EXHIBIT 4.4(L)
AMENDMENT NO. 9 TO AMENDED AND RESTATED CREDIT
AGREEMENT, AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT
AND AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT NO. 9, dated as of December 31, 1993, to
Amended and Restated Credit Agreement dated as of October 24,
1988, as amended, by and among FORT HOWARD CORPORATION
("Company"), each of the financial institutions (collectively,
"1988 Lenders"; each, a "1988 Lender") signatory thereto,
BANKERS TRUST COMPANY, BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, THE BANK OF NOVA SCOTIA, CHEMICAL BANK,
THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW YORK BRANCH and
WELLS FARGO BANK, N.A., as lead managers (collectively, "1988
Lead Managers"), and BANKERS TRUST COMPANY, as agent for 1988
Lenders (in such capacity, "1988 Agent"); AMENDMENT NO. 3,
dated as of December 31, 1993, to Note Purchase Agreement,
dated as of September 11, 1991, as amended, by and among
Company and the other persons listed on the signature pages
thereto (the "Initial Purchasers") and AMENDMENT NO. 1, dated
as of December 31, 1993, to Credit Agreement, dated as of
March 22, 1993, by and among Company, each of the financial
institutions (collectively, "1992 Lenders"; each, a "1992
Lender") signatory thereto and BANKERS TRUST COMPANY, as agent
for 1992 Lenders (in such capacity, "1992 Agent") (Amendment
No. 9 to Amended and Restated Credit Agreement, together with
Amendment No. 3 to Note Purchase Agreement and Amendment No. 1
to Credit Agreement, collectively, this "Amendment").
R E C I T A L S :
A. Company (as successor in interest to FH
Acquisition Corp.), 1988 Lead Managers, 1988 Agent and 1988
Lenders are parties to that certain Amended and Restated Credit
Agreement, dated as of October 24, 1988, which Amended and
Restated Credit Agreement was amended by Amendment No. 1, dated
as of February 21, 1989, Amendment No. 2, dated as of
October 20, 1989, Amendment No. 3, dated as of November 14,
1989, Amendment No. 4, dated as of November 9, 1990, Amendment
No. 5, dated as of December 19, 1990, Amendment No. 6, dated as
of September 6, 1991, Amendment No. 7, dated as of December 2,
1991 and Second Amended and Restated Amendment No. 8, dated as
of March 4, 1993, each among Company, 1988 Lenders, 1988 Lead
Managers and 1988 Agent (such Amended and Restated Credit
Agreement, as so amended, the "1988 Credit Agreement").
B. Company and the Initial Purchasers (or their
successors in interest) are parties to that certain Note
Purchase Agreement, dated as of September 11, 1991, which Note
Purchase Agreement was amended by Amendment No. 1, dated as of
December 2, 1991 and Second Amended and Restated Amendment
No. 2, dated as of March 4, 1993 (such Note Purchase Agreement,
as so amended, the "Senior Note Purchase Agreement").
C. Company, 1992 Lenders and 1992 Agent are
parties to that certain Credit Agreement, dated as of March 22,
1993 (the "1992 Credit Agreement").
D. Company has requested that 1988 Agent, 1988
Lead Managers, 1988 Lenders, the Purchasers (as defined in the
Senior Note Purchase Agreement), 1992 Agent and 1992 Lenders
agree (i) to amend certain provisions of the 1988 Credit
Agreement, the Senior Note Purchase Agreement and the 1992
Credit Agreement and (ii) to permit Company to consummate the
1994 Unsecured Notes Offering (as hereinafter defined) and
apply the 1994 Unsecured Notes Proceeds (as hereinafter
defined) as set forth in Section 2B below.
A G R E E M E N T :
The parties hereto agree as follows:
SECTION 1. Definitions; References. Unless
otherwise specifically defined herein, each term used herein
that is defined in any of the 1988 Credit Agreement, the Senior
Note Purchase Agreement or the 1992 Credit Agreement (including
those terms that are defined in the 1988 Credit Agreement, the
Senior Note Purchase Agreement or the 1992 Credit Agreement
after giving effect to this Amendment) shall have the meaning
assigned to such term in the 1988 Credit Agreement, the Senior
Note Purchase Agreement or the 1992 Credit Agreement,
respectively, as the context requires. Unless the context
otherwise requires, each reference in any provision to be
incorporated hereby into the 1988 Credit Agreement, the Senior
Note Purchase Agreement or the 1992 Credit Agreement to
"hereof," "hereunder," "herein" and "hereby" shall, from and
after the date hereof, refer to the 1988 Credit Agreement, the
Senior Note Purchase Agreement or the 1992 Credit Agreement,
respectively, as amended by this Amendment.
SECTION 2. Consents; Application of Offering Proceeds.
A. 1994 Unsecured Notes Offering. 1988 Lenders,
Purchasers and 1992 Lenders hereby consent to the consummation
by Company, at any time and from time to time from and after
the 1994 Refinancing Date through September 30, 1994, of the
offerings and sales of 1994 Unsecured Notes (as hereinafter
defined) comprising the 1994 Unsecured Notes Offering;
provided, however, that such offerings and sales shall be made
in the manner contemplated in and in compliance with the
provisions of subsection 6.1 of the 1988 Credit Agreement,
Section 9.01 of the Senior Note Purchase Agreement and
subsection 6.1 of the 1992 Credit Agreement (each as amended or
to be amended hereby), including, without limitation, the
provisions thereof which relate to the interest rate and
discount applicable to 1994 Unsecured Notes, and substantially
on the terms set forth in the registration statement on Form
S-2 (including the 1994 Unsecured Notes Indentures (as defined
in Section 3A below) filed as Exhibits to such registration
statement annexed thereto) as filed with the Securities and
Exchange Commission as No. 33-51557 on December 17, 1993, and
Amendment No. 1 thereto, filed on January 19, 1994, and
Amendment No. 2 thereto, filed on February 2, 1994, as such
terms and conditions and 1994 Unsecured Notes Indentures in
respect of such offerings and sales may be changed with the
approval of Requisite Lenders under each of the 1988 Credit
Agreement and 1992 Credit Agreement (which approval may be
oral); and provided, further, that such changes shall not
materially adversely affect the ability of Company to perform
the Obligations (as defined in the 1988 Credit Agreement), the
Note Obligations or the Obligations (as defined in the 1992
Credit Agreement), the rights and remedies of Lenders under the
Loan Documents (as defined in the 1988 Credit Agreement), the
rights and remedies of Purchasers under the Note Documents or
the rights and remedies of 1992 Lenders under the Loan
Documents (as defined in the 1992 Credit Agreement) (and
Company shall deliver an Officer's Certificate confirming the
absence of any such effect on the 1994 Refinancing Date and on
the date of consummation of each such offering and sale). The
consent set forth in the immediately preceding sentence is
subject to the condition that the 1994 Unsecured Notes issued
and sold on the 1994 Refinancing Date shall be in a principal
amount of at least $100,000,000; provided, however, such
issuance of 1994 Unsecured Notes shall at all times be in
compliance with the provisions of the 1988 Credit Agreement,
the Senior Note Purchase Agreement and the 1992 Credit
Agreement.
B. Prepayments; Use of Proceeds. Company shall
make the prepayments and shall apply the 1994 Unsecured Notes
Proceeds, if any, as set forth in this Section B.
