan shall be
delivered to the Administrative Agent no later than twenty (20) Business Days
after the date such annual report required to be filed with the Internal
Revenue Service was requested by the Administrative Agent, or such records,
documents and/or information has been furnished to the PBGC (other than in
connection with premium payments, which shall be furnished within twenty (20)
Business Days of request by the Administrative Agent) or such notice has been
received by the Borrower, the Subsidiary or the ERISA Affiliate, as
applicable. PCA and each of its Subsidiaries shall ensure that all Foreign
Pension Plans administered by it or into which it makes payments obtains or
retains (as applicable) registered status under and as required by applicable
law and is administered in a timely manner in all respects in compliance with
all applicable laws except where the failure to do any of the foregoing would
not be reasonably likely to result in a Material Adverse Effect.
8.08 END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower shall
cause (i) each of its, and each of its Subsidiaries', fiscal years to end on
December 31 and (ii) its fiscal quarters to end on March 31, June 30, September
30 and December 31.
8.09 PAYMENT OF TAXES. The Borrower will pay and discharge, and
will cause each of its Subsidiaries to pay and discharge, all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims for sums that have become
due and payable which, if unpaid, might become a Lien not otherwise permitted
under Section 9.01(i), PROVIDED, that neither the Borrower nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by proper proceedings if it has
maintained adequate reserves with respect thereto in accordance with GAAP.
8.10 OWNERSHIP OF SUBSIDIARIES. Except to the extent expressly
permitted herein or as otherwise expressly consented in writing by the Required
Lenders, the Borrower shall directly or indirectly own 100% of the capital stock
or other equity interests of each of its Subsidiaries.
8.11 ADDITIONAL SECURITY; FURTHER ASSURANCES; SURVEYS. (a)
The Borrower will, and will cause each of its Domestic Wholly-Owned
Subsidiaries to, grant to the Collateral Agent security interests and
mortgages (an "ADDITIONAL MORTGAGE") in such Real Property (excluding Real
Property where the fair market value thereof is less than $1,000,000) of the
Borrower or any of its Domestic Wholly-Owned Subsidiaries as are not covered
by the original Mortgages, to the extent acquired after the Initial Borrowing
Date, and as may be requested from time to time by the Administrative Agent
or the Required Lenders (each such Real Property, an "ADDITIONAL MORTGAGED
PROPERTY"). All such Additional Mortgages shall be granted pursuant to
documentation substantially in the form of the Mortgages or in such other
form as is reasonably satisfactory to the Administrative Agent and shall
constitute valid and enforceable perfected Liens superior to and prior to the
rights of all third Persons and subject to no other Liens except as are
permitted by Section 9.01 at the time of perfection thereof. The Additional
Mortgages or instruments related thereto shall be duly recorded or filed in
such manner and in such places as
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are required by law to establish, perfect, preserve and protect the Liens in
favor of the Collateral Agent required to be granted pursuant to the
Additional Mortgages and all taxes, fees and other charges payable in
connection therewith shall be paid in full.
(b) The Borrower will, and will cause each of its Domestic
Wholly-Owned Subsidiaries (other than the Receivables Entity) to, at the expense
of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, real property surveys, reports
and other assurances or instruments and take such further steps relating to the
Collateral covered by any of the Security Documents as the Collateral Agent may
reasonably require pursuant to this Section 8.11. Additionally, upon the
request of the Collateral Agent or the Required Lenders, the Borrower shall
take, or cause to be taken such action as may be requested in order to perfect
(or maintain the perfection of) the security interests (or take any analogous
actions under the applicable provisions of local law in order to protect such
security interests) in any Collateral located outside the U.S. owned by the
Borrower or a Domestic Wholly-Owned Subsidiary, in each case to the extent such
actions are permitted to be taken under the laws of the applicable
jurisdictions. Furthermore, the Borrower shall cause to be delivered to the
Collateral Agent such opinions of counsel, title insurance and other related
documents as may be reasonably requested by the Collateral Agent to assure
itself that this Section 8.11 has been complied with.
(c) The Borrower agrees to cause each Domestic Wholly-Owned
Subsidiary (other than the Receivables Entity) established or created in
accordance with Section 9.14 to execute and deliver a guaranty of all
Obligations and all obligations under Interest Rate Protection or Other Hedging
Agreements to a Lender or any of its Affiliates in substantially the form of the
Subsidiaries Guaranty.
(d) The Borrower agrees to pledge and deliver, or cause to be
pledged and delivered, all of the capital stock of each new Subsidiary
(excluding that portion of the voting stock of any Foreign Subsidiary which
would be in excess of 66% of the total outstanding voting stock of such Foreign
Subsidiary) established or created after the Initial Borrowing Date, to the
extent owned by the Borrower or any Domestic Wholly-Owned Subsidiary, to the
Collateral Agent for the benefit of the Secured Creditors pursuant to the Pledge
Agreement.
(e) The Borrower will cause each Domestic Wholly-Owned
Subsidiary (other than the Receivables Entity) established or created in
accordance with Section 9.14 to grant to the Collateral Agent a first priority
(subject to Permitted Liens) Lien on property (tangible and intangible) of such
Subsidiary upon terms and with exceptions similar to those set forth in the
Security Documents as appropriate, and satisfactory in form and substance to the
Borrower, the Administrative Agent and Required Lenders. The Borrower shall
cause each such Domestic Wholly-Owned Subsidiary, at its own expense, to
execute, acknowledge and deliver, or cause the execution, acknowledgment and
delivery of, and thereafter register, file or record in any appropriate
governmental office, any document or instrument reasonably deemed by the
Collateral Agent to be necessary or desirable for the creation and perfection of
the foregoing Liens. The Borrower will cause each of such Domestic Wholly-Owned
Subsidiaries to take all
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actions reasonably requested by the Administrative Agent (including, without
limitation, the filing of UCC-1's) in connection with the granting of such
security interests.
(f) The security interests required to be granted pursuant to
this Section 8.11 shall be granted pursuant to security documentation (which
shall be substantially similar to the Security Documents already executed and
delivered by the Borrower or its Subsidiaries, as applicable) or otherwise
satisfactory in form and substance to the Collateral Agent and the Borrower and
shall constitute valid and enforceable perfected security interests prior to the
rights of all third Persons and subject to no other Liens except such Liens as
are permitted by Section 9.01. The Additional Security Documents and other
instruments related thereto shall be duly recorded or filed in such manner and
in such places and at such times as are required by law to establish, perfect,
preserve and protect the Liens, in favor of the Collateral Agent for the benefit
of the respective Secured Creditors, required to be granted pursuant to the
Additional Security Documents and all taxes, fees and other charges payable in
connection therewith shall be paid in full by the Borrower. At the time of the
execution and delivery of the Additional Security Documents, the Borrower shall
cause to be delivered to the Collateral Agent such opinions of counsel, Mortgage
Policies, title surveys, real estate appraisals and other related documents as
may be reasonably requested by the Administrative Agent or the Required Lenders
to assure themselves that this Section 8.11 has been complied with.
(g) In the event that the Administrative Agent or the
Required Lenders at any time after the Effective Date determines in its or their
reasonable discretion (whether as a result of a position taken by an applicable
bank regulatory agency or official, or otherwise) that real estate appraisals
satisfying the requirements set forth in 12 C.F.R., Part 34-Subpart C, or any
successor or similar statute, rule, regulation, guideline or order (any such
appraisal, a "REQUIRED APPRAISAL") are or were required to be obtained, or
should be obtained, in connection with any Mortgaged Property then, within 60
days after receiving written notice thereof from the Administrative Agent or the
Required Lenders, as the case may be, the Borrower shall cause such Required
Appraisal to be delivered, at the expense of the Borrower, to the Administrative
Agent, which Required Appraisal, and the respective appraiser, shall be
reasonably satisfactory to the Administrative Agent.
(h) The Borrower agrees that each action required above by
Section 8.11(a) or (b) shall be completed as soon as possible, but in no event
later than 60 days after such action is requested to be taken by the
Administrative Agent, the Collateral Agent or the Required Lenders. The
Borrower further agrees that each action required by Section 8.11(c), (d), (e)
and (f) with respect to the creation or acquisition of a new Subsidiary shall be
completed contemporaneously with (or, in the case of any documents or
instruments to be registered, filed or recorded, within 10 days of) the creation
of such new Subsidiary.
8.12 INTEREST RATE PROTECTION. No later than the 45th day after
the Initial Borrowing Date, the Borrower shall enter into, and for a minimum
period of two years thereafter maintain, Interest Rate Protection Agreements
with one or more Lenders or their affiliates reasonably acceptable to the
Administrative Agent establishing a fixed or maximum interest rate
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acceptable to the Administrative Agent for an aggregate amount with respect
to no less than 50% of the Term Loans outstanding from time to time.
8.13 PERMITTED ACQUISITIONS. (a) Subject to the provisions of
this Section 8.13 and the requirements contained in the definition of Permitted
Acquisition, the Borrower and any of its Wholly-Owned Domestic Subsidiaries may
from time to time effect Permitted Acquisitions, so long as (in each case except
to the extent the Required Lenders otherwise specifically agree in writing in
the case of a specific Permitted Acquisition):
(i) no Default or Event of Default shall be in existence at
the time of the consummation of the proposed Permitted Acquisition or
immediately after giving effect thereto;
(ii) the Borrower shall have given the Administrative Agent
and the Lenders at least five Business Days' prior written notice of any
Permitted Acquisition;
(iii) calculations are made by the Borrower of compliance with
the covenants contained in Sections 9.08, 9.09 and 9.10 (in each case,
giving effect to the last sentence appearing therein) for the Calculation
Period most recently ended prior to the date of such Permitted
Acquisition, on a PRO FORMA Basis as if the respective Permitted
Acquisition (as well as all other Permitted Acquisitions theretofore
consummated after the first day of such Calculation Period) had occurred
on the first day of such Calculation Period, and such recalculations
shall show that such financial covenants would have been complied with if
the Permitted Acquisition had occurred on the first day of such
Calculation Period;
(iv) either (x) the Maximum Permitted Consideration payable in
connection with the proposed Permitted Acquisition, when combined with
the aggregate Maximum Permitted Consideration paid in connection with all
other Permitted Acquisitions consummated after the Effective Date and on
or prior to the date of the consummation of the proposed Permitted
Acquisition which the Borrower has not elected to be permitted pursuant
to clause (y) below does not exceed $125,000,000 or (y) the amount of the
Maximum Permitted Consideration payable in connection with Permitted
Acquisitions consummated in any fiscal year which the Borrower has not
elected to be permitted pursuant to clause (x) above, shall not exceed
the Available Permitted Acquisition Basket Amount for such fiscal year;
PROVIDED that the Borrower may allocate the Maximum Permitted
Consideration paid in respect of a Permitted Acquisition between the
baskets under clauses (x) and (y);
(v) all representations and warranties contained herein and
in the other Credit Documents shall be true and correct in all material
respects with the same effect as though such representations and
warranties had been made on and as of the date of such Permitted
Acquisition (both before and after giving effect thereto), unless stated
to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of
such earlier date;
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(vi) the Borrower provides to the Administrative Agent and the
Lenders as soon as available but not later than five Business Days after
the execution thereof, a copy of any executed purchase agreement or
similar agreement with respect to such Permitted Acquisition;
(vii) after giving effect to such Permitted Acquisition and the
payment of all post-closing purchase price adjustments required (in the
good faith determination of the Borrower) in connection with such
Permitted Acquisition (and all other Permitted Acquisitions for which
such purchase price adjustments may be required to be made) and all
Capital Expenditures (and the financing thereof) reasonably anticipated
by the Borrower to be made in the business acquired pursuant to such
Permitted Acquisition within the 90-day period (such period for any
Permitted Acquisition, a "POST-CLOSING PERIOD") following such Permitted
Acquisition (and in the businesses acquired pursuant to all other
Permitted Acquisitions with Post-Closing Periods ended during the
Post-Closing Period of such Permitted Acquisition), the Total Available
Unutilized Revolving Loan Commitment shall equal or exceed $50,000,000;
(viii) the Borrower shall believe in good faith that the
proposed Permitted Acquisition could not result in a material increase in
tax, ERISA, environmental or other contingent liabilities with respect to
the Borrower or any of its Subsidiaries which would reasonably be
expected to have a Material Adverse Effect; and
(ix) the Borrower shall have delivered to the Administrative
Agent an officer's certificate executed by an Authorized Officer of the
Borrower, certifying to the best of his knowledge, compliance with the
requirements of preceding clauses (i) through (viii), inclusive,
containing the calculations required by the preceding clauses (iii), (iv)
and (vii) and stating whether the Maximum Permitted Consideration for
such Permitted Acquisition is to be applied to the basket under clause
(iv)(x) above or clause (iv)(y) above.
(b) At the time of each Permitted Acquisition involving the
creation or acquisition of a Subsidiary, or the acquisition of capital stock or
other equity interest of any Person, the capital stock or other equity interests
thereof created or acquired in connection with such Permitted Acquisition shall
be pledged for the benefit of the Secured Creditors pursuant to the Pledge
Agreement in accordance with the requirements of Sections 8.11 and 9.15.
(c) The Borrower shall cause each Subsidiary which is formed
to effect, or is acquired pursuant to, a Permitted Acquisition to comply with,
and to execute and deliver, all of the documentation required by, Sections 8.11
and 9.15, to the satisfaction of the Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be
deemed to be a representation and warranty by the Borrower that the
certifications by the Borrower (or by one or more of its Authorized Officers)
pursuant to Section 8.13(a) are true and correct and that all conditions thereto
have been satisfied and that same is permitted in accordance with the terms of
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this Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation, Sections 6 and 10.
8.14 FOREIGN SUBSIDIARIES SECURITY. If following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower acceptable to the Administrative Agent and the Required Lenders does
not within 30 days after a request from the Administrative Agent or the Required
Lenders deliver to the Administrative Agent evidence, in form and substance
reasonably satisfactory to the Administrative Agent and the Required Lenders,
with respect to any Foreign Wholly-Owned Subsidiary which has not already had
all of its stock pledged pursuant to the Pledge Agreement that (i) a pledge of
66% or more of the total combined voting power of all classes of capital stock
of such Foreign Subsidiary entitled to vote or, in the case of a Foreign
Subsidiary whose capital stock is held by another Foreign Subsidiary, a pledge
of any of the capital stock of such Foreign Subsidiary, (ii) the entering into
by such Foreign Subsidiary of a security agreement in substantially the form of
the PCA Security Agreement, (iii) the entering into by such Foreign Subsidiary
of a pledge agreement in substantially the form of the Pledge Agreement and
(iv) the entering into by such Foreign Subsidiary of a guaranty in
substantially the form of the Subsidiaries Guaranty, in any such case would
cause (I) the undistributed earnings of such Foreign Subsidiary (or such
Foreign Subsidiary's parent or indirect parent to the extent that such parent
is also a foreign subsidiary) as determined for Federal income tax purposes to
be treated as a deemed dividend to such Foreign Subsidiary's United States
parent for Federal income tax purposes or (II) other material adverse Federal
income tax consequences to the Credit Parties, then in the case of a failure
to deliver the evidence described in clause (i) above, that portion of such
Foreign Subsidiary's outstanding capital stock not theretofore pledged pursuant
to the Pledge Agreement shall be pledged to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Pledge Agreement (or another
pledge agreement in substantially similar form, if needed), and in the case of
a failure to deliver the evidence described in clause (ii) or (iii) above, such
Foreign Subsidiary shall execute and deliver the PCA Security Agreement (or
another security agreement in substantially similar form, if needed) or the
Pledge Agreement (or another pledge agreement in substantially similar form, if
needed), as the case may be, granting to the Collateral Agent for the benefit of
the Secured Creditors a security interest in all of such Foreign Subsidiary's
assets or the capital stock and promissory notes owned by such Foreign
Subsidiary, as the case may be, and securing the Obligations of the Borrower
under the Credit Documents and under any Interest Rate Protection Agreement or
Other Hedging Agreement and, in the event the Subsidiaries Guaranty shall have
been executed by such Foreign Subsidiary, the obligations of such Foreign
Subsidiary thereunder, and in the case of a failure to deliver the evidence
described in clause (iv) above, such Foreign Subsidiary shall execute and
deliver the Subsidiaries Guaranty (or another guaranty in substantially similar
form, if needed), guaranteeing the Obligations of the Borrower under the Credit
Documents and under any Interest Rate Protection Agreement or Other Hedging
Agreement, in each case to the extent that the entering into of such PCA
Security Agreement, Pledge Agreement or Subsidiaries Guaranty (or substantially
similar document) is permitted by the laws of the respective foreign
jurisdiction and with all documents delivered pursuant to this Section 8.14 to
be in form and substance reasonably satisfactory to the Administrative Agent and
the Required Lenders.
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8.15 YEAR 2000 COMPLIANCE. The Borrower shall take all actions
necessary and commit adequate resources to assure that its computer-based and
other systems (and those of all Subsidiaries) are able to effectively process
dates, including dates before, on and after January 1, 2000, without
experiencing any Y2K Problem that could cause a Material Adverse Effect. At the
request of the Administrative Agent, the Borrower will provide the
Administrative Agent with assurances and substantiations (including, but not
limited to, the results of internal or external audit reports prepared in the
ordinary course of business) reasonably acceptable to the Administrative Agent
as to the capability of the Borrower and its Subsidiaries to conduct its and
their businesses and operations before, on and after January 1, 2000 without
experiencing a Y2K Problem causing a Material Adverse Effect.
8.16 PERMITTED RECEIVABLES FACILITY TRANSACTION. At any time
after the Contribution Effective Time, the Borrower and/or one or more other
Receivables Sellers may enter into a Permitted Receivables Facility (which
complies with the definition of Permitted Receivables Facility contained herein)
to provide off-balance sheet financing to the Borrower for the sale of Permitted
Receivables Facility Assets to a Receivables Entity (which shall be established
in accordance with, and meet the requirements of, the definition of Receivables
Entity contained herein), so long as on the Permitted Receivables Facility
Transaction Date all requirements of this Section 8.16 have been satisfied and
the Permitted Receivables Facility and related transactions comply with the
respective defined terms as used in this Section 8.16. On the Permitted
Receivables Facility Transaction Date, (i) there shall have been delivered to
the Administrative Agent and the Lenders true and correct copies of all
Permitted Receivables Facility Documents, certified as such by an officer of the
Borrower, and all of the terms and conditions of the Permitted Receivables
Facility Documents shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders, (ii) the Permitted Receivables
Facility Transaction, including all of the terms and conditions thereof, shall
have been duly approved by the board of directors of the Borrower, and all
Permitted Receivables Facility Documents shall be in full force and effect,
(iii) each of the conditions precedent to the consummation of the Permitted
Receivables Facility Transaction shall have been satisfied and not waived except
with the consent of the Administrative Agent and the Required Lenders to the
reasonable satisfaction of the Administrative Agent and the Required Lenders,
(iv) each of the representations and warranties of the Receivables Sellers and
the Receivables Entity contained in the Permitted Receivables Facility Documents
shall be true and correct in all material respects, (v) the Permitted
Receivables Facility Transaction shall have been consummated in all material
respects in accordance with all applicable law and the Permitted Receivables
Facility Documents, (vi) no Default or Event of Default shall be in effect upon
the Permitted Receivables Facility Transaction Dte (either before or after
giving effect to the transactions contemplated by the Permitted Receivables
Facility Documents) and (vii) the Borrower and/or the other Receivables Sellers
shall have received the Permitted Receivables Facility Proceeds and used the
same to make any prepayment of Loans and/or satisfy any cash collateral
requirement required under Section 4.02(a) or (j), as the case may be.
SECTION 9. NEGATIVE COVENANTS. PCA covenants and agrees that on
and after the Contribution Effective Time and until the Total Commitments and
all Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings,
together with interest, Fees and all other
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Obligations incurred hereunder and thereunder, are paid in full (other than
any indemnity, not then due and payable, which by its terms shall survive
such termination and payment):
9.01 LIENS. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets (real or personal, tangible or
intangible) of the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable with recourse to the Borrower
or any of its Subsidiaries), or assign any right to receive income or permit the
filing of any financing statement under the UCC or any other similar notice of
Lien under any similar recording or notice statute; PROVIDED that the provisions
of this Section 9.01 shall not prevent the creation, incurrence, assumption or
existence of the following (Liens described below are herein referred to as
"PERMITTED LIENS"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due and payable or Liens for taxes, assessments
or governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with generally accepted accounting principles in the United
States (or the equivalent thereof in any country in which a Foreign
Subsidiary is doing business, as applicable);
(ii) Liens in respect of property or assets of the Borrower or
any of its Subsidiaries imposed by law, which arise or were incurred in
the ordinary course of business and do not secure Indebtedness for
borrowed money, such as carriers', workmen's, repairmen's,
warehousemen's, materialmen's and mechanics' liens, collecting bank's
liens, charge back rights of depository banks for uncollected items and
other similar Liens arising or incurred in the ordinary course of
business, and (x) which do not in the aggregate materially detract from
the value of the property or assets of the Borrower or such Subsidiary
and do not materially impair the use thereof in the operation of the
business of the Borrower or such Subsidiary or (y) which are being
contested in good faith by appropriate proceedings, which proceedings (or
orders entered in connection with such proceedings) have the effect of
preventing the forfeiture or sale of the property or assets subject to
any such Lien;
(iii) Liens in existence on the Effective Date which are
listed, and the property subject thereto described, in Schedule IV, but
only to the respective date, if any, set forth in such Schedule IV for
the removal and termination of any such Liens, plus renewals and
extensions of such Liens to the extent set forth on Schedule IV, PROVIDED
that (x) the aggregate principal amount of the Indebtedness, if any,
secured by such Liens does not increase from that amount outstanding at
the time of any such renewal or extension and (y) any such renewal or
extension does not encumber any additional assets or properties of the
Borrower or any of its Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to this Agreement and the Security
Documents;
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(vi) licenses, leases or subleases granted to other Persons in
the ordinary course of business not materially interfering with the
conduct of the business of the Borrower and its Subsidiaries taken as a
whole;
(vii) Liens placed upon assets used in the ordinary course of
business of the Borrower or any of its Subsidiaries (other than the
Receivables Entity) at the time of acquisition thereof by the Borrower or
any such Subsidiary or within 90 days thereafter to secure Indebtedness
incurred to pay all or a portion of the purchase price thereof, PROVIDED
that (i) any such Liens attach only to the equipment so purchased and
upgrades thereon, (ii) the Indebtedness secured by any such Lien does not
exceed 100% of the lesser of the fair market value or the purchase price
of the equipment being purchased at the time of the incurrence of such
Indebtedness and (iii) the Indebtedness secured thereby is permitted to
be incurred pursuant to Section 9.04(vi);
(viii) easements, rights-of-way, restrictions (including zoning
restrictions), covenants, encroachments, protrusions and other similar
charges or encumbrances, and minor title deficiencies, in each case
whether now or hereafter in existence, not securing Indebtedness and not
materially interfering with the conduct of the business of the Borrower
and its Subsidiaries taken as a whole;
(ix) Liens arising from precautionary UCC financing statement
filings regarding operating leases entered into by the Borrower or any of
its Subsidiaries (other than the Receivables Entity) in the ordinary
course of business;
(x) Liens arising out of judgments or awards in circumstances
not constituting an Event of Default under Section 10.09 in respect of
which the Borrower or any of its Subsidiaries shall in good faith be
prosecuting an appeal or proceedings for review in respect of which there
shall have been secured a subsisting stay of execution pending such
appeal or proceedings, PROVIDED that the aggregate amount of all such
judgments or awards does not exceed $10,000,000 at any time outstanding;
(xi) statutory, contractual and common law landlords' liens
under leases or subleases permitted by this Agreement;
(xii) Liens (other than any Lien imposed by ERISA) (x) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, (y) to secure the performance of tenders, statutory obligations
(other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money) or (z)
arising by virtue of deposits made in the ordinary course of business to
secure liability for premiums to insurance carriers, PROVIDED that the
aggregate amount of deposits at any time pursuant to sub-clauses (y) and
(z) shall not exceed $15,000,000 in the aggregate;
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(xiii) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this
Agreement;
(xiv) Liens (x) granted by the Receivables Sellers in favor of
the Receivables Entity consisting of UCC-1 financing statements filed to
effect the sale of Permitted Receivables Facility Assets pursuant to the
Permitted Receivables Facility Documents, (y) granted by the Receivables
Entity on those Permitted Receivables Facility Assets acquired by it
pursuant to the Permitted Receivables Facility Documents to the extent
that such Liens are created by the Permitted Receivables Facility
Documents and (z) consisting of the right of setoff granted by the
Receivables Entity to any financial institution acting as a lockbox bank
in connection with the Permitted Receivables Facility;
(xv) Liens created pursuant to Capital Leases permitted
pursuant to Section 9.04(vi), PROVIDED that (x) such Liens only serve to
secure the payment of Indebtedness arising under such Capitalized Lease
Obligation and (y) the Lien encumbering the asset giving rise to such
Capitalized Lease Obligation does not encumber any other asset of the
Borrower or any of its Subsidiaries;
(xvi) Liens on property or assets acquired pursuant to a
Permitted Acquisition, or on property or assets of a Subsidiary of the
Borrower in existence at the time such Subsidiary is acquired pursuant to
a Permitted Acquisition, PROVIDED that (i) any Indebtedness that is
secured by such Liens is permitted to exist under Section 9.04(xiii) and
(ii) such Liens are not incurred in connection with, or in contemplation
or anticipation of, such Permitted Acquisition and do not attach to any
other asset of the Borrower or any of its Subsidiaries;
(xvii) Liens securing Foreign Subsidiary Working Capital
Indebtedness permitted pursuant to Section 9.04(xii), so long as any such
Lien attaches only to the assets of the respective Foreign Subsidiary
which is the obligor under such Indebtedness;
(xviii) Liens in favor of customs and revenue authorities arising
as a matter of law or regulation to secure the payment of customs duties
in connection with the importation of goods and deposits made to secure
statutory obligations in the form of excise taxes;
(xix) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Borrower or any of its Subsidiaries in the ordinary course of
business (excluding any general inventory financing);
(xx) Liens arising pursuant to Permitted Sale-Leaseback
Transactions to the extent permitted by Section 9.02(xiv), so long as
such Liens do not attach to any assets of the Borrower or any of its
Subsidiaries other than those which are the subject of such
Permitted-Sale Leaseback Transaction; and
(xxi) additional Liens incurred by the Borrower and its
Subsidiaries so long as the value of the property subject to such Liens,
and the Indebtedness and other obligations secured thereby, do not exceed
$10,000,000.
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In connection with the granting of Liens of the type described in clauses (vi),
(vii), (xiv), (xv), (xvi), (xx) and (xxi) of this Section 9.01 by the Borrower
of any of its Subsidiaries, the Administrative Agent and the Collateral Agent
shall be authorized to take any actions deemed appropriate by it in connection
therewith (including, without limitation, by executing appropriate lien releases
or lien subordination agreements in favor of the holder or holders of such
Liens, in either case solely with respect to the item or items of equipment or
other assets (including Real Property) subject to such Liens).