(i) Application of 1994 Unsecured Notes
Proceeds When Received. The 1994 Unsecured Notes Proceeds
received from time to time shall be applied, on each day when
received, only as follows:
(x) first, to prepay on the 1994 Refinancing Date
Long Term Loans under the 1988 Credit Agreement in an
aggregate principal amount of $100,000,000 (the "1994
Prepayment") and, after the 1994 Prepayment has been made
in whole, to pay Transaction Costs in connection therewith
(to the extent such Transaction Costs are then due and
payable);
(y) next, after giving effect to the applications
contemplated by clause (x) above, to pay Transaction Costs
in connection with the 1994 Unsecured Notes Offering (to
the extent such Transaction Costs are then due and
payable); and
(z) next, after giving effect to the applications
of the 1994 Unsecured Notes Proceeds contemplated in
clauses (x) and (y) above, such proceeds shall be applied,
as and when received, in accordance with subclause (A) and
subclause (B) below (and, as between such clauses, in such
proportions as may be elected by Company): (A) such
proceeds shall be paid, as and when received, to 1988
Agent to be held in escrow pursuant to an escrow agreement
substantially in the form annexed hereto as Exhibit A (the
"1994 Escrow Agreement") pending application as provided
in paragraph (ii) or (iii) below; or (B) such proceeds
shall be applied to the repayment of Revolving Loans under
the 1988 Credit Agreement (provided, that, following any
election by Company to apply proceeds in the manner set
forth in subclause (A) above, Company may at any time and
from time to time thereafter but prior to the date of any
required application thereof pursuant to paragraph (ii) of
this Section 2B elect to apply all or a portion thereof as
set forth in subclause (B) above);
(ii) Application of Escrowed Proceeds and
Warehoused Revolving Loan Proceeds. All 1994 Unsecured Notes
Proceeds held from time to time pursuant to the 1994 Escrow
Agreement (together with any interest earned thereon) and all
proceeds of Warehoused Revolving Loans (as defined herein) that
have been or are available to be borrowed by Company shall be
applied as follows:
(x) Company shall prepay, redeem or purchase and
retire (for the amounts and on terms specified in
paragraph (v) of this Section 2B and at the times
contemplated in paragraph (c) of Section 2C) the Senior
Subordinated Notes due 1997 and, after such redemption or
purchase, Company shall pay Transaction Costs in
connection therewith (to the extent such Transaction Costs
are then due and payable);
(y) if Company shall have issued 1994 Unsecured
Notes in an aggregate principal amount of more than
$500,000,000 and if, after all applications required
pursuant to clause (x) above, any 1994 Unsecured Notes
Proceeds held in the 1994 Escrow Agreement or any proceeds
of Warehoused Revolving Loans theretofore received by
Company remain unapplied or any Warehoused Revolving Loans
are then available to be borrowed, Company shall (A)
prepay, redeem or purchase and retire (for the amounts and
on the terms specified in paragraph (v) of this Section 2B
and at the times contemplated in paragraph (c) of Section
2C) Company's 12 5/8% Subordinated Debentures due
November 1, 2000 and (B) after such prepayment, redemption
or purchase and retirement referred to in subclause (A)
above, pay Transaction Costs in connection therewith (to
the extent such Transaction Costs are then due and
payable); provided, however, that the maximum amount of
funds required to be applied by Company pursuant to this
clause (y) shall, at any time, be equal to the difference
between (1) the aggregate principal amount of 1994
Unsecured Notes issued by Company at or prior to such time
and (2) the sum of $500,000,000 and the aggregate amount
of prices (calculated pursuant to paragraph (v) below, but
excluding, in any event, any portion thereof attributable
to interest) for the prepayment, redemption or purchase
and retirement of Company's 12 5/8% Subordinated
Debentures due November 1, 2000 that were prepaid,
redeemed or purchased and retired prior to such time
pursuant to this clause (y) or pursuant to paragraph (iii)
of this Section 2B; and
(z) the balance of such escrowed 1994 Unsecured
Notes Proceeds (and interest) and such Warehoused
Revolving Loan proceeds that have been or are available to
be borrowed on any date, after the applications required by
clauses (x) and (y) above, shall be (1) first, applied
(up to an aggregate amount of $12,000,000) to pay
Transaction Costs (to the extent then due and payable) in
connection with the 1994 Unsecured Notes Offering;
(2) next, reserved until September 30, 1994 for
application to the payment, as and when the same becomes
due, of Transaction Costs in connection with the 1994
Unsecured Notes Offering (up to an aggregate amount equal
to $12,000,000 less the amount of applications made
pursuant to subclause (1) immediately preceding this
subclause); and (3) the remainder (including, without
limitation, on September 30, 1994, any amounts reserved
pursuant to subclause (2) above and not theretofore
applied as set forth therein) applied as set forth in
paragraph (iii) of this Section 2B. Any interest from
time to time earned on funds held under the Escrow
Agreement shall be payable as provided in the Escrow
Agreement.
(iii) Treatment of Unapplied 1994 Proceeds
Amount. At any time and from time to time following the
prepayments, redemptions and purchases or retirements required
to be made by Company pursuant to clause (x) or (y) of
paragraph (ii) of this Section 2B and prior to June 30, 1995,
Company shall be entitled (but not obligated) to apply the
proceeds of Warehoused Revolving Loans and/or 1994 Unsecured
Notes Proceeds held under the 1994 Escrow Agreement in an
aggregate amount not in excess of the then effective Unapplied
1994 Proceeds Amount (as defined below) to prepay, redeem or
purchase and retire (for the amounts and on the terms specified
in paragraph (v) of this Section 2B) Company's 12 5/8%
Subordinated Debentures due November 1, 2000 and to pay
Transaction Costs in connection therewith. "Unapplied 1994
Proceeds Amount" effective at any time means the aggregate
amount permitted at or prior to such time to be applied
pursuant to clause (z)(3) of paragraph (ii) of this Section 2B
and not theretofore applied pursuant to this paragraph (iii);
provided, however, that the Unapplied 1994 Proceeds Amount
shall not exceed $22,400,000 (at any time prior to
September 30, 1994) or $34,400,000 (at any time on or after
September 30, 1994). If, on June 30, 1995, any 1994 Unsecured
Notes Proceeds shall remain unapplied and held under the 1994
Escrow Agreement, then, except as otherwise provided in
paragraph (b) of Section 2C below, all such 1994 Unsecured
Notes Proceeds shall be applied to pay Revolving Loans.
(iv) Treatment of Unapplied Proceeds from 1993
Offerings. Company warrants that, as of the date hereof,
$47,500,000 of "Warehoused Revolving Loans" (as defined in the
1992 Amendment) remain unapplied and that prior to the date
hereof no proceeds of such Loans and no proceeds of
refinancings permitted by the 1992 Amendment were applied to
prepay, redeem or repurchase any Senior Notes. Company shall
be entitled (but not obligated) to borrow new Revolving Loans
(the "Carryover Warehoused Loans") in an aggregate principal
amount up to $47,500,000 and to apply the proceeds thereof not
later than June 30, 1995 as follows: (i) if all of the Senior
Subordinated Notes due 1997 shall have been retired with 1994
Unsecured Notes Proceeds which have either been placed into
escrow under the 1994 Escrow Agreement or applied to the
repayment of Revolving Loans under subclause (A) or (B) of
clause (z) of paragraph (i) of this Section 2B, Company may, at
its option, apply such amount to prepay, redeem or repurchase
and retire (on terms set forth in paragraph (v) of this
Section 2B) (in such order or amount as Company may determine)
12 5/8% Subordinated Debentures due November 1, 2000 or Senior
Notes and (ii) if all the Senior Subordinated Notes due 1997
shall not have been retired with 1994 Unsecured Notes Proceeds
or proceeds of Warehoused Revolving Loans, Company may apply
such amount to prepay, redeem or repurchase and retire (on
terms set forth in paragraph (v) of this Section 2B) Senior
Subordinated Notes due 1997 or Senior Notes. The conditions to
borrowing any Carryover Warehoused Loan shall be the same as
those that are applicable to the borrowing of a Warehoused
Revolving Loan pursuant to subsection 3.3 of the 1988 Credit
Agreement.
(v) Redemption Terms. In each case where,
pursuant to this Amendment, Company is required or permitted to
prepay, redeem or purchase and retire any of its debt
securities, such prepayment, redemption or purchase and
retirement shall be made (1) in the case of any such prepayment
or redemption at the applicable redemption price specified in
the indenture or purchase agreement applicable thereto and, to
the extent such redemption price does not include accrued
interest, the amount of such accrued interest, and (2) in the
case of any such purchase and retirement, at a price not to
exceed 105.75% of the unpaid principal amount of such debt
securities. The application to be made under this Section 2B
on account of each such prepayment, redemption or purchase and
retirement shall equal the price therefor or in respect thereof
(calculated as aforesaid, but excluding any amounts
attributable to interest).
C. Other Agreements Relating to Offering. The
following provisions shall apply to the 1994 Unsecured Notes
Offering and the application of proceeds relating thereto.
(a) Treatment of Long Term Loans Prepayments.
All amounts to be applied under Section 2B above to the 1994
Prepayment shall be applied first to pay the Scheduled Long
Term Loans Principal Payment due December 31, 1994 and
thereafter as provided in clauses (a), (b) and (c) of
subsection 2.8A(ii)(g) of the 1988 Credit Agreement. All such
prepayments shall be made in compliance with the provisions of,
and (with respect to such prepayments) Company shall have the
rights set forth in, subsection 2.8A(iii) of the 1988 Credit
Agreement.
(b) Treatment of Certain Revolving Loans
Payments. All prepayments of Revolving Loans under the 1988
Credit Agreement under paragraph (i) or paragraph (iii) of
Section 2B above shall be made in compliance with, and (with
respect to such prepayments) Company shall have the rights set
forth in, subsection 2.8A(iii) of the 1988 Credit Agreement.
In the event there shall not be any Revolving Loans outstanding
under the 1988 Credit Agreement at the time any such prepayment
would otherwise be required to be made, pursuant to
paragraph (iii) of Section 2B above, with funds held in escrow
pursuant to the 1994 Escrow Agreement, such funds shall
continue to be so held in escrow as cash collateral and Company
may request and, upon such request, shall receive release of
such funds to prepay Revolving Loans thereafter incurred from
time to time or, subject to satisfaction of all conditions to
borrowing a Revolving Loan, to use for such purposes as are
authorized under the 1988 Credit Agreement for Revolving Loan
Commitments or Revolving Loans (other than Warehoused Revolving
Loans) or the proceeds thereof.
(c) Notices of Redemption. On the receipt by
Company or the escrow agent under the 1994 Escrow Agreement at
any time of 1994 Unsecured Notes Proceeds, Company, within
three Business Days thereafter, shall give all required notices
and take all other required actions to call for redemption or
to irrevocably commit to prepay or repurchase such debt
securities of Company required to be repurchased pursuant to
clause (x) or (y) of paragraph (ii) of Section 2B above
sufficient in principal amount to enable Company to make the
applications and to perform its other obligations under the
provisions of such paragraph (ii) as soon as reasonably
practicable after receipt of such 1994 Unsecured Notes Proceeds
and, in any event, within 60 days following the expiration of
such three Business Day period.
(d) No Limitation on Certain Rights. Nothing
set forth in this Amendment shall limit or impair Company's
rights under subsections 6.5(b)(i), 6.5(b)(ii) and 6.5(c) of
the 1988 Credit Agreement, Sections 9.05(b)(i), 9.05(b)(ii) and
9.05(c) of the Senior Note Purchase Agreement and subsections
6.5(b)(i), 6.5(b)(ii) and 6.5(c) of the 1992 Credit Agreement
to acquire, purchase, redeem or otherwise retire Subordinated
Indebtedness.
(e) Limitations on Offerings and Sales.
Company shall not offer or sell 1994 Unsecured Notes except in
compliance with the provisions of subsection 6.1(xiv) of the
1988 Credit Agreement and Section 9.01(ii) of the Senior Note
Purchase Agreement and subsection 6.1(xiv) of the 1992 Credit
Agreement (each as amended or to be amended hereby).
(f) Warehoused Revolving Loans. (i) Subject
to compliance with all applicable provisions of (including,
without limitation, the availability, from time to time, of
unutilized Revolving Loan Commitments under) the 1988 Credit
Agreement (as amended or to be amended hereby), Company shall
borrow (to the extent required in order to make the
applications set forth in clause (x) or (y) of paragraph (ii)
of Section 2B above), and shall also be entitled (to the extent
permitted for the applications set forth in clause (z) of
paragraph (ii) of Section 2B above or paragraph (iii) of
Section 2B above), but not obligated, to borrow, new Revolving
Loans (each a "Warehoused Revolving Loan") in an aggregate
principal amount not to exceed at any time the result of
(1) the aggregate principal amount of prepayments of Revolving
Loans effected at or prior to such time pursuant to
paragraph (i) of Section 2B above minus (2) the principal
amount of Warehoused Revolving Loans the proceeds of which were
utilized from and after the 1994 Refinancing Date and at or
prior to such time in accordance with paragraph (ii) or (iii)
of Section 2B above.
(ii) The proceeds of any Revolving Loan designated
as a Warehoused Revolving Loan may be utilized only in the
manner set forth in paragraphs (ii) and (iii) of Section 2B
above.
(iii) Company's right to borrow Warehoused Revolving
Loans shall in all events expire, if not previously terminated
pursuant to the 1988 Credit Agreement, on June 30, 1995;
provided, however, that, in the event circumstances beyond the
control of Company occur which prevent Company from making any
of the prepayments, redemptions and purchases of debt
securities required under clauses (x) and (y) of paragraph (ii)
of Section 2B above (including, without limitation, any stay,
injunction or process of law), Company's right to borrow
Warehoused Revolving Loans, in amounts sufficient to make such
prepayments, redemptions and purchases, shall be extended for
such period as Company shall be diligently attempting to
correct or cure the circumstances so preventing such
prepayments, redemptions and purchases.
(iv) So long as Company shall be entitled to borrow
any Warehoused Revolving Loan or any redemptions, purchases or
prepayments of Company debt securities then required to be made
under clauses (x) and (y) of paragraph (ii) of Section 2B of
this Amendment have not been made, Company shall be prohibited
from requesting issuance of any Letter of Credit pursuant to
subsection 2.2 of the 1988 Credit Agreement or borrowing any
Revolving Loan pursuant to subsection 2.3 of the 1988 Credit
Agreement or any Swing Line Loan pursuant to subsection 2.12 of
the 1988 Credit Agreement if, after giving effect to the
issuance of such Letter of Credit or such borrowing, the Total
Utilization of Revolving Loan Commitments would exceed the
aggregate Revolving Loan Commitments then in effect reduced by
the sum of (a) the Revolving Loan Deduction Amount and (b) the
aggregate principal amount of Warehoused Revolving Loans then
available to be borrowed hereunder (other than Warehoused
Revolving Loans available to be borrowed under paragraph (iii)
of Section 2B of this Amendment) or in the event Company shall
no longer be entitled to borrow Warehoused Revolving Loans, the
total amount of such debt securities required to be redeemed,
purchased or prepaid.
(g) No Increase in Commitment. No provision
of this Amendment shall be construed to permit in any manner or
at any time the aggregate amount of Revolving Loans and Letters
of Credit Usage to exceed the total Revolving Loan Commitments
less the Revolving Loan Deduction Amount.
SECTION 3. Amendments to the 1988 Credit Agreement,
the Senior Note Purchase Agreement and the 1992 Credit
Agreement. The 1988 Credit Agreement, the Senior Note Purchase
Agreement and the 1992 Credit Agreement shall hereby be amended
as follows:
A. Amendments to Subsection 1.1 of the 1988 Credit
Agreement, Section 1.01 of the Senior Note Purchase Agreement
and Subsection 1.1 of the 1992 Credit Agreement. Subsection
1.1 of the 1988 Credit Agreement, Section 1.01 of the Senior
Note Purchase Agreement and subsection 1.1 of the 1992 Credit
Agreement shall be amended as follows:
(1) The definition of "1992 10-K" shall be deleted
from the 1988 Credit Agreement, the Senior Note Purchase
Agreement and the 1992 Credit Agreement.
(2) The definition of "Transaction Costs" in the
1988 Credit Agreement, the Senior Note Purchase Agreement
and the 1992 Credit Agreement shall be amended by
substituting a comma for the word "and" immediately
preceding the words "the Unsecured Notes Offering" and
adding "and the 1994 Unsecured Notes Offering" immediately
preceding the period at the end thereof.
(3) The following new defined terms shall be added
to the 1988 Credit Agreement, the Senior Note Purchase
Agreement and the 1992 Credit Agreement:
(a) "'1994 Amendment' means Amendment No. 9
to Amended and Restated Credit Agreement, Amendment
No. 3 to Note Purchase Agreement and Amendment No. 1
to 1992 Credit Agreement, dated as of December 31,
1993 by and among each of the respective parties
signatory thereto."
(b) "'1994 Refinancing Date' means the date
on which the conditions to the effectiveness of all
the provisions of the 1994 Amendment shall have been
satisfied and Company shall have sold 1994 Unsecured
Notes in at least the minimum amount required to be
sold pursuant to Section 2A of the 1994 Amendment."
(c) "'1994 Senior Unsecured Notes' means the
senior unsecured notes to be issued by Company, which
shall be in the form permitted by the 1994 Amendment,
as such notes may be amended, supplemented or
modified from time to time."
(d) "'1994 Subordinated Notes' means the
subordinated notes to be issued by Company, which
shall be in the form permitted by the 1994 Amendment,
as such notes may be amended, supplemented or
modified from time to time."
(e) "'1994 Unsecured Note Obligations' means
all obligations of every nature of Company and its
Subsidiaries from time to time under the 1994
Unsecured Notes Indentures and in respect of the 1994
Unsecured Notes."
(f) "'1994 Unsecured Notes' means, at any
time after the issuance thereof, the 1994 Senior
Unsecured Notes and the 1994 Subordinated Notes then
outstanding."