9.02 CONSOLIDATION, MERGER, PURCHASE OR SALE OF ASSETS, ETC. The
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its property or
assets, or enter into any sale-leaseback transactions, or purchase or otherwise
acquire (in one or a series of related transactions) any part of the property or
assets (other than purchases or other acquisitions of inventory in the ordinary
course of business) of any Person (or agree to do any of the foregoing at any
future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries
(other than the Receivables Entity) shall be permitted to the extent not
in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries (other than the
Receivables Entity) may in the ordinary course of business, sell, lease
or otherwise dispose of any assets which, in the reasonable judgment of
such Person, are obsolete, worn out or otherwise no longer useful in the
conduct of such Person's business;
(iii) Investments may be made to the extent permitted by
Section 9.05 and Cash Equivalents may be disposed of or liquidated in the
ordinary course of business;
(iv) each of the Borrower and its Subsidiaries (other than the
Receivables Entity) may lease (as lessee) real or personal property in
the ordinary course of business (so long as any such lease does not
create a Capitalized Lease Obligation except to the extent permitted by
Section 9.04(vi));
(v) each of the Borrower and its Subsidiaries (other than the
Receivables Entity) may make sales or transfers of inventory in the
ordinary course of business and consistent with past practices;
(vi) the Borrower and its Subsidiaries (other than the
Receivables Entity) may sell or discount, in each case without recourse
and in the ordinary course of business, overdue accounts receivable
arising in the ordinary course of business, but only in connection with
the compromise or collection thereof consistent with customary industry
practice (and not as part of any bulk sale);
(vii) the Borrower and its Subsidiaries (other than the
Receivables Entity) may license or sublicense software, trademarks and
other intellectual property in the ordinary course of business which do
not materially interfere with the business of the Borrower
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and its Subsidiaries taken as a whole or the Borrower, so long as each
such license is permitted to be assigned pursuant to the PCA Security
Agreement (to the extent that a security interest in such intellectual
property is granted thereunder) and does not otherwise prohibit the
granting of a Lien by the Borrower or any of its Subsidiaries pursuant
to the PCA Security Agreement in the intellectual property covered by
such license or such sublicense;
(viii) the Borrower and its Subsidiaries may make Timberlands
Dispositions, PROVIDED that (x) at least 75% of the aggregate
consideration received in respect thereof shall consist of cash and Cash
Equivalents, (y) the Net Asset Sale Proceeds in respect thereof shall be
applied as provided in Section 4.02(g) and (z) the gross purchase price
in respect thereof shall equal or exceed the fair market value of all
Timberland Properties sold pursuant thereto (as determined in good faith
by senior management of the Borrower);
(ix) the Borrower or any Domestic Wholly-Owned Subsidiary of
the Borrower (other than the Receivables Entity) may transfer assets or
lease to or acquire or lease assets from the Borrower or any other
Domestic Wholly-Owned Subsidiary (other than the Receivables Entity) and
any Domestic Wholly-Owned Subsidiary (other than the Receivables Entity)
may be merged into the Borrower or any other Domestic Wholly-Owned
Subsidiary of the Borrower (other than the Receivables Entity) (so long
as, in the case of any merger involving the Borrower, the Borrower is the
surviving corporation thereof);
(x) the Borrower and its Subsidiaries (other than the
Receivables Entity) may sell or otherwise dispose of additional assets
(other than a Timberlands Disposition, any Asset Sale pursuant to a
Permitted Sale-Leaseback Transaction and a sale or disposition of a
Converting Plant), PROVIDED that (v) each such sale or disposition shall
be for an amount at least equal to the fair market value thereof (as
determined in good faith by the senior management of the Borrower), (w)
each such sale results in consideration at least 75% of which shall be in
the form of cash (for such purpose, taking into account the amount of
cash, the principal amount of any promissory notes and the fair market
value, as determined in good faith by the senior management of the
Borrower, of any other consideration), (x) the Net Sale Proceeds
therefrom are either applied to repay Term Loans as provided in Section
4.02(g) or reinvested in replacement assets to the extent permitted by
Section 4.02(g), and (y) the aggregate Net Sale Proceeds of all assets
subject to sale or other disposition pursuant to this clause (x) shall
not exceed (a) $50,000,000 in any twelve month period or (b) for all such
sales and dispositions after the Effective Date, 5% of the Total Relevant
Assets (as determined on the last day of the most recently ended fiscal
quarter for which financial statements have been made available to the
Lenders);
(xi) on and after the Permitted Receivables Facility
Transaction Date, the Receivables Sellers may (x) contribute cash to the
Receivables Entity the proceeds of which are used to acquire Permitted
Receivables Facility Assets from the Receivables Sellers and (y)
transfer and reacquire Permitted Receivables Facility Assets to and from
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the Receivables Entity, in each case pursuant to, and in accordance with
the terms of, the Permitted Receivables Facility Documents;
(xii) on and after the Permitted Receivables Facility
Transaction Date, the Receivables Entity may transfer and reacquire
Permitted Receivables Facility Assets (to the extent acquired from the
Receivables Sellers as provided in clause (xi) above) pursuant to, and in
accordance with the terms of, the Permitted Receivables Facility
Documents;
(xiii) the Borrower and its Wholly-Owned Domestic Subsidiaries
may make Permitted Acquisitions, so long as such Permitted Acquisitions
are effected in accordance with the requirements of Section 8.13;
(xiv) the Borrower or any of its Subsidiaries may effect
Permitted Sale-Leaseback Transactions in accordance with the definition
thereof, PROVIDED that (x) the aggregate amount of all proceeds received
by the Borrower and its Subsidiaries from all Permitted Sale-Leaseback
Transactions consummated on and after the Effective Date shall not exceed
$100,000,000, (y) the Net Sale Proceeds therefrom are applied to repay
Term Loans as provided in Section 4.02(g) and (z) the Borrower
establishes compliance with Sections 9.08 and 9.09 after giving effect,
on a Pro Forma Basis, to the respective sale or disposition;
(xv) each of the Borrower and its Subsidiaries may sell or
otherwise dispose of Converting Plants (other than pursuant to a
Permitted Sale-Leaseback Transaction), PROVIDED that (v) each such sale
or disposition shall be for an amount at least equal to the fair market
value thereof (as determined in good faith by the senior management of
the Borrower), (w) each such sale results in consideration at least 75%
of which shall be in the form of cash (for such purpose, taking into
account the amount of cash, the principal amount of any promissory notes
and the fair market value, as determined in good faith by the senior
management of the Borrower, of any other consideration), (x) the Net Sale
Proceeds therefrom are either applied to repay Term Loans as provided in
Section 4.02(g) or reinvested in replacement assets to the extent
permitted by Section 4.02(g), and (y) the aggregate Net Sale Proceeds of
all Converting Plants subject to sale or other disposition pursuant to
this clause (xv) shall not exceed $60,000,000 in any twelve month period;
(xvi) the Borrower and its Subsidiaries may sell or exchange
specific items of equipment, so long as the purpose of each such sale or
exchange is to acquire (and results within 90 days of such sale or
exchange in the acquisition of) replacement items of equipment which are
the functional equivalent of the item of equipment so sold or exchanged;
and
(xvii) the Borrower and its Subsidiaries may sell or lease
equipment to their respective customers or suppliers in the ordinary
course of business, so long as the book value of the equipment sold or
leased after the Effective Date (as reflected on the most recent balance
sheet of the Borrower or such Subsidiary prior to the respective sale or
lease) pursuant to this clause (xvii) which is either subject at the time
of determination to
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a lease under which the Borrower or a Subsidiary is lessor or was
financed by an advance to the relevant customer or supplier made or
guaranteed by the Borrower or a Subsidiary which remain outstanding on
the date of determination, does not exceed $5,000,000 at any one time.
To the extent the Required Lenders waive the provisions of this Section 9.02
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 9.02, such Collateral (unless sold to the Borrower or
a Subsidiary of the Borrower) shall be sold free and clear of the Liens created
by the Security Documents, and the Administrative Agent and Collateral Agent
shall be authorized to take any actions deemed appropriate in order to effect
the foregoing.
9.03 DIVIDENDS. The Borrower shall not, and shall not permit any
of its Subsidiaries to, authorize, declare or pay any Dividends with respect to
the Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Borrower may pay cash Dividends to
the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(ii) so long as there shall exist no Default or Event of
Default (both before and after giving effect to the payment thereof), the
Borrower may repurchase outstanding shares of its common stock (or
options to purchase such common stock) owned by employees, officers or
directors of the Borrower or any Subsidiary following the death,
disability, retirement or termination of employment of such employee,
officer or director, PROVIDED that (x) the aggregate amount of all
Dividends paid pursuant to this clause (ii) in any fiscal year shall not
exceed $3,000,000 and (y) if $3,000,000 exceeds the amount of Dividends
paid by the Borrower pursuant to this clause (ii) in any fiscal year,
such excess may be carried forward and utilized to pay Dividends pursuant
to this clause (ii) in succeeding fiscal years so long as the aggregate
amount of Dividends paid pursuant to this clause (ii) in any fiscal year
shall not exceed $10,000,000;
(iii) the Borrower may make cash and stock distributions to TPI
at the time of the Contribution in the manner described in the
Contribution Agreement;
(iv) any Subsidiary of the Borrower that is a Joint Venture
may pay cash Dividends to its shareholders or partners generally, so long
as the Borrower or its respective Subsidiary which owns the equity
interest or interests in the Subsidiary paying such Dividends receives at
least its proportionate share thereof (based upon its relative holdings
of equity interest in the Subsidiary paying such Dividends and taking
into account the relative preferences, if any, of the various classes of
equity interests in such Subsidiary or the terms of any agreements
applicable thereto);
(v) the Borrower may pay regularly accruing Dividends with
respect to the Borrower PIK Preferred Stock through the issuance of
additional shares of Borrower PIK Preferred Stock (but not in cash) in
accordance with the terms thereof;
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(vi) so long as (x) no Default or Event of Default exists or
would result therefrom, (y) at the time of the respective Dividend, the
Borrower establishes compliance with Section 9.08 after giving effect, on
a PRO FORMA Basis, to such Dividend (and all other cash Dividends paid
with respect to Borrower PIK Preferred Stock during the respective
Calculation Period) and (z) the Borrower delivers an officer's
certificate to the Administrative Agent on or before the payment of such
Dividend certifying that the requirements of clauses (x) and (y) above
are satisfied, the Borrower may pay regularly accruing cash Dividends on
Borrower PIK Preferred Stock on and after the PIK Trigger Date, with such
Dividends to be paid in accordance with the terms of the certificate of
designation therefor;
(vii) the Borrower may pay cash Dividends to PCA Holdings, so
long as the proceeds thereof are promptly used by PCA Holdings to pay
operating and administrative expenses in the ordinary course of business
(including, without limitation, professional fees and expenses), other
similar corporate overhead costs and expenses and salaries or other
compensation of employees who perform services for PCA Holdings and the
Borrower, in each case to the extent such payments are made in accordance
with the requirements of the PCA Holdings Service Agreement, PROVIDED
that the aggregate amount of cash Dividends paid pursuant to this clause
(vii) in any fiscal year shall not exceed $1,000,000;
(viii) the Borrower may, at any time prior to the first
anniversary of the Initial Borrowing Date, repurchase outstanding shares
of Borrower Common Stock from PCA Holdings and Tenneco with the net cash
proceeds of purchase of Borrower Common Stock received by the Borrower in
connection with its sale of such stock to management of the Borrower, so
long as no Default or Event of Default is then in existence or would
result therefrom;
(ix) so long as the Timberlands Disposition
Recapture/Restricted Payments Requirements are satisfied at the time of
the consummation of the respective sale of Timberland Properties pursuant
to the Timberlands Dispositions, the Borrower may utilize proceeds from
the Timberlands Dispositions in an aggregate amount not to exceed the
Excluded Timberland Disposition Proceeds to redeem Borrower PIK Preferred
Stock and/or pay cash Dividends with respect to Borrower Common Stock, so
long as the sum of the aggregate liquidation preference of all Borrower
PIK Preferred Stock redeemed pursuant to this clause (ix) and all accrued
and unpaid dividends thereon and all redemption premiums in respect
thereof and the aggregate amount of all cash payments with respect to
Borrower Common Stock made in reliance on this clause (ix) does not
exceed the Excluded Timberland Disposition Proceeds LESS the aggregate
principal amount of Senior Subordinated Notes redeemed or repurchased
pursuant to the proviso to Section 9.11(iii); and
(x) to the extent the issuance of Exchange Borrower PIK
Preferred Stock in exchange for Borrower PIK Preferred Stock would be
deemed to constitute a Dividend, the same shall be permitted so long as
any such issuance is consummated in accordance
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(and consistent) with the requirements of the definitions of Borrower
PIK Preferred Stock and Exchange Borrower PIK Preferred Stock.
9.04 INDEBTEDNESS. The Borrower will not, and will not permit
any of its Subsidiaries to, contract, create, incur, assume or suffer to exist
any Indebtedness, except:
(i) Indebtedness incurred or existing pursuant to this
Agreement and the other Credit Documents;
(ii) unsecured Indebtedness of the Borrower under the
Subordinated Promissory Notes and the Borrower and the Subsidiary
Guarantors under the Senior Subordinated Notes and the other Senior
Subordinated Notes Documents in an aggregate principal amount for all
Indebtedness at any time outstanding pursuant to this clause (ii) not to
exceed $550,000,000 LESS the aggregate amount of all repayments of Senior
Subordinated Notes after the Initial Borrowing Date, PROVIDED that the
Senior Subordinated Notes are issued by the Borrower as (and constitute)
repayment in full of all Indebtedness of the Borrower under the
Subordinated Promissory Notes Documents immediately after the
Contribution Effective Time;
(iii) Existing Indebtedness shall be permitted to the extent
actually outstanding on the Initial Borrowing Date and as the same is
listed on Schedule V, but no refinancings or renewals thereof except as
otherwise permitted by Section 9.04(xvii);
(iv) accrued expenses and trade accounts payable incurred in
the ordinary course of business;
(v) Indebtedness under Interest Rate Protection Agreements
entered into in compliance with Section 8.12, and such other Interest
Rate Protection Agreements which may be entered into from time to time by
the Borrower and which the Borrower in good faith believes will provide
protection against fluctuations in interest rates with respect to
outstanding floating rate Indebtedness then outstanding, and permitted to
remain outstanding, pursuant to the other provisions of this Section
9.04;
(vi) Capitalized Lease Obligations (including Capitalized
Lease Obligations arising from Permitted Sale-Leaseback Transactions) and
Indebtedness of the Borrower and its Subsidiaries representing purchase
money Indebtedness secured by Liens permitted pursuant to Section
9.01(vii), PROVIDED that the sum of (without duplication) (x) the
aggregate amount of Capitalized Lease Obligations (including Capitalized
Lease Obligations arising from Permitted Sale Leaseback Transactions)
incurred on and after the Initial Borrowing Date and outstanding at any
time PLUS (y) the aggregate principal amount of all such purchase money
Indebtedness incurred on and after the Initial Borrowing Date and
outstanding at any time and (z) Permitted Acquired Debt assumed on and
after the Initial Borrowing Date and outstanding at any time, shall not
exceed $150,000,000;
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(vii) intercompany Indebtedness of the Borrower and its
Subsidiaries (other than the Receivables Entity) outstanding to the
extent permitted by Section 9.05(vi);
(viii) Indebtedness evidenced by Other Hedging Agreements
entered into pursuant to Section 9.05(v);
(ix) Indebtedness under performance bonds, letter of credit
obligations to provide security for worker's compensation claims and bank
overdrafts, in each case incurred in the ordinary course of business,
PROVIDED that any obligations arising in connection with such bank
overdraft Indebtedness is extinguished within five Business Days;
(x) Indebtedness of the Borrower which may exist as a result
of its obligation to pay purchase price adjustments (not past due)
pursuant to Section 2.5 of the Contribution Agreement;
(xi) Indebtedness which may be deemed to exist pursuant to the
Permitted Receivables Facility, so long as the Attributed Receivables
Facility Indebtedness does not exceed the Permitted Receivables Facility
Threshold Amount;
(xii) Indebtedness of Foreign Subsidiaries of the Borrower
under lines of credit extended after the Contribution Effective Time to
any such Foreign Subsidiary by Persons other than the Borrower or any of
its Subsidiaries, the proceeds of which Indebtedness are used for such
Foreign Subsidiary's working capital purposes, PROVIDED that the
aggregate principal amount of all such Indebtedness outstanding at any
time for all such Foreign Subsidiaries (such Indebtedness being the
"Foreign Subsidiary Working Capital Indebtedness") shall not exceed the
Foreign Borrowing Base Amount in effect at such time;
(xiii) Indebtedness of a Subsidiary acquired pursuant to a
Permitted Acquisition (or Indebtedness assumed by the Borrower or any
Wholly-Owned Domestic Subsidiary pursuant to a Permitted Acquisition as a
result of a merger or consolidation or the acquisition of an asset
securing such Indebtedness) (the "PERMITTED ACQUIRED DEBT"), so long as
(w) such Indebtedness was not incurred in connection with, or in
anticipation or contemplation of, such Permitted Acquisition, (x) such
Indebtedness does not constitute debt for borrowed money, it being
understood and agreed that Capitalized Lease Obligations and purchase
money Indebtedness shall not constitute debt for borrowed money for
purposes of this clause (x) and (y) the sum of (1) the aggregate amount
of all Capitalized Lease Obligations and purchase money Indebtedness
incurred on and after the Initial Borrowing Date pursuant to Section
9.04(vi) and outstanding at any time and (2) the Permitted Acquired Debt
assumed on and after the Initial Borrowing Date and outstanding at any
time, shall not exceed $150,000,000;
(xiv) Indebtedness of the Borrower and its Subsidiaries which
may be deemed to exist pursuant to their respective obligations to pay
Dividends permitted by Section 9.03 after same have been declared;
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(xv) Indebtedness consisting of loans to officers and
employees of the Borrower and its Subsidiaries made or guaranteed by the
Borrower, the proceeds of which are utilized to purchase Borrower Common
Stock in an aggregate principal amount not to exceed $5,500,000
outstanding at any time;
(xvi) Indebtedness of the Borrower or any of its Subsidiaries
which may be deemed to exist in connection with agreements providing for
indemnification, purchase price adjustments and similar obligations in
connection with acquisitions or sales of assets and/or businesses
effected in accordance with the requirements of this Agreement (so long
as any such obligations are those of the Person making the respective
acquisition or sale, and are not guaranteed by any other Person);
(xvii) Permitted Refinancing Indebtedness incurred in accordance
with the requirements of the definition thereof, so long as no Default or
Event of Default is then in existence or would result therefrom;
(xviii) in connection with Timberlands Dispositions, the Borrower
and its Subsidiaries may enter into agreements for the purchase of fiber
in order to insure continuing fiber source at market price or less as
determined in good faith by the Borrower;
(xix) the Borrower and its Subsidiaries may enter into take or
pay contracts for the provision of electricity, steam or other energy
source requiring payments not to exceed $30,000,000 in the aggregate in
any fiscal year provided that at the time of such contract the Borrower
reasonably believes that such contract will result in lower energy costs;
and
(xx) additional unsecured Indebtedness of the Borrower and its
Subsidiaries not otherwise permitted pursuant to this Section 9.04, so
long as the aggregate principal amount of all Indebtedness incurred
pursuant to this clause (xx) does not exceed $50,000,000 at any time
outstanding.
Notwithstanding the foregoing or any other provision of this
Agreement, unless the Required Lenders expressly consent thereto in writing, no
exchange of Borrower PIK Preferred Stock for Subordinated Exchange Debentures
shall be permitted.
9.05 ADVANCES, INVESTMENTS AND LOANS. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, lend money
or credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents, (each of the foregoing an "INVESTMENT" and,
collectively, "INVESTMENTS") except that the following shall be permitted:
(i) the Borrower and its Subsidiaries (other than the
Receivables Entity) may acquire and hold accounts receivables owing to
any of them if created or acquired in the
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ordinary course of business and payable or dischargeable in accordance
with customary trade terms of the Borrower or such Subsidiary;
(ii) the Borrower and its Subsidiaries (other than the
Receivables Entity) may acquire and hold cash and Cash Equivalents;
(iii) the Borrower and its Subsidiaries (other than the
Receivables Entity) may make loans and advances in the ordinary course of
business to their respective employees so long as the aggregate principal
amount thereof at any time outstanding (determined without regard to any
write-downs or write-offs of such loans and advances) shall not exceed
$5,500,000;
(iv) the Borrower may enter into Interest Rate Protection
Agreements to the extent permitted in Section 9.04(v);
(v) the Borrower may enter into and perform its obligations
under Other Hedging Agreements entered into in the ordinary course of
business and so long as any such Other Hedging Agreement is not
speculative in nature and is (x) related to income derived from foreign
operations of the Borrower or any Subsidiary or otherwise related to
purchases permitted hereunder from foreign suppliers or (y) entered into
to protect the Borrower and/or its Subsidiaries against fluctuations in
the prices of raw materials and energy costs used in their businesses;
(vi) any Wholly-Owned Subsidiary (other than the Receivables
Entity) may make intercompany loans to the Borrower or any Wholly-Owned
Subsidiary (other than the Receivables Entity) and the Borrower may make
intercompany loans and advances to any Wholly-Owned Subsidiary (other
than the Receivables Entity), PROVIDED that (x) any promissory notes
evidencing such intercompany loans made by the Borrower or any Domestic
Wholly-Owned Subsidiary shall be pledged (and delivered) by the Borrower
or the respective Domestic Wholly-Owned Subsidiary that is the lender of
such intercompany loan as Collateral pursuant to the Pledge Agreement,
(y) neither the Borrower nor any Domestic Subsidiaries of the Borrower
may make loans to any Foreign Subsidiaries of the Borrower pursuant to
this clause (vi) and (z) any loans made by any Foreign Subsidiaries to
the Borrower or any of its Domestic Subsidiaries pursuant to this clause
(vi) shall be subordinated to the obligations of the Credit Parties
pursuant to subordination provisions in substantially the form of Exhibit
M hereto;
(vii) the Borrower and it Subsidiaries may sell or transfer
assets to the extent permitted by Section 9.02;
(viii) the Borrower may establish Subsidiaries to the extent
permitted by Section 9.14;
(ix) the Receivables Sellers may make an initial cash capital
contribution to the Receivables Entity on the Permitted Receivables
Facility Transaction Date as provided in the Permitted Receivables
Facility Documents, so long as the Receivables Entity uses all
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of the proceeds of such contribution on such date to purchase
Permitted Receivables Facility Assets from the Receivables Sellers,
and the Borrower may hold the capital stock of the Receivables Entity
issued to it so long as such capital stock has been duly pledged and
delivered to the Collateral Agent pursuant to the Pledge Agreement;
(x) on or after the Permitted Receivables Facility
Transaction Date, the Receivables Entity may invest those Permitted
Receivables Facility Assets pursuant to, and in accordance with the terms
of, the Permitted Receivables Facility Documents;
(xi) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations and equity securities) received
in connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;
(xii) so long as no Default or Event of Default exists or would
exist immediately after giving effect to the respective Investment, the
Borrower and its Wholly-Owned Domestic Subsidiaries shall be permitted to
make Investments in any Joint Venture on any date in an amount not to
exceed the Available J.V. Basket Amount on such date (after giving effect
to all prior and contemporaneous adjustments thereto, except as a result
of such Investment), it being understood and agreed that to the extent
the Borrower or one or more other Credit Parties (after the respective
Investment has been made) receives a cash return from the respective
Joint Venture of amounts previously invested pursuant to this clause
(xii) (which cash return may be made by way of repayment of principal in
the case of loans and cash equity returns (whether as a distribution,
dividend or redemption) in the case of equity investments) or a return in
the form of an asset distribution from the respective Joint Venture of
any asset previously contributed pursuant to this clause (xii), then the
amount of such cash return of investment or the fair market value of such
distributed asset (as determined in good faith by senior management of
the Borrower), as the case may be, shall, upon the Administrative Agent's
receipt of a certification of the amount of the return of investment from
an Authorized Officer, apply to increase the Available J.V. Basket
Amount, PROVIDED that the aggregate amount of increases to the Available
J.V. Basket Amount described above shall not exceed the amount of
returned Investment and, in no event, shall the amount of the increases
made to the Available J.V. Basket Amount in respect of any Investment
exceed the amount previously invested pursuant to this clause (xii);
(xiii) the Borrower and any of its Wholly-Owned Domestic
Subsidiaries may make Permitted Acquisitions in accordance with the
relevant requirements of Section 8.13 and the component definitions as
used therein; and
(xiv) the Borrower and its Subsidiaries may make advances and
loans in the ordinary course of business to their respective customers,
so long as (x) the aggregate principal amount thereof at any time
outstanding (determined without regard to any write-downs or write-offs
of such loans or advances) shall not exceed $5,000,000 and (y) such
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customers utilize the proceeds thereof to acquire equipment used in their
respective businesses.
9.06 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any transaction or series
of related transactions, whether or not in the ordinary course of business, with
any Affiliate of the Borrower or any of its Subsidiaries, other than in the
ordinary course of business and on terms and conditions substantially as
favorable to the Borrower or such Subsidiary as would reasonably be obtained by
the Borrower or such Subsidiary at that time in a comparable arm's-length
transaction with a Person other than an Affiliate, except that:
(i) Dividends may be paid to the extent provided in Section
9.03 or, at any time and to the extent that any Dividend is permitted to
by paid by the Borrower to PCA Holdings pursuant to Section 9.03(vii),
the Borrower may in lieu of paying the amounts permitted to be paid in
the form of Dividends pursuant to said Section, pay such amounts to PCA
Holdings pursuant to the PCA Holdings Service Agreement, so long as all
proceeds of such payments are used by PCA Holdings to make the payments
which would be required to be made by it if such amounts had been paid as
Dividends pursuant to, and in accordance with the requirements of,
Section 9.03(vii); PROVIDED that such payments shall be alternative to
and not duplicative of any Dividends paid (and permitted to be paid)
pursuant to said Section;
(ii) loans may be made and other transactions may be entered
into between the Borrower and its Subsidiaries to the extent permitted by
Sections 9.04 and 9.05;
(iii) so long as no Default or Event of Default is then in
existence or would result therefrom, the payment, on a quarterly basis,
of management fees to MDP in an aggregate amount not to exceed $500,000
in any fiscal quarter of the Borrower pursuant to, and in accordance with
the terms of, the MDP Management Agreement; PROVIDED that if during any
fiscal quarter of the Borrower, a Default or Event of Default is in
existence and such management fees cannot be paid as provided above, such
fees shall continue to accrue and may be paid at such time as all
Defaults and Events of Default have been cured or waived and so long as
no Default or Event of Default will exist immediately after giving effect
to the payment thereof;
(iv) customary fees to non-officer directors of the Borrower
and its Subsidiaries;
(v) the payment on the Initial Borrowing Date of one time
consulting and advisory fees to MDP in an aggregate amount not to exceed
$15,000,000;
(vi) the reimbursement of MDP for its reasonable out-of-pocket
expenses incurred in connection with performing management services to
the Borrower and its Subsidiaries under the MDP Management Agreement;
(vii) transactions may be entered into between the Borrower and
the Subsidiary Guarantors to the extent permitted by this Agreement; and
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(viii) transactions between the Borrower or any of its
Subsidiaries and Tenneco and its Subsidiaries as contemplated by the
Contribution Agreement and the Purchase Supply Agreements (each as in
effect on the Effective Date).
In no event shall any management, consulting or similar fees be paid or payable
by the Borrower or any of its Subsidiaries to any Person except as specifically
provided in this Section 9.06.
9.07 CAPITAL EXPENDITURES. (a) The Borrower will not, and will
not permit any of its Subsidiaries to, make any Capital Expenditures, except
that during any fiscal year set forth below, the Borrower and its Subsidiaries
may make Capital Expenditures, so long as the aggregate amount of such Capital
Expenditures does not exceed in any fiscal year set forth below the amount set
forth opposite such fiscal year below:
Fiscal Year Ending Amount
------------------ ------
December 31, 1999 $135,000,000
December 31, 2000 $135,000,000
December 31, 2001 $140,000,000
December 31, 2002 $145,000,000
December 31, 2003 $150,000,000
December 31, 2004 $155,000,000
December 31, 2005 $160,000,000
December 31, 2006 $160,000,000
December 31, 2007 $160,000,000
December 31, 2008 $160,000,000
(b) Notwithstanding the foregoing, in the event that the
amount of Capital Expenditures permitted to be made by the Borrower and its
Subsidiaries pursuant to clause (a) above in any fiscal year (before giving
effect to any increase in such permitted expenditure amount pursuant to this
clause (b)) is greater than the amount of such Capital Expenditures made by the
Borrower and its Subsidiaries during such fiscal year, such excess (the
"ROLLOVER AMOUNT") may be carried forward and utilized to make Capital
Expenditures in succeeding fiscal years of the Borrower; PROVIDED that in no
event shall the aggregate amount of Capital Expenditures made by the Borrower
and its Subsidiaries during any fiscal year pursuant to Section 9.07(a) and this
Section 9.07(b) exceed $250,000,000.
(c) Notwithstanding the foregoing, the Borrower and its
Subsidiaries may make Capital Expenditures (which Capital Expenditures will not
be included in any determination under the foregoing clause (a)) with Net Asset
Sale Proceeds to the extent such Net Asset Sale Proceeds are not required to be
applied to repay Term Loans pursuant to Section 4.02(g) and such proceeds are
reinvested as required by said Section.