(g) "'1994 Unsecured Notes Indentures' means
certain indentures pursuant to which the 1994 Senior
Unsecured Notes will be issued by Company, and
certain indentures pursuant to which the 1994
Subordinated Notes will be issued by Company, each of
which indentures shall be in the form permitted by
the 1994 Amendment, as each such indenture may be
amended, supplemented or otherwise modified from time
to time in accordance with the respective terms
thereof and hereof."
(h) "'1994 Unsecured Notes Offering' means,
collectively, the public offerings of the 1994 Senior
Unsecured Notes and the 1994 Subordinated Notes by
Company."
(i) "'1994 Unsecured Notes Proceeds' means
the gross cash proceeds of sale received by Company
from the offerings constituting the 1994 Unsecured
Notes Offering."
(j) "'September 30, 1993 10-Q' means the
quarterly report on Form 10-Q of Company for the
period ended September 30, 1993."
B. Amendment to Subsection 1.1 of the 1988 Credit
Agreement. Subsection 1.1 of the 1988 Credit Agreement is
amended (i) by adding the following new defined term:
"'Carryover Warehoused Loan' has the meaning set
forth in Section 2B(iv) of the 1994 Amendment.";
and (ii) by substituting for the definition of
"Warehoused Revolving Loans" contained therein the following:
"'Warehoused Revolving Loans' has the meaning set
forth in Section 2C(f) of the 1994 Amendment."
C. Amendment to Subsection 2.2A of the 1988 Credit
Agreement. Subsection 2.2A of the 1988 Credit Agreement is
amended by adding a new paragraph at the end thereof as
follows:
"Notwithstanding the foregoing provisions of this
Section 2.2 or any other provision of this Agreement,
Company's rights to request the issuance of any Letter of
Credit shall be limited by the provisions of clause (iv)
of paragraph (f) of Section 2C of the 1994 Amendment."
D. Amendment to Subsection 2.3A of the 1988 Credit
Agreement. Subsection 2.3A of the 1988 Credit Agreement is
amended by adding a new paragraph at the end thereof as
follows:
"Notwithstanding the foregoing provisions of this
subsection 2.3 or any other provision of this Agreement,
Company's rights to request Revolving Loans shall be
limited by the provisions of clause (iv) of paragraph (f)
of Section 2C of the 1994 Amendment."
E. Amendment to Subsection 2.8(A)(ii)(h) of the
1988 Credit Agreement. Subsection 2.8A(ii)(h) of the 1988
Credit Agreement is amended by substituting the phrase "in
accordance with the provisions of Section 2C of the 1992
Amendment (as amended, supplemented or otherwise modified by
the 1994 Amendment) and Section 2B of the 1994 Amendment" for
the phrase "in accordance with the provisions of Section 2C of
the 1992 Amendment".
F. Amendment to Subsection 2.12A of the 1988
Credit Agreement. Subsection 2.12A of the 1988 Credit Agreement
is amended by adding a new paragraph at the end thereof as
follows:
"Notwithstanding the foregoing provisions of this
subsection 2.12 or any other provision of this Agreement,
Company's rights to request Swing Line Loans shall be
limited by the provisions of clause (iv) of paragraph (f)
of Section 2C of the 1994 Amendment."
G. Amendment to Subsection 3.3 of the 1988 Credit
Agreement. Paragraph B of subsection 3.3 of the 1988 Credit
Agreement shall be amended by deleting the last paragraph
thereof and substituting therefor the following new paragraph:
"Notwithstanding the foregoing provisions of this
subsection or the THEN clause of Section 7, the
obligations of Lenders to make any Warehoused Revolving
Loan or Carryover Warehoused Loan that Company is required
or permitted to obtain pursuant to Section 2B of the 1994
Amendment is subject only to prior or concurrent
satisfaction or waiver of the following: (1) there shall
not have occurred and be continuing on the funding date of
such Warehoused Revolving Loan or such Carryover
Warehoused Revolving Loan any Event of Default or
Potential Event of Default arising under subsection 7.1,
7.6, 7.7, 7.9, 7.13 or 7.14 of this Agreement or Sec-
tion 10.01, 10.06, 10.07, 10.09, 10.13 or 10.14 of the
Senior Note Purchase Agreement, (2) the 1994 Refinancing
Date shall have occurred, and (3) a Notice of Borrowing
has been delivered pursuant to subsection 2.3B."
H. Amendment to Subsection 4.3 of the 1988 Credit
Agreement and Section 6.03 of the Senior Note Purchase
Agreement and Subsection 4.3 of the 1992 Credit Agreement.
Subsection 4.3 of the 1988 Credit Agreement, subsection 4.3 of
the 1992 Credit Agreement and Section 6.03 of the Senior Note
Purchase Agreement shall be amended as follows:
(1) Subsection 4.3 of the 1988 Credit Agreement and
subsection 4.3 of the 1992 Credit Agreement shall be
deleted and the following inserted in lieu thereof:
"Company has delivered to Lenders true and
complete copies of Company's financial statements for
the nine-month period ending September 30, 1993.
Such financial statements have been prepared in
accordance with the standards and requirements for
the preparation of interim financial statements
delivered pursuant to, and subject to the
qualifications and exceptions set forth in,
subsection 5.1. All such financial statements fairly
present the consolidated financial position of
Company and its Subsidiaries as at the respective
dates thereof and the consolidated results of
operations and cash flows of Company and its
Subsidiaries for each of the periods covered thereby,
subject to changes resulting from audit and normal
year-end adjustments. Neither Company nor any of its
Subsidiaries has at or as of the effective date of
the 1994 Amendment, or will have as of the 1994
Refinancing Date, any material Contingent Obligation,
material contingent liability or material
liability for taxes, long-term lease or unusual
forward or long-term commitment, which is not
reflected in the foregoing financial statements, or
the notes thereto."
(2) Section 6.03 of the Senior Note Purchase
Agreement shall be deleted and the following inserted in
lieu thereof:
"The Company has delivered to the Purchasers
true and complete copies of Company's financial
statements for the nine-month period ending
September 30, 1993. Such financial statements have
been prepared in accordance with the standards and
requirements for the preparation of interim financial
statements delivered pursuant to, and subject to the
qualifications and exceptions set forth in, Section
8.01. All such financial statements fairly present
the consolidated financial position of the Company
and its Subsidiaries as at the respective dates
thereof and the consolidated results of operations
and cash flows of the Company and its Subsidiaries
for each of the periods covered thereby, subject to
changes resulting from audit and normal year-end
adjustments. Neither the Company nor any of its
Subsidiaries has at or as of the effective date of
the 1994 Amendment, or will have as of the 1994
Refinancing Date, any material Contingent Obligation,
material contingent liability or material liability
for taxes, long-term lease or unusual forward or
long-term commitment, which is not reflected in the
foregoing financial statements, or the notes
thereto."
I. Amendment to Subsection 4.4 of the 1988 Credit
Agreement, Section 6.04 of the Senior Note Purchase Agreement
and Subsection 4.4 of the 1992 Credit Agreement. Subsection
4.4 of the 1988 Credit Agreement and Section 6.04 of the Senior
Note Purchase Agreement and subsection 4.4 of the 1992 Credit
Agreement shall be amended (1) by deleting the words
"December 31, 1992" and inserting in lieu thereof the words
"September 30, 1993," (2) by deleting the words "1992 10-K" and
inserting in lieu thereof the words "September 30, 1993 10-Q,"
(3) by deleting the words "No. 33-51876 on September 11, 1992"
and inserting in lieu thereof the words "No. 33-51557 on
December 17, 1993," (4) by inserting after the words "Amendment
No. 1" the words "and Amendment No. 2" and (5) by deleting the
words "October 8, 1992," and substituting in lieu thereof the
words "January 19, 1994 and February 2, 1994, respectively,".
J. Amendment to Subsection 4.6 of the 1988 Credit
Agreement and Section 6.06 of the Senior Note Purchase
Agreement and Subsection 4.6 of 1992 Credit Agreement.
Subsection 4.6 of the 1988 Credit Agreement and Section 6.06 of
the Senior Note Purchase Agreement and subsection 4.6 of the
1992 Credit Agreement shall be amended as follows:
(1) Subsection 4.6 of the 1988 Credit Agreement
shall be amended (1) by deleting the words "1992 10-K" and
by inserting in lieu thereof the words "September 30, 1993
10-Q," (2) by deleting the words "No. 33-51876 on
September 11, 1992" and inserting in lieu thereof the
words "No. 33-51557 on December 17, 1993," (3) by
inserting after the words "Amendment No. 1" the words "and
Amendment No. 2" and (4) by deleting the words "October 8,
1992," and substituting in lieu thereof the words
"January 19, 1994 and February 2, 1994, respectively,".
(2) Section 6.06 of the Senior Note Purchase
Agreement shall be amended (1) by deleting the words "1992
10-K" and by inserting in lieu thereof the words
"September 30, 1993 10-Q," (2) by deleting the words
"No. 33-51876 on September 11, 1992" and inserting in lieu
thereof the words "No. 33-51557 on December 17, 1993," (3)
by inserting after the words "Amendment No. 1" the words
"and Amendment No. 2" and (4) by deleting the words
"October 8, 1992," and substituting in lieu thereof the
words "January 19, 1994 and February 2, 1994,
respectively,".
(3) Subsection 4.6 of the 1992 Credit Agreement
shall be amended (1) by deleting the words "1992 10-K" and
by inserting in lieu thereof the words "September 30, 1993
10-Q," (2) by deleting the words "No. 33-51876 on
September 11, 1992" and inserting in lieu thereof the
words "No. 33-51557 on December 17, 1993," (3) by
inserting after the words "Amendment No. 1" the words "and
Amendment No. 2" and (4) by deleting the words "October 8,
1992," and substituting in lieu thereof the words
"January 19, 1994 and February 2, 1994, respectively,".
K. Amendment to Subsection 6.1 of the 1988 Credit
Agreement, Section 9.01 of the Senior Note Purchase Agreement
and Subsection 6.1 of the 1992 Credit Agreement. Subsection
6.1 of the 1988 Credit Agreement, Section 9.01 of the Senior
Note Purchase Agreement and subsection 6.1 of the 1992 Credit
Agreement are each amended as follows:
(1) Clause (iii) of subsection 6.1 of the 1988
Credit Agreement and subsection 6.1 of the 1992 Credit
Agreement are amended by deleting the proviso at the end
thereof and replacing it with the following:
"provided, however, that Company may continue
to be liable for the principal of and
interest on Senior Subordinated Notes due
1997 and the Company's 12 5/8% Subordinated
Debentures due November 1, 2000 which,
pursuant to the provisions of clause (x) or
(y) of paragraph (ii) of Section 2B of the
1994 Amendment, are required to be prepaid,
redeemed or purchased and retired at any
time, only for the period prior to the
prepayment, redemption or purchase and
retirement thereof, as applicable, as
contemplated in the 1994 Amendment;"
(2) Clause (iii) of Section 9.01 of the Senior Note
Purchase Agreement is amended by deleting the proviso at
the end thereof and replacing it with the following:
"provided, however, that Company may continue
to be liable for the principal of and
interest on Senior Subordinated Notes due
1997 and the Company's Subordinated
Debentures due 2000 which, pursuant to the
provisions of clause (x) or (y) of paragraph
(ii) of Section 2B of the 1994 Amendment, are
required to be prepaid, redeemed or purchased
and retired at any time, only for the period
prior to the prepayment, redemption or
purchase and retirement thereof, as
applicable, as contemplated in the 1994
Amendment;"
(3) Clause (xiv) of subsection 6.1 of the 1988
Credit Agreement is amended by deleting the word "and" at
the end of subclause (A) thereof, by adding the word "and"
at the end of clause (B)(z) thereof, and by adding the
following new clause (C) immediately following such
clause (B)(z):
"In addition to the foregoing Company may become and
remain liable with respect to:
(C) the 1994 Unsecured Notes issued in an
aggregate principal amount not to exceed at any
time $900,000,000; provided, that (i) the total
principal amount of 1994 Senior Unsecured Notes
so issued shall not exceed, at any time, the
lesser of $250,000,000 and one-half of the
aggregate principal amount of 1994 Unsecured
Notes issued at or prior to such time, (ii) the
1994 Unsecured Notes Proceeds shall be applied
only as set forth in Section 2B of the 1994
Amendment, (iii) no issuance and sale of 1994
Unsecured Notes may occur (1) after September
30, 1994 or (2) if an Event of Default or
Potential Event of Default has occurred and is
continuing or shall be caused thereby, and
(iv) (x) the terms and conditions of each
offering and sale of 1994 Unsecured Notes
comprising the 1994 Unsecured Notes Offering
(including the terms of such 1994 Unsecured
Notes) shall comply with all applicable
provisions of the 1994 Amendment; (y) the
effective interest rate on such 1994 Unsecured
Notes to Company (taking account of any
issuance discount but excluding any Transaction
Costs) shall be not greater than 11% unless
Requisite Lenders shall have approved a higher
such interest rate (which approval may be
oral); and (z) Requisite Lenders shall have
approved any other changes to the 1994
Unsecured Notes or the 1994 Unsecured Notes
Indentures as contemplated in Section 2A of the
1994 Amendment;"
(4) Clause (xv) of subsection 6.1 of the 1992 Credit
Agreement is amended by adding the following at the end
thereof:
"in addition to the foregoing, Company may become
and remain liable with respect to the 1994
Unsecured Notes issued in an aggregate principal
amount not to exceed at any time $900,000,000;
provided, that (i) the total principal amount
of 1994 Senior Unsecured Notes so issued shall
not exceed, at any time, the lesser of
$250,000,000 and one-half of the aggregate
principal amount of 1994 Unsecured Notes
issued at or prior to such time, (ii) the
1994 Unsecured Notes Proceeds shall be applied
only as set forth in Section 2B of the 1994
Amendment, (iii) no issuance and sale of 1994
Unsecured Notes may occur (1) after September
30, 1994 or (2) if an Event of Default or
Potential Event of Default has occurred and is
continuing or shall be caused thereby, and
(iv) (x) the terms and conditions of each
offering and sale of 1994 Unsecured Notes
comprising the 1994 Unsecured Notes Offering
(including the terms of such 1994 Unsecured
Notes) shall comply with all applicable
provisions of the 1994 Amendment; (y) the
effective interest rate on such 1994 Unsecured
Notes to Company (taking account of any
issuance discount but excluding any Transaction
Costs) shall be not greater than 11% unless
Requisite Lenders shall have approved a higher
such interest rate (which approval may be
oral); and (z) Requisite Lenders shall have
approved any other changes to the 1994
Unsecured Notes or the1994 Unsecured Notes
Indentures as contemplated in Section 2A of the
1994 Amendment;"
(5) Clause (ii) of Section 9.01 of the Senior Note
Purchase Agreement is amended by deleting the word "and"
at the end of subclause (A) thereof, by adding the phrase
"; and" at the end of clause (B)(z) thereof, and by adding
the following new clause (C) immediately following such
clause (B)(z):
"In addition to the foregoing, the Company may
become and remain liable with respect to:
(C) the 1994 Unsecured Notes issued in an
aggregate principal amount not to exceed at any time
$900,000,000; provided, that (i) the total principal
amount of 1994 Senior Unsecured Notes so issued shall
not exceed, at any time, the lesser of $250,000,000
and one-half of the aggregate principal amount of
1994 Unsecured Notes issued at or prior to such time,
(ii) the 1994 Unsecured Notes Proceeds shall be
applied only as set forth in Section 2B of the 1994
Amendment, (iii) no issuance and sale of 1994
Unsecured Notes may occur (1) after September 30, 1994
or (2) if an Event of Default or Potential Event of
Default has occurred and is continuing or shall be
caused thereby, and (iv) (x) the terms and conditions
of each offering and sale of 1994 Unsecured Notes
comprising the 1994 Unsecured Notes Offering
(including the terms of such 1994 Unsecured Notes)
shall comply with all applicable provisions of the
1994 Amendment; (y) the effective interest rate to
Company (taking account of any issuance discount but
excluding any Transaction Costs) shall be not greater
than 11% unless Requisite Lenders shall have approved
a higher such interest rate (which approval may be
oral); and (z) Requisite Lenders shall have approved
any other changes to the 1994 Unsecured Notes or the
1994 Unsecured Notes Indentures as contemplated in
Section 2A of the 1994 Amendment."
L. Amendment to Subsection 6.5 of the 1988 Credit
Agreement and Section 9.05 of the Senior Note Purchase
Agreement and Subsection 6.5 of the 1992 Credit Agreement.