(d) Notwithstanding the foregoing, the Borrower and its
Subsidiaries may make Capital Expenditures (which Capital Expenditures will not
be included in any determination under the foregoing clause (a)) consisting of
the reinvestment of Net
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Insurance/Condemnation Proceeds not required to be applied to prepay Term
Loans pursuant to Section 4.02(h).
(e) Notwithstanding the foregoing, (x) the Borrower and its
Wholly-Owned Domestic Subsidiaries may make Capital Expenditures (which Capital
Expenditures will not be included in any determination under the foregoing
clause (a)) constituting Permitted Acquisitions effected in accordance with the
requirements of Section 9.02(xiii) and (y) on each date during a fiscal year in
which the Available Permitted Acquisition Basket Amount is utilized to make a
Permitted Acquisition pursuant to Section 8.13(iv)(y), the amount so utilized
shall be applied on a dollar for dollar basis to reduce the amount of Capital
Expenditures permitted under Section 9.07(a) for the fiscal year in which such
date occurs.
9.08 CONSOLIDATED INTEREST COVERAGE RATIO. The Borrower will not
permit the Consolidated Interest Coverage Ratio for any Test Period ended on the
last day of a fiscal quarter set forth below to be less than the amount set
forth opposite such fiscal quarter below:
Fiscal Quarter Ended Ratio
-------------------- -----
September 30, 1999 1.50:1.0
December 31, 1999 1.50:1.0
March 31, 2000 1.50:1.0
June 30, 2000 1.50:1.0
September 30, 2000 1.60:1.0
December 31, 2000 1.60:1.0
March 31, 2001 1.75:1.0
June 30, 2001 1.75:1.0
September 30, 2001 2.00:1.0
December 31, 2001 2.00:1.0
March 31, 2002 2.00:1.0
June 30, 2002 2.00:1.0
September 30, 2002 2.00:1.0
December 31, 2002 2.00:1.0
March 31, 2003 2.25:1.0
June 30, 2003 2.25:1.0
September 30, 2003 2.25:1.0
December 31, 2003 2.25:1.0
March 31, 2004 2.25:1.0
June 30, 2004 2.25:1.0
September 30, 2004 2.25:1.0
December 31, 2004 2.25:1.0
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Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 2005 and 2.50:1.0
each Fiscal Quarter thereafter
9.09 MAXIMUM LEVERAGE RATIO. The Borrower will not permit the
Leverage Ratio at any time during a fiscal quarter set forth below to be greater
than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Ratio
-------------------- -----
September 30, 1999 6.75:1.0
December 31, 1999 6.75:1.0
March 31, 2000 6.75:1.0
June 30, 2000 6.50:1.0
September 30, 2000 6.50:1.0
December 31, 2000 6.25:1.0
March 31, 2001 6.25:1.0
June 30, 2001 6.00:1.0
September 30, 2001 5.75:1.0
December 31, 2001 5.75:1.0
March 31, 2002 5.50:1.0
June 30, 2002 5.25:1.0
September 30, 2002 5.25:1.0
December 31, 2002 5.00:1.0
March 31, 2003 5.00:1.0
June 30, 2003 5.00:1.0
September 30, 2003 5.00:1.0
December 31, 2003 4.75:1.0
March 31, 2004 4.75:1.0
June 30, 2004 4.75:1.0
September 30, 2004 4.50:1.0
December 31, 2004 4.50:1.0
March 31, 2005 4.25:1.0
June 30, 2005 4.25:1.0
September 30, 2005 4.25:1.0
December 31, 2005 4.25:1.0
March 31, 2006 and each 4.00:1.0
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Xxxxxx Xxxxxxx Ended Ratio
-------------------- -----
Fiscal Quarter thereafter
Notwithstanding anything to the contrary contained in this Agreement, all
calculations of compliance with this Section 9.09 shall be made on a PRO FORMA
Basis.
9.10 MINIMUM CONSOLIDATED NET WORTH. The Borrower will not
permit Consolidated Net Worth at any time during any fiscal quarter set forth
below to be less than the amount set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Minimum Consolidated Net Worth
-------------------- ------------------------------
June 30, 1999 $315,000,000
September 30, 1999 $325,000,000
December 31, 1999 $325,000,000
March 31, 2000 $325,000,000
June 30, 2000 $325,000,000
September 30, 2000 $325,000,000
December 31, 2000 $350,000,000
March 31, 2001 $350,000,000
June 30, 2001 $350,000,000
September 30, 2001 $350,000,000
December 31, 2001 $400,000,000
March 31, 2002 $400,000,000
June 30, 2002 $400,000,000
September 30, 2002 $400,000,000
December 31, 2002 $450,000,000
March 31, 2003 $450,000,000
June 30, 2003 $450,000,000
September 30, 2003 $450,000,000
December 31, 2003 $490,000,000
March 31, 2004 $490,000,000
June 30, 2004 $490,000,000
September 30, 2004 $490,000,000
December 31, 2004 $540,000,000
March 31, 2005 $540,000,000
June 30, 2005 $540,000,000
September 30, 2005 $540,000,000
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December 31, 2005 $590,000,000
March 31, 2006 $590,000,000
June 30, 2006 $590,000,000
September 30, 2006 $590,000,000
December 31, 2006 $640,000,000
March 31, 2007 $640,000,000
June 30, 2007 $640,000,000
September 30, 2007 $640,000,000
December 31, 2007 $690,000,000
March 31, 2008 $690,000,000
9.11 LIMITATION ON MODIFICATIONS OF INDEBTEDNESS;
MODIFICATIONS OF CERTIFICATE OF INCORPORATION, BY-LAWS AND CERTAIN OTHER
AGREEMENTS; ETC. The Borrower will not, and will not permit any of its
Subsidiaries to, (i) amend or modify, or permit the amendment or modification
of, any provision of any Borrower PIK Preferred Stock Document, any
Subordinated Promissory Notes Document or any Senior Subordinated Notes
Document or of any agreement (including, without limitation, any purchase
agreement, indenture, loan agreement or security agreement) relating thereto,
(ii) amend or modify, or permit the amendment or modification of, any
provision of any Existing Indebtedness, any Permitted Debt or of any
agreement (including, without limitation, any purchase agreement, indenture,
loan agreement or security agreement) relating thereto other than any
amendments or modifications thereto which (A) do not make any material term
or condition thereof more restrictive than previously existing terms and
conditions with respect thereto, (B) do not in any way materially adversely
affect the interest of the Lenders and (C) do not increase the interest rates
applicable thereunder, reduce the maturity date thereunder or change any
subordination provision thereof from those in effect immediately prior to
such amendment or modification, (iii) make (or give any notice in respect
thereof) any voluntary or optional payment or prepayment on or redemption or
acquisition for value (including, without limitation, by way of depositing
with the trustee with respect thereto monies or securities before due for the
purpose of paying when due) or exchange of, or any prepayment or redemption
as a result of any asset sale, change of control or similar event of, any
Subordinated Promissory Note, any Senior Subordinated Note or any Existing
Indebtedness; PROVIDED that (x) the Borrower may exchange the Senior
Subordinated Notes for Exchange Senior Subordinated Notes issued as
contemplated in the definition of Senior Subordinated Notes and consistent
with the requirements of the definition of Exchange Senior Subordinated
Notes, (y) so long as no Default or Event of Default is then in existence or
would result therefrom, the Borrower may and its Subsidiaries may make such
payments and prepayments in connection with Existing Indebtedness and (z) so
long as the Timberlands Disposition Recapture/Restricted Payments
Requirements are satisfied at the time of the consummation of the respective
sale of Timberland Properties pursuant to the Timberlands Dispositions, the
Borrower may utilize proceeds from the Timberlands Dispositions in an
aggregate amount not to exceed the Excluded Timberlands Disposition Proceeds
to repurchase or otherwise redeem Senior Subordinated Notes in an aggregate
principal amount not to exceed the remainder of (x) the Excluded Timberlands
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Disposition Proceeds LESS (y) the sum of (I) the aggregate liquidation
preference of all Borrower PIK Preferred Stock redeemed pursuant to Section
9.03(ix) and all accrued and unpaid dividends thereon and all redemption
premiums in respect thereof, if any, PLUS (II) the aggregate amount of cash
Dividends paid with respect to Borrower Common Stock pursuant to Section
9.03(ix), if any, (iv) amend or modify, or permit the amendment or
modification of any Contribution Document, any Common Equity Financing
Document, the PCA Holdings Service Agreement or any Management Agreement
(including, without limitation, the MDP Management Agreement), except for
amendments or modifications which are not in any way materially adverse to
the interests of the Lenders and do not involve the payment by the Borrower
or any of its Subsidiaries of any amounts which could give rise to a
violation of this Agreement or result in the Borrower or any of its
Subsidiaries incurring any additional liability or monetary obligations not
permitted under this Agreement, (v) amend, modify or change its Certificate
of Incorporation (except as contemplated by the Shareholders' Agreement as in
effect on the Initial Borrowing Date) (including, without limitation, by the
filing or modification of any certificate of designation) or By-Laws (or
equivalent organizational documents) or any agreement entered into by it,
with respect to its capital stock (or equivalent interests) (including any
Shareholders' Agreement), or enter into any new agreement with respect to its
capital stock, other than any amendments, modifications or changes pursuant
to this clause (v) or any such new agreements pursuant to this clause (v)
which do not in any way materially adversely affect the interests of the
Lenders or which may be required to issue new capital stock permitted to be
issued pursuant to Section 9.13 or (vi) at any time after the Permitted
Receivables Facility Transaction Date, amend or modify, or permit the
amendment or modification of, any provision of any Permitted Receivables
Facility Document, except as permitted by the definition thereof.
9.12 LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES. The
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (b) make loans or advances to the Borrower or any of the
Borrower's Subsidiaries or (c) transfer any of its properties or assets to the
Borrower or any of the Borrower's Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of the
Borrower or a Subsidiary of the Borrower, (iv) customary provisions restricting
assignment of any licensing agreement entered into by the Borrower or a
Subsidiary of the Borrower in the ordinary course of business, (v) the Senior
Subordinated Notes Documents, (vi) the Subordinated Promissory Notes Documents,
(vii) customary provisions restricting the transfer of assets subject to Liens
permitted under Sections 9.01(vii), (viii) any Permitted Receivables Facility
Document, (ix) restrictions applicable to any Joint Venture that is a Subsidiary
existing at the time of the acquisition thereof as a result of an Investment
pursuant to Section 9.05 or a Permitted Acquisition effected in accordance with
Section 8.14, PROVIDED that the restrictions applicable to the respective such
Joint Venture are not made worse, or more burdensome, from the perspective of
the Borrower and its Subsidiaries, than those as in effect immediately before
giving effect to the consummation of the respective
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Investment or Permitted Acquisition, (x) any agreement or instrument
governing Permitted Acquired Debt, which encumbrance or restriction is not
applicable to any Person or the properties or assets of any Person, other
than the Person or the properties or assets of the Person acquired pursuant
to the respective Permitted Acquisition and so long as the respective
encumbrances or restrictions were not created (or made more restrictive) in
connection with or in anticipation of the respective Permitted Acquisition
and (xi) the Borrower PIK Preferred Stock Documents.
9.13 LIMITATION ON ISSUANCE OF CAPITAL STOCK. (a) The Borrower
will not issue any Disqualified Stock (other than Borrower PIK Preferred Stock
issued in accordance with the requirements of Section 5.06, the issuance of
shares of Borrower PIK Preferred Stock in payment of regularly accruing
dividends on theretofore outstanding shares of Borrower PIK Preferred Stock and
the issuance of Exchange Borrower PIK Preferred Stock in exchange for Borrower
PIK Preferred Stock as contemplated in the definition of Borrower PIK Preferred
Stock and consistent with the requirements of the definition of Exchange
Borrower PIK Preferred Stock).
(b) The Borrower will not permit any of its Subsidiaries to
issue any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and additional issuances which do
not decrease the percentage ownership of the Borrower or any of its Subsidiaries
in any class of the capital stock of such Subsidiary, (iii) in the case of
Foreign Subsidiaries of the Borrower, to qualify directors to the extent
required by applicable law, and (iv) Subsidiaries of the Borrower formed after
the Contribution Effective Time pursuant to Section 9.14 may issue capital stock
to the Borrower or the respective Subsidiary of the Borrower which is to own
such stock in accordance with the requirements of Section 8.11. All capital
stock issued in accordance with this Section 9.13(b) shall, to the extent
required by the Pledge Agreement, be delivered to the Collateral Agent for
pledge pursuant to the Pledge Agreement.
9.14 LIMITATION ON CREATION OF SUBSIDIARIES AND JOINT
VENTURES. (a) The Borrower shall not establish, create or acquire any
additional Subsidiaries (other than Joint Ventures permitted to be established
in accordance with the requirements of Section 9.05(xii)) without the prior
written consent of the Required Lenders; PROVIDED that the Borrower may
establish or create one or more Wholly-Owned Subsidiaries of the Borrower
without such consent so long as (i) 100% of the capital stock of any new
Domestic Subsidiary (or all capital stock of any new Foreign Subsidiary which is
owned by any Credit Party, except that, subject to the provisions of Section
8.14, not more than 66 2/3% of the voting stock of any such Foreign Subsidiary
shall be required to be so pledged) is upon the creation, establishment or
acquisition of any such new Subsidiary pledged and delivered to the Collateral
Agent for the benefit of the Secured Creditors under the Pledge Agreement and
(ii) upon the creation or establishment of any such new Domestic Subsidiary,
such Domestic Subsidiary (other than the Receivables Entity) executes the
Additional Security Documents and guaranty required to be executed by it in
accordance with Section 8.11.
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(b) The Borrower will not, nor will the Borrower permit any of
its Subsidiaries to, enter into any Joint Venture, except to the extent
permitted by Section 9.05(xii).
9.15 BUSINESS. (a) The Borrower will not, and will not permit
any of its Subsidiaries to, engage directly or indirectly in any lines of
business other than a Permitted Business.
(b) Notwithstanding anything to the contrary contained in
this Agreement, the Receivables Entity will not engage in any business other
than purchasing Permitted Receivables Facility Assets from the Receivables
Sellers and the related transactions pursuant to the terms of the Permitted
Receivables Facility Documents.
9.16 DESIGNATED SENIOR DEBT. The Borrower will not, and will
not permit any of its Subsidiaries to (i) designate any Indebtedness (other
than the Obligations) as "Designated Senior Debt" for purposes of, and as
defined in, the Senior Subordinated Notes Indenture or (ii) designate any
documents with respect to any Indebtedness (other than this Agreement) as the
"Credit Agreement" as defined in the Senior Subordinated Notes Indenture for
purposes of the receipt of notices by the Administrative Agent, and delivery
of blockage notices pursuant to the subordination provisions of the Senior
Subordinated Notes Documents.
SECTION 10. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each, an "EVENT OF DEFAULT"):
10.01 PAYMENTS. The Borrower shall (i) default in the payment
when due of any principal of any Loan or any Note or (ii) default, and such
default shall continue unremedied for three or more Business Days, in the
payment when due of any Unpaid Drawings or interest on any Loan or Note, or any
Fees or any other amounts owing hereunder or under any other Credit Document; or
10.02 REPRESENTATIONS, ETC. Any representation, warranty or
statement made by any PCA Credit Party herein or in any other Credit Document or
in any statement or certificate delivered pursuant hereto or thereto shall prove
to be untrue in any material respect on the date as of which made or deemed
made; or
10.03 COVENANTS. The Borrower shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(f)(i), 8.08, 8.11 (within the time periods specified in Section
8.11(h)), or 8.13 or Section 9 or (ii) default in the due performance or
observance by it of any other term, covenant or agreement contained in this
Agreement and such default shall continue unremedied for a period of 30 days
after written notice to the Borrower by the Administrative Agent or any of the
Lenders; or
10.04 DEFAULT UNDER OTHER AGREEMENTS. (a) The Borrower or any of
its Subsidiaries shall (i) default in any payment of any Indebtedness (other
than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (ii)
default in the observance or performance of any agreement or condition relating
to any Indebtedness (other than the Obligations) or contained in any
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instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such holder or holders)
to cause (determined without regard to whether any notice is required), any
such Indebtedness to become due prior to its stated maturity or (b) any
Indebtedness (other than the Obligations) of the Borrower or any of its
Subsidiaries shall be declared to be due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior to the
stated maturity thereof, PROVIDED that it shall not be a Default or Event of
Default under this Section 10.04 unless the aggregate principal amount of all
Indebtedness as described in preceding clauses (a) and (b) is at least
$10,000,000; or
10.05 BANKRUPTCY, ETC. The Borrower or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "BANKRUPTCY CODE"); or an involuntary case is commenced
against the Borrower or any of their respective Subsidiaries and the petition is
not controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Borrower or any of its Subsidiaries or the Borrower or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the Borrower or any of its Subsidiaries or there is commenced
against the Borrower or any of its Subsidiaries any such proceeding which
remains undismissed for a period of 60 days, or the Borrower or any of its
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or the Borrower or
any of its Subsidiaries suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue undischarged or unstayed
for a period of 60 days; or the Borrower or any of its Subsidiaries makes a
general assignment for the benefit of creditors; or any corporate action is
taken by the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan or a
Foreign Pension Plan has not been timely made, the Borrower or any Subsidiary of
the Borrower
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or any ERISA Affiliate has incurred or is likely to incur any liability to or
on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975
of the Code or on account of a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of
the Code, or the Borrower, or any of its Subsidiaries has incurred or is
likely to incur liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(1) of ERISA) that provide benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or Plans or Foreign Pension Plans a "default"," within the meaning of
Section 4219(c)(5) of ERISA, shall occur with respect to any Plan; any
applicable law, rule or regulation is adopted, changed or interpreted, or the
interpretation or administration thereof is changed, in each case after the
date hereof, by any governmental authority or agency or by any court (a
"Change in Law"), or, as a result of a Change in Law, an event occurs
following a Change in Law, with respect to or otherwise affecting any Plan;
(b) there shall result from any such event or events the imposition of a
lien, the granting of a security interest, or a liability or a material risk
of incurring a liability; and (c) such lien, security interest or liability,
individually, and/or in the aggregate, in the opinion of the Required
Lenders, has had, or would reasonably be expected to have, a Material Adverse
Effect; or
10.07 SECURITY DOCUMENTS. At any time after the execution and
delivery thereof any of the Security Documents (other than at any time after the
termination thereof in accordance with its terms, the TPI Security Agreement)
shall cease to be in full force and effect, or shall cease to give the
Collateral Agent for the benefit of the Secured Creditors the Liens, rights,
powers and privileges purported to be created thereby (including, without
limitation, a perfected security interest in, and Lien on, all of the
Collateral), in favor of the Collateral Agent, superior to and prior to the
rights of all third Persons (except as permitted by Section 9.01), and subject
to no other Liens (except as permitted by Section 9.01), or any Credit Party
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any of the
Security Documents and such default shall continue beyond any grace period (if
any) specifically applicable thereto pursuant to the terms of such Security
Document; or
10.08 GUARANTIES. Any Guaranty or any provision thereof shall
cease to be in full force or effect as to the relevant Guarantor (except in the
case (x) such Guarantor is no longer a Subsidiary by virtue of a liquidation,
sale, merger or consolidation permitted by Section 9.02 or (y) of the Tenneco
Guaranty, upon the termination thereof in accordance with its terms), or any
Guarantor or Person acting by or on behalf of such Guarantor shall deny or
disaffirm such Guarantor's obligations under the relevant Guaranty, or any
Guarantor shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to the
relevant Guaranty; or
10.09 JUDGMENTS. One or more judgments or decrees shall be
entered against the Borrower or any of its Subsidiaries involving in the
aggregate for the Borrower and its Subsidiaries a liability (not paid or fully
covered by a reputable and solvent insurance company) and such judgments and
decrees shall not be vacated, discharged or stayed or bonded pending
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appeal for any period of 60 consecutive days, and the aggregate amount of all
such judgments to the extent not covered by insurance exceeds $10,000,000; or
10.10 CHANGE OF CONTROL. A Change of Control Event shall occur;
or
10.11 PERMITTED RECEIVABLES FACILITY. At any time after the
Permitted Receivables Facility Transaction Date, an early amortization event
under the Permitted Receivables Facility Documents or any event permitting any
Person party to the Permitted Receivables Facility Documents to effect an early
termination of the Permitted Receivables Facility (or portion thereof) shall
have occurred and be continuing;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Lenders, shall by written notice to the Borrower, take any or all
of the following actions, without prejudice to the rights of the Administrative
Agent, any Lender or the holder of any Note to enforce its claims against any
Credit Party (PROVIDED that, if an Event of Default specified in Section 10.05
shall occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Administrative Agent to the Borrower as
specified in clauses (i) and (ii) below shall occur automatically without the
giving of any such notice): (i) declare the Total Commitments terminated,
whereupon all Commitments of each Lender shall forthwith terminate immediately
and any Commitment Commission shall forthwith become due and payable without any
other notice of any kind; (ii) declare the principal of and any accrued interest
in respect of all Loans and the Notes and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Credit Party; (iii) terminate any Letter of Credit
that may be terminated in accordance with its terms; (iv) direct the Borrower
(and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 10.05 with respect to the
Borrower, it will pay) to the Collateral Agent at the Payment Office such
additional amount of cash, to be held as security by the Collateral Agent, as is
equal to the aggregate Stated Amount of all Letters of Credit issued for the
account of the Borrower and then outstanding; and (v) enforce, as Collateral
Agent, all of the Liens and security interests created pursuant to the Security
Documents.
SECTION 11. DEFINITIONS AND ACCOUNTING TERMS.
11.01 DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"ADDITIONAL COLLATERAL" shall mean all property (whether real or
personal) in which security interests are granted (or have been purported to be
granted) (and continue to be in effect at the time of determination) pursuant to
Section 8.11.
"ADDITIONAL MORTGAGE" shall have the meaning provided in Section
8.11(a).
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"ADDITIONAL MORTGAGED PROPERTY" shall have the meaning provided in
Section 8.11(a).
"ADDITIONAL SECURITY DOCUMENTS" shall mean all mortgages, pledge
agreements, security agreements and other security documents entered into
pursuant to Section 8.11 with respect to Additional Collateral.
"ADJUSTED CONSOLIDATED NET INCOME" for any period shall mean
Consolidated Net Income for such period and without giving effect to any
gains or losses from sales of assets other than inventory sold in the
ordinary course of business plus, without duplication, (i) the sum of the
amount of all net non-cash charges (including, without limitation,
depreciation, amortization, depletion, deferred tax expense and non-cash
interest expense) and net non-cash losses which were included in arriving at
Consolidated Net Income for such period LESS (ii) all net non-cash gains
included in arriving at Consolidated Net Income for such period. For purposes
of the foregoing, accrued accounts receivable and accrued payables and other
similar working capital items shall not be considered to be non-cash charges
or gains.
"ADJUSTED CONSOLIDATED WORKING CAPITAL" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
"ADJUSTED PERCENTAGE" shall mean (x) at a time when no Lender
Default exists, for each Lender, such Lender's Percentage and (y) at a time when
a Lender Default exists (i) for each Lender that is a Defaulting Lender, zero
and (ii) for each Lender that is a Non-Defaulting Lender, the percentage
determined by dividing such Lender's Revolving Loan Commitment at such time by
the Adjusted Total Revolving Loan Commitment at such time, it being understood
that all references herein to Revolving Loan Commitments and the Adjusted Total
Revolving Loan Commitment at a time when the Total Revolving Loan Commitment or
Adjusted Total Revolving Loan Commitment, as the case may be, has been
terminated shall be references to the Revolving Loan Commitments or Adjusted
Total Revolving Loan Commitment, as the case may be, in effect immediately prior
to such termination, PROVIDED that (A) no Lender's Adjusted Percentage shall
change upon the occurrence of a Lender Default from that in effect immediately
prior to such Lender Default if after giving effect to such Lender Default, and
any repayment of Revolving Loans and Swingline Loans at such time pursuant to
Section 4.02(a) or otherwise, the sum of (i) the aggregate outstanding principal
amount of Revolving Loans of all Non-Defaulting Lenders plus (ii) the aggregate
outstanding principal amount of Swingline Loans plus (iii) the Letter of Credit
Outstandings, exceed the Adjusted Total Revolving Loan Commitment; (B) the
changes to the Adjusted Percentage that would have become effective upon the
occurrence of a Lender Default but that did not become effective as a result of
the preceding clause (A) shall become effective on the first date after the
occurrence of the relevant Lender Default on which the sum of (i) the aggregate
outstanding principal amount of the Revolving Loans of all Non-Defaulting
Lenders plus (ii) the aggregate outstanding principal amount of Swingline Loans
plus (iii) the Letter of Credit Outstandings is equal to or less than the
Adjusted Total Revolving Loan Commitment; and (C) if (i) a Non-Defaulting
Lender's Adjusted Percentage is changed pursuant to the preceding clause (B) and
(ii) any repayment of such Lender's Revolving Loans, or of
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Unpaid Drawings with respect to Letters of Credit or of Swingline Loans, that
were made during the period commencing after the date of the relevant Lender
Default and ending on the date of such change to its Adjusted Percentage must
be returned to the Borrower as a preferential or similar payment in any
bankruptcy or similar proceeding of the Borrower, then the change to such
Non-Defaulting Lender's Adjusted Percentage effected pursuant to said clause
(B) shall be reduced to that positive change, if any, as would have been made
to its Adjusted Percentage if (x) such repayments had not been made and (y)
the maximum change to its Adjusted Percentage would have resulted in the sum
of the outstanding principal of Revolving Loans made by such Lender plus such
Lender's new Adjusted Percentage of the outstanding principal amount of
Swingline Loans and of Letter of Credit Outstandings equaling such Lender's
Revolving Loan Commitment at such time.
"ADJUSTED TOTAL AVAILABLE REVOLVING LOAN COMMITMENT" shall mean at
any time the Adjusted Total Revolving Loan Commitment less the Blocked
Commitment.
"ADJUSTED TOTAL REVOLVING LOAN COMMITMENT" shall mean at any time
the Total Revolving Loan Commitment LESS the aggregate Revolving Loan
Commitments of all Defaulting Lenders.
"ADMINISTRATIVE AGENT" shall have the meaning provided in the
first paragraph of this Agreement, and shall include any successor thereto.
"AFFILIATE" shall mean, with respect to any Person, any other
Person (including, for purposes of Section 9.06 only, all directors, officers
and partners of such Person) directly or indirectly controlling, controlled by,
or under direct or indirect common control with, such Person; PROVIDED, HOWEVER,
that for purposes of Section 9.06, an Affiliate of the Borrower shall include
any Person that directly or indirectly owns more than 10% of any class of the
capital stock of the Borrower and any officer or director of the Borrower or any
of its Subsidiaries. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"AGENTS" shall mean and include the Administrative Agent and the
Syndication Agent.
"AGREEMENT" shall mean this Credit Agreement, as modified,
supplemented, amended, restated, extended, renewed or replaced from time to
time.
"APPLICABLE EXCESS CASH FLOW PERCENTAGE" shall mean, with respect
to any Excess Cash Flow Payment Date, 75%; PROVIDED that so long as no Default
or Event of Default is then in existence, if on the last day of the relevant
Excess Cash Flow Payment Period, the Leverage Ratio for (and as calculated on
the last day of ) the Test Period then ended is less than 4.0:1.0, then the
Applicable Excess Cash Flow Percentage shall instead be 50%.