Subsection 6.5 of the 1988 Credit Agreement and Section 9.05 of
the Senior Note Purchase Agreement and subsection 6.5 of the
1992 Credit Agreement are hereby amended as follows:
(1) by deleting the last sentence of paragraph (a) of
subsection 6.5 of the 1988 Credit Agreement and
subsection 6.5 of the 1992 Credit Agreement and inserting
in lieu thereof the following:
"In addition to the foregoing, Company may prepay,
redeem or purchase and retire debt securities of
Company of the kind, in the manner and amount and at
the times provided in the 1994 Amendment but only if
(x) there shall not have occurred and be continuing
or be caused thereby any Event of Default or
Potential Event of Default under subsection 7.1, 7.6,
7.7, 7.9, 7.13 or 7.14 and (y) with respect to such
prepayments, redemptions or purchases and retirements
occurring pursuant to the 1994 Amendment, the 1994
Refinancing Date shall have occurred.";
(2) by deleting the last sentence of paragraph (a)
of Section 9.05 of the Senior Note Purchase Agreement and
inserting in lieu thereof the following:
"In addition to the foregoing, the Company may prepay,
redeem or purchase and retire debt securities of the
Company of the kind, in the manner and amount and
at the times provided in the 1994 Amendment but
only if (x) there shall not have occurred and be
continuing or be caused thereby any Event of Default
or Potential Event of Default under Section 10.01,
10.06, 10.07, 10.09, 10.13 or 10.14 and (y) with
respect to such prepayments, redemptions or purchases
and retirements occurring pursuant to the 1994
Amendment, the 1994 Refinancing Date shall have
occurred."
M. Amendment of Subsection 6.6 of the 1988 Credit
Agreement, Section 9.06 of the Senior Note Purchase Agreement
and Subsection 6.6 of the 1992 Credit Agreement. Paragraph B
of subsection 6.6 of the 1988 Credit Agreement and subsection
6.6 of the 1992 Credit Agreement, and Section 9.06(b) of the
Senior Note Purchase Agreement, shall each be amended by adding
at the end thereof the following:
"Anything herein to the contrary notwithstanding,
Company shall not permit the Interest Coverage
Ratio for the four fiscal quarters ending
March 31, 1994 to be less than 1.40:1.0."
N. Amendment to Subsection 6.17 of the 1988 Credit
Agreement, Section 9.17 of the Senior Note Purchase Agreement
and Subsection 6.17 of the 1992 Credit Agreement. Subsection
6.17 of the 1988 Credit Agreement, Section 9.17 of the Senior
Note Purchase Agreement and subsection 6.17 of the 1992 Credit
Agreement are amended by substituting the following for the
proviso at the end thereof:
"provided, that nothing contained in this Section
shall be construed to prohibit any transaction
otherwise permitted under the provisions of
Section 2 of the 1994 Amendment."
O. Deletion of Subsection 6.19 of the 1988 Credit
Agreement, Section 9.18 of the Senior Note Purchase Agreement
and Subsection 6.19 of the 1992 Credit Agreement. Subsection
6.19 of the 1988 Credit Agreement, Section 9.18 of the Senior
Note Purchase Agreement and subsection 6.19 of the 1992 Credit
Agreement shall be deleted each in its entirety.
P. Waiver of Provisions of Section 4.1 of the
Oklahoma Mill Mortgage. Company waives the provisions of
Section 4.1 of that certain Term Loan and Revolving Credit Fee
and Leasehold Mortgage, Assignment of Rents, Security Agreement
and Fixture Filing, dated as of October 24, 1988 given by
Company and recorded in Deed Book 1971, Page 272 of the
Muskogee County, Oklahoma Land Records (the "Oklahoma Mill
Mortgage") to the extent that such provisions would prevent the
Muskogee Project from becoming Secured Equipment (as such term
is defined in the Oklahoma Mill Mortgage) on the 1994
Refinancing Date and Company agrees that as of the 1994
Refinancing Date the Muskogee Project shall become Secured
Equipment.
SECTION 4. Agreements Relating to 1992 Amendment.
Company agrees that the provisions of Sections 2C and 2D of the
1992 Amendment are of no further force or effect and that the
rights therein set forth with respect to "Warehoused Revolving
Loans" are superseded and novated into this Amendment. The
Escrow Agreement (as defined in the 1992 Amendment) shall be of
no further force or effect on and as of the effective date of
this Amendment.
SECTION 5. Conditions to Effectiveness of Amendment.
This Amendment shall become effective when 1988 Agent and 1992
Agent shall have received (i) duly executed counterparts hereof
that have been executed at the time and in the manner provided
in subsection 9.7 of the 1988 Credit Agreement, Section 12.04
of the Senior Note Purchase Agreement and subsection 9.7 of the
1992 Credit Agreement (it being understood that delivery of an
executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment) and (ii) the following
documents with sufficient copies, where appropriate, for each
1988 Lender, 1992 Lender, the Purchasers and CG&R:
(a) an Officer's Certificate of Company, in
the form of Exhibit B annexed to this Amendment;
(b) an opinion of James W. Nellen, II, Vice
President and General Counsel to Company, in form
and substance reasonably satisfactory to 1988 Agent
and 1992 Agent;
(c) an opinion of Shearman & Sterling, counsel
to Company, in form and substance reasonably
satisfactory to 1988 Agent and 1992 Agent as to the
enforceability of this Amendment and such other
matters as 1988 Agent or 1992 Agent shall reasonably
request; and
(d) a certificate delivered by each Purchaser
that is a member of Morgan Stanley Group
substantially in the form of Exhibit C annexed to
this Amendment.
1988 Lenders and Purchasers hereby authorize 1988
Agent and 1992 Lenders hereby authorize 1992 Agent to deliver
to Company an instrument acknowledging on behalf of 1988
Lenders, Purchasers and 1992 Lenders the satisfaction of the
conditions specified in this Section 5.
SECTION 6. Termination of Amendment. This Amendment
(other than the provisions of Section 3M hereof) shall expire
and cease to have any force or effect on September 30, 1994 if
the 1994 Refinancing Date shall not have occurred prior to such
date.
SECTION 7. Representations and Warranties of
Company; Breach of Agreement. As of the 1994 Refinancing Date,
Company hereby represents and warrants to 1988 Lenders,
Purchasers and 1992 Lenders that the representations and
warranties of Company set forth in the 1988 Credit Agreement,
as amended, supplemented or modified by this Amendment (except
for the representations and warranties set forth in subsections
4.1C, 4.13B and 4.13C of the 1988 Credit Agreement) are true
and correct in all material respects to the same extent as
though made on and as of the 1994 Refinancing Date, except that
such representations and warranties need not be true and
correct to the extent that changes in facts and conditions on
which such representations and warranties are based are
required or permitted under the 1988 Credit Agreement as so
amended, supplemented or modified; the certifications set forth
in the form of Officers' Certificate of Company described in
Section 5 of this Amendment are incorporated into this
Amendment by this reference as representations and warranties
of Company. In the event any of the representations or
warranties referred to in the immediately preceding sentence is
untrue in any material respect or in the event Company shall
breach any agreement on its part to be performed or observed
pursuant to this Amendment, 1988 Agent, 1988 Lead Managers,
Purchasers, 1988 Lenders, 1992 Agent and 1992 Lenders shall
have the rights and remedies contemplated in the 1988 Credit
Agreement, in the Senior Note Purchase Agreement and in the
1992 Credit Agreement to the same extent as if such
representations and warranties or agreements were set forth
therein.
SECTION 8. Waiver; Certain Obligations of Company.
Except as expressly contemplated in this Amendment, (i) all
terms, provisions, covenants, representations, warranties,
agreements and conditions of Company contained in the 1988
Credit Agreement, the Senior Note Purchase Agreement and the
1992 Credit Agreement shall remain in full force and effect and
shall not otherwise be deemed to be waived, modified or amended
hereby and (ii) nothing contained in Section 2A hereof shall be
deemed to constitute a consent to any additional amendment to
such terms, provisions, covenants, representations, warranties,
agreements and conditions.
SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
SECTION 10. Counterparts; Amendments. This
Amendment may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
The provisions of this Amendment may be amended or waived by
the same parties that would be required to amend or waive such
provisions if such provisions were set forth in the 1988 Credit
Agreement, the Senior Note Purchase Agreement and the 1992
Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed as of the date first above
written.
FORT HOWARD CORPORATION
By:
Name:
Title:
1988 LENDERS, PURCHASERS AND 1992
LENDERS:
BANKERS TRUST COMPANY,
Individually and as 1988 Lead
Manager, 1988 Agent
and 1992 Agent
By:
Name:
Title:
LETTER ESCROW AND SECURITY AGREEMENT
February 9, 1994
Fort Howard Corporation
1919 South Broadway
P.O. Box 19130
Green Bay, Wisconsin 54307-9130
Gentlemen:
Reference is made to (i) that certain Amended and
Restated Credit Agreement dated as of October 24, 1988 (as
amended to date, the "1988 Credit Agreement") among FH
Acquisition Corp. (which has been merged into Fort Howard
Corporation, "Company") and the lenders listed therein (the
"1988 Lenders") and Bankers Trust Company, Bank of America
National Trust and Savings Association, The Bank of Nova
Scotia, Chemical Bank, The Industrial Bank of Japan, Limited,
New York Branch, and Wells Fargo Bank, N.A., as Lead Managers,
and Bankers Trust Company, as Agent, (ii) that certain Note
Purchase Agreement dated as of September 11, 1991 (as amended
to date, the "Note Purchase Agreement") among Company and the
other Persons listed on the signature pages thereto, and
(iii) that certain Credit Agreement dated as of March 22, 1993
(as amended to date, the "1992 Credit Agreement") among
Company, the lenders listed therein (the "1992 Lenders") and
Bankers Trust Company, as Agent.
This letter agreement is entered into pursuant to the
provisions of Sections 2B and 2C of Amendment No. 9 to the 1988
Credit Agreement dated as of December 31, 1993, Amendment No. 3
to the Note Purchase Agreement dated as of December 31, 1993,
and Amendment No. 1 to the 1992 Credit Agreement dated as of
December 31, 1993 (together, the "1994 Amendment"; capitalized
terms used herein without definition having the meanings
assigned to those terms in the 1994 Amendment).
By signing in the space provided below, each of
Company and Bankers Trust Company agrees as follows:
1. Company hereby appoints Bankers Trust Company as
escrow agent ("Escrow Agent") and as collateral agent ("Collateral
Agent") for the benefit of 1988 Lenders and 1992 Lenders, and
Bankers Trust Company hereby accepts appointment as such,
all upon the terms and provisions set forth in this letter
agreement.
2. (a) On the 1994 Refinancing Date, Company
(i) shall deposit or cause to be deposited a check
in the amount of $729,625,000.00, drawn on an institution
that is a member of the New York Clearing House
Association and payable in same day funds or next day
funds to the order of Fort Howard Corporation, into Fort
Howard Corporation Account ("Account 1") with Bankers
Trust Company, which account Bankers Trust Company shall
have identified to Company as "Account 1" (within the
meaning of this letter agreement) and by number; and
(ii) shall cause the proceeds of such check, once
collected, to be immediately debited from Account 1 and
applied as follows:
(A) $100,000,000 shall be immediately paid to
Bankers Trust Company, as Agent, to be applied
to the 1994 Prepayment pursuant to clause (x) of
paragraph (i) of Section 2B of the 1994
Amendment and in accordance with paragraph (a)
of Section 2C of the 1994 Amendment;
(B) $0.00 shall be immediately paid to Company to
pay Transaction Costs (other than underwriters'
fees related to the 1994 Unsecured Notes
Offering and accrued through the 1994
Refinancing Date);
(C) $404,625,000.00 shall be immediately deposited
into one or more segregated accounts of Bankers
Trust Company, as Escrow Agent, Collateral Agent
and secured party, with Bankers Trust Company
(which account Bankers Trust Company shall have
identified to Company), for investment and
application in the manner provided in
paragraph 4 below, such segregated accounts to
be maintained in accordance with paragraph 3(b)
below; and
(D) $225,000,000.00 shall be immediately paid to
Bankers Trust Company, as Agent, to be applied
to the repayment of Revolving Loans under the
1988 Credit Agreement, in accordance with clause
(z) of paragraph (i) of Section 2B of the 1994
Amendment and paragraph (b) of Section 2C of the
1994 Amendment.
(b) Company shall from time to time, in accordance
with the 1994 Amendment, deposit into one or more segregated
accounts or sub-accounts of Bankers Trust Company, as Escrow
Agent, Collateral Agent and secured party (on the terms and
conditions set forth in paragraph 3(b) below) all additional
funds constituting 1994 Unsecured Notes Proceeds (other than
such proceeds as shall be directly remitted to Bankers Trust
Company for application in accordance with Section 2B(i)(z)(B)
of the 1994 Amendment) for investment and application in the
manner provided in paragraph 4 below. Each such additional
deposit must be made directly by Company into the Escrow
Account as defined in subparagraph (c) below or may, subject to
the consent of Bankers Trust Company (which consent shall not
unreasonably be withheld), involve a procedure of the type
described in subparagraph (a) above or such other similar
procedure as shall be reasonably requested by Company.
(c) As used herein, all funds deposited at any time
and from time to time into an account or sub-account of Bankers
Trust Company, as Escrow Agent, Collateral Agent and secured
party, pursuant to clause (ii)(C) of subparagraph (a) above or
pursuant to subparagraph (b) above, and all interest and
earnings thereon are, collectively, the "Escrow Funds"; and all
accounts at any time containing any Escrow Funds are
collectively referred to as the "Escrow Account."
(d) Escrow Agent shall acknowledge to Company
receipt of Escrow Funds promptly as and when received.
3. (a) Until the application of any Escrow Funds
as provided herein, Escrow Agent shall have exclusive dominion
and control over such Escrow Funds.
(b) Except as otherwise provided in subparagraph (c)
below, from and after receipt by Escrow Agent of Escrow Funds
until the respective release thereof from time to time in
accordance with subparagraph 4(a) below, Escrow Agent shall
maintain the Escrow Funds in one or more segregated accounts or
sub-accounts (as Escrow Agent shall have elected and shall have
identified to Company) of Bankers Trust Company, as Escrow
Agent, Collateral Agent and secured party, maintained with
Bankers Trust Company; provided, however, that, at the request
of Company, Escrow Agent shall maintain all or any portion of
the Escrow Funds deposited as, or constituting interest or
earnings on or related to, 1994 Unsecured Notes Proceeds from
1994 Subordinated Notes, in one or more segregated accounts or
sub-accounts (as Company may request from time to time in its
sole discretion and which accounts or sub-accounts Escrow Agent
shall have identified to Company) of Bankers Trust Company, as
Escrow Agent, Collateral Agent and secured party, maintained
with Bankers Trust Company, and, until the release of such
Escrow Funds, Escrow Agent shall not, without the consent of
Company, deposit into such segregated accounts or sub-accounts,
or commingle such Escrow Funds, interest or earnings with, any
other funds.
(c) Escrow Agent shall invest and reinvest portions
of the Escrow Funds as directed by Company in (i) Cash
Equivalents described in clauses (i), (ii) and (vi) of the
definition of "Cash Equivalents" contained in the 1988 Credit
Agreement or (ii) Eurodollar time deposits with any 1988 Lender
or 1992 Lender; provided, however, that no investment or
reinvestment of any such portion permitted pursuant to this
subparagraph (c) shall mature beyond the date of the required
application of such portion under paragraph 4 below. So long
as no Event of Default or Potential Event of Default under the
1988 Credit Agreement (of the type that would prevent a
borrowing of Warehoused Revolving Loans under the last sentence
of subsection 3.3B of the 1998 Credit Agreement) has occurred
and is continuing, all interest and earnings on the Escrow
Funds shall be for the account of and, promptly as and when
received, shall be paid by Escrow Agent to Company. Escrow
Agent shall not be liable to Company for any loss suffered in
connection with any investment or reinvestment of Escrow Funds
made by Escrow Agent in accordance with this subparagraph (c).
4. (a) Escrow Agent, at the request of Company
pursuant to paragraph 4(b) below, shall release the Escrow
Funds for application by Company in the manner, at the times
and for the purposes specified for such funds in Sections 2B
and 2C of the 1994 Amendment.
(b) Any request by Company for an application of
Escrow Funds shall be made in writing at least three Business
Days (or such shorter period as shall be agreed to by Escrow
Agent) prior to the date of the requested application and shall
be accompanied by a certificate of an officer of Company, duly
authorized, certifying to Escrow Agent (i) as to the absence of
any Event of Default or Potential Event of Default under the
1988 Credit Agreement (but only an Event of Default or
Potential Event of Default of the type that would prevent a
borrowing of Warehoused Revolving Loans under the last sentence
of subsection 3.3B of the 1988 Credit Agreement), (ii) as to
the calculation in reasonable detail of the amount requested,
(iii) that such request is made in compliance with the
provisions of the 1994 Amendment and (iv) as to such other
matters in connection therewith as Escrow Agent shall
reasonably request.