"APPLICABLE MARGIN" shall mean a percentage per annum equal to (i)
in the case of Tranche A Term Loans and Revolving Loans maintained as (x) Base
Rate Loans, 1.75% and (y)
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Eurodollar Loans, 2.75%, (ii) in the case of Tranche B Term Loans maintained
as (x) Base Rate Loans, 2.25% and (y) Eurodollar Loans, 3.25%, (iii) in the
case of Tranche C Term Loans maintained as (x) Base Rate Loans, 2.50% and (y)
Eurodollar Loans, 3.50%, and (iv) in the case of the Commitment Commission,
0.50%. In the case of the Applicable Margins for Tranche A Term Loans,
Revolving Loans and the Commitment Commission (the "ADJUSTABLE APPLICABLE
MARGINS"), from and after each day of delivery of any certificate delivered
in accordance with the first sentence of the following paragraph indicating
an entitlement to a different margin than that described in the immediately
preceding sentence (each, a "START DATE") to and including the applicable End
Date described below, the Adjustable Applicable Margins shall be that set
forth below opposite the Leverage Ratio indicated to have been achieved in
any certificate delivered in accordance with the following sentence:
APPLICABLE MARGIN APPLICABLE MARGIN
FOR EURODOLLAR FOR BASE RATE
TRANCHE A TERM TRANCHE A TERM APPLICABLE MARGIN
LEVERAGE LOANS AND LOANS AND FOR COMMITMENT
RATIO REVOLVING LOANS REVOLVING LOANS COMMISSION
-------------------------------------------------------------------------------
greater than or
equal to
4.50:1.00 2.75% 1.75% 0.50%
-------------------------------------------------------------------------------
less than
4.50:1:00 but
greater than or 2.50% 1.50% 0.50%
equal to
4.00:1.00
-------------------------------------------------------------------------------
less than
4.00:1.00 but
greater than or 2.25% 1.25% 0.50%
equal to
3.50:1.00
-------------------------------------------------------------------------------
less than
3.50:1.00 but
greater than or 2.00% 1.00% 0.375%
equal to
3.00:1.00
-------------------------------------------------------------------------------
less than
3.00:1.00
1.75% 0.75% 0.375%
-------------------------------------------------------------------------------
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The Leverage Ratio shall be determined based on the delivery of a certificate of
the Borrower by an Authorized Officer of the Borrower to the Administrative
Agent (with a copy to be sent by the Administrative Agent to each Lender),
within 45 days of the last day of any fiscal quarter of Borrower, which
certificate shall set forth the calculation of the Leverage Ratio as at the last
day of the Test Period ended immediately prior to the relevant Start Date and
the Adjustable Applicable Margins which shall be thereafter applicable (until
same are changed or cease to apply in accordance with the following sentences);
PROVIDED that at the time of the consummation of any Permitted Acquisition, an
Authorized Officer of the Borrower shall deliver to the Administrative Agent a
certificate setting forth the calculation of the Leverage Ratio on a PRO FORMA
Basis as of the last day of the last Calculation Period ended prior to the date
on which such Permitted Acquisition is consummated for which financial
statements have been made available (or were required to be made available)
pursuant to Section 8.01(a) or (b), as the case may be, and the date of such
consummation shall be deemed to be a Start Date and the Adjustable Applicable
Margins which shall be thereafter applicable (until same are changed or cease to
apply in accordance with the following sentence) shall be based upon the
Leverage Ratio as so calculated. The Adjustable Applicable Margins so
determined shall apply, except as set forth in the succeeding sentence, from the
Start Date to the earliest of (x) the date on which the next certificate is
delivered to the Administrative Agent, (y) the date on which the next Permitted
Acquisition is consummated or (z) the date which is 45 days following the last
day of the Test Period in which the previous Start Date occurred (such earliest
date, the "END DATE"), at which time, if no certificate has been delivered to
the Administrative Agent indicating an entitlement to new Adjustable Applicable
Margins (and thus commencing a new Start Date), the Adjustable Applicable
Margins shall be those described in the first sentence of this definition above.
Notwithstanding anything to the contrary contained above in this definition, (x)
the Applicable Margins shall be those described in the first sentence of this
definition above at all times during which there shall exist any Default or
Event of Default and (y) prior to the date of delivery of the financial
statements pursuant to Section 8.01(b) for the fiscal year ended December 31,
1999, the Applicable Margins shall be those described in the first sentence of
this definition.
"ASSET SALE" shall mean the sale by the Borrower or any of its
Subsidiaries to any Person other than the Borrower or any of its Wholly-Owned
Subsidiaries of (i) any of the stock of any of the Borrower's Subsidiaries,
(ii) substantially all of the assets of any division or line of business of the
Borrower or any of its Subsidiaries, or (iii) any other assets (whether tangible
or intangible) of the Borrower or any of its Subsidiaries (other than any such
other assets to the extent that the aggregate fair market value of such assets
(at the time of sale thereof) sold in any single transaction or related series
of transactions is equal to $2,500,000 or less); PROVIDED, HOWEVER, that (x)
Asset Sales shall not include (1) any sale or discount, in each case without
recourse, of accounts receivable arising in the ordinary course of business, but
only in connection with the compromise or collection thereof, (2) any sale or
exchange of specific items of equipment, so long as the purpose of each such
sale or exchange is to acquire (and results within 90 days of such sale or
exchange in the acquisition of) replacement items of equipment which are the
functional equivalent of the item of equipment so sold or exchanged, (3) the
leasing (pursuant to operating leases in the ordinary course of business) or
licensing of real or personal property, including intellectual property, (4)
disposals of obsolete, uneconomical, negligible, worn out or surplus property in
the ordinary course of business or (5) the Contribution and (y) Asset Sales
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shall in any event include (1) sales of assets pursuant to a Permitted
Sale-Leaseback Transaction and (2) Timberlands Dispositions.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean the Assignment
and Assumption Agreement substantially in the form of Exhibit L (appropriately
completed).
"ATTRIBUTED RECEIVABLES FACILITY INDEBTEDNESS" at any time shall
mean the principal amount of Indebtedness which would be outstanding at such
time under the Permitted Receivables Facility if same were structured as a
secured lending agreement rather than a purchase agreement.
"AUTHORIZED OFFICER" shall mean, with respect to (i) delivering
Notices of Borrowing, Notices of Conversion, Letter of Credit Requests and
similar notices, and delivering financial information and officer's certificates
pursuant to this Agreement, the chief operating officer, any treasurer or other
financial officer of the Borrower and (ii) any other matter in connection with
this Agreement or any other Credit Document, any officer (or a person or persons
so designated by any two officers) of the Borrower, in each case to the extent
reasonably acceptable to the Administrative Agent.
"AVAILABLE J.V. BASKET AMOUNT" shall mean, on any date of
determination, an amount equal to the sum (without duplication) of (i)
$25,000,000 MINUS (ii) the aggregate amount of Investments made (including for
such purpose the fair market value of any assets contributed to any Joint
Venture (as determined in good faith by senior management of the Borrower), net
of Indebtedness assigned to, and assumed by, the respective Joint Venture in
connection therewith) pursuant to Section 9.05(xii) after the Effective Date,
MINUS (iii) the aggregate amount of Indebtedness or other obligations (whether
absolute, accrued, contingent or otherwise and whether or not due) of any Joint
Venture for which the Borrower or any of its Subsidiaries (other than the
respective Joint Venture) is liable on such date of determination, MINUS (iv)
all payments made by the Borrower or any of its Subsidiaries (other than the
respective Joint Venture) in respect of Indebtedness or other obligations of the
respective Joint Venture (including, without limitation, payments in respect of
obligations described in preceding clause (iii)) after the Effective Date minus
(v) that portion of the Maximum Permitted Consideration in respect of any
Permitted Acquisition that is attributable to the acquisition of a Joint Venture
pursuant to such Permitted Acquisition, PLUS (vi) the amount of any increase to
the Available J.V. Basket Amount made after the Effective Date in accordance
with the provisions of Section 9.05(xii).
"AVAILABLE PERMITTED ACQUISITION BASKET AMOUNT" shall mean on any
date of the determination thereof during any fiscal year the lesser of (i) the
unutilized permitted amounts of Capital Expenditures under Section 9.07(a)
during the fiscal year in which such date of determination occurs (after taking
into account all Capital Expenditures made pursuant to clause (a) and clause (b)
of Section 9.07 during such period and assuming that clause (b) is utilized to
the maximum extent permissible during the respective fiscal year prior to the
utilization of clause (a)), such unutilized amount to be determined on the date
of determination and (ii) 25% of the
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maximum amount of Capital Expenditures permitted to be made under Section
9.07(a) during such fiscal year.
"AVAILABLE REVOLVING LOAN COMMITMENT" of any Lender at any time
shall mean its Percentage of the Total Available Revolving Loan Commitment at
such time.
"BANK CREDIT AGREEMENT ASSIGNMENT AND ASSUMPTION AGREEMENT" shall
have the meaning provided in Section 5.19.
"BANKRUPTCY CODE" shall have the meaning provided in Section
10.05.
"BASE RATE" shall mean for any day, a rate of interest per annum
equal to the higher of (i) the Prime Lending Rate for such day and (ii) the sum
of the Federal Funds Rate for such day plus 1/2 of 1% per annum.
"BASE RATE LOAN" shall mean (i) each Swingline Loan and (ii) each
Loan designated or deemed designated as such by the Borrower at the time of the
incurrence thereof or conversion thereto.
"BENEFICIAL OWNER" shall have the meaning provided in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms
"Beneficially Owns" and "Beneficially Owned" shall have a corresponding meaning.
"BLOCKED COMMITMENT" shall mean, on any date of determination,
zero PLUS (i) the aggregate principal amount of Revolving Loans prepaid pursuant
to Section 4.02(p) on or prior to such date in lieu of the deposit of amounts in
the Cash Collateral Account pursuant to said Section LESS (ii) the aggregate
amount specified by the Borrower in an officers' certificate or certificates
delivered to the Administrative Agent on or prior to such date as having been
paid (or which will be paid with the proceeds of Revolving Loans being incurred
on the date of delivery of such officer's certificate) in connection with the
purchase of Eligible Assets, investments in Converting Plants or the replacement
or restoration of the respective properties or assets giving rise to the receipt
of Net Insurance/Condemnation Proceeds which resulted in such prepayment of
Revolving Loans, as the case may be, LESS (iii) the aggregate amount specified
by the Borrower in an officers' certificate or certificates delivered to the
Administrative Agent on or prior to such date as being the aggregate principal
amount of the Term Loans which have been paid (or which will be paid with the
proceeds of Revolving Loans being incurred on the date of delivery of such
officers' certificate) by reason of the application of the second proviso to
Section 4.02(g) or the second proviso to Section 4.02(h), as the case may be, in
each case to the extent the Total Revolving Loan Commitment was blocked pursuant
to Section 4.02(p) by reason of the receipt of the related Net Asset Sale
Proceeds or Net Insurance/Condemnation Proceeds, as the case may be.
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"BORROWER" shall mean (i) at any time prior to the Contribution
Effective Time, TPI and (ii) at any time after Contribution Effective Time, PCA.
"BORROWER COMMON STOCK" shall have the meaning provided in Section
7B.14.
"BORROWER PIK PREFERRED STOCK" shall mean the pay-in-kind
Preferred Stock of the Borrower, $.01 par value per share, issued by the
Borrower pursuant to the Borrower Preferred Stock Documents as contemplated by
Section 5.06. As used herein, the term "Borrower PIK Preferred Stock" shall
include any Exchange Borrower PIK Preferred Stock issued in exchange for
theretofore outstanding Borrower PIK Preferred Stock, as contemplated by the
Offering Memorandum, dated as of March 30, 1999, and the definition of Exchange
Borrower PIK Preferred Stock.
"BORROWER PREFERRED STOCK DOCUMENTS" shall mean the documents
executed and delivered with respect to the Borrower PIK Preferred Stock.
"BORROWING" shall mean the borrowing of one Type of Loan of a
single Tranche from all the Lenders (other than any Lender which has not funded
its share of a Borrowing in accordance with this Agreement) having Commitments
of the respective Tranche (or from the Swingline Lender in the case of Swingline
Loans) on a given date (or resulting from a conversion or conversions on such
date) having in the case of Eurodollar Loans the same Interest Period, PROVIDED
that Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered
part of the related Borrowing of Eurodollar Loans. It is understood that there
may be more than one Borrowing outstanding pursuant to a given Tranche.
"BT ALEX. XXXXX" shall mean BT Alex. Xxxxx Incorporated, in its
individual capacity, and any successor thereto.
"BTCO" shall mean Bankers Trust Company in its individual capacity
and any successor thereto.
"BUSINESS DAY" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York, New York a legal or a day on which banking institutions
are authorized or required by law or other government action to close and (ii)
with respect to all notices and determinations in connection with, and payments
of principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
Lenders in the New York interbank Eurodollar market.
"CALCULATION DATE" shall mean the date of the respective Permitted
Acquisition, incurrence, assumption or issuance of Indebtedness, repayment of
Indebtedness, payment of Dividends, or other event, as the case may be, which
gives rise to the requirement to calculate compliance with the financial
covenants under this Agreement on a PRO FORMA Basis.
"CALCULATION PERIOD" shall mean the Test Period (taken as one
accounting period) most recently ended prior to a given Calculation Date.
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"CAPITAL EXPENDITURES" shall mean, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
generally accepted accounting principles) and the amount of Capitalized Lease
Obligations incurred by such Person.
"CAPITALIZED LEASE OBLIGATIONS" of any Person shall mean all
rental obligations which, under generally accepted accounting principles, are or
will be required to be capitalized on the books of such Person, in each case
taken at the amount thereof accounted for as indebtedness in accordance with
such principles.
"CASH COLLATERAL ACCOUNT" shall have the meaning provided in
Section 4.02(p).
"CASH EQUIVALENTS" shall mean, as to any Person, (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) having maturities of not more
than one year from the date of acquisition, (ii) time deposits and certificates
of deposit of any commercial bank having, or which is the principal banking
subsidiary of a bank holding company organized under the laws of the United
States, any State thereof or the District of Columbia having capital, surplus
and undivided profits aggregating in excess of $200,000,000, with maturities of
not more than one year from the date of acquisition by such Person, (iii)
repurchase obligations with a term of not more than 90 days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (ii) above, (iv) commercial paper
issued by any Person incorporated in the United States rated at least A-1 or the
equivalent thereof by Standard & Poor's Corporation or at least P-1 or the
equivalent thereof by Xxxxx'x Investors Service, Inc. and in each case maturing
not more than one year after the date of acquisition by such Person, and (v)
investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (i) through (iv)
above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. Section 9601 ET SEQ.
"CHANGE OF CONTROL EVENT" shall mean, (I) at any time prior to the
consummation of a Qualified IPO, (a) MDP Group shall cease to own on a fully
diluted basis in the aggregate at least 35% of the outstanding Voting Stock of
PCA or (b) any "person" or "group" (within the meaning of Rules 13d-3 and 13d-5
under the Securities Exchange Act of 1934, as in effect on the Effective Date),
other than MDP Group, shall have obtained the power (whether or not exercised)
to appoint or elect 50% or more of PCA's directors or (c) unless and until TPI
and its Affiliates cease to own on a fully diluted basis in the aggregate at
least 17.5% of the Voting Stock of PCA and as a result thereof the Shareholders'
Agreement has terminated, MDP Group shall cease to have the right to appoint at
least 50% of the directors of PCA (excluding for purposes of any determination
pursuant to this clause (I)(c) up to two additional directors
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appointed by holders of Borrower PIK Preferred Stock pursuant to the terms of
the Borrower PIK Preferred Stock Documents), (II) at any time after a
Qualified IPO, any "person" or "group" (within the meaning of Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, as in effect on the
Effective Date), other than the Principals and their Related Parties, shall
have acquired Beneficial Ownership, directly or indirectly, of a percentage
of the outstanding Voting Stock of PCA that exceeds the percentage of such
Voting Stock then Beneficially Owned, directly or indirectly, by MDP Group or
(III) at any time (I.E., whether before or after a Qualified IPO), (a) the
Board of Directors of PCA shall cease to consist of a majority of Continuing
Directors or (b) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as that term is used in Section 13(d)(3) of the Securities Exchange
Act of 1934, as in effect on the Effective Date), other than the Principals
and their Related Parties or a Permitted Group, becomes the Beneficial Owner,
directly or indirectly, of 50% or more of the Voting Stock of PCA, measured
by voting power rather than number of shares; or (c) a "change of control" or
similar event shall occur as provided in any Senior Subordinated Notes
Document, Subordinated Promissory Notes Document or Borrower PIK Preferred
Stock Document or in any Existing Indebtedness or Permitted Debt, to the
extent the outstanding principal amount of such Existing Indebtedness or
Permitted Debt exceeds $10,000,000.
"CODE" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
date of this Agreement and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"CO-DOCUMENTATION AGENT" shall mean and include Xxxxxxx Xxxxx
Credit Partners L.P. and The Chase Manhattan Bank.
"CO-LEAD ARRANGER" shall have the meaning provided in the first
paragraph of this Agreement, and shall include any successor thereto.
"COLLATERAL" shall mean all property (whether real or personal)
with respect to which any security interests have been granted (or purported to
be granted) pursuant to any Security Document, including, without limitation,
all Pledge Agreement Collateral, all PCA Security Agreement Collateral, all TPI
Security Agreement Collateral, all Mortgaged Properties, all cash and Cash
Equivalents delivered as collateral pursuant to Section 4.02 or 10 hereof and
all Additional Collateral, if any.
"COLLATERAL AGENT" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors pursuant to the Security
Documents.
"COLLECTIVE BARGAINING AGREEMENTS" shall have the meaning provided
in Section 5.05.
"COMMITMENT" shall mean any of the commitments of any Lender,
I.E., whether the Tranche A Term Loan Commitment, Tranche B Term Loan
Commitment, Tranche C Term Loan Commitment or Revolving Loan Commitment.
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"COMMITMENT COMMISSION" shall have the meaning provided in Section
3.01(a).
"COMMON EQUITY FINANCING DOCUMENTS" shall mean and include the
Initial Common Equity Financing Documents and the Secondary Common Equity
Financing Documents.
"CONSOLIDATED CASH INTEREST EXPENSE" shall mean, for any period,
the total consolidated cash interest expense of the Borrower and its
Consolidated Subsidiaries for such period (calculated without regard to any
limitations on the payment thereof) plus, without duplication, (i) that portion
of Capitalized Lease Obligations of the Borrower and its Consolidated
Subsidiaries representing the interest factor for such period, (ii) all
Permitted Receivables Facility Financing Costs for such period and (iii) the
amount of all cash Dividends on preferred stock of the Borrower and its
Subsidiaries paid during such period, as reflected in the audited consolidated
financial statements of the Borrower for its most recently completed fiscal
year, which amounts described in preceding clause (iii) shall be treated as
interest expense of the Borrower and its Subsidiaries for purposes of this
definition regardless of the treatment of such amounts under GAAP, but excluding
the amortization of any deferred financing costs and fees incurred in connection
with this Agreement. For the avoidance of doubt, it is understood that
Consolidated Cash Interest Expense shall not take into account any amount
attributable to the treasury lock transaction entered into on behalf of PCA
prior to the Initial Borrowing Date.
"CONSOLIDATED CURRENT ASSETS" shall mean, at any time, the
consolidated current assets of the Borrower and its Consolidated Subsidiaries.
"CONSOLIDATED CURRENT LIABILITIES" shall mean, at any time, the
consolidated current liabilities of the Borrower and its Consolidated
Subsidiaries at such time, but excluding (i) the current portion of any
Indebtedness under this Agreement, of any Attributed Receivables Facility
Indebtedness and of any other long-term Indebtedness which would otherwise be
included therein, (ii) accrued but unpaid interest with respect to the
Indebtedness and (iii) the current portion of Indebtedness constituting
Capitalized Lease Obligations.
"CONSOLIDATED EBIT" shall mean, for any period, the Consolidated
Net Income for such period, before Consolidated Cash Interest Expense, non-cash
interest expense and provision for taxes based on income (in each case to the
extent deducted in determining Consolidated Net Income) and without giving
effect to any extraordinary gains or losses or gains or losses from sales of
assets other than inventory sold in the ordinary course of business.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated
EBIT, adjusted by adding thereto the amount of all amortization of intangibles,
depletion and depreciation, in each case that were deducted in arriving at
Consolidated EBIT for such period.
"CONSOLIDATED INDEBTEDNESS" shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness
(but including in any event the then outstanding principal amount of all Loans,
all Capitalized Lease Obligations and all Letter of Credit Outstandings) of the
Borrower and its Subsidiaries on a consolidated basis as determined in
accordance with GAAP plus, without duplication, the amount of all Attributed
Receivables
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Facility Indebtedness at such time; PROVIDED that Indebtedness outstanding
pursuant to trade payables incurred in the ordinary course of business shall
be excluded in determining Consolidated Indebtedness.
"CONSOLIDATED INTEREST COVERAGE RATIO" shall mean, for any period,
the ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Cash
Interest Expense for such period, provided that in the event such Test Period
does not include four fiscal quarters, for purposes of determining the
Consolidated Interest Coverage Ratio, Consolidated EBITDA and Consolidated Cash
Interest Expense shall each be multiplied by four (if such Test Period is
comprised of one fiscal quarter), two (if such Test period is comprised of two
fiscal quarters) and 4/3 (if such Test Period is comprised of three fiscal
quarters).
"CONSOLIDATED NET INCOME" shall mean, for any period, the
consolidated net after tax income of the Borrower and its Consolidated
Subsidiaries determined in accordance with GAAP; PROVIDED that in any event and
without duplication of any reduction to Consolidated Net Income in accordance
with the requirements of GAAP, Consolidated Net Income shall be reduced by the
amount of Dividends paid during the respective period pursuant to clause (vii)
of Section 9.03; PROVIDED FURTHER that the following items shall be excluded in
computing Consolidated Net Income (without duplication): (i) the net income of
any Person which is not a Wholly-Owned Subsidiary of the Borrower, except to the
extent of the amount of any dividends or other distributions actually paid to
the Borrower or any of its Wholly-Owned Subsidiaries during such period, (ii)
except for determinations expressly required to be made on a PRO FORMA Basis,
the net income (or loss) of any Person accrued prior to the date it becomes a
Wholly-Owned Subsidiary or all or substantially all of the property or assets of
such Person are acquired by a Wholly-Owned Subsidiary and (iii) the net income
of any Subsidiary to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary of such net income is not at the time
permitted by the operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary.
"CONSOLIDATED NET WORTH" shall mean at any date (i) the sum of all
amounts which, in conformity with GAAP, would be included under the caption
"redeemable preferred stock" and "total stockholders' equity" (or like captions)
on a consolidated balance sheet of the Borrower on and as at such date, LESS
(ii) the amount (if positive) by which the amounts described in clause (i) above
determined on the Initial Borrowing Date (after giving effect to the
consummation of the Transaction) (such amounts, the "CLOSING DATE NET WORTH")
exceeds $397,780,000 PLUS (iii) the amount (if positive) by which $397,780,000
exceeds the Closing Date Net Worth PLUS (iv) the aggregate amount of cash
Dividends (if any) paid by the Borrower pursuant to Section 9.03(ix) (including,
without limitation, any amounts paid to redeem the Borrower PIK Preferred Stock)
LESS (iv) any cash Dividends on the capital stock of the Borrower (other than
Dividends included pursuant to clause (iii)) theretofore declared but not yet
paid, but only to the extent not already deducted when determining the amount
specified in clause (i).
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"CONSOLIDATED SUBSIDIARIES" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with GAAP.
"CONTAINERBOARD BUSINESS" shall mean and include (i) the business
of producing containerboard and corrugated packaging products (excluding folding
carton and honeycomb paperboard-type products and retained real property as
provided in the Contribution Agreement) as conducted by TPI on the Effective
Date at four paper xxxxx located at Counce, Tennessee, Valdosta, Georgia,
Tomahawk, Wisconsin and Filer City, Michigan (the Xxxxx), 67 box plants, three
recycling facilities, four wood products facilities and certain timberlands and
related facilities and (ii) all of the other assets and liabilities acquired by
PCA from TPI pursuant to the Contribution (including, without limitation, the
Contributed Assets and the Contributed Subsidiaries).
"CONTAINERBOARD GROUP" shall have the meaning set forth in the
footnotes to the audited financial statements described in Section 7B.05(a).
"CONTINGENT OBLIGATION" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("PRIMARY OBLIGATIONS") of
any other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof;
PROVIDED, HOWEVER, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business and any products warranties extended in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if the less, the
maximum amount of such primary obligation for which such Person may be liable
pursuant to the terms of the instrument evidencing such Contingent Obligation)
or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
"CONTINUING DIRECTORS" shall mean, as of the date of
determination, any member of the Board of Directors of the Borrower who:
(1) was a member of such Board of Directors on the Effective
Date; or
(2) was nominated for election or elected to such Board of
Directors either (a) with the approval of a majority of the Continuing
Directors who were members of such
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Board at the time of such nomination or election or (b) pursuant to and
in accordance with the terms of the Stockholders Agreement as in effect
on the Effective Date.
"CONTRIBUTED ASSETS" shall have the meaning provided such term in
the Contribution Agreement.
"CONTRIBUTED SUBSIDIARIES" shall have the meaning provided such
term in the Contribution Agreement.
"CONTRIBUTION" shall mean the contribution of the Containerboard
Business by TPI to PCA pursuant to, and in accordance with the terms of, the
Contribution Agreement, free and clear of (i) all Indebtedness (including the
Indebtedness to be Refinanced) other than the Assumed Indebtedness (as such term
is defined in the Contribution Agreement) and (ii) all Liens or encumbrances of
any kind, other than Permitted Liens.
"CONTRIBUTION AGREEMENT" shall mean Contribution Agreement, dated
as of January 25, 1999 among TPI, PCA Holdings and PCA, as in effect on the
Effective Date and as the same may be amended, modified or supplemented in
accordance with the terms hereof and thereof.
"CONTRIBUTION DOCUMENTS" shall mean the Contribution Agreement
(including the exhibits and schedules thereto), the Bank Credit Agreement
Assignment and Assumption Agreement, the Purchase Supply Agreement and all other
documents and agreements entered into in connection with the Contribution.
"CONTRIBUTION EFFECTIVE TIME" shall mean the time at which the
Contribution becomes effective in accordance with the terms of the Contribution
Agreement and the Exchange has been consummated.
"CONVERTING PLANT" shall mean (i) plants that convert paper into
corrugated sheets, (ii) plants that convert corrugated sheets into corrugated
products, (iii) product design centers and (iv) plants that produce products
that are related or ancillary to the foregoing; PROVIDED that a mill that
produces paper shall not constitute a Converting Plant.
"CREDIT DOCUMENTS" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, each Security Document, the PCA Acknowledgement and Agreement, the Bank
Credit Agreement Assignment and Assumption Agreement and each Guaranty and,
after the execution and delivery thereof, each additional guaranty or security
document executed pursuant to Section 8.11.
"CREDIT EVENT" shall mean the making of any Loan or the issuance
of any Letter of Credit.
"CREDIT PARTY" shall mean (i) at any time prior to the
Contribution Effective Time, each of Tenneco and TPI, (ii) PCA, (iii) each
Subsidiary Guarantor and (iv) any other Subsidiary which at any time executes
and delivers any Credit Document as required by this Agreement.
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"DEBT AGREEMENTS" shall have the meaning provided in Section 5.05.
"DEFAULT" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with respect to which a
Lender Default is in effect.
"DISQUALIFIED STOCK" shall mean any capital stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event (including a Change of
Control Event), (i) matures (excluding any maturity as the result of an optional
redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the first anniversary of the
Tranche C Term Loan Maturity Date, or (ii) is convertible into or exchangeable
(unless at the sole option of the issuer thereof) for (a) debt securities or (b)
any capital stock referred to in (i) above, in each case at any time prior to
the first anniversary of the Tranche C Term Loan Maturity Date.
"DIVIDEND" with respect to any Person shall mean that such Person
has declared or paid a dividend or returned any equity capital to its
stockholders or members or authorized or made any other distribution, payment or
delivery of property (other than common stock of such Person) or cash to its
stockholders or members as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for a consideration any shares of any class of
its capital stock or membership interests outstanding on or after the Effective
Date (or any options or warrants issued by such Person with respect to its
capital stock), or set aside any funds for any of the foregoing purposes, or
shall have permitted any of its Subsidiaries to purchase or otherwise acquire
for a consideration any shares of any class of the capital stock of such Person
outstanding on or after the Effective Date (or any options or warrants or stock
appreciation rights issued by such Person with respect to its capital stock).
Without limiting the foregoing, "DIVIDENDS" with respect to any Person shall
also include all payments made or required to be made by such Person with
respect to any stock appreciation rights, plans, equity incentive or achievement
plans or any similar plans or setting aside of any funds for the foregoing
purposes.
"DOCUMENTS" shall mean the Credit Documents, the Senior
Subordinated Notes Documents, the Borrower Preferred Stock Documents, the
Subordinated Promissory Notes Documents, the Common Equity Financing Documents,
the Contribution Documents and the Refinancing Documents and, on and after the
Permitted Receivables Facility Transaction Date, the Permitted Receivables
Facility Documents.
"DOLLARS" and the sign "$" shall each mean lawful money of the
United States.
"DOMESTIC SUBSIDIARY" shall mean each Subsidiary of the Borrower
that is incorporated or organized in the United States of America, any State
thereof, the United States Virgin Islands or Puerto Rico.
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"DOMESTIC WHOLLY-OWNED SUBSIDIARY" shall mean each Domestic
Subsidiary which is a Wholly-Owned Subsidiary of the Borrower.
"DRAWING" shall have the meaning provided in Section 2.04(b).
"EFFECTIVE DATE" shall have the meaning provided in Section 13.10.
"ELIGIBLE ASSETS" shall have the meaning provided in Section
4.02(g).
"ELIGIBLE TRANSFEREE" shall mean and include a commercial bank,
insurance company, financial institution, fund or other Person which regularly
purchases interests in loans or extensions of credit of the types made pursuant
to this Agreement, any other Person which would constitute a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act as
in effect on the Effective Date or other "accredited investor" (as defined in
Regulation D of the Securities Act).
"EMPLOYEE BENEFIT PLANS" shall have the meaning provided in
Section 5.05.
"EMPLOYMENT AGREEMENT" shall have the meaning provided in Section
5.05.
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued or
any approval given under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment on
account of Hazardous Materials.
"ENVIRONMENTAL LAW" shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code, legally
binding and enforceable guideline, legally binding and enforceable written
policy and rule of common law now or hereafter in effect and in each case as
amended, and any judicial or administrative interpretation thereof, including
any legally binding and enforceable judicial or administrative order, consent
decree or judgment, to the extent binding on the Borrower or any of its
Subsidiaries, relating to the environment, health, safety or Hazardous
Materials, including, without limitation, CERCLA; RCRA; the Federal Water
Pollution Control Act, 33 U.S.C. Section 1251 ET SEQ.; the Toxic Substances
Control Act, 15 U.S.C. Section 2601 ET SEQ.; the Clean Air Act, 42 U.S.C.
Section 7401 ET SEQ.; the Safe Drinking Water Act, 42 U.S.C. Section 300(f) ET
SEQ.; the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 ET SEQ.; the
Emergency Planning and the Community Right-To-Know Act of 1986, 42 U.S.C.
Section 11001 ET SEQ.; the Hazardous Material Transportation Act, 49 U.S.C.
Section 5101 ET SEQ.; and the Occupational Safety and Health Act, 29 U.S.C.
Section 651 ET SEQ.; and any state and local or foreign counterparts or
equivalents, in each case as amended from time to time.
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"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in Section
3(9) of ERISA) which together with PCA or a Subsidiary of PCA would be deemed to
be a "single employer" within the meaning of Section 414(b), (c), (m) or (o) of
the Code.
"EURODOLLAR LOAN" shall mean each Loan (excluding Swingline Loans)
designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.
"EURODOLLAR RATE" shall mean (a) the arithmetic average (rounded
upward to the nearest 1/100th of 1%) of the offered quotation to first-class
banks in the New York interbank Eurodollar market determined by each Reference
Lender for Dollar deposits of amounts in immediately available funds comparable
to the outstanding principal amount of the Eurodollar Loan of such Reference
Lender with maturities comparable to the Interest Period applicable to such
Eurodollar Loan commencing two Business Days thereafter as of 11:00 A.M. (New
York time) on the date which is two Business Days prior to the commencement of
such Interest Period, divided (and rounded upward to the nearest 1/16 of 1%) by
(b) a percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) applicable
to any member bank of the Federal Reserve System in respect of Eurocurrency
funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D); provided that if one or more of the Reference
Lenders fail to provide the Administrative Agent with its aforesaid rate, then
the Eurodollar Rate shall be determined based on the rate or rates provided to
the Administrative Agent by the other Reference Lender or Reference Lenders.
"EVENT OF DEFAULT" shall have the meaning provided in Section 10.
"EXCESS CASH FLOW" shall mean, for any period, the remainder of
(a) the sum of (i) Adjusted Consolidated Net Income for such period, and (ii)
the decrease, if any, in Adjusted Consolidated Working Capital from the first
day to the last day of such period, MINUS (b) the sum of (i) the amount of (1)
Capital Expenditures made by the Borrower and its Subsidiaries on a consolidated
basis during such period pursuant to and in accordance with Section 9.07 (but
without giving effect to Capital Expenditures made pursuant to Section 9.07(c)
and (d)), except for each such Capital Expenditure to the extent financed with
the proceeds of Indebtedness or pursuant to Capitalized Lease Obligations PLUS
(or MINUS if negative) (2) the Rollover Amount for such period to be carried
forward to the next period LESS the Rollover Amount (if any) for the preceding
period carried forward to the current period, (ii) the aggregate amount of
permanent principal payments of Indebtedness for borrowed money of the Borrower
and its Subsidiaries and the permanent repayment of the principal component of
Capitalized Lease Obligations of the Borrower and its Subsidiaries (excluding
(1) payments with proceeds of asset sales and Net Insurance/Condemnation
Proceeds, (2) payments with the proceeds of other Indebtedness or
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equity or equity contributions and (3) payments of Loans or other
Obligations, PROVIDED that repayments of Loans shall be deducted in
determining Excess Cash Flow if such repayments were (x) required as a result
of a Scheduled Repayment under Section 4.02(b), (c) or (d) (but not as a
reduction to the amount of Scheduled Repayments pursuant to another provision
of this Agreement) or (y) made as a voluntary prepayment pursuant to Section
4.01 with internally generated funds (but in the case of a voluntary
prepayment of Revolving Loans or Swingline Loans, only to the extent
accompanied by a voluntary reduction to the Total Revolving Loan Commitment))
during such period, (iii) the increase, if any, in Adjusted Consolidated
Working Capital from the first day to the last day of such period, (iv) the
aggregate amount of cash dividends paid during such period in respect of the
Borrower PIK Preferred Stock and (v) if the Excess Cash Flow for the
immediately preceding Excess Cash Payment Period (after the application of
this clause (v) in respect of such Excess Cash Payment Period) was negative,
the amount of such negative Excess Cash Flow (expressed as a positive number).
"EXCESS CASH PAYMENT DATE" shall mean the date occurring 90 days
after the last day of each fiscal year of the Borrower (beginning with its
fiscal year ending on December 31, 1999).
"EXCESS CASH PAYMENT PERIOD" shall mean, with respect to the
repayment required on each Excess Cash Payment Date, the immediately preceding
fiscal year of the Borrower (or, in the case of the first Excess Cash Payment
Date, the period beginning on and including July 1, 1999 and to and including
December 31, 1999).
"EXCHANGE" shall mean the exchange of the Senior Subordinated
Notes as payment in full for all amounts owing under the Subordinated Promissory
Notes and the Subordinated Promissory Notes Documents immediately following the
consummation of the Contribution.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXCHANGE BORROWER PIK PREFERRED STOCK" shall mean pay-in-kind
Preferred Stock of the Borrower which is substantially identical to the Borrower
PIK Preferred Stock issued on or prior to the Initial Borrowing Date, which
Exchange Borrower PIK Preferred Stock shall be issued pursuant to a registered
exchange offer for the Borrower PIK Preferred Stock. In no event will the
issuance of Exchange Borrower PIK Preferred Stock increase the aggregate
liquidation preference of Borrower PIK Preferred Stock then outstanding or
otherwise result in an increase in the dividend rate applicable to the Borrower
PIK Preferred Stock.
"EXCHANGE SENIOR SUBORDINATED NOTES" shall mean Senior
Subordinated Notes which are substantially identical securities to the Senior
Subordinated Notes issued on or prior to the Initial Borrowing Date, which
Exchange Senior Subordinated Notes shall be issued pursuant to a registered
exchange offer or private exchange offer for the Senior Subordinated Notes and
pursuant to the Senior Subordinated Notes Indenture. In no event will the
issuance of any Exchange Senior Subordinated Notes increase the aggregate
principal amount of Senior Subordinated Notes then outstanding or otherwise
result in an increase in an interest rate applicable to the Senior Subordinated
Notes.
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"EXCLUDED PROCEEDS" shall mean and include (i) the Excluded
Timberlands Disposition Proceeds, (ii) the Net Sale Proceeds from any Asset Sale
pursuant to a Permitted Sale-Leaseback Transaction and (iii) the Net Sale
Proceeds from the sale or disposition of a Converting Plant.
"EXCLUDED TIMBERLANDS DISPOSITION PROCEEDS" shall have the meaning
provided in Section 4.02(g).
"EXCLUDED TIMBERLANDS PROCEEDS MAXIMUM AMOUNT" shall mean the sum
of (i) $100,000,000 plus (ii) in the event that the Excluded Timberlands
Disposition Proceeds are to be applied to redeem all outstanding Borrower PIK
Preferred Stock during the three year period commencing on the Initial Borrowing
Date, (x) the liquidation preference of Borrower PIK Preferred Stock issued as a
regularly accruing dividend on outstanding shares of Borrower PIK Preferred
Stock, (y) accrued and unpaid dividends on the Borrower PIK Preferred Stock and
(z) the redemption premium payable upon the redemption of the Borrower PIK
Preferred Stock as provided in the Borrower Preferred Stock Documents.
"EXISTING INDEBTEDNESS" shall have the meaning provided in Section
5.07(b).
"FACING FEE" shall have the meaning provided in Section 3.01(c).
"FEDERAL FUNDS RATE" shall mean, for any day, an interest rate per
annum 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00 A.M. (New
York time) on such day on such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FEES" shall mean all amounts payable pursuant to or referred to
in Section 3.01.
"FOREIGN BORROWING BASE AMOUNT" shall mean, at any time, the sum
of (i) 85% of the book value of all accounts receivable of all Foreign
Subsidiaries of the Borrower and (ii) 55% of the book value of all inventory of
all Foreign Subsidiaries of the Borrower, in each case as reflected in the
financial statements of such Foreign Subsidiaries for the fiscal quarter then
last ended.
"FOREIGN PENSION PLAN" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by the Borrower
or any one or more of its Subsidiaries primarily for the benefit of employees of
the Borrower or such Subsidiaries residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and which plan is not subject to ERISA or
the Code.
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"FOREIGN SUBSIDIARY" shall mean each Subsidiary of the Borrower
that is incorporated or organized under the laws of any jurisdiction other than
the United States of America, any State thereof, the United States Virgin
Islands or Puerto Rico.
"FOREIGN SUBSIDIARY WORKING CAPITAL INDEBTEDNESS" shall have the
meaning provided in Section 9.04(xii).
"FOREIGN WHOLLY-OWNED SUBSIDIARY" as to any Person, shall mean
each Wholly-Owned Subsidiary of such Person which is not a Domestic Subsidiary.
"GAAP" shall have the meaning provided in Section 13.07(a).
"GUARANTY" shall mean and include the Subsidiaries Guaranty, the
Tenneco Guaranty and any other guaranty delivered pursuant to Section 8.11, 8.13
or 8.14.
"HAZARDOUS MATERIALS" shall mean (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, ureaformaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous substances," "restricted hazardous waste,"
"toxic substances," "toxic pollutants," "contaminants," or "pollutants," or
words of similar import, under any applicable Environmental Law; and (c) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority under Environmental Laws.
"INDEBTEDNESS" shall mean, as to any Person, without duplication,
(i) all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, (ii) the maximum amount available to be drawn under all letters of
credit issued for the account of such Person and all unpaid drawings in respect
of such letters of credit, (iii) all Indebtedness of the types described
in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any
Lien on any property owned by such Person, whether or not such Indebtedness has
been assumed by such Person (to the extent of the value of the respective
property), (iv) the aggregate amount required to be capitalized under leases
under which such Person is the lessee, (v) all obligations of such person to pay
a specified purchase price for goods or services, whether or not delivered or
accepted, I.E., take-or-pay and similar obligations, (vi) all Contingent
Obligations of such Person, (vii) all obligations under any Interest Rate
Protection Agreement or Other Hedging Agreement or under any similar type of
agreement and (viii) all Attributed Receivables Facility Indebtedness.
Notwithstanding the foregoing, Indebtedness shall not include obligations under
trade payables, accrued expenses and other current liabilities incurred by any
person in accordance with its customary practices and in the ordinary course of
business of such Person.
"INDEBTEDNESS TO BE REFINANCED" shall have the meaning provided in
Section 7B.22(b).
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"INITIAL BORROWING DATE" shall mean the date occurring on or after
the Effective Date on which the initial Borrowing of Term Loans hereunder
occurs.
"INITIAL COMMON EQUITY FINANCING DOCUMENTS" shall mean all of the
agreements and documents governing, or relating to, the Initial Common Equity
Issuance.
"INITIAL COMMON EQUITY ISSUANCE" shall have the meaning provided
in Section 5.06(a).
"INITIAL PERMITTED RECEIVABLES FACILITY PROCEEDS" shall mean the
amount of cash proceeds to be initially received by the Borrower and/or the
other Receivables Sellers from the sale of Permitted Receivables Facility Assets
to the Receivables Entity pursuant to the Permitted Receivables Facility;
PROVIDED that the amount of such cash proceeds shall be at least 75% of the fair
market value of the Permitted Receivables Facility Assets sold pursuant to the
Permitted Receivables Facility (as determined in good faith by senior management
of the Borrower).
"INTEREST DETERMINATION DATE" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"INTEREST PERIOD" shall have the meaning provided in Section 1.09.
"INTEREST RATE PROTECTION AGREEMENT" shall mean any interest rate
swap agreement, interest rate cap agreement, interest collar agreement, interest
rate hedging agreement, interest rate floor agreement or other similar agreement
or arrangement.
"INVESTMENTS" shall have the meaning provided in Section 9.05.
"ISSUING BANK" shall mean The First National Bank of Chicago and
any Lender which at the request of the Borrower and with the consent of the
Administrative Agent (which shall not be unreasonably withheld) agrees, in such
Lender's sole discretion, to become an Issuing Bank for the purpose of issuing
Letters of Credit pursuant to Section 2.
"JOINT VENTURE" shall mean any Person, other than an individual or
a Wholly-Owned Subsidiary of the Borrower, (i) in which the Borrower or a
Subsidiary of the Borrower holds or acquires an ownership interest (whether by
way of capital stock, partnership or limited liability company interest, or
other evidence of ownership) and (ii) which is engaged in a Permitted Business.
"X.X. XXXXXX" shall mean X.X. Xxxxxx Securities Inc., in its
individual capacity, and any successor thereto.
"L/C SUPPORTABLE INDEBTEDNESS" shall mean (i) obligations of the
Borrower or its Subsidiaries incurred in the ordinary course of business with
respect to insurance obligations and workers' compensation, surety bonds and
other similar statutory obligations and (ii) such other obligations of the
Borrower or any of its Subsidiaries as are reasonably acceptable to the
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Administrative Agent and the respective Issuing Bank and otherwise permitted to
exist pursuant to the terms of this Agreement.
"LEASEHOLDS" of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"LENDER" shall mean each financial institution listed on Schedule
I, as well as any Person which becomes a "LENDER" hereunder pursuant to
13.04(b).
"LENDER DEFAULT" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing (including
any Mandatory Borrowing) or to fund its portion of any unreimbursed payment
under Section 2.03(c) or (ii) a Lender having notified in writing the Borrower
and/or the Administrative Agent that it does not intend to comply with its
obligations under Section 1.01(d), 1.01(f) or Section 2, in the case of either
clause (i) or (ii) above as a result of the appointment of a receiver or
conservator with respect to such Lender at the direction or request of any
regulatory agency or authority.
"LETTER OF CREDIT" shall have the meaning provided in Section
2.01(a).
"LETTER OF CREDIT FEE" shall have the meaning provided in Section
3.01(b).
"LETTER OF CREDIT OUTSTANDINGS" shall mean, at any time, the sum
of (i) the aggregate Stated Amount of all outstanding Letters of Credit and (ii)
the amount of all Unpaid Drawings.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in
Section 2.02(a).
"LEVERAGE RATIO" shall mean, at any date of determination, the
ratio of Consolidated Indebtedness on such date to Consolidated EBITDA for the
Test Period then last ended, PROVIDED that in the event such Test Period does
not include four fiscal quarters, for purposes of determining the Leverage Ratio
Consolidated EBITDA shall be multiplied by four (if such Test Period is
comprised of one fiscal quarter), two (if such Test Period is comprised of two
fiscal quarters) and 4/3 (if such Test Period is comprised of three fiscal
quarters).
"LIEN" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"LOAN" shall mean each Tranche A Term Loan, each Tranche B Term
Loan, each Tranche C Term Loan, each Revolving Loan and each Swingline Loan.
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"MAJORITY LENDERS" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if all outstanding Obligations of the other Tranches under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"MANAGEMENT AGREEMENTS" shall have the meaning provided in Section
5.05.
"MANAGEMENT PARTICIPANTS" shall mean certain members of management
of the Borrower acceptable to the Agents.
"MANDATORY BORROWING" shall have the meaning provided in Section
1.01(f).
"MARGIN STOCK" shall have the meaning provided in Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean (i) for purposes of any
condition precedent contained in Section 5 or 6 to be satisfied on, or any
representation or warranty contained in Sections 7A or 7B to be made on, the
Initial Borrowing Date, a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of (x) at any time prior to the Contribution Effective Time, the Containerboard
Business or (y) thereafter, the Borrower and its Subsidiaries taken as a whole
and (ii) for all other purposes of this Agreement, a material adverse effect on
the business, operations, property, assets, liabilities or condition (financial
or otherwise) of the Borrower and its Subsidiaries taken as a whole.
"MATERIAL CONTRACTS" shall have the meaning provided in Section
5.05.
"MATURITY DATE" shall mean, with respect to any Tranche of Loans,
the Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity Date,
the Tranche C Term Loan Maturity Date, the Revolving Loan Maturity Date or the
Swingline Expiry Date, as the case may be.
"MAXIMUM PERMITTED CONSIDERATION" shall mean, with respect to any
Permitted Acquisition, the sum (without duplication) of (i) the fair market
value of the Borrower Common Stock (based on (x) the closing trading price of
the Borrower Common Stock on the date of such Permitted Acquisition on the stock
exchange on which the Borrower Common Stock is listed or (y) if the Borrower
Common Stock is not so listed, the good faith determination of senior management
of the Borrower) issued as consideration in connection with such Permitted
Acquisition, (ii) the aggregate principal amount of Permitted Acquired Debt
acquired or assumed by the Borrower or any of its Subsidiaries in connection
with such Permitted Acquisition, (iii) the aggregate principal amount of all
cash paid by the Borrower or any of its Subsidiaries in connection with such
Permitted Acquisition (including payments of fees and costs and expenses in
connection therewith), (iv) the aggregate principal amount of all other
Indebtedness assumed, incurred and/or issued in connection with such Permitted
Acquisition to the extent permitted by Section 9.04 and (v) the fair market
value (determined in good faith by senior management of the Borrower) of all
other consideration payable in connection with such Permitted Acquisition.
"MAXIMUM SWINGLINE AMOUNT" shall mean $20,000,000.
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"MDP" shall mean Madison Dearborn Partners, LLC.
"MDP GROUP" shall mean PCA Holdings LLC, Madison Dearborn Capital
Partners III, L.P., Madison Dearborn Special Equity III, L.P., Special Advisors
Fund I, LLC, X.X. Xxxxxx Capital Corporation, Sixty Wall Street Fund, L.P., BT
Capital Investors, L.P., Xxxxxxxx Street Partners II, Xxxxxxxx Company, L.L.C.,
Xxxx X. Xxxxxxx and Northwestern University and their Affiliates or any of their
respective direct or indirect officers, directors, managers, members, partners,
equity owners, employees, agents, representatives, successors or assigns.
"MDP MANAGEMENT AGREEMENT" shall mean a management agreement among
PCA and MDP in form and substance reasonably satisfactory to the Administrative
Agent, as the same may be amended, modified or supplemented from time to time
pursuant to the terms hereof and thereof.
"XXXXX" shall have the meaning provided in Section 5.11.
"MINIMUM BORROWING AMOUNT" shall mean (i) for Term Loans of any
Tranche, $10,000,000 (and, if greater, in an integral multiple of $100,000) (ii)
for Revolving Loans, $3,000,000 (and, if greater, in an integral multiple of
$100,000) and (iii) for Swingline Loans, $250,000 (and if greater, in an
integral multiple of $50,000).
"XXXXXX GUARANTY" shall mean Xxxxxx Guaranty Trust Company of New
York, in its individual capacity, and any successor thereto.
"MORTGAGE" shall have the meaning provided in Section 5.11 and,
after the execution and delivery thereof, shall include each Additional
Mortgage.
"MORTGAGE POLICIES" shall have the meaning provided in Section
5.11.
"MORTGAGED PROPERTY" shall have the meaning provided in Section
5.11 and, after the execution and delivery of any Additional Mortgage, shall
include the respective Additional Mortgaged Property.
"MULTIEMPLOYER PLAN" shall mean any multiemployer plan as defined
in Section 4001(a)(3) of ERISA, which is maintained or contributed to by (or to
which there is an obligation to contribute of) the Borrower or a Subsidiary of
the Borrower or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which the Borrower, or a Subsidiary of
the Borrower or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"NET ASSET SALE PROCEEDS" shall mean the Net Sale Proceeds
resulting from any Asset Sale .
"NET INSURANCE/CONDEMNATION PROCEEDS" shall mean any cash payments
or proceeds received by the Borrower or any of its Subsidiaries (i) under any
business interruption insurance policy or casualty insurance policy in respect
of a covered loss thereunder or (ii) as a
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result of the taking of any assets of the Borrower or any of its Subsidiaries
by any Person pursuant to the power of eminent domain, condemnation or
otherwise, or pursuant to a sale of any such assets to a purchaser with such
power under threat of such a taking, in each case net of any actual and
documented costs incurred by the Borrower or any of its Subsidiaries in
connection with the adjustment or settlement of any claims of the Borrower or
such Subsidiary in respect thereof, including (i) income taxes reasonably
estimated to be actually payable within two years of the date of receipt of
such payments or proceeds as a result of any gain recognized in connection
with the receipt of such payment or proceeds and (ii) payment of the
outstanding amount of premium or penalty, if any, and interest of any
Indebtedness (other than the Loans) that is secured by a Lien on the stock or
assets in question and that is repaid as a result of receipt of such payments
or proceeds.
"NET SALE PROCEEDS" shall mean for any sale of assets, the gross
cash proceeds (including any cash received by way of deferred payment pursuant
to a promissory note, receivable or otherwise, but only as and when received)
received from any sale of assets, net of (i) reasonable transaction costs
(including, without limitation, any underwriting, brokerage or other customary
selling commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses, associated therewith) and payments of
unassumed liabilities relating to the assets sold at the time of, or within 30
days after, the date of such sale, (ii) the amount of such gross cash proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Lenders pursuant to this Agreement) which is secured by the respective assets
which were sold, and (iii) the estimated marginal increase in income taxes which
will be payable by the Borrower's consolidated group with respect to the fiscal
year in which the sale occurs as a result of such sale; PROVIDED, HOWEVER, that
such gross proceeds shall not include any portion of such gross cash proceeds
which the Borrower determines in good faith should be reserved for post-closing
adjustments (including indemnification payments) (to the extent the Borrower
delivers to the Lenders a certificate signed by its chief financial officer or
treasurer, controller or chief accounting officer as to such determination), it
being understood and agreed that on the day that all such post-closing
adjustments have been determined (which shall not be later than six months
following the date of the respective asset sale), the amount (if any) by which
the reserved amount in respect of such sale or disposition exceeds the actual
post-closing adjustments payable by the Borrower or any of its Subsidiaries
shall constitute Net Sale Proceeds on such date received by the Borrower and/or
any of its Subsidiaries from such sale, lease, transfer or other disposition.
The parties hereto acknowledge and agree that Net Sale Proceeds shall not
include any trade-in-credits or purchase price reductions received by the
Borrower or any of its Subsidiaries in connection with an exchange of equipment
for replacement equipment that is the functional equivalent of such exchanged
equipment.
"NON-DEFAULTING LENDER" shall mean and include each Lender other
than a Defaulting Lender.
"NOTE" shall mean each Tranche A Term Note, each Tranche B Term
Note, each Tranche C Term Note, each Revolving Note and the Swingline Note.
"NOTICE OF BORROWING" shall have the meaning provided in Section
1.03(a).
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"NOTICE OF CONVERSION" shall have the meaning provided in Section
1.06.
"NOTICE OFFICE" shall mean the office of the Administrative Agent
located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other office as the
Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"OBLIGATIONS" shall mean all amounts owing to the Administrative
Agent, the Collateral Agent or any Lender pursuant to the terms of this
Agreement or any other Credit Document.
"OTHER HEDGING AGREEMENT" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements, energy agreements or
other similar agreements or arrangements designed to protect against the
fluctuations in currency or commodity values.
"PARTICIPANT" shall have the meaning provided in Section 2.03(a).
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 000 Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, DEL or such other office as the
Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"PCA" shall have the meaning provided in the recitals to this
Agreement.
"PCA ACKNOWLEDGEMENT AND AGREEMENT" shall have the meaning
provided in Section 5.18.
"PCA CREDIT PARTY" shall mean each Credit Party other than a
Tenneco Party.
"PCA HOLDINGS" shall mean PCA Holdings, LLC, a Delaware limited
liability company.
"PCA HOLDINGS SERVICE AGREEMENT" shall mean the Holding Company
Support Agreement dated as of April 12, 1999 between PCA Holdings and PCA, as
the same may be amended, modified or supplemented from time to time.
"PCA SECURITY AGREEMENT" shall have the meaning provided in
Section 5.10(b).
"PCA SECURITY AGREEMENT COLLATERAL" shall mean all "Collateral" as
defined in the PCA Security Agreement.
"PERCENTAGE" of any Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Lender at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, PROVIDED that if the Percentage of any
Lender is to be determined after the Total Revolving Loan
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Commitment has been terminated, then the Percentages of the Lenders shall be
determined immediately prior (and without giving effect) to such termination.
"PERMITTED ACQUIRED DEBT" shall have the meaning provided in
Section 9.04(xiii).
"PERMITTED ACQUISITION" shall mean the acquisition by the
Borrower or any of its Wholly-Owned Domestic Subsidiaries of assets
constituting a business, division or product line of any Person not already a
Subsidiary of the Borrower or any of its Wholly-Owned Subsidiaries or of 100%
of the capital stock or other equity interests of any such Person, PROVIDED
that (A) the consideration paid by the Borrower or such Wholly-Owned
Subsidiary consists solely of cash (including proceeds of Revolving Loans),
the issuance of the Borrower Common Stock, the issuance of Indebtedness
otherwise permitted in Section 9.04 and the assumption/acquisition of any
Permitted Acquired Debt (calculated in accordance with GAAP) relating to such
business, division, product line or Person which is permitted to remain
outstanding in accordance with the requirements of Section 9.04, (B) those
acquisitions that are structured as stock acquisitions shall be effected
through a purchase of 100% of the capital stock or other equity interests of
such Person by the Borrower or such Domestic Wholly-Owned Subsidiary or
through a merger between such Person and a Domestic Wholly-Owned Subsidiary
of the Borrower, so that after giving effect to such merger, 100% of the
capital stock or other equity interests of the surviving corporation of such
merger is owned by the Borrower or a Domestic Wholly-Owned Subsidiary, (C) in
the case of the acquisition of 100% of the capital stock or other equity
interests of any Person, such Person (the "ACQUIRED PERSON") shall own no
capital stock or other equity interests of any other Person unless either (x)
the Acquired Person owns 100% of the capital stock or other equity interests
of such other Person or (y) if the Acquired Person owns capital stock or
equity interests in any other Person which is not a Wholly-Owned Subsidiary
of the Acquired Person (a "NON-WHOLLY OWNED ENTITY"), (1) the Acquired Person
shall not have been created or established in contemplation of, or for
purposes of, the respective Permitted Acquisition, (2) any Non-Wholly Owned
Entity of the Acquired Person shall have been non-wholly-owned prior to the
date of the respective Permitted Acquisition and not created or established
in contemplation thereof, and (3) such Acquired Person and/or its
Wholly-Owned Subsidiaries own 80% of the consolidated assets of such Person
and its Subsidiaries and Joint Ventures, (D) substantially all of the
business, division or product line acquired pursuant to the respective
Permitted Acquisition, or the business of the Acquired Person and its
Subsidiaries taken as a whole, is in the United States (provided that so long
as the aggregate Maximum Permitted Consideration payable in respect of all
Permitted Acquisitions described in this parenthetical clause does not exceed
$50,000,000 and the assets acquired are Converting Plants, such business or
division may be in Canada), (E) the assets acquired, or the business of the
Acquired Person and its Subsidiaries, shall be in a business permitted to be
conducted pursuant to Section 9.15 and (F) all applicable requirements of
Sections 8.13 and 9.02 applicable to Permitted Acquisitions are satisfied.
Notwithstanding anything to the contrary contained in the immediately
preceding sentence, an acquisition which does not otherwise meet the
requirements set forth above in the definition of "Permitted Acquisition"
shall constitute a Permitted Acquisition if, and to the extent, the Required
Lenders agree in writing that such acquisition shall constitute a Permitted
Acquisition for purposes of this Agreement.
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"PERMITTED BUSINESS" shall mean the containerboard, paperboard and
packaging products business and any business in which PCA and its Subsidiaries
are engaged on the Initial Borrowing Date (after giving effect to the
Contribution) or any business reasonably related, incidental or ancillary to any
of the foregoing.
"PERMITTED DEBT" shall mean and include Permitted Acquired Debt
and Permitted Refinancing Indebtedness.
"PERMITTED ENCUMBRANCE" shall mean, with respect to any Mortgaged
Property, such exceptions to title as are set forth in the title insurance
policy or title commitment delivered with respect thereto, PROVIDED that in the
case of any Additional Mortgaged Property, all such exceptions shall also be
acceptable to the Administrative Agent in its reasonable discretion.
"PERMITTED GROUP" shall mean any group of investors that is deemed
to be a "person" (as that term is used in Section 13(d)(3) of the Exchange Act)
at any time prior to the Borrower's initial public offering of common stock, by
virtue of the Stockholders Agreement, as the same may be amended, modified or
supplemented from time to time, PROVIDED that no single Person (other than the
Principals and their Related Parties) Beneficially Owns (together with its
Affiliates) more of the Voting Stock of the Borrower that is Beneficially Owned
by such group of investors than is then collectively Beneficially Owned by the
Principals and their Related Parties in the aggregate.
"PERMITTED HOLDERS" shall mean and include MDP and the Management
Participants.
"PERMITTED LIENS" shall have the meaning provided in Section 9.01.
"PERMITTED RECEIVABLES FACILITy" shall mean the receivables
facility created under the Permitted Receivables Facility Documents, providing
for the sale by the Borrower and/or one or more other Receivables Sellers of
Permitted Receivables Facility Assets (thereby providing off-balance sheet
financing to the Borrower and the Receivables Sellers) to the Receivables
Entity, which in turn shall sell interests in the respective Permitted
Receivables Facility Assets to the third-party investors pursuant to the
Permitted Receivables Facility Documents (with the Receivables Entity to issue
investor certificates, purchased interest certificates or other similar
documentation evidencing interests in the Permitted Receivables Facility Assets)
in return for the cash used by the Receivables Entity to purchase the Permitted
Receivables Facility Assets from the Borrower and/or the respective Receivables
Sellers, in each case as more fully set forth in the Permitted Receivables
Facility Documents.
"PERMITTED RECEIVABLES FACILITY ASSETS" shall mean Receivables
(whether now existing or arising in the future) of the Borrower and its
Subsidiaries which are transferred to the Receivables Entity pursuant to the
Permitted Receivables Facility and any related Permitted Receivables Related
Assets which are also so transferred to the Receivables Entity and all proceeds
thereof.
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"PERMITTED RECEIVABLES FACILITY DOCUMENTS" shall mean each of the
documents and agreements entered into in connection with the Permitted
Receivables Facility, including all documents and agreements relating to the
issuance, funding and/or purchase of certificates and purchased interests, all
of which documents and agreements shall be in form and substance satisfactory to
the Agents and the Required Lenders, in each case as such documents and
agreements may be amended, modified, supplemented, refinanced or replaced from
time to time so long as (i) any such amendments, modifications, supplements,
refinancing or replacements do not impose any conditions or requirements on the
Borrower or any of its Subsidiaries that are more restrictive in any material
respect than those in existence on the Permitted Receivables Facility
Transaction Date, (ii) any such amendments, modifications, supplements,
refinancings or replacements are not adverse in any way to the interests of the
Lenders and (iii) any such amendments, modifications, supplements, refinancings
or replacements are otherwise in form and substance reasonably satisfactory to
the Administrative Agent.
"PERMITTED RECEIVABLES FACILITY FINANCING COSTS" shall mean, for
any period, the total consolidated interest and fee expense of the Borrower and
its Subsidiaries which would have existed for such period pursuant to the
Permitted Receivables Facility if same were structured as a secured lending
arrangement rather than as a facility for the sale of Permitted Receivables
Facility Assets.
"PERMITTED RECEIVABLES FACILITY THRESHOLD AMOUNT" shall, on the
Permitted Receivables Facility Transaction Date, equal the amount applied on
such date to repay outstanding Term Loans and/or reduce the Total Revolving Loan
Commitment pursuant to Section 4.02(j) or 3.03(f), as the case may be; PROVIDED
that, on each date upon which a mandatory repayment and/or commitment reduction
is required pursuant to Section 4.02(j) or 3.03(f), as the case may be, as a
result of the incurrence of Attributed Receivables Facility Indebtedness in
excess of the Permitted Receivables Facility Threshold Amount as theretofore in
effect, the Permitted Receivables Facility Threshold Amount shall be increased
(on the date of, after giving effect to, the respective mandatory repayment
and/or commitment reduction) by the amount of the mandatory principal repayment
or commitment reduction required on such date pursuant to Section 4.02(j) or
3.03(f), as the case may be, as a result of the respective incurrence of
Attributed Receivables Facility Indebtedness, PROVIDED that at no time shall the
Permitted Receivables Facility Threshold Amount exceed $250,000,000.
"PERMITTED RECEIVABLES FACILITY TRANSACTION" shall mean the
consummation of the transactions contemplated by the Permitted Receivables
Facility Documents on the initial funding date thereunder.
"PERMITTED RECEIVABLES FACILITY TRANSACTION DATE" shall mean the
date of the consummation of the Permitted Receivables Facility Transaction in
accordance with the requirements of Section 8.16.
"PERMITTED RECEIVABLES RELATED ASSETS" shall mean, with respect to
any Person, all of the following property and interests in property of such
Person, whether now existing or existing in the future or hereafter acquired or
arising and in each case to the extent relating to the
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respective Receivables of such Person: (i) all unpaid seller's or lessor's
rights (including, without limitation, recession, replevin, reclamation and
stoppage in transit, relating to any of the foregoing or arising therefrom),
(ii) all rights to any goods or merchandise represented by any of the
foregoing (including, without limitation, returned or repossessed goods),
(iii) all reserves and credit balances with respect to any such Receivable or
the respective account debtor, (iv) all letters of credit, security or
guarantees of any of the foregoing, (v) all insurance policies or reports
relating to any of the foregoing, (vi) all collection or deposit accounts
relating to any of the foregoing, (vii) all proceeds of any of the foregoing,
and (viii) all books and records relating to any of the foregoing.
"PERMITTED REFINANCING INDEBTEDNESS" shall mean any Indebtedness
of the Borrower and its Subsidiaries issued or given in exchange for, or the
proceeds of which are used to, extend, refinance, renew, replace, substitute or
refund Existing Indebtedness or any Indebtedness issued to so extend, refinance,
renew, replace, substitute or refund any such Indebtedness, so long as (a) such
Indebtedness has a weighted average life to maturity greater than or equal to
the weighted average life to maturity of the Indebtedness being refinanced, (b)
such refinancing or renewal does not (i) increase the amount of such
Indebtedness outstanding immediately prior to such refinancing or renewal or
(ii) add guarantors, obligors or security from that which applied to such
Indebtedness being refinanced or renewed, (c) such refinancing or renewal
Indebtedness has substantially the same (or, from the perspective of the
Lenders, more favorable) subordination provisions, if any, as applied to the
Indebtedness being renewed or refinanced, and (d) all other terms of such
refinancing or renewal (including, without limitation, with respect to the
amortization schedules, redemption provisions, maturities, covenants, defaults
and remedies), are not, taken as a whole, materially less favorable to the
respective borrower than those previously existing with respect to the
Indebtedness being refinancing or renewed.
"PERMITTED SALE-LEASEBACK TRANSACTION" shall mean any sale by the
Borrower or any of its Subsidiaries of any asset first acquired by the Borrower
or such Subsidiary which asset is then leased back to the Borrower or such
Subsidiary, PROVIDED that (i) the proceeds of the respective sale shall be
entirely cash and in an amount at least equal to 85% of the fair market value of
such asset (as determined in good faith by senior management of the Borrower)
and (ii) the respective transaction is otherwise effected in accordance with the
applicable requirements of Section 9.02(xiv).
"PERSON" shall mean any individual, partnership, joint venture,
firm, corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"PIK TRIGGER DATE" shall mean April 12, 2004.
"PLAN" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) PCA or a Subsidiary of PCA or an ERISA Affiliate,
and each such plan for the five-year period immediately following the latest
date on which PCA, or a Subsidiary of PCA or an ERISA Affiliate maintained,
contributed to or had an obligation to contribute to such plan.
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"PLEDGE AGREEMENT" shall have the meaning provided in Section
5.09.
"PLEDGE AGREEMENT COLLATERAL" shall mean all "Collateral" as
defined in each of the Pledge Agreements.
"PLEDGED SECURITIES" shall mean "PLEDGED SECURITIES" as defined in
the Pledge Agreement.
"POST-CLOSING PERIOD" shall have the meaning provided in Section
8.13(a).
"PREFERRED EQUITY ISSUANCE" shall have the meaning provided in
Section 5.06(a).
"PRIME LENDING RATE" shall mean the rate which the Administrative
Agent announces from time to time as its prime lending rate, the Prime Lending
Rate to change when and as such prime lending rate changes. The Prime Lending
Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. The Administrative Agent may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
"PRINCIPAL" shall mean
(1) MDP Group; and
(2) TPI and its Affiliates.
"PRO FORMA BASIS" shall mean, in connection with any
calculation of compliance with any financial covenant or financial term, the
calculation thereof after giving effect on a PRO FORMA basis to (i) the
assumption, incurrence or issuance of any Indebtedness (other than revolving
Indebtedness, except to the extent same is incurred to finance the
Transaction, to refinance other outstanding Indebtedness or to finance
Permitted Acquisitions) after the first day of the relevant Calculation
Period as if such Indebtedness had been assumed, incurred or issued (and the
proceeds thereof applied) on the first day of the relevant Calculation
Period, (ii) the permanent repayment of any Indebtedness (other than the
revolving Indebtedness) after the first day of the relevant Calculation
Period as if such Indebtedness had been retired or repaid on the first day of
the relevant Calculation Period, (iii) the Permitted Acquisition, if any,
then being consummated as if such Permitted Acquisition (and all other
Permitted Acquisitions consummated after the first day of the relevant
Calculation Period and on or prior to the Calculation Date) had been effected
on the first day of the respective Calculation Period, (iv) the Permitted
Sale-Leaseback Transaction, if any, then being consummated as if such
Permitted Sale-Leaseback Transaction (and all other Permitted Sale-Leaseback
Transactions consummated after the first day of the relevant Calculation
Period and on or prior to the Calculation Date) had been effected on the
first day of the respective Calculation Period, (v) any cash Dividend paid
pursuant to Section 9.03(vi), if any, then being consummated as if such
Dividend (and all other such Dividends paid during the twelve month period
ending on the Calculation Date) had been effected on the first day of the
respective Calculation Period and (vi) a Timberlands Disposition, as if such
Timberlands Disposition (and all other Timberlands Dispositions consummated
after
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the first day of the relevant Calculation Period and on or prior to the
Calculation Date) and the Capitalized Lease Obligations or operating lease
obligations, if any, incurred in connection with any leasing arrangements
with respect to Timberland Properties sold pursuant to such Timberlands
Disposition and any increase or decrease in fiber, stumpage or similar costs
as a result of such Timberlands Dispositions and the application of the
related Excluded Timberlands Disposition Proceeds had been effected on the
first day of the relevant Calculation Period, with the following rules to
apply in connection therewith:
(a) all Indebtedness (x) (other than revolving Indebtedness,
except to the extent same is incurred to finance the Transaction, to
refinance other outstanding Indebtedness, or to finance Permitted
Acquisitions) assumed, incurred or issued after the first day of the
relevant Calculation Period and on or prior to the Calculation Date
(whether incurred to finance a Permitted Acquisition, to refinance
Indebtedness or otherwise) shall be deemed to have been assumed, incurred
or issued (and the proceeds thereof applied) on the first day of the
respective Calculation Period and remain outstanding through the
Calculation Date and (y) (other than revolving Indebtedness) permanently
retired or redeemed after the first day of the relevant Calculation
Period shall be deemed to have been retired or redeemed on the first day
of the respective Calculation Period and remain retired through the
Calculation Date;
(b) all Indebtedness assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest (x) at the
rate applicable thereto, in the case of fixed rate Indebtedness or (y) at
the rates which would have been applicable thereto during the respective
period when same was deemed outstanding, in the case of floating rate
Indebtedness (although interest expense with respect to any Indebtedness
for periods while same was actually outstanding during the respective
period shall be calculated using the actual rates applicable thereto
while same was actually outstanding); and
(c) in making any determination of Consolidated EBITDA, PRO
FORMA effect shall be given to any Permitted Acquisition for the
respective period being tested, taking into account, cost savings and
expenses which would otherwise be accounted for as an adjustment pursuant
to Article 11 of Regulation S-X under the Securities Act, as if such
cost-savings or expenses were realized on the first day of the respective
period.
Notwithstanding anything to the contrary contained above, (x) for
the purposes of Sections 9.09 and, for purposes of all determinations of the
Applicable Margins, PRO FORMA effect (as otherwise provided above) shall only be
given for events or occurrences which occurred during the respective Test Period
but not thereafter and (y) for purposes of Section 8.13, PRO FORMA effect (as
otherwise provided above) shall be given for events or occurrences which
occurred during the respective Calculation Period and thereafter but on or prior
to the respective date of determination.
"PROJECTIONS" shall mean the financial projections set forth on
Schedule IX hereto.
"PURCHASE SUPPLY AGREEMENTS" shall mean those certain
Purchase/Supply Agreements between PCA and Tenneco Automotive Inc., PCA and
Tenneco Packaging Specialty
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and Consumer Products Inc., and PCA and Tenneco Packaging Inc., in each case
dated as of April 12, 1999, as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and
thereof.
"QUALIFIED IPO" shall mean a widely distributed public offering of
Borrower Common Stock.
"QUARTERLY PAYMENT DATE" shall mean the last Business Day of
March, June, September and December occurring after the Initial Borrowing Date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as
the same may be amended from time to time, 42 U.S.C. Section 6901 ET SEQ.
"REAL PROPERTY" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"RECEIVABLES" shall mean all accounts receivable (including,
without limitation, all rights to payment created by or arising from sales of
goods, leases of goods or the rendition of services rendered no matter how
evidenced whether or not earned by performance).
"RECEIVABLES ENTITY" shall mean a Wholly-Owned Subsidiary of the
Borrower which engages in no activities other than in connection with the
financing of accounts receivable of the Receivables Sellers and which is
designated (as provided below) as the "Receivables Entity" (a) no portion of the
Indebtedness or any other obligations (contingent or otherwise) of which (i) is
guaranteed by the Borrower or any other Subsidiary of the Borrower (excluding
guarantees of obligations (other than the principal of, and interest on,
Indebtedness)) pursuant to Standard Securitization Undertakings, (ii) is
recourse to or obligates the Borrower or any other Subsidiary of the Borrower in
any way (other than pursuant to Standard Securitization Undertakings) or (iii)
subjects any property or asset of the Borrower or any other Subsidiary of the
Borrower, directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings, (b) with
which neither the Borrower nor any of its Subsidiaries has any contract,
agreement, arrangement or understanding (other than pursuant to the Permitted
Receivables Facility Documents (including with respect to fees payable in the
ordinary course of business in connection with the servicing of accounts
receivable and related assets)) on terms less favorable to the Borrower or such
Subsidiary than those that might be obtained at the time from persons that are
not Affiliates of the Borrower, and (c) to which neither the Borrower nor any
other Subsidiary of the Borrower has any obligation to maintain or preserve such
entity's financial condition or cause such entity to achieve certain levels of
operating results. Any such designation shall be evidenced to the
Administrative Agent by filing with the Administrative Agent an officer's
certificate of the Borrower certifying that, to the best of such officer's
knowledge and belief after consultation with counsel, such designation complied
with the foregoing conditions.
"RECEIVABLES SELLERS" shall mean the Borrower and those Subsidiary
Guarantors that are from time to time party to the Permitted Receivables
Facility Documents.
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"REFERENCE LENDER" shall mean Xxxxxx Guaranty, BTCo and The Chase
Manhattan Bank.
"REFINANCING" shall mean the consummation of the refinancing
transactions pursuant to, and in accordance with the requirements of, Section
5.07.
"REFINANCING DOCUMENTS" shall mean the certificates, agreements
and other documents entered into in connection with the Refinancing.
"REGISTER" shall have the meaning provided in Section 13.17.
"REGULATION D" shall mean Regulation D of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof establishing reserve requirements.
"REGULATION T" shall mean Regulation T of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof.
"REGULATION U" shall mean Regulation U of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof.
"REGULATION X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"RELATED PARTY" shall mean:
(1) any controlling stockholder, 80% (or more) owned
Subsidiary, or immediate family member (in the case of an individual) of
any Principal; or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially
holding an 80% or more controlling interest of which consist of any one
or more Principals and/or such other Persons referred to in the
immediately preceding clause (1).
"RELEASE" shall mean the active or passive disposing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, migration, placing and the like into the environment.
"REPLACED LENDER" shall have the meaning provided in Section 1.13.
"REPLACEMENT LENDER" shall have the meaning provided in
Section 1.13.
"REPORTABLE EVENT" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived under
subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
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"REQUIRED APPRAISAL" shall have the meaning provided in Section
8.11(g).
"REQUIRED LENDERS" shall mean Non-Defaulting Lenders, the sum of
whose outstanding Term Loans (or, if prior to the Initial Borrowing Date, Term
Loan Commitments) and Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans and Adjusted Percentage of Swingline Loans
and Letter of Credit Outstandings) represent an amount greater than 50% of the
sum of all outstanding Term Loans (or, if prior to the Initial Borrowing Date,
Term Loan Commitments) of Non-Defaulting Lenders and the Adjusted Total
Revolving Loan Commitment (or after the termination thereof, the sum of the then
total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate
Adjusted Percentages of all Non-Defaulting Lenders of the total outstanding
Swingline Loans and Letter of Credit Outstandings at such time).
"RESTRICTED ACCOUNT" shall have the meaning provided in the TPI
Security Agreement.
"REVOLVING LOAN" shall have the meaning provided in Section
1.01(d).
"REVOLVING LOAN COMMITMENT" shall mean, for each Lender, the
amount set forth opposite such Lender's name in Schedule I hereto directly below
the column entitled "Revolving Loan Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted
from time to time as a result of assignments to or from such Lender pursuant to
Section 1.13 or 13.04(b).
"REVOLVING LOAN MATURITY DATE" shall mean April 12, 2005.
"REVOLVING NOTE" shall have the meaning provided in Section
1.05(a).
"ROLLOVER AMOUNT" shall have the meaning provided in Section
9.07(b).
"SCHEDULED REPAYMENTS" shall mean Tranche A Scheduled Repayments,
Tranche B Scheduled Repayments and Tranche C Scheduled Repayments.
"SEC" shall have the meaning provided in Section 8.01(g).
"SECONDARY COMMON EQUITY FINANCING DOCUMENTS" shall mean all of
the agreements and documents governing, or relating to, the Secondary Common
Equity Issuance.
"SECONDARY COMMON EQUITY ISSUANCE" shall mean the issuance by PCA
of Borrower Common Stock to TPI (representing (as of the Initial Borrowing
Date) 45% of the voting interest of the Borrower's capital stock) as
contemplated by the Contribution Agreement.
"SECTION 4.04(B)(II) CERTIFICATE" shall have the meaning provided
in Section 4.04(b).
"SECURED CREDITORS" shall have the meaning provided in the
Security Documents.
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"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SECURITY AGREEMENTS" shall mean and include the TPI Security
Agreement and the PCA Security Agreement.
"SECURITY DOCUMENT" shall mean the Pledge Agreement, each
Security Agreement, each Mortgage and, after the execution and delivery
thereof, each Additional Mortgage and each Additional Security Document.
"SENIOR SUBORDINATED NOTES" shall mean PCA's 9 5/8% Senior
Subordinated Notes due 2009 issued pursuant to the Senior Subordinated Notes
Indenture, as in effect on the Effective Date and as the same may be amended,
modified or supplemented from time to time in accordance with the terms
hereof and thereof. As used herein, the term "Senior Subordinated Notes"
shall include any Exchange Senior Subordinated Notes issued pursuant to the
Senior Subordinated Notes Indenture in exchange for theretofore outstanding
Senior Subordinated Notes, as contemplated by the Offering Memorandum, dated
as of March 30, 1999, and the definition of Exchange Senior Subordinated
Notes.
"SENIOR SUBORDINATED NOTES DOCUMENTS" shall mean the Senior
Subordinated Notes, the Senior Subordinated Notes Indenture and all other
documents executed and delivered in respect of the Senior Subordinated Notes
and the Senior Subordinated Notes Indenture, in each case as in effect on the
Effective Date and as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"SENIOR SUBORDINATED NOTES INDENTURE" shall mean the Indenture,
dated as of April 12, 1999, among PCA, the Subsidiary Guarantors and United
States Trust Company of New York, as trustee thereunder, as in effect on the
Effective Date and as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"SHAREHOLDERS' AGREEMENTS" shall have the meaning provided in
Section 5.05.
"STANDARD SECURITIZATION UNDERTAKINGS" shall mean
representations, warranties, covenants and indemnities entered into by the
Borrower or any Subsidiary thereof in connection with the Permitted
Receivables Facility which are reasonably customary in an off-balance-sheet
accounts receivable transaction.
"STANDBY LETTER OF CREDIT" shall have the meaning provided in
Section 2.01(a).
"STATED AMOUNT" of each Letter of Credit shall, at any time,
mean the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).
"STOCKHOLDERS' AGREEMENT" shall mean the Stockholders
Agreement, dated as of April 12, 1999, as in effect on the Effective Date.
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"SUB DEBT RESTRICTED ACCOUNT" shall have the meaning provided
in the Subordinated Notes Purchase Agreement.
"SUBORDINATED NOTES PURCHASE AGREEMENT" shall mean the Note
Purchase Agreement, dated as of April 12, 1999, between TPI and X.X. Xxxxxx,
as in effect on the Effective Date and as the same may be amended, modified
or supplemented from time to time in accordance with the terms hereof and
thereof.
"SUBORDINATED PROMISSORY NOTES" shall mean the Borrower's 9
5/8% Subordinated Promissory Notes issued pursuant to the Subordinated Notes
Purchase Agreement, as in effect on the Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof.
"SUBORDINATED PROMISSORY NOTES DOCUMENTS" shall mean the
Subordinated Notes Purchase Agreement, the Subordinated Promissory Notes, the
Subordinated Tenneco Guaranty and all other documents executed and delivered
in respect of the Subordinated Notes Purchase Agreement and the Subordinated
Promissory Notes, in each case as in effect on the Effective Date and as the
same may be amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof.
"SUBORDINATED TENNECO GUARANTY" shall mean the Guarantee, dated
as of April 12, 1999, of Tenneco, of TPI's obligations under the Subordinated
Promissory Notes, as in effect on the Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof.
"SUBSIDIARIES GUARANTY" shall have the meaning provided in
Section 5.08(a).
"SUBSIDIARY" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
and/or one or more Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Subsidiaries of such Person has more than a 50% equity interest at the
time, PROVIDED that for purposes of Section 7A of this Agreement (and the
component definitions used therein), in the case of any representation,
warranty or agreement made by TPI prior to the Contribution Effective Time,
the term "Subsidiary" shall mean any Subsidiary (as defined above without
giving effect to this proviso) that is a Contributed Subsidiary.
"SUBSIDIARY GUARANTOR" shall mean each Subsidiary of the
Borrower designated as a "Subsidiary Guarantor" on Schedule VIII hereto or
which executes a guaranty after the Initial Borrowing Date pursuant to
Section 8.11 or 8.13.
"SWINGLINE EXPIRY DATE" shall mean the date which is two
Business Days prior to the Revolving Loan Maturity Date.
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"SWINGLINE LENDER" shall mean Xxxxxx Guaranty.
"SWINGLINE LOAN" shall have the meaning provided in Section
1.01(e).
"SWINGLINE NOTE" shall have the meaning provided in Section
1.05(a).
"SYNDICATION AGENT" shall have the meaning provided in the
first paragraph of this Agreement, and shall include any successor thereto.
"SYNDICATION DATE" shall mean that date upon which the Co-Lead
Arrangers determine in their sole discretion acting in good faith (and notify
the Borrower) that the primary syndication (and resultant addition of
institutions as Lenders pursuant to Section 13.04) has been completed.
"TAX BENEFIT" shall have the meaning provided in Section
4.04(c).
"TAX SHARING AGREEMENT" shall have the meaning provided in
Section 5.05.
"TAXES" shall have the meaning provided in Section 4.04(a).
"TENNECO" shall mean Tenneco, Inc., a Delaware corporation.
"TENNECO GUARANTY" shall have the meaning provided in Section
5.08(b).
"TENNECO PARTY" shall mean each of Tenneco and TPI.
"TENNECO PENSION PLAN" shall have the meaning provided in
Section 7B.10.
"TERM LOAN" shall mean each Tranche A Term Loan, each Tranche B
Term Loan and each Tranche C Term Loan.
"TERM LOAN COMMITMENT" shall mean each Tranche A Term Loan
Commitment, each Tranche B Term Loan Commitment and each Tranche C Term Loan
Commitment, with the Term Loan Commitment of any Lender at any time to equal
the sum of its Tranche A Term Loan Commitment, Tranche B Term Loan Commitment
and Tranche C Term Loan Commitment as then in effect.
"TEST PERIOD" shall mean shall mean (x) for any determination
made on or prior to the last day of the fiscal quarter ended March 31, 2000,
the period from July 1, 1999 to the last day of the fiscal quarter of the
Borrower then last ended or then ending and (y) for any determination made
thereafter, the period of four consecutive fiscal quarters then last ended or
then ending in each case taken as one accounting period.
"TIMBERLAND PROPERTIES" shall mean the substantially unimproved
timber properties owned by the Borrower and its Subsidiaries.
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"TIMBERLANDS DISPOSITION" shall mean the sale or disposition by
the Borrower or any of its Subsidiaries (pursuant to one or more series of
sales) of the Timberland Properties.
"TIMBERLANDS DISPOSITION RECAPTURE/RESTRICTED PAYMENTS
REQUIREMENTS" shall have the meaning provided in Section 4.02(g).
"TOTAL ASSETS" shall mean the book value of consolidated gross
assets of the Borrower and its Subsidiaries, as reflected in the financial
statements of the Borrower most recently delivered pursuant to Section
8.01(a) or (b), as the case may be.
"TOTAL AVAILABLE REVOLVING LOAN COMMITMENT" shall mean at any
time an amount equal to the Total Revolving Loan Commitment at such time less
the Blocked Commitment at such time.
"TOTAL COMMITMENTS" shall mean, at any time, the sum of the
Commitments of each of the Lenders.
"TOTAL RELEVANT ASSETS" shall mean Total Assets less the book
value of the Timberlands Properties included therein, as reflected in the
financial statements of the Borrower most recently delivered pursuant to
Section 8.01(a) or (b), as the case may be.
"TOTAL REVOLVING LOAN COMMITMENT" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Lenders.
"TOTAL TERM LOAN COMMITMENT" shall mean, at any time, the sum
of the Total Tranche A Term Loan Commitment, Total Tranche B Term Loan
Commitment and the Total Tranche C Term Loan Commitment.
"TOTAL TRANCHE A TERM LOAN COMMITMENT" shall mean, at any time,
the sum of the Tranche A Term Loan Commitments of each of the Lenders.
"TOTAL TRANCHE B TERM LOAN COMMITMENT" shall mean, at any time,
the sum of the Tranche B Term Loan Commitments of each of the Lenders.
"TOTAL TRANCHE C TERM LOAN COMMITMENT" shall mean, at any time,
the sum of the Tranche C Term Loan Commitments of each of the Lenders.
"TOTAL UNUTILIZED REVOLVING LOAN COMMITMENT" shall mean, at any
time, an amount equal to the remainder of (x) the then Total Revolving Loan
Commitment, less (y) the sum of the aggregate principal amount of Revolving
Loans and Swingline Loans then outstanding plus the then aggregate amount of
Letter of Credit Outstandings.
"TPI" shall have the meaning provided in the first paragraph of
this Agreement.
"TPI PERMITTED LIENS" shall have the meaning provided such term
in the TPI Security Agreement.
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"TPI SECURITY AGREEMENT" shall have the meaning provided in
Section 5.10(a).
"TPI SECURITY AGREEMENT COLLATERAL" shall mean all "Collateral"
as defined in the TPI Security Agreement.
"TPI SECURITY DOCUMENTS" shall mean the TPI Security Agreements
and all mortgages and other agreements, if any, executed pursuant to the
terms thereof.
"TPI TRANSACTIONS" shall mean the transactions described in
clauses (iii), (iv), (v) and (viii) of the definition of "Transaction".
"TRADE LETTER OF CREDIT" shall have the meaning provided in
Section 2.01(a).
"TRANCHE" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being five separate Tranches,
I.E., Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans,
Revolving Loans and Swingline Loans.
"TRANCHE A SCHEDULED REPAYMENT" shall have the meaning provided
in Section 4.02(b).
"TRANCHE A SCHEDULED REPAYMENT DATE" shall have the meaning
provided in Section 4.02(b).
"TRANCHE A TERM LOAN" shall have the meaning provided in
Section 1.01(a).
"TRANCHE A TERM LOAN COMMITMENT" shall mean, for each Lender,
the amount set forth opposite such Lender's name in Schedule I hereto
directly below the column entitled "Tranche A Term Loan Commitment", as same
may be (x) reduced from time to time pursuant to Sections 3.03, 4.02 and/or
10 or (y) adjusted from time to time as a result of assignments to or from
such Lender pursuant to Section 1.13 or 13.04.
"TRANCHE A TERM LOAN MATURITY DATE" shall mean April 12, 2005.
"TRANCHE A TERM NOTE" shall have the meaning provided in
Section 1.05(a).
"TRANCHE B SCHEDULED REPAYMENT" shall have the meaning provided
in Section 4.02(c).
"TRANCHE B SCHEDULED REPAYMENT DATE" shall have the meaning
provided in Section 4.02(c).
"TRANCHE B TERM LENDER" shall have the meaning provided in
Section 4.02(o).
"TRANCHE B TERM LOAN" shall have the meaning provided in
Section 1.01(b).
"TRANCHE B TERM LOAN COMMITMENT" shall mean, for each Lender,
the amount set forth opposite such Lender's name in Schedule I hereto
directly below the column entitled
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"Tranche B Term Loan Commitment", as same may be (x) reduced from time to
time pursuant to Sections 3.03, 4.02 and/or 10 or (y) adjusted from time to
time as a result of assignments to or from such Lender pursuant to Section
1.13 or 13.04(b).
"TRANCHE B TERM LOAN MATURITY DATE" shall mean April 12, 2007.
"TRANCHE B TERM NOTE" shall have the meaning provided in
Section 1.05(a).
"TRANCHE C SCHEDULED REPAYMENT" shall have the meaning provided
in Section 4.02(d).
"TRANCHE C SCHEDULED REPAYMENT DATE" shall have the meaning
provided in Section 4.02(d).
"TRANCHE C TERM LENDER" shall have the meaning provided in
Section 4.02(o).
"TRANCHE C TERM LOAN" shall have the meaning provided in
Section 1.01(c).
"TRANCHE C TERM LOAN COMMITMENT" shall mean, for each Lender,
the amount set forth opposite such Lender's name in Schedule I hereto
directly below the column entitled "Tranche A Term Loan Commitment," as same
may be (x) reduced from time to time pursuant to Sections 3.03, 4.02 and/or
10 or (y) adjusted from time to time as a result of assignments to or from
such lender pursuant to Section 1.13 or 13.04.
"TRANCHE C TERM LOAN MATURITY DATE" shall mean April 12, 2008.
"TRANCHE C TERM NOTE" shall have the meaning provided in
Section 1.05(a).
"TRANSACTION" shall mean, collectively, (i) the Initial Common
Equity Issuance, (ii) the Preferred Equity Issuance, (iii) the issuance by
TPI of the Subordinated Promissory Notes on the Initial Borrowing Date
generating gross cash proceeds of $550,000,000 and the deposit of the
proceeds thereof in the Sub Debt Restricted Account, (iv) the incurrence of
the Term Loans by TPI on the Initial Borrowing Date and the deposit of the
proceeds thereof in the Restricted Account, (v) the consummation of the
Refinancing, (vi) the Secondary Common Equity Issuance, (vii) the issuance by
PCA of the Senior Subordinated Notes on the Initial Borrowing Date in an
aggregate principal amount of $550,000,000, (viii) the consummation of the
Contribution, (ix) the assumption by PCA of all the rights, obligations and
interest of TPI under the Credit Documents (including, without limitation,
the Obligations) pursuant to the PCA Acknowledgement and Agreement and the
effectiveness of the Security Documents and (x) the payment of fees and
expenses owing in connection with the foregoing.
"TYPE" shall mean the type of Loan determined with regard to
the interest option applicable thereto, I.E., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
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"UNFUNDED CURRENT LIABILITY" of any Plan which is not a
Multiemployer Plan shall mean the amount, if any, by which the value of the
accumulated plan benefits under the Plan determined as of the latest
actuarial report for the most recent plan year exceeds the market value of
all plan assets allocable to such liabilities (excluding any accrued but
unpaid contributions).
"UNITED STATES" and "U.S." shall each mean the United States of
America.
"UNPAID DRAWING" shall have the meaning provided for in Section
2.04(a).
"UNUTILIZED REVOLVING LOAN COMMITMENT" with respect to any
Lender, at any time, shall mean such Lender's Revolving Loan Commitment at
such time LESS the sum of (i) the aggregate outstanding principal amount of
Revolving Loans made by such Lender and (ii) such Lender's Adjusted
Percentage of the Letter of Credit Outstandings in respect of Letters of
Credit issued under this Agreement.
"VOTING STOCK" shall mean, as to any Person, any class or
classes of capital stock of such Person pursuant to which the holders thereof
are entitled to vote in the election of the Board of Directors of such Person.
"WAIVABLE MANDATORY REPAYMENT" shall have the meaning provided
in Section 4.02(o).
"WAIVABLE REPAYMENT" shall mean a Waivable Mandatory Repayment
and a Waivable Voluntary Repayment.
"WAIVABLE VOLUNTARY REPAYMENT" shall have the meaning provided
in Section 4.02(o).
"WHOLLY-OWNED SUBSIDIARY" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more
Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at
such time.
"WOODLAND MORTGAGES" shall mean and include each Mortgage in
respect of a Woodland Property.
"WOODLAND PROPERTIES" shall mean and include each Mortgaged
Property designated as a "Woodland Property" on Schedule III hereto.
"Y2K PROBLEM" shall mean any significant risk that computer
hardware, software or equipment containing embedded microchips essential to
the business or operations of the Borrower or any of its Subsidiaries will
not, in the case of dates or time periods occurring after December 31, 1999,
function at least as efficiently and reliably in all material respects as in
the case of times or time periods occurring before January 1, 2000, including
the making of accurate leap year calculations.
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SECTION 12. THE AGENTS.
12.01 APPOINTMENT. Each Lender hereby irrevocably designates
and appoints Xxxxxx Guaranty as Administrative Agent (for purposes of this
Section 12, the term "ADMINISTRATIVE AGENT" shall mean and include Xxxxxx
Guaranty (and/or any of its affiliates) in its capacity as Administrative
Agent hereunder and Collateral Agent pursuant to the Security Documents) and
BTCo as Syndication Agent to act as specified herein and in the other Credit
Documents. Each Lender hereby irrevocably authorizes, and each holder of any
Note by the acceptance of such Note shall be deemed irrevocably to authorize,
the Administrative Agent and the Syndication Agent to take such action on its
behalf under the provisions of this Agreement, the other Credit Documents and
any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as
are specifically delegated to or required of the Administrative Agent and the
Syndication Agent by the terms hereof and thereof and such other powers as
are reasonably incidental thereto. Each of the Administrative Agent and the
Syndication Agent may perform any of its duties hereunder by or through its
respective officers, directors, agents, employees or affiliates.
12.02 NATURE OF DUTIES. Each of the Administrative Agent and
the Syndication Agent agrees to act in its capacity as such upon the express
conditions contained in this Section 12. Notwithstanding any provision to
the contrary elsewhere in this Agreement or in any other Credit Document, the
Administrative Agent and the Syndication Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
Security Documents and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
otherwise exist against the Administrative Agent or the Syndication Agent.
The duties of the Administrative Agent and the Syndication Agent shall be
mechanical and administrative in nature; the Administrative Agent and the
Syndication Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Lender or the
holder of any Note; and nothing in this Agreement or any other Credit
Document, express or implied, is intended to or shall be so construed as to
impose upon the Administrative Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein
or therein. The provisions of this Section 12 are solely for the benefit of
the Administrative Agent, the Syndication Agent, the Co-Lead Arrangers and
the Lenders, and neither the Borrower nor any of its Subsidiaries shall have
any rights as a third party beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement, each of the
Administrative Agent and the Syndication Agent shall act solely as agent of
the Lenders and does not assume and shall not be deemed to have assumed any
obligation or relationship of agency or trust with or for the Borrower or any
of its Subsidiaries.
12.03 LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT AND THE
SYNDICATION AGENT. Each Lender expressly acknowledges that none of the
Administrative Agent, the Syndication Agent or any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent or the Syndication Agent hereinafter taken, including
any review of the affairs of the Borrower or any of its Subsidiaries, shall
be deemed to constitute any representation or warranty by the Administrative
Agent or the Syndication Agent to any Lender. Independently and without
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reliance upon the Administrative Agent, the Syndication Agent or any other
Lender, each Lender and the holder of each Note, to the extent it deems
appropriate and based on such documents and information as it deems
appropriate, has made and shall continue to make (i) its own independent
investigation of the business, assets, operations, property, prospects,
financial and other conditions and affairs of the Borrower and its
Subsidiaries in connection with the making and the continuance of the Loans
and the taking or not taking of any action in connection herewith and (ii)
its own credit analysis and appraisal of the creditworthiness of the Borrower
and its Subsidiaries and, except as expressly provided in this Agreement,
neither the Administrative Agent nor the Syndication Agent shall have any
duty or responsibility, either initially or on a continuing basis, to provide
any Lender or the holder of any Note with any credit or other information
with respect thereto, whether coming into the possession of the
Administrative Agent, the Syndication Agent or any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates
before the making of the Loans or at any time or times thereafter. The
Administrative Agent and the Syndication Agent shall not be responsible to
any Lender or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectability, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrower and its Subsidiaries or
be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any other Credit Document, or the financial condition of the Borrower and its
Subsidiaries or the existence or possible existence of any Default or Event
of Default.
12.04 CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT AND THE
SYNDICATION AGENT. If the Administrative Agent or the Syndication Agent
shall request instructions from the Required Lenders with respect to any act
or action (including failure to act) in connection with this Agreement or any
other Credit Document, the Administrative Agent or the Syndication Agent, as
the case may be, shall be entitled to refrain from such act or taking such
action unless and until the Administrative Agent or the Syndication Agent, as
the case may be, shall have received instructions from the Required Lenders
as it deems appropriate or it shall have been indemnified to its satisfaction
by the Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action; and
the Administrative Agent or the Syndication Agent, as the case may be, shall
not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, no Lender or the holder of any Note shall have any
right of action whatsoever against the Administrative Agent or the
Syndication Agent as a result of the Administrative Agent or the Syndication
Agent, as the case may be, acting or refraining from acting hereunder or
under any other Credit Document in accordance with the instructions of the
Required Lenders and such instructions or any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
12.05 RELIANCE. The Administrative Agent and the Syndication
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, statement, certificate, telex, teletype
or telecopier message, cablegram, radiogram, order or other document,
conversation or telephone message signed, sent or made by any Person that the
Administrative Agent or the Syndication Agent, as the case may be, believed to
be the proper
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Person or persons, and upon advice or statement of legal counsel (including,
without limitations counsel to the Borrower or any of its Subsidiaries),
independent accountants and other experts selected by the Administrative
Agent or the Syndication Agent, as the case may be.
12.06 INDEMNIFICATION. The Lenders agree to indemnify each of
the Administrative Agent and the Syndication Agent in their respective
capacities as such ratably according to their respective "percentages" as
used in determining the Required Lenders at such time or, if the Commitments
have terminated and all Loans have been repaid in full, as determined
immediately prior to such termination and repayment (with such "percentages"
to be determined as if there are no Defaulting Lenders), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever
which may at any time (including, without limitation, at any time following
the payment of the Obligations) be imposed on, incurred by or asserted
against the Administrative Agent or the Syndication Agent in their respective
capacities as such in any way relating to or arising out of this Agreement or
any other Credit Document, or any documents contemplated by or referred to
herein or the transactions contemplated hereby or any action taken or omitted
to be taken by the Administrative Agent or the Syndication Agent under or in
connection with any of the foregoing, but only to the extent that any of the
foregoing is not paid by the Borrower or any of its Subsidiaries; PROVIDED,
that no Bank shall be liable to the Administrative Agent or the Syndication
Agent for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting primarily from the gross negligence or willful
misconduct of the Administrative Agent or the Syndication Agent, as the case
may be. If any indemnity furnished to the Administrative Agent or the
Syndication Agent for any purpose shall, in the opinion of the Administrative
Agent or the Syndication Agent be insufficient or become impaired, the
Administrative Agent or the Syndication Agent, as the case may be, may call
for additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished. The
agreements in this Section 12.06 shall survive the payment of all Obligations.
12.07 AGENTS IN THEIR INDIVIDUAL CAPACITY. With respect to
its obligation to make Loans, the Loans made by it and all Obligations owed
to it under this Agreement, each of the Administrative Agent and the
Syndication Agent shall have the rights and powers specified herein for a
"Lender" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Lenders," "Required
Lenders," "Majority Lenders," "holders of Notes" or any similar terms shall,
unless the context clearly otherwise indicates, include the Administrative
Agent and the Syndication Agent in their individual capacities. Each of the
Administrative Agent and the Syndication Agent may accept deposits from, lend
money to, and generally engage in any kind of banking, trust or other
business with any Credit Party or any Affiliate of any Credit Party as if it
were not performing the duties specified herein, and may accept fees and
other consideration from the Borrower or any other Credit Party for services
in connection with this Agreement and otherwise without having to account for
the same to the Lenders.
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12.08 HOLDERS. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment, transfer or endorsement thereof, as
the case may be, shall have been filed with the Administrative Agent. Any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall
be conclusive and binding on any subsequent holder, transferee, assignee or
endorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
12.09 RESIGNATION BY THE AGENTS. (a) The Administrative
Agent may resign from the performance of all its functions and duties
hereunder and/or under the other Credit Documents at any time by giving 15
Business Days' prior written notice to the Borrower and the Lenders. Such
resignation shall take effect upon the appointment of a successor
Administrative Agent pursuant to clauses (b) and (c) below or as otherwise
provided below.
(b) Upon any such notice of resignation by the
Administrative Agent, the Lenders shall appoint a successor Administrative
Agent hereunder or thereunder who shall be a commercial bank or trust company
reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been
so appointed within such 15 Business Day period, the Administrative Agent,
with the consent of the Borrower (which shall not be unreasonably withheld or
delayed), shall then appoint a commercial bank or trust company with capital
and surplus of not less than $500,000,000 as successor Administrative Agent
who shall serve as Administrative Agent hereunder or thereunder until such
time, if any, as the Lenders appoint a successor Administrative Agent as
provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 25th Business Day after the date
such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Required
Lenders shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Credit Document until such time, if any, as
the Required Lenders appoint a successor Administrative Agent as provided
above.
(e) The Syndication Agent may resign from the performance
of all its functions and duties hereunder and/or under the other Credit
Documents at any time by giving five Business Days' prior written notice to
the Lenders. Such resignation shall take effect at the end of such five
Business Day period. Upon the effectiveness of the resignation of the
Syndication Agent, the Administrative Agent shall assume all of the functions
and duties of the Syndication Agent hereunder and/or under the other Credit
Documents.
12.10 DELEGATION OF DUTIES. Each of the Administrative Agent
and the Syndication Agent may execute any of its duties under this Agreement
or any other Credit Document by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. None of the Administrative Agent or the Syndication Agent shall
be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
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12.11 EXCULPATORY PROVISIONS. None of the Administrative
Agent, the Syndication Agent or any of their respective officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for
any action taken or omitted to be taken by it or such Person in its capacity
as Administrative Agent or Syndication Agent, as the case may be, under or in
connection with this Agreement or the other Credit Documents (except for its
or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower, any of its Subsidiaries
or any of its officers contained in this Agreement or the other Credit
Documents, any other Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the
Administrative Agent or the Syndication Agent under or in connection with,
this Agreement or any other Document or for any failure of the Borrower or
any of its Subsidiaries or any of their respective officers to perform its
obligations hereunder or thereunder. None of the Administrative Agent or the
Syndication Agent shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or the other Documents, or to
inspect the properties, books or records of the Borrower or any of its
Subsidiaries. None of the Administrative Agent or the Syndication Agent
shall be responsible to any Lender for the effectiveness, genuineness,
validity, enforceability, collectability or sufficiency of this Agreement or
any other Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statement or
in any financial or other statements, instruments, reports, certificates or
any other documents in connection herewith or therewith furnished or made by
the Administrative Agent or the Syndication Agent, as the case may be, to the
Lenders or by or on behalf of the Borrower or any of its Subsidiaries to the
Administrative Agent or the Syndication Agent, as the case may be, or any
Lender or be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or
agreements contained herein or therein or as to the use of the proceeds of
the Loans or of the existence or possible existence of any Deault or Event of
Default.
12.12 NOTICE OF DEFAULT. None of the Administrative Agent or
the Syndication Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Administrative Agent
or the Syndication Agent, as the case may be, has actually received notice
from a Lender or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default." In the event that the Administrative Agent or the Syndication
Agent receives such a notice, the Administrative Agent or the Syndication
Agent, as the case may be, shall give prompt notice thereof to the Lenders.
The Administrative Agent or the Syndication Agent, as the case may be, shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; PROVIDED, that, unless and until
the Administrative Agent or the Syndication Agent, as the case may be, shall
have received such directions, the Administrative Agent or the Syndication
Agent, as the case may be, may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
12.13 SPECIAL PROVISIONS REGARDING THE CO-LEAD ARRANGERS AND
CO-DOCUMENTATION AGENTS. No Co-Lead Arranger or Co-Documentation Agent shall
have any
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obligations, responsibilities or duties under this Agreement or any other
Credit Document in its capacity as such.
SECTION 13. MISCELLANEOUS.
13.01 PAYMENT OF EXPENSES, ETC. The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Agents and the Co-Lead
Arrangers (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and local counsel) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein
and any amendment, waiver or consent relating hereto or thereto, of each
Co-Lead Arranger in connection with its syndication efforts with respect to
this Agreement and of each Agent, each Issuing Bank and each of the Lenders
in connection with the enforcement of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein
(including, without limitation, the reasonable fees and disbursements of
counsel (including in-house counsel) for each Agent and for each of the
Lenders); (ii) pay and hold each of the Lenders harmless from and against any
and all present and future stamp, excise and other similar taxes with respect
to the foregoing matters and save each of the Lenders harmless from and
against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to such Lender) to pay
such taxes; and (iii) indemnify each Agent, each Co-Lead Arranger, the
Collateral Agent, each Issuing Bank and each Lender, and each of their
respective officers, directors, trustees, employees, representatives and
agents from and hold each of them harmless against any and all liabilities,
obligations (including removal or remedial actions), losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' and consultants' fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a)
any investigation, litigation or other proceeding (whether or not any Agent,
any Co-Lead Arranger, any Issuing Bank, the Collateral Agent or any Lender is
a party thereto and whether or not any such investigation, litigation or
other proceeding is between or among any Agent, any Co-Lead Arranger, the
Collateral Agent, any Issuing Bank, any Lender, any Credit Party or any third
Person or otherwise) related to the entering into and/or performance of this
Agreement or any other Credit Document or the use of any Letter of Credit or
the proceeds of any Loans hereunder or the consummation of any transactions
contemplated herein (including, without limitation, the Transaction), or in
any other Credit Document or the exercise of any of their rights or remedies
provided herein or in the other Credit Documents, or (b) the actual or
alleged presence of Hazardous Materials in the air, surface water or
groundwater or on the surface or subsurface of any Real Property at any time
owned or operated by the Borrower or any of its Subsidiaries, the generation,
storage, transportation, handling or disposal of Hazardous Materials at any
location, whether or not owned or operated by the Borrower or any of its
Subsidiaries, the non-compliance of any Real Property at any time owned or
operated by the Borrower or any of its Subsidiaries with foreign, federal,
state and local laws, regulations, and ordinances (including applicable
permits thereunder) applicable to any such Real Property, or any
Environmental Claim asserted against the Borrower, any of its Subsidiaries or
such Real Property, including, in each case, without limitation, the
reasonable fees and disbursements of counsel and other consultants
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incurred in connection with any such investigation, litigation or other
proceeding (but excluding any losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified). To the extent that the
undertaking to indemnify, pay or hold harmless each Agent or any Lender set
forth in the preceding sentence may be unenforceable because it is violative
of any law or public policy, the Borrower shall make the maximum contribution
to the payment and satisfaction of each of the indemnified liabilities which
is permissible under applicable law.
13.02 RIGHT OF SETOFF. (a) In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default,
each Agent, each Issuing Bank and each Lender is hereby authorized at any
time or from time to time, without presentment, demand, protest or other
notice of any kind to any Credit Party or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and apply
any and all deposits (general or special) and any other Indebtedness at any
time held or owing by such Agent, such Issuing Bank or such Lender
(including, without limitation, by branches and agencies of such Lender
wherever located) to or for the credit or the account of any Credit Party but
in any event excluding assets held in trust for any such Person against and
on account of the Obligations and liabilities of such Credit Party to such
Agent, such Issuing Bank or such Lender under this Agreement or under any of
the other Credit Documents, including, without limitation, all interests in
Obligations purchased by such Lender pursuant to Section 13.06(b), and all
other claims of any nature or description arising out of or connected with
this Agreement or any other Credit Document, irrespective of whether or not
such Agent, such Issuing Bank or such Lender shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of
them, shall be contingent or unmatured.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY
TIME THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY
LOCATED IN CALIFORNIA, NEITHER ANY LENDER NOR THE ADMINISTRATIVE AGENT SHALL
EXERCISE A RIGHT OF SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR
ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF
THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH THE CONSENT OF THE
REQUIRED LENDERS OR, TO THE EXTENT REQUIRED BY SECTION 13.12 OF THIS
AGREEMENT, ALL OF THE LENDERS, OR APPROVED IN WRITING BY THE ADMINISTRATIVE
AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO
CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL
CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY,
OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO
THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND OTHER
OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY LENDER OR THE
ADMINISTRATIVE AGENT OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE
REQUISITE LENDERS OR THE ADMINISTRATIVE AGENT SHALL BE NULL AND VOID. THIS
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SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND THE
ADMINISTRATIVE AGENT HEREUNDER.
13.03 NOTICES. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in
writing (including telexed, telegraphic, telex, telecopier or cable
communication) and mailed, telexed, telecopied, cabled or delivered: if to
the Borrower, at the address specified opposite its signature below; if to
any Lender, at its address specified opposite its name on Schedule II below;
if to the Syndication Agent, at the address specified opposite its signature
below; if to the Administrative Agent, at its Notice Office; and if to any
Co-Lead Arranger, at the address specified opposite its signature below; or,
as to the Borrower, at such other address as shall be designated by the
Borrower in a written notice to the other parties hereto and, as to each
Lender, at such other address as shall be designated by such Lender in a
written notice to the Borrower and the Administrative Agent. All such
notices and communications shall, when mailed, telexed, telecopied or sent by
overnight courier, be effective when deposited in the mails or delivered to
the overnight courier, prepaid and properly addressed for delivery on such or
the next Business Day, or sent by telex or telecopier, except that notices
and communications to the Administrative Agent shall not be effective until
received by the Administrative Agent.
13.04 BENEFIT OF AGREEMENT. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; PROVIDED, HOWEVER, that (i) no
Credit Party may assign or transfer any of its rights, obligations or
interest hereunder or under any other Credit Document without the prior
written consent of the Lenders, PROVIDED that TPI may transfer all of its
rights, obligations and interest hereunder and under the other Credit
Documents (including all of the Obligations) to PCA in connection with the
Contribution pursuant to, and in accordance with the terms of, the Bank
Credit Agreement Assignment and Assumption Agreement, (ii) although any
Lender may transfer, assign or grant participations in its rights hereunder,
such Lender shall remain a "Lender" for all purposes hereunder (and may not
transfer or assign all or any portion of its Commitments hereunder except as
provided in Section 13.04(b)) and the transferee, assignee or participant, as
the case may be, shall not constitute a "Lender" hereunder and (iii) no
Lender shall transfer or grant any participation under which the participant
shall have rights to approve any amendment to or waiver of this Agreement or
any other Credit Document except to the extent such amendment or waiver would
(x) extend the final scheduled maturity of any Loan, Note or Letter of Credit
(unless such Letter of Credit is not extended beyond the Revolving Loan
Maturity Date) in which such participant is participating, or reduce the rate
or extend the time of payment of interest or Fees thereon (except (I) in
connection with a waiver of applicability of any post-default increase in
interest rates and (II) that any amendment or modification to the financial
definitions in this Agreement shall not constitute a reduction in the rate of
interest for purposes of this clause (x)) or reduce the principal amount
thereof, or increase the amount of the participant's participation over the
amount thereof then in effect (it being understood that a waiver of any
Default or Event of Default or of a mandatory reduction in the Total
Commitments shall not constitute a change in the terms of such participation,
and that an increase in any Commitment or Loan shall be permitted without the
consent of any participant if the participant's participation is not
increased as a result thereof), (y) consent to the assignment or
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transfer by the Borrower of any of its rights and obligations under this
Agreement or (z) release all or substantially all of the Collateral under all
of the Security Documents (except as expressly provided in the Credit
Documents) securing the Loans hereunder in which such participant is
participating. In the case of any such participation, the participant shall
not have any rights under this Agreement or any of the other Credit Documents
(the participant's rights against such Lender in respect of such participation
to be those set forth in the agreement executed by such Lender in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Lender had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any
Lender together with one or more other Lenders) may (x) assign all or a
portion of its Revolving Loan Commitment (and related outstanding Obligations
hereunder) and/or its outstanding Term Loans (or, if prior to the Initial
Borrowing Date, Term Loan Commitment) to its (i) parent company and/or any
affiliate of such Lender which is at least 50% owned by such Lender or its
parent company or (ii) in the case of any Lender that is a fund that invests
in bank loans, any other fund that invests in bank loans and is managed or
advised by the same investment advisor of such Lender or by an Affiliate of
such investment advisor or (iii) to one or more Lenders or (y) assign all, or
if less than all, a portion equal to at least $2,000,000 in the aggregate for
the assigning Lender or assigning Lenders, of such Revolving Loan Commitments
and outstanding principal amount of Term Loans (or, if prior to the Initial
Borrowing Date, Term Loan Commitment) hereunder to one or more Eligible
Transferees (treating any fund that invests in bank loans and any other fund
that invests in bank loans and is managed or advised by the same investment
advisor of such fund or by an Affiliate of such investment advisor as a
single Eligible Transferee), each of which assignees shall become a party to
this Agreement as a Lender by execution of an Assignment and Assumption
Agreement, PROVIDED that, (i) at such time Schedule I shall be deemed
modified to reflect the Commitments (and/or outstanding Term Loans, as the
case may be) of such new Lender and of the existing Lenders, (ii) new Notes
will be issued, at the Borrower's expense, to such new Lender and to the
assigning Lender upon the request of such new Lender or assigning Lender,
such new Notes to be in conformity with the requirements of Section 1.05
(with appropriate modifications) to the extent needed to reflect the revised
Commitments (and/or outstanding Term Loans, as the case may be), (iii) the
consent of the Administrative Agent and each Issuing Bank shall be required
in connection with any assignment of all or any portion of Revolving Loan
Commitments (which consents shall not be unreasonably withheld or delayed),
(iv) in the case of assignments pursuant to clause (y) above, the consent of
the Administrative Agent (and, unless any Default or Event of Default is then
in existence, the consent of the Borrower) shall be required (which consents
shall not be unreasonably withheld or delayed) and (v) the Administrative
Agent shall receive at the time of each such assignment, from the assigning
or assignee Lender, the payment of a non-refundable assignment fee of $3,500.
To the extent of any assignment pursuant to this Section 13.04(b), the
assigning Lender shall be relieved of its obligations hereunder with respect
to its assigned Commitments (it being understood that the indemnification
provisions under this Agreement (including, without limitation, Sections
1.10, 1.11, 2.05, 4.04, 13.01 and 13.06) shall survive as to such assigning
Lender). At the time of each assignment pursuant to this Section 13.04(b) to
a Person which is not already a Lender hereunder and which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
for Federal income tax purposes, the respective assignee Lender shall
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provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate)
described in Section 4.04(b). To the extent that an assignment of all or any
portion of a Lender's Commitments and related outstanding Obligations
pursuant to Section 1.13 or this Section 13.04(b) would, at the time of such
assignment, result in increased costs under Section 1.10, 1.11, 2.05 or 4.04
from those being charged by the respective assigning Lender prior to such
assignment, then the Borrower shall not be obligated to pay such increased
costs (although the Borrower shall be obligated to pay any other increased
costs of the type described above resulting from changes after the date of
the respective assignment, subject to Section 4.04(b)).
(c) Nothing in this Agreement shall prevent or prohibit any
Lender from pledging its Loans and Notes hereunder to a Federal Reserve Bank
in support of borrowings made by such Lender from such Federal Reserve Bank
and, with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed), any Lender which is a fund may pledge all
or any portion of its Notes or Loans to any trustee, other representative of
holders of notes issued by such fund, or holder of obligations owed by such
fund, in support of its obligation to such trustee, representative or holder.
No pledge pursuant to this clause (c) shall release the transferor Lender
from any of its obligations hereunder.
13.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of any Agent or any Lender or any holder of any Note in exercising
any right, power or privilege hereunder or under any other Credit Document
and no course of dealing between any other Credit Party and any Agent or any
Lender or the holder of any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder or
under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights, powers and remedies herein or in any other Credit
Document expressly provided are cumulative and not exclusive of any rights,
powers or remedies which any Agent or any Lender or the holder of any Note
would otherwise have. No notice to or demand on any Credit Party in any case
shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of any
Agent or any Lender or the holder of any Note to any other or further action
in any circumstances without notice or demand.
13.06 PAYMENTS PRO RATA. (a) Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its
receipt of each payment from or on behalf of the Borrower in respect of any
Obligations hereunder, it shall distribute such payment to the Lenders (other
than any Lender that has consented in writing to waive its PRO RATA share of
any such payment) PRO RATA based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive
any amount hereunder (whether by voluntary payment, by realization upon
security, by the exercise of the right of setoff or banker's lien, by
counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise), which is applicable to the payment of the
principal of, or interest on, the Loans, Unpaid Drawings, Commitment
Commission or Letter of Credit Fees, of a
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sum which with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such Obligation then owed and
due to such Lender bears to the total of such Obligation then owed and due to
all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Obligations of the
respective Credit Party to such Lenders in such amount as shall result in a
proportional participation by all the Lenders in such amount; PROVIDED that
if all or any portion of such excess amount is thereafter recovered from such
Lender, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained
herein, the provisions of the preceding Sections 13.06(a) and (b) shall be
subject to the express provisions of this Agreement which require, or permit,
differing payments to be made to Non-Defaulting Lenders as opposed to
Defaulting Lenders.
13.07 CALCULATIONS; COMPUTATIONS. (a) The financial
statements to be furnished to the Lenders pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except as
set forth in the notes thereto or as otherwise disclosed in writing by the
Borrower to the Lenders); PROVIDED that (i) except as otherwise specifically
provided herein, all computations of the Available J.V. Basket Amount, Excess
Cash Flow, the Leverage Ratio and the Applicable Margins and all computations
determining compliance with Sections 9.08 through 9.11, inclusive, shall
utilize accounting principles and policies in conformity with those used to
prepare the historical financial statements of the Containerboard Group for
the fiscal year ended December 31, 1998 delivered to the Lenders pursuant to
Section 5.16 (with the foregoing generally accepted accounting principles,
subject to the preceding proviso, herein called "GAAP"), (ii) to the extent
expressly required pursuant to the provisions of this Agreement, certain
calculations shall be made on a PRO FORMA Basis and (iii) for all purposes of
this Agreement, all Attributed Receivables Facility Indebtedness shall be
treated as Indebtedness of the Borrower and its Subsidiaries hereunder,
regardless of any differing treatment pursuant to generally accepted
accounting principles.
(b) All computations of interest on Eurodollar Loans,
Commitment Commission and Fees hereunder shall be made on the basis of a year
of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest,
Commitment Commission or Fees are payable. All computations of interest on
Base Rate Loans shall be made on the basis of a year of 365 or 366 days, as
the case may be, for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest is
payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT
AS OTHERWISE PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN ACCORDANCE
WITH
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AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. THE BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND
EMPOWERS CT CORPORATION SYSTEM, WITH OFFICES ON THE DATE HEREOF AT 0000
XXXXXXXX, XXX XXXX, XXX XXXX 00000 AS ITS DESIGNEE, APPOINTEE AND AGENT TO
RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS
PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND
DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY
REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT
AS SUCH, THE BORROWER AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT
IN THE STATE OF NEW YORK ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION
SATISFACTORY TO THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT. THE BORROWER
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE
TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. THE BORROWER HEREBY
IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER OR ANY OTHER CREDIT DOCUMENT THAT SERVICE OF
PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, ANY LENDER OR THE
HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY
IN ANY OTHER JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE
AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall
be lodged with the Borrower and the Administrative Agent.
13.10 EFFECTIVENESS. This Agreement shall become effective on
the date (the "EFFECTIVE DATE") on which the Borrower and each of the Lenders
who are initially parties hereto shall have signed a counterpart hereof
(whether the same or different counterparts) and shall have delivered the
same to the Administrative Agent or, in the case of the Lenders, shall have
given to the Administrative Agent telephonic (confirmed in writing), written
or telex notice (actually received) at such office that the same has been
signed and mailed to it. The Administrative Agent will give the Borrower and
each Lender prompt written notice of the occurrence of the Effective Date.
13.11 HEADINGS DESCRIPTIVE. The headings of the several
sections and subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision
of this Agreement.
13.12 AMENDMENT OR WAIVER; ETC. (a) Neither this Agreement
nor any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party
thereto and the Required Lenders, PROVIDED that no such change, waiver,
discharge or termination shall, without the consent of each Lender (other
than a Defaulting Lender) (with Obligations being directly affected in the
case of following clause (i)), (i) extend the final scheduled maturity of any
Loan or Note or extend the stated maturity of any Letter of Credit beyond the
Revolving Loan Maturity Date, or reduce the rate or extend the time of
payment of interest or Fees thereon (except (x) in connection with the waiver
of applicability of any post-default increase in interest rates and (y) that
any amendment or modification to the financial definitions in this Agreement
shall not constitute a reduction in the rate of interest for purposes of this
clause (i)), or reduce the principal amount thereof (except to the extent
repaid in cash), (ii) release all or substantially all of the Collateral
(except as expressly provided in the Credit Documents) under all the Security
Documents, (iii) amend, modify or waive any provision of this Section 13.12,
(iv) reduce the percentage specified in the definition of Required Lenders
(it being understood that, with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in
the determination of the Required Lenders on substantially the same basis as
the extensions of Term Loans and Revolving Loan Commitments are included on
the Effective Date) or (v) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement or any
other Credit
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Document (it being understood and agreed, however, that TPI may transfer all
of its rights and obligations under the Credit Documents to PCA pursuant to
the Contribution); PROVIDED FURTHER, that no such change, waiver, discharge
or termination shall (t) increase the Commitments of any Lender over the
amount thereof then in effect without the consent of such Lender (it being
understood that waivers or modifications of conditions precedent, covenants,
Defaults or Events of Default or of a mandatory reduction in the Total
Commitments shall not constitute an increase of the Commitment of any Lender,
and that an increase in the available portion of any Commitment of any Lender
shall not constitute an increase in the Commitment of such Lender), (u)
without the consent of the Swingline Lender, alter its rights or obligations
with respect to Swingline Loans, (v) without the consent of the respective
Issuing Bank, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit, (w) without the
consent of the Administrative Agent or the Syndication Agent, amend, modify
or waive any provision of Section 12 as same applies to the Administrative
Agent or the Syndication Agent, as the case may be, or any other provision as
same relates to the rights or obligations of the Administrative Agent or the
Syndication Agent, as the case may be, (x) without the consent of the
Collateral Agent, amend, modify or waive any provision relating to the rights
or obligations of the Collateral Agent, (y) without the consent of the
Majority Lenders of each Tranche which is being allocated a lesser
prepayment, repayment or commitment reduction as a result of the actions
described below (or without the consent of the Majority Lenders of each
Tranche in the case of an amendment to the definition of Majority Lenders),
amend the definition of Majority Lenders (it being understood that, with the
consent of the Required Lenders, additional extensions of credit pursuant to
this Agreement may be included in the determination of the Majority Lenders
on substantially the same basis as the extensions of Term Loans and Revolving
Loan Commitments are included on the Effective Date) or alte the required
application of any prepayments or repayments (or commitment reductions), as
between the various Tranches, pursuant to Section 4.01 or 4.02 (excluding
Sections 4.02(b), (c) and (d)) (although (x) the Required Lenders may waive,
in whole or in part, any such prepayment, repayment or commitment reduction,
so long as the application, as amongst the various Tranches, of any such
prepayment, repayment or commitment reduction which is still required to be
made is not altered and (y) if additional Tranches of Term Loans are extended
after the Initial Borrowing Date with the consent of the Required Lenders as
required above, such Tranches may be included on a pro rata basis (as is
originally done with the Tranche A Term Loans, Tranche B Term Loans and
Tranche C Term Loans) in the various prepayments or repayments required
pursuant to Sections 4.01 and 4.02 (excluding Sections 4.02(b), (c), (d) and
any section providing Scheduled Repayments for any new Tranche of Term Loans)
or (z) without the consent of the Majority Lenders of the respective Tranche,
reduce the amount of, or extend the date of, any Scheduled Repayment
applicable to such Tranche or, without the consent of the Majority Lenders of
each Tranche, amend the definition of Majority Lenders (it being understood
that, with the consent of the Required Lenders, additional extensions of
credit pursuant to this Agreement may be included in the determination of the
Majority Lenders on substantially the same basis as the extensions of Term
Loans and Revolving Loan Commitments are included on the Effective Date).
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through
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(v), inclusive, of the first proviso to Section 13.12(a), the consent of the
Required Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then the Borrower shall
have the right, so long as all non-consenting Lenders whose individual
consent is required are treated as described in either clauses (A) or (B)
below, to either (A) replace each such non-consenting Lender or Lenders (or,
at the option of the Borrower if the respective Lender's consent is required
with respect to less than all Tranches of Loans (or related Commitments), to
replace only the respective Tranche or Tranches of Commitments and/or Loans
of the respective non-consenting Lender which gave rise to the need to obtain
such Lender's individual consent) with one or more Replacement Lenders
pursuant to Section 1.13 so long as at the time of such replacement, each
such Replacement Lender consents to the proposed change, waiver, discharge
or termination or (B) terminate such non-consenting Lender's Revolving Loan
Commitment (if such Lender's consent is required as a result of its Revolving
Loan Commitment) and/or repay each Tranche of outstanding Term Loans of such
Lender which gave rise to the need to obtain such Lender's consent, in
accordance with Sections 3.02(b) and/or 4.01(iv), PROVIDED that, unless the
Commitments are terminated, and Loans repaid, pursuant to preceding clause
(B) are immediately replaced in full at such time through the addition of new
Lenders or the increase of the Commitments and/or outstanding Loans of
existing Lenders (who in each case must specifically consent thereto), then
in the case of any action pursuant to preceding clause (B) the Required
Lenders (determined both before and after giving effect to the proposed
action) shall specifically consent thereto, PROVIDED FURTHER, that in any
event the Borrower shall not have the right to replace a Lender, terminate
its Revolving Loan Commitment or repay its Loans solely as a result of the
exercise of such Lender's rights (and the withholding of any required consent
by such Lender) pursuant to the second proviso to Section 13.12(a).
13.13 SURVIVAL. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.06, 13.01 and
13.06 shall, subject to Section 13.15 (to the extent applicable), survive the
execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Loans.
13.14 DOMICILE OF LOANS. Each Lender may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Lender. Notwithstanding anything to the contrary contained herein, to
the extent that a transfer of Loans pursuant to this Section 13.14 would, at
the time of such transfer, result in increased costs under Section 1.10, 1.11,
2.05 or 4.04 from those being charged by the respective Lender prior to such
transfer, then the Borrower shall not be obligated to pay such increased
costs (although the Borrower shall be obligated to pay any other increased
costs of the type described above resulting from changes after the date of
the respective transfer).
13.15 LIMITATION ON ADDITIONAL AMOUNTS, ETC. Notwithstanding
anything to the contrary contained in Sections 1.10, 1.11, 2.05 or 4.04 of
this Agreement, unless a Lender gives notice to the Borrower that it is
obligated to pay an amount under any such Section within one year after the
later of (x) the date the Lender incurs the respective increased costs,
Taxes, loss, expense or liability, reduction in amounts received or
receivable or reduction in return on capital or (y) the date such Lender has
actual knowledge of its incurrence of the respective increased costs, Taxes,
loss, expense or liability, reductions in amounts received or receivable or
reduction
-158-
in return on capital, then such Lender shall only be entitled to be
compensated for such amount by the Borrower pursuant to said Section 1.10,
1.11, 2.05 or 4.04, as the case may be, to the extent the costs, Taxes, loss,
expense or liability, reduction in amounts received or receivable or
reduction in return on capital are incurred or suffered on or after the date
which occurs one year prior to such Lender giving notice to the Borrower that
it is obligated to pay the respective amounts pursuant to said Section 1.10,
1.11, 2.05 or 4.04, as the case may be. This Section 13.15 shall have no
applicability to any Section of this Agreement other than said Sections 1.10,
1.11, 2.05 and 4.04.
13.16 CONFIDENTIALITY. (a) Subject to the provisions of
clause (b) of this Section 13.16, each Lender agrees that it will use its
best efforts not to disclose without the prior consent of the Borrower (other
than to its employees, auditors, advisors or counsel or to another Lender if
the Lender or such Lender's holding or parent company or board of trustees in
its sole discretion determines that any such party should have access to such
information), any information with respect to the Borrower or any of its
Subsidiaries which is now or in the future furnished pursuant to this
Agreement or any other Credit Document, PROVIDED that any Lender may disclose
any such information (a) as has become generally available to the public
other than by virtue of a breach of this Section 13.16(a) by the respective
Lender, (b) as may be required or appropriate (x) in any report, statement or
testimony submitted to any municipal, state or Federal regulatory body having
or claiming to have jurisdiction over such Lender or to the Federal Reserve
Board or the Federal Deposit Insurance Corporation or similar organizations
(whether in the United States or elsewhere) or their successors or (y) in
connection with any request or requirement of any such regulatory body
(including any securities exchange or self-regulatory body), (c) as may be
required or appropriate in respect to any summons or subpoena or in
connection with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to such Lender, (e) to any Agent or the
Collateral Agent, (f) to any prospective or actual transferee or participant
in connection with any contemplated transfer or participation of any of the
Notes or Commitments or any interest therein by such Lender, PROVIDED that
such prospective transferee agrees to be bound by the confidentiality
provisions contained in this Section 13.16 and (g) to any Person (or such
Person's investment advisor) with whom such Lender has entered into or
proposes to enter into (in each case either directly or indirectly) any
credit swap agreement with respect to such Lender's Loans and/or Commitments,
PROVIDED such Person (and such investment advisor, if any) agrees to be bound
by the confidentiality provisions contained in this Section 13.16.
(b) The Borrower hereby acknowledges and agrees that each
Lender may share with any of their affiliates or investment advisors any
information related to the Borrower or any of their respective Subsidiaries
(including, without limitation, any nonpublic customer information regarding
the creditworthiness of the Borrower or its Subsidiaries, provided such
Persons shall be subject to the provisions of this Section 13.16 to the same
extent as such Lender).
13.17 REGISTER. The Borrower hereby designates the
Administrative Agent to serve as its agent, solely for purposes of this
Section 13.17, to maintain a register (the "REGISTER") on which it will
record the Commitments from time to time of each of the Lenders, the Loans
-159-
made by each of the Lenders and each repayment in respect of the principal
amount of the Loans of each Lender. Failure to make any such recordation, or
any error in such recordation shall not affect the Borrower's obligations in
respect of such Loans. With respect to any Lender, the transfer of any
Commitment of such Lender and the rights to the principal of, and interest
on, any Loan made pursuant to such Commitment shall not be effective until
such transfer is recorded on the Register maintained by the Administrative
Agent with respect to ownership of such Commitment and Loans and prior to
such recordation all amounts owing to the transferor with respect to such
Commitment and Loans shall remain owing to the transferor. The registration
of assignment or transfer of all or part of any Commitment and Loans shall be
recorded by the Administrative Agent on the Register only upon the acceptance
by the Administrative Agent of a properly executed and delivered Assignment
and Assumption Agreement pursuant to Section 13.04(b). Coincident with the
delivery of such an Assignment and Assumption Agreement to the Administrative
Agent for acceptance and registration of assignment or transfer of all or
part of a Commitment and/or Loan, or as soon thereafter as practicable, the
assigning or transferor Lender shall surrender the Note evidencing such
Commitment and/or Loan, if any, and thereupon one or more new Notes in the
same aggregate principal amount shall be issued to the assigning or
transferor Lender and/or the new Lender, if requested by such assigning or
transferor Lender and/or such new Lender. The Borrower shall indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this
Section 13.17.
13.18 POST-CLOSING ACTIONS. Notwithstanding anything to the
contrary contained in this Agreement or the other Credit Documents, the
parties hereto acknowledge and agree that:
(a) SECURITY DOCUMENT FILINGS. Form UCC-1 financing
statements and the grants of security interests in certain intellectual
property delivered by PCA to the Collateral Agent on the Initial Borrowing
Date pursuant to the Security Documents shall be filed in the appropriate
governmental office within 10 days following the Initial Borrowing Date.
(b) REAL ESTATE ITEMS. The conditions set forth on Schedule
XI hereto shall be satisfied within the time periods specified on such
Schedule, subject in each case to the last sentence appearing on said
Schedule.
(c) TIMBER STAND FILINGS. Within 90 days following the
Initial Borrowing Date, PCA shall, and shall have caused each of its
Subsidiaries to, have taken all actions to ensure that the security interests
in the Standing Timber (as defined in the PCA Security Agreement) of the
Borrower and its Subsidiaries purported to be created pursuant to the PCA
Security Agreement have been duly perfected (including, without limitation,
the execution, delivery and recording of financing statements, instruments
and other documents, in each case in form and substance satisfactory to the
Administrative Agent).
All provisions of this Credit Agreement and the other Credit
Documents (including, without limitation, all conditions precedent,
representations, warranties, covenants, events of default and other
agreements herein and therein) shall be deemed modified to the extent
-160-
necessary to effect the foregoing (and to permit the taking of the actions
and the satisfaction of the conditions described above and on Schedule XI
within the time periods required hereby and thereby (and, rather than as
otherwise provided in the Credit Documents)); PROVIDED, that (x) to the
extent any representation and warranty would not be true because the
foregoing actions were not taken, or conditions were not satisfied, on the
Initial Borrowing Date, the respective representation and warranty shall be
required to be true and correct in all material respects at the time the
respective action is taken or condition is satisfied (or was required to be
taken or satisfied) in accordance with the foregoing provisions of this
Section 13.18 and (y) all representations and warranties relating to the
Collateral Documents shall be required to be true immediately after the
actions required to be taken, or the conditions required to be satisfied, by
this Section 13.18 have been taken or satisfied (or were required to be taken
or satisfied), it being understood that any condition set forth in items 1
through 5 on Schedule XI not satisfied within the time period specified
therefor on said Schedule shall nevertheless be deemed to have been satisfied
within such time period to the extent "best efforts" or "commercially
reasonable efforts" (as may be specified on Schedule XI for such item) were
used by PCA or its relevant Subsidiary to satisfy such condition. The
acceptance of the benefits of the Loans shall constitute a representation,
warranty and covenant by PCA to each of the Lenders that the actions and
conditions required pursuant to this Section 13.18 will be, or have been,
taken or satisfied within the relevant time periods referred to in this
Section 13.18 and Schedule XI and that, at such time, all representations and
warranties contained in this Credit Agreement and the other Credit Documents
shall then be true and correct without any modification pursuant to this
Section 13.18. The parties hereto acknowledge and agree that the failure to
take any of the actions or satisfy any of the conditions required above or on
Schedule XI within the relevant time periods required above or by said
Schedule XI (but excluding in any event items 1 through 5, inclusive, on
Schedule XI to the extent provided by the last sentence of said Schedule),
shall give rise to an immediate Event of Default pursuant to this Agreement.
[Remainder of page intentionally left blank]
-161-
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
ADDRESS:
0000 Xxxxxxxxx Xxxxx TENNECO PACKAGING, INC.
Xxxx Xxxxxx, XX 00000
By /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Title: Vice President and Assistant
Secretary
Attention: Xxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
Individually and as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Title: Vice President
X.X. XXXXXX SECURITIES, INC.,
as Co-Lead Arranger
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Title: Managing Director
BT XXXX XXXXX INCORPORATED,
as a Co-Lead Arranger
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Title: Managing Director
BANKERS TRUST COMPANY, Individually and as
Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Title: Assistant Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Senior Vice President
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Title: Vice President
AIM STRATEGIC INCOME FUND
By: INVESCO (NY) INC.,
as Investment Advisor
By: /s/ Xxxxx-Xxxx Xxx
------------------------------------
Title: Chief Investment Officer
ALLSTATE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Authorized Signatory
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Authorized Signatory
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Title: Authorized Signatory
ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Title: Senior Vice President
ARCHIMEDES FUNDING , L.L.C.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Title: Senior Vice President
BANK OF MONTREAL
By: /s/ X.X. Xxxxxxx
-----------------------------------------
Title: Portfolio Manager
BANK UNITED
By: /s/ Xxxx Xxxxx
-----------------------------------------
Title: Director-Commercial Syndications
BAYERISCHE HYPO-UND VEREINSBANK AG, New York
Branch
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Title: Director
By: /s/ Xxxxx Xxxxx x. Xxxxxxxxxx
-----------------------------------------
Title: Managing Director
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Authorized Signatory
CHASE MANHATTAN BANK
By: /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------------
Title: Vice President
CO BANK, ACB
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Title: Vice President
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Title: First Vice President
By: /s/ Xxxxx X' Xxxxx
-----------------------------------------
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxx Xxx
-----------------------------------------
Title: Senior Vice President
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company,
its Investment Manager
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Title: Senior Vice President
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment Management
Company, Inc., its Managing Member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Title: Managing Director
CYPRESSTREE SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Title: Managing Director
DEBT STRATEGIES FUND III, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Authorized Signatory
DRESDNER BANK AG NEW YORK AND GRAND CAYMAN
BRANCHES
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Assistant Vice President
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Title: Vice President
ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN
AG
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Title: First Vice President
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Title: Vice President
FEDERAL STREET PARTNERS
By: /s/ Xxxxxxx X. X. Xxxxx
-----------------------------------------
Title: Managing Director
FIRSTRUST BANK
By: /s/ X.X. X'Xxxxxx
-----------------------------------------
Title: Executive Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------
Title: Vice President
FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured Management, Inc.,
as attorney in fact
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Title: Authorized Signatory
FRANKLIN FLOATING RATE TRUST
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Vice President
FREMONT INVESTMENT & LOAN
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Title: Vice President
GALAXY CLO 1999-1, LTD.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Title: Authorized Signatory
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
INDIVIDUALLY AND AS DOCUMENTATION AGENT
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Title: Authorized Signatory
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Vice President
IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION
By: /s/ Xxx Xxxxxxx
-----------------------------------------
Title: Senior Vice President
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as attorney in fact,
on behalf of Xxxxxxx National Life
Insurance Company
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Title: Vice President
KZH APPALOOSA LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
KZH CNC LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
KZH CRESCENT-2 LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
KZH CYPRESS TREE-1 LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
KZH ING-1 LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
KZH ING-3 LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
KZH IV LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
KZH PONDVIEW LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
KZH SHOSHONE LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
KZH SOLEIL-2 LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
KZH STERLING LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
MEDICAL LIABILITY MUTUAL
INSURANCE COMPANY
By: /s/ K.Xxxxx Xxxxx
-----------------------------------------
Title: Vice President
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Authorized Signatory
XXXXXXX XXXXX SENIOR FLOATING RATE FUND II,
INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Authorized Signatory
MICHIGAN NATIONAL BANK
By: /s/ Xxxx Xxxxxxxx XxXxxxxx
-----------------------------------------
Title: Commercial Relationship Manager
MONUMENTAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Title: Vice President & Assistant
Secretary
XXXXXX XXXXXXX XXXX XXXXXX PRIME INCOME TRUST
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Title: Authorized Signatory
NATEXIS BANQUE BFCE
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Title: Associate
By: /s/ G. Xxxxx Xxxxxx
-----------------------------------------
Title: Vice President
NATIONSBANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Title: Managing Director
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Title: Managing Director
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By: /s/ Xxxxx Xxxxx
-------------------------------
Title: Vice President
OCTAGON LOAN TRUST
By: Octagon Credit Investors, as Manager,
as a Lender
By: /s/ Xxxxx X. XxXxxxx
------------------------------------
Title: Managing Director
ORIX USA CORPORATION
By: /s/ Hirovoki Miyauchi
-----------------------------------------
Title: Executive Vice President
OSPREY INVESTMENTS PORTFOLIO
By: Citibank, N.A., as Manager
By: /s/ Xxxx X. Xxxxxxxxxxx
------------------------------------
Title: Vice President
PACIFIC LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxx
-----------------------------------------
Title: Senior Vice President
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Vice President
PARIBAS CAPITAL FUNDING LLC
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Title: Director
PARIBAS CORPORATION,
AS AGENT FOR PARIBAS
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Title: Vice President
Loan Syndication & Trading
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Managing Director
Co-Head-Loan Syndication & Trading
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.,
as its Investment Manager
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Title: Vice President
SEQUILS I, LTD
By: TCW Advisors, Inc. as its Collateral
Manager
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Title: Senior Vice President
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Title: Vice President
SOUTHERN PACIFIC BANK
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Title: Senior Vice President
SRF TRADING, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Xxxxx
-----------------------------------------
Title: Senior Manager Loan Operations
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Title: Corporate Finance Officer
THE FUJI BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Title: Joint General Manager
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Title: Joint General Manager
THE ING CAPITAL SENIOR SECURED HIGH INCOME
FUND, L.P.
By: ING Capital Advisors LLC,
as Investment Advisor
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Title: Senior Vice President
THE MITSUBISHI TRUST & BANKING CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Senior Vice President
THE SUMITOMO BANK, LTD
By: /s/ Xxxxxx X. Tata
-----------------------------------------
Title: Senior Vice President
XXXXXX CBO 1998-1 LTD.
By: Xxxxx Fargo Bank, N.A.,
its Attorney-in-Fact
By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------------
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Title: Investment Officer
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Title: Vice President
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Title: Senior Vice President
TRAVELERS CORPORATE LOAN FUND, INC.
By: TRAVELERS ASSET MANAGEMENT INTERNATIONAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Title: Investment Officer
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------
Title: Vice President
XXX XXXXXX PRIME RATE INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Senior Vice President & Director
WACHOVIA BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Senior Vice President