(c) (i) In the event that at any time on or after
June 30, 1995, any Escrow Funds are not applied within the time
required for such application under Sections 2B and 2C of the
1994 Amendment, then, except as provided in clause (ii) below
and following notice thereof to Company, Escrow Agent shall
apply such Escrow Funds in the manner, at the times and for the
purposes specified for such Escrow Funds in paragraph (iii) of
Section 2B of the 1994 Amendment and in paragraph (b) of
Section 2C of the 1994 Amendment.
(ii) In addition, in furtherance of paragraph 5
below, upon the occurrence and during the continuance of any
Event of Default or Potential Event of Default under the 1988
Credit Agreement (but only an Event of Default or Potential
Event of Default of the type that would prevent a borrowing of
Warehoused Revolving Loans under the last sentence of
subsection 3.3 of the 1988 Credit Agreement), then, following
notice thereof to Company, Escrow Agent, at its discretion,
may, in addition to any other available remedies, apply all
Escrow Funds and the funds on deposit in Account 1 to the
prepayment of Loans in the manner prescribed by subsection
2.8A(iii) of the 1988 Credit Agreement.
5. To secure Company's obligations under the 1988
Credit Agreement to 1988 Lenders, Company hereby grants to
Bankers Trust Company, as Collateral Agent, for the benefit of
1988 Lenders, a lien on and security interest in (i) Account 1
and the funds deposited therein from time to time, (ii) the
Escrow Account and the Escrow Funds and (iii) the proceeds of
the foregoing. Bankers Trust Company, as Collateral Agent and
secured party, shall have in respect of such property all
rights herein set forth and all rights of a secured party under
the Uniform Commercial Code or any other applicable law;
provided, however, that Escrow Agent shall not be permitted to
exercise any remedies in respect of such property unless and
until the occurrence and continuance of an Event of Default
(but only an Event of Default of the type which would prevent a
borrowing of Warehoused Revolving Loans under the last sentence
of subsection 3.3B of the 1988 Credit Agreement).
6. Company agrees to indemnify Escrow Agent, and
its officers, directors, employees and agents, in connection
with any actions taken or omitted to be taken by it in its
capacity as Escrow Agent under this letter agreement, to the
same extent that each 1988 Lender and 1992 Lender is
indemnified pursuant to subsection 9.4 of the 1988 Credit
Agreement and subsection 9.4 of the 1992 Credit Agreement,
respectively. The provisions of this paragraph 5 shall survive
the termination of this letter agreement.
7. In order to induce Escrow Agent to act
hereunder, Company agrees that:
(i) Escrow Agent shall have no duty or obligation
hereunder other than to take such specific actions as are
required of it from time to time under the provisions
hereof and it shall incur no liability hereunder or in
connection herewith other than as a result of its own
negligence or wilful misconduct;
(ii) Escrow Agent may act in reliance upon any
instrument or signature reasonably believed by it to be
genuine and may assume that any person purporting to give
any written notice, advice, or instruction hereunder has
been duly authorized to do so;
(iii) Escrow Agent may act relative hereto upon advice
of counsel in reference to any matter connected herewith
and shall not be liable for any mistake of fact or error
of judgment, or for any acts or omissions of any kind
unless caused by its wilful misconduct or negligence; and
(iv) this letter agreement sets forth exclusively the
duties of Escrow Agent with respect to any and all matters
pertinent hereto and no implied duties or obligations
shall be read into this letter agreement against Escrow
Agent.
8. THIS LETTER AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW.
9. This letter agreement may be executed and
delivered in any number of counterparts, each of which
counterparts, when so executed and delivered, shall be deemed
to be an original and all of which counterparts, taken
together, shall constitute but one and the same agreement.
Very truly yours,
BANKERS TRUST COMPANY
Individually and as Escrow
Agent and Collateral Agent
By:
Name:
Title:
AGREED TO:
FORT HOWARD CORPORATION
By:
Name:
Title:
Exhibit B
FORT HOWARD CORPORATION
Officers' Certificate
Reference is made to (i) that certain Amended and
Restated Credit Agreement dated as of October 24, 1988 (as
amended to date, the "1988 Credit Agreement") among FH
Acquisition Corp. (which has been merged into Fort Howard
Corporation, a Delaware corporation, "Company") and the lenders
listed therein and Bankers Trust Company, Bank of America
National Trust and Savings Association, The Bank of Nova
Scotia, Chemical Bank, The Industrial Bank of Japan, Limited,
New York Branch, and Wells Fargo Bank, N.A., as Lead Managers,
and Bankers Trust Company, as Agent, (ii) that certain Note
Purchase Agreement dated as of September 11, 1991 (as amended
to date, the "Note Purchase Agreement") among Company and the
other Persons listed on the signature pages thereto, and
(iii) that certain Credit Agreement dated as of March 22, 1993
(as amended to date, the "1992 Credit Agreement") among
Company, the lenders listed therein and Bankers Trust Company,
as Agent (capitalized terms not defined herein have the
meanings assigned to them in the 1988 Credit Agreement, the
Note Purchase Agreement and the 1992 Credit Agreement, as the
context requires).
The undersigned, and
, being the duly elected, qualified and
acting [Vice Chairman] and [Treasurer], respectively, of
Company do hereby certify, as of the date hereof, as follows:
1. No Event of Default or Potential Event of
Default has occurred and is continuing.
2. The execution, delivery and performance of
Amendment No. 9 to the 1988 Credit Agreement, Amendment No. 3 to
the Note Purchase Agreement and Amendment No. 1 to the 1992 Credit
Agreement, each dated as of December 31, 1993 (collectively,
the "1994 Amendment"), and the continued performance of the
1988 Credit Agreement, the Note Purchase Agreement, and the
1992 Credit Agreement do not (i) violate (x) any provision of
law applicable to Company, (y) the Certificate of Incorporation
or By-laws of Company, or (z) any order, judgment or decree
of any court or other agency of government binding on Company;
(ii) conflict with, result in a breach of or constitute a
default under any Contractual Obligation of Company; or (iii)
result in the creation of any Lien upon any of the properties
or assets of Company (other than Liens in favor of Collateral
Trustee).
3. There have been no changes in the terms,
conditions or manner of offering on the date hereof of 1994
Unsecured Notes or in the terms and conditions of the 1994
Unsecured Notes Indentures (including, without limitation, in
the case of the terms, conditions and manner of such offering
and the terms and conditions of the 1994 Unsecured Notes
Indentures, changes by virtue of provisions setting forth the
interest rates and discounts applicable to 1994 Unsecured
Notes) from the corresponding terms, conditions and manner
consented to pursuant to Section 2A of 1994 Amendment, except
for changes which do not (whether individually or in the
aggregate) materially adversely affect (A) the ability of
Company to perform the 1988 Obligations, the Note Obligations
or the 1992 Credit Obligations or (B) the rights and remedies
of 1988 Lenders under the 1988 Loan Documents, of Purchasers
under the Note Documents or of 1992 Lenders under the 1992
Credit Agreement.
IN WITNESS WHEREOF, we have each hereunto signed our
respective names as of the day of ,
1994.
Vice Chairman
Treasurer
Exhibit C
[FORM OF CERTIFICATE OF A MEMBER OF MORGAN STANLEY GROUP]
[Member of Morgan Stanley Group]
The undersigned, on behalf of [Member of Morgan
Stanley Group] (" "), does hereby certify as
of the date hereof, in connection with Amendment No. 3 to Note
Purchase Agreement (as defined below) dated as of December 31,
1993 solicited pursuant to Section of the Senior Note
Purchase Agreement dated as of September 11, 1991 (as amended,
the "Note Purchase Agreement") among Fort Howard Corporation
and the Purchasers party thereto, with respect to $
aggregate principal amount of the Senior Notes registered in
the name of the [Member of Morgan Stanley Group] (the "Voting
Senior Notes"), as follows [insert one or more of the following
paragraphs]:
. [Member of Morgan Stanley Group] [is] [is not] an
Affiliate of the Company.
. [Member of Morgan Stanley Group] or any other
Member of the Morgan Stanley Group [does] [does not]
beneficially own the Voting Senior Notes.
. [Member of Morgan Stanley Group], as nominee for
other Persons, [does] [does not] have discretionary voting or
investment power with respect to the Voting Senior Notes.
IN WITNESS WHEREOF, the undersigned has executed this
certificate this day of , 1994.
[Member of Morgan Stanley Group]
By:
Name:
Title: