Exhibit 4(v)
November 3, 1999
THE MEAD CORPORATION
Courthouse Plaza Northeast
Dayton, Ohio 45463
Attention:
Re: 364 Day Revolving Credit Line
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Ladies and Gentlemen:
Each of the banks listed on Schedule I attached hereto (each a "Lender" and
collectively, the "Lenders") is pleased to confirm that it is prepared to make
funds available to The Mead Corporation, an Ohio corporation ("Borrower"), for
general corporate purposes, including acquisitions, and for a liquidity and
back-up facility to the Borrower's commercial paper program, subject to the
terms and conditions outlined below.
Agent. Bank One, NA, a national banking association with its principal
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banking office in Chicago, Illinois (the "Agent") shall act as Agent on behalf
of the Lenders under this 364 Day Revolving Credit Line Letter Agreement (this
"Agreement") and any documents, instruments and notes in connection herewith
(collectively, "Loan Documents"). The provisions of Section 9 (other than the
first sentence of Section 9.1) of the Credit Agreement, dated as of November 15,
1989, among the Borrower, the banks party thereto and the Agent (as amended,
modified and supplemented from time to time, the "Credit Agreement") shall apply
to the duties, obligations, rights and powers of the Agent and the Lenders as if
such Section 9 (other than the first sentence of Section 9.1) had been set forth
herein mutatis mutandis (all references in the Credit Agreement to "Banks",
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"Agents", "Company", "Agreement", "Notes", "Loan Documents", "Required Banks",
"Commitment" and "Loans" shall be deemed to be references to Lenders, Agent,
Borrower, Agreement, Notes (as defined below) and Loan Documents, Required
Lenders (as defined below), Commitment (as defined below) and Loans (as defined
below), respectively, herein and all other defined terms contained in the Credit
Agreement shall have the same meaning in this Agreement unless otherwise defined
in this Agreement, but shall be interpreted in the context of this Agreement.
Interpretation. In the event of the termination or expiration of the
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Credit Agreement (or the Commitments (as defined therein) thereunder), any
provisions of the Credit Agreement which are expressly made applicable hereunder
or expressly incorporated by reference herein as if such provisions had been set
forth herein mutatis mutandis shall be deemed to remain in full force and effect
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for purposes of this Agreement in the form in effect immediately prior to such
termination or expiration. In the event of any ambiguity in the interpretation
of terms and provisions of this Agreement, such terms and provisions shall be
construed and interpreted by reference to similar provisions in the Credit
Agreement in the context of this Agreement (including, without limitation, the
intent and purposes hereof).
Commitment. Each Lender severally agrees to make loans ("Loans") to
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Borrower in an aggregate principal amount not to exceed at any one time such
Lender's maximum commitment as set forth opposite such Lender's name on Schedule
I attached hereto as such amount may be reduced in part or in whole by three
business days written notice to such Lender (with respect to such Lender, the
"Commitment" and, all commitments together, the "Total Commitment"). Borrower
may borrow, repay and prepay Loans and reborrow at any time during the period
from the date hereof to but excluding the date occurring 364 days after the date
of the Notes (the "Availability Period"), subject to the limitations set forth
herein and in the promissory notes in favor of each of the
Lenders (collectively, the "Notes" or each individually, a "Note"), which shall
evidence the Loans and be substantially in the form of Exhibit "A" attached
hereto.
Termination; Reduction of Commitment. Borrower may, upon at least three
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business days notice to the Agent, terminate at any time, or irrevocably reduce
from time to time, the unused amount of the Total Commitment pro rata to the
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Commitment of each Lender in multiples of $10,000,000 or, if less, the amount of
the Total Commitment; provided, that no reduction shall reduce the Total
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Commitment below the aggregate unpaid principal amount of all Loans then
outstanding. All accrued but unpaid facility fees with respect to such
terminated or reduced Commitments shall be payable on the effective date of such
termination or reduction.
Facility Fee. A facility fee shall accrue on the Commitment of each Lender
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during the Availability Period at a rate per annum equal to 0.08%, calculated on
the basis of a 365/366 day year, for the actual number of days elapsed, and
payable quarterly in arrears on the last business day of each calendar quarter.
Utilization Fee. A utilization fee shall also accrue on the Commitment of
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each Lender during the Availability Period during any calendar quarter when the
daily average sum of the outstanding principal balance of the Loans during such
quarter exceeds 33% of the average daily Total Commitments during such quarter,
which utilization fee shall be in an amount equal to 0.125% per annum times the
daily average outstanding principal amount of the Loans during such quarter.
Accrued utilization fees shall be calculated on the basis of 365/366 day year,
for the actual number of days elapsed, and shall be payable quarterly in arrears
on the last business day of each calendar quarter.
Interest Rate. Each Loan shall bear interest as selected by Borrower and
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provided in the Notes.
Interest Periods; Maturity. Eurodollar Loans (defined in the Notes) and
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Variable Rate Loans (defined in the Notes) shall be available for interest
periods ("Interest Periods") of, at Borrower's selection, one, two, three or six
months or such other period as may be agreed upon among the Lenders and the
Borrower. Upon three business days notice to the Agent, at the expiration of any
Interest Period, Borrower may elect to continue or convert any applicable Loans
consistent with the provisions of this Agreement. No Interest Period may extend
beyond the date occurring 364 days after the date of the Notes (the "Termination
Date"), the date on which all Loans shall finally mature.
Payments; Prepayments. All payments and prepayments of principal and
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interest shall be made on the terms and conditions specified in the Notes.
Drawdowns; Funding. Borrower may borrow under the Total Commitment by
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giving the Agent notice by 12:00 noon New York City time at least one business
day prior to a Variable Rate Loan and at least three business days prior to a
Eurodollar Loan. Immediately upon its receipt thereof, the Agent shall deliver
copies of such notices to the Lenders. No later than 11:00 a.m. (Chicago time)
on the date of the requested Loan, each Lender shall pay to the Agent its pro
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rata portion of the principal amount of the requested Loan to be made on such
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date. No later than 2:00 p.m. (Chicago time) on the date of the requested Loan,
the Agent shall make available to Borrower the principal amount of the requested
Loan. Each requested Loan shall be in a minimum amount of $10,000,000 and in
integral multiples of $1,000,000 thereafter.
Defaulting Lenders. No Lender shall be responsible for any default by any
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other Lender in fulfilling its obligations hereunder and each Lender shall be
obligated to fulfill its obligations hereunder regardless of the failure of any
other Lender to fulfill its obligations hereunder. A defaulting Lender shall not
be entitled to any facility fees, utilization fees or interest with respect to
any amounts not funded by such Lender in breach of its obligations hereunder.
The Agent may, in its sole discretion, but shall not be obligated to, fulfill
the funding obligations of any defaulting Lender.
Conditions of Lending. The obligation of the Lenders to make Loans to
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Borrower is subject to the conditions precedent that (a) in the case of the
initial Loan, each Lender shall have received its Note duly executed and
delivered by Borrower, and the Agents shall have received (i) a corporate
borrowing resolution certified by Borrower's Secretary or Assistant Secretary,
(ii) an incumbency certificate of Borrower's Secretary or Assistant Secretary
setting forth the names, titles and true signatures of Borrower's officers
authorized to sign this Agreement and the Notes, (iii) an opinion of counsel to
the Borrower substantially in the form of Exhibit "B" hereto, (iv) the
representations and warranties of Borrower in the Credit Agreement shall be true
and correct in all material respects as if made on such date (other than the
representations and warranties that relate solely to an earlier date which shall
be true as of such date) and (b) in the case of all Loans, (i) no Event of
Default (or event or circumstance which with the giving of notice or the passage
of time or both would constitute an Event of Default (a "Default")) under this
Agreement or the Notes has occurred and is continuing, or would result from the
making of such Loan, and (ii) the representations and warranties of Borrower
herein shall be true and correct in all material respects as if made on such
date (other than representations and warranties that relate solely to an earlier
date which shall be true as of such date, the representation in clause (h) of
the following section and the representation in the following section regarding
Year 2000 Issues and the Year 2000 Program).
Representations and Warranties. Borrower hereby represents and warrants
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that: (a) this Agreement and the Notes when delivered will be the legal, valid
and binding obligations of Borrower enforceable against Borrower in accordance
with their terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency and other similar laws affecting creditors'
rights generally, (b) the execution, delivery and performance by Borrower of
this Agreement and the Notes have been authorized by all necessary corporate
action and do not and will not contravene Borrower's charter or by-laws or any
applicable law or any contractual provision binding on or affecting Borrower,
(c) as of the date hereof, there is no Default or Event of Default under this
Agreement, (d) there are no pending or threatened actions, suits or proceedings
against or affecting the Borrower before any court, governmental agency or
arbitrator, which are reasonably likely to, in any one case or in the aggregate,
materially adversely affect the financial condition, operations, properties or
business of the Borrower or the ability of the Borrower to perform in its
obligations under any of the Loan Documents, (e) no part of the proceeds of any
Loan shall be used to purchase or carry any "margin stock" (as defined in
Regulation U) in violation of Regulations G, T, U or X of the Board of Governors
of the Federal Reserve System, (f) to the best of Borrower's knowledge, the
financial statement schedules contained in Borrower's most recent 10-K Report
are true and accurate, were prepared in accordance with generally accepted
accounting principles and fairly present the financial condition of the Borrower
at such date, (g) the representations and warranties set forth in Sections 8.4
and 8.6 of the Credit Agreement are true and correct in all material respects,
which representations and warranties are incorporated herein by reference as if
fully set forth herein, and (h) since December 31, 1998 and except for matters
disclosed by the Borrower in any filing since December 31, 1998 with the
Securities and Exchange Commission, there has been no change in the business,
conditions (financial or otherwise) or results of operations of the Borrower and
its subsidiaries which could reasonably be expected to have a Material Adverse
Effect. "Material Adverse Effect" means a material adverse effect on (i) the
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business, property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under this Agreement or the
Notes, or (iii) the validity or enforceability of this Agreement or the Notes or
the rights or remedies of the Agent or the Lenders thereunder.
In addition, Borrower hereby represents and warrants that it has made an
assessment of the Year 2000 Issues and has a program for remediating the Year
2000 Issues on a timely basis (the "Year 2000 Program"). Based on such
assessment and on the Year 2000 Program, Borrower does not reasonably anticipate
that Year 2000 Issues will have a Material Adverse Effect. As used in this
Agreement, "Year 2000 Issues" means anticipated costs, problems and
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uncertainties associated with the inability of
certain computer applications to effectively handle data including dates on and
after January 1, 2000, as such inability materially affects the business,
operations and financial condition of the Borrower and its subsidiaries.
Covenants. During the term of this Agreement, Borrower will, for the
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benefit of the Lenders, perform, comply with and be bound by its agreements,
covenants and obligations set forth in Sections 5 and 6 of the Credit Agreement
as such Sections may be modified or amended, and subject to any waivers of
compliance granted by the Required Banks (as defined therein), from time to
time, as if such Sections 5 and 6 had been set forth herein mutatis mutandis.
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In addition, Borrower covenants and agrees that it will take all such actions as
are reasonably necessary to assure that the Borrower's and each subsidiary's
computer systems are able to operate and effectively process data including
dates on and after January 1, 2000. At the request of the Agent, the Borrower
will provide the Agent with assurance acceptable to the Agent of the Borrower's
Year 2000 compatibility.
Events of Default. Any following events shall be an "Event of Default":
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(a) Borrower shall fail to pay (i) the principal of any Note as and when due and
payable, or (ii) any interest on, or any other amount due under, any Note or
this Agreement within ten (10) days of the due date thereof; (b) any material
representation or warranty made by Borrower in any Note, this Agreement or any
other Loan Document shall prove to have been incorrect in any material respect
on or as of the date made; (c) Borrower shall fail to perform or observe any
other term, covenant or agreement contained in any Loan Document on its part to
be performed or observed, and such failure shall not have been remedied within
thirty (30) days after written notice thereof from the Agent or any Lender; (b)
Borrower or any Significant Subsidiary (as defined in the Credit Agreement)
defaults in the payment of principal of, or interest on, any indebtedness for
borrowed money in an amount equal to at least $50,000,000 (other than
indebtedness under this Agreement or the Credit Agreement) and such default has
not been cured within any period of grace provided with respect thereto; (e) any
Event of Default (as defined in the Credit Agreement) shall occur under the
Credit Agreement; (f) Borrower or any Significant Subsidiary (i) shall generally
not, or be unable to, or shall admit in writing its inability to, pay its debts
as its debts become due; (ii) shall make a general assignment for the benefit of
creditors; (iii) shall file a petition in bankruptcy or for any relief under any
law of any jurisdiction relating to reorganization, arrangement, readjustment of
debt, dissolution or liquidation; (iv) shall have any such petition filed
against it in which an adjudication is made or order for relief is entered or
which shall remain undismissed for a period of 60 days or shall consist nor
acquiesce thereto; or (v) shall have had a receiver, custodian or trustee
appointed for all or a substantial part of its property; or (g) any "group" (as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended)
acquires 20% or more, in the aggregate, of the capital stock of Borrower
entitled, at the time, to vote for the election of Borrower's directors. If an
Event of Default shall have occurred and be continuing, the Agent, if directed
in writing by Lenders with Commitments aggregating at least 66 2/3% of the Total
Commitment (or if the Total Commitment has been terminated, Lenders with Loans
aggregating at least 66 2/3% of the total amount of Loans then outstanding) (the
"Required Lenders"), shall declare the principal and accrued but unpaid interest
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under the Notes immediately due and payable, and the Agent, if directed in
writing by the Required Lenders, shall terminate the Total Commitment. Upon the
occurrence of any "bankruptcy" or "insolvency" Event of Default, the Total
Commitment shall terminate immediately and the principal and accrued but unpaid
interest under the Notes shall be immediately due and payable without requiring
any notice or action by the Agents or the Lenders.
Amendment and Waiver. With the prior written consent of the Required
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Lenders and Borrower, any provision of this Agreement or any Note may be
amended, waived, supplemented, restated, discharged or terminated; except that
the written consent of Borrower and all of the Lenders shall be required to
extend the final maturity of any Loan or any Note, to reduce the rate of
interest on principal or the amount of the facility fee or the utilization fee,
to extend the time of payment of principal, interest, the facility fee or the
utilization fee, to reduce the amount of unpaid
principal of any Loan or any Note, to increase the Commitment of any Lender then
in effect, to change the percentage specified in the definition of Required
Lenders or to amend, modify or waive this paragraph.
Expenses; Indemnification. (i) The Borrower shall reimburse the Agent for
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any costs, reasonable internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent) paid or incurred by the Agent in
connection with the preparation, negotiation, execution, delivery, syndication,
review, amendment, modification, and administration of the Loan Documents. The
Borrower also agrees to reimburse the Agent and the Lenders for any costs,
reasonable internal charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Agent and the Lenders,
which attorneys may be employees of the Agent or the Lenders) paid or incurred
by the Agent or any Lender in connection with the collection and enforcement of
the Loan Documents.
(ii) The Borrower hereby further agrees to indemnify the Agent, each
Lender, their respective affiliates, and each of their directors, officers and
employees against all losses, claims, damages, penalties, judgments, liabilities
and expenses (including, without limitation, all expenses of litigation or
preparation therefor whether or not the Agent, any Lender or any affiliate is a
party thereto) which any of them may reasonably pay or incur arising out of or
relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Loan hereunder except to the extent that they
result from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section shall
survive the termination of this Agreement.
Setoff. In addition to any rights now or hereafter granted under
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applicable law or otherwise, and not by way of limitation of any such rights,
upon the occurrence of an Event of Default, each Lender is hereby authorized at
any time or from time to time, without presentment, demand, protest or other
notice of any kind to the Borrower 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 Lender (including without limitation by branches, affiliates and
agencies of such Lender wherever located) to or for the credit or the account of
the Borrower against and on account of the obligations and liabilities of the
Borrower to such Lender under this Agreement and the Notes, including, without
limitation, all interests, in obligations purchased by such Lender pursuant to
the following paragraph, and all other claims of any nature or description
arising out of or connected with this Agreement and the Notes, irrespective of
whether or not such Lender shall have made any demand hereunder and although
said obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
Proration of Excess Payments. The Lenders agree among themselves that,
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with respect to all amounts received by them which are applicable to the payment
of principal of or interest on the Notes, equitable adjustment will be made so
that, in effect, all such amounts will be shared ratably among the Lenders on
the basis of the amounts then owed and due to each of them in respect of such
obligation, whether received by voluntary payment, by realization upon security,
by the exercise of the right of set-off or bankers, lien, by counterclaim or
cross action, under or pursuant to this Agreement, the Notes or otherwise. Each
of the Lenders agrees that if it should receive any payment on its Notes of a
sum or sums in excess of its pro rata portion, then the Lender receiving such
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excess payment shall purchase for cash from the other Lenders an interest in the
Notes of such Lenders in such amount as shall result in a ratable participation
by each of the Lenders in the aggregate unpaid amount of all outstanding Notes
then held by all of the Lenders. If all or any portion of such excess payment
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.
Governing Law. This Agreement shall be governed by the laws of the State
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of New York.
Waiver of Jury Trial. The Agent, the Lenders and the Borrower, after
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consulting or having had the opportunity to consult with counsel, knowingly,
voluntarily and intentionally waive any right either of them may have to a
trial by jury in any litigation based upon or arising out of this Agreement, the
Notes or any related instrument or agreement or any of the transactions
contemplated by this Agreement, the Notes or any course of conduct, dealing,
statements (whether oral or written) or actions of any of them. Neither the
Agent, any Lender nor the Borrower shall seek to consolidate, by counterclaim or
otherwise, any such action in which a jury trial has been waived with any other
action in which a jury trial cannot be or has not been waived. These provisions
shall not be deemed to have been modified in any respect or relinquished by the
Agent, any Lender or the Borrower except by a written instrument executed by all
of them.
Please evidence your acceptance of the foregoing by signing and returning
to us the enclosed copy of this Agreement on or before November 3, 1999, the
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date on which our commitment to enter into this Agreement (if not accepted prior
thereto) will expire.
Very truly yours,
BANK ONE, NA,
As Agent and a Lender
By: Glenn A. Currin
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GLENN A. CURRIN
Title: First Vice President
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BANK OF AMERICA, N.A.
By: Michael Balok
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MICHAEL BALOK
Title: Managing Director
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CITICORP USA, INC.
By: Wolfgang Viragh
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Title: _________________________________________
DEUTSCHE BANK AG, New York Branch and/or Cayman
Islands Branch
By: Hans-Josef Thiele
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Title: Director
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By: Belinda J. Wheeler
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Title: Vice President
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MELLON BANK, NA
By: Mark F. Johnston
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Title: VP
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MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: Robert Bottamedi
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ROBERT BOTTAMEDI
Title: VICE PRESIDENT
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THE BANK OF NOVA SCOTIA
By: F. C. H. Ashby
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F. C. H. ASHBY
Title: Senior Manager Loan Operations
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SOCIETE GENERALE
By: Jay Sands
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Title: Managing Director
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WACHOVIA BANK OF GEORGIA, NA
By: Bradford Watkins
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Title: Vice President
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THE SUMITOMO BANK, LIMITED
By: Peter R. C. Knight
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Title: S V P
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Agreed and Accepted:
THE MEAD CORPORATION
By: Timothy R. McLevish
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Title: Vice President-Finance & Treasurer
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Exhibit "A"
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Promissory Note
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THE MEAD CORPORATION
$_____________ November __, 1999
FOR VALUE RECEIVED, the undersigned unconditionally promises to pay to the
order of ___________________________(the "Bank"), at the principal office of the
Agent, for the account of the Lending Office (as hereinafter defined), the
principal amount of each loan endorsed on the schedule attached hereto and made
a part hereof (including any continuations, the "Schedule") on the maturity date
of such loan as shown on the Schedule, and to pay interest on the unpaid balance
of the principal amount of such loan from and including the date of such loan
(as shown on the Schedule) to such maturity date at a rate per annum equal to:
(a) a variable rate equal to: the higher of (i) the Federal Funds Rate plus 1/2
of 1% and (ii) the Corporate Base Rate (such higher rate being the "Variable
Rate" and such loan a "Variable Rate Loan"; or (b) a fixed rate 32/100 of 1%
above the Eurodollar Rate applicable to such loan (such loan a "Eurodollar
Loan"). Any principal not paid when due shall bear interest from maturity until
paid in full at a rate per annum equal to the Default Rate. Interest shall be
payable on the relevant Interest Payment Date. Interest shall be calculated on
the basis of a year of 365 or 366 days (in the case of Variable Rate Loans) and
360 days (in the case of the Eurodollar Loans) and, in each case, for the actual
days elapsed. All payments hereunder shall be made in lawful money of the United
States and in immediately available funds. Any extension of time for the payment
of the principal of this note resulting from the due date falling on a non-
Banking Day shall be included in the computation of interest. The date, and
Interest Periods (as defined in the Letter Agreement (as defined below)) of, and
the interest rates with respect to, the loans and any payments of principal
shall be recorded by the Bank on its books and prior to any transfer of this
note (or, at the discretion of the Bank, at any other time) endorsed by the Bank
on the Schedule, which shall be conclusive in the absence of manifest error;
provided, however, that the Bank's failure to endorse the Schedule shall not
affect the Undersigned's obligations hereunder.
1. Related Letter Agreement. Loans evidenced hereby are made pursuant to
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that certain 364 day revolving credit line letter agreement dated November __,
1999 (as amended, modified or supplemented from time to time, the "Letter
Agreement") between the undersigned, the Bank and the other banks party thereto
as Lenders, and Bank One, NA (the "Agent"). Capitalized terms used herein and
not defined herein shall have the meanings given thereto to the Letter
Agreement.
2. Certain Definitions. As used herein, the following terms shall have
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the corresponding meanings:
(a) "Banking Day" means (i) with respect to any borrowing, payment or
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rate selection of Eurodollar Loans, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in United States
dollars are carried on in the London interbank market and (ii) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in Chicago for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
(b) "Corporate Base Rate" means a rate per annum equal to the
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corporate base rate or prime rate of interest announced by the Agent or its
parent, Bank One
Corporation, from time to time, changing when and as said corporate base rate or
prime rate changes.
(c) "Default Rate" means, in respect of any amount not paid when due,
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a rate per annum during the period commencing on the due date until such amount
is paid in full equal to a rate 2% above the Variable Rate.
(d) "Eurodollar Rate" means, with respect to a Eurodollar Loan for the
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relevant Interest Period, the sum of (i) the quotient of (a) the average rate
per annum (rounded to the nearest 1/16 of 1%) quoted by the Agent at
approximately 11:00 a.m. London time (or as soon thereafter as practicable) two
Banking Days prior to the first day of an Interest Period during which the
Eurodollar Rate will accrue for the offering by the Agent to leading banks in
the London interbank market of U.S. dollar deposits having a term comparable to
the relevant Loan and in an amount comparable to the Agent's portion of the
principal amount of the relevant Loan, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period.
(e) "Federal Funds Rate" means, for any day, an interest rate per
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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
Banking 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
Banking Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
(f) "Interest Payment Date" means for any loan hereunder, the first
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day commencing after such loan as follows: (i) for any Variable Rate Loan, the
last Banking Day of each March, June, September and December; (ii) for any
Eurodollar Loan, at three-month intervals; and (iii) for any amount, upon
maturity and any repayment.
(g) "Lending Office" means the office (or affiliate) as the Bank may
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from time to time specify, provided that the Bank shall not be entitled to
designate or change the lending office if, as a result, the undersigned shall be
required to make any payment pursuant to Section 3 hereof.
(h) "Regulation D" means Regulation D of the Board of Governors of the
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Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
(i) "Regulatory Change" means any changes after the date hereof in
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United States federal, state or foreign laws or regulations (including
Regulation D) or the adoption or making after such date of any interpretations,
directives or requests applying to a class of banks including the Bank of or
under any United States federal or state, or any foreign, laws or regulations
(whether or not having the force of law) by any court or governmental or
monetary authority charged with the interpretation or administration thereof.
(j) "Reserve Requirement" means, with respect to an Interest Period,
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the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
3. Additional Costs, Etc.
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(a) If, as a result of any Regulatory Change, the Bank determines that
the cost to the Bank of making or maintaining any Eurodollar Loan evidenced
hereby is increased (including, without limitation, due to increased capital
requirements), or any amount received or receivable by the Bank hereunder is
reduced, or the Bank is required to make any payment in connection with any
transaction contemplated hereby
(excluding, however, income, gross or net receipts, franchise or other similar
taxes), then the undersigned shall pay to the Bank on demand such additional
amount or amounts as the Bank determines in good faith will compensate the Bank
for such increased cost, reduction or payment, provided that the foregoing shall
not apply to (i) any taxes, or any withholding or deduction of taxes unless the
Bank is, on the date hereof, entitled to a complete exemption from withholding
or deduction of taxes on all amounts to be received hereunder by the Bank, or
(ii) to any taxes (or withholding or deductions with respect thereto) required
to be deducted or withheld by reason of the failure of the Bank to comply with
applicable certification, information, documentation or other reporting
requirements if such compliance is required by treaty, statute or regulation as
a precondition to relief or exemption from such taxes, withholding or
deductions.
(b) If it becomes unlawful for the Bank to maintain any Eurodollar
Loan, the Bank shall promptly notify the undersigned, and such loan shall be
thereby converted into a Variable Rate Loan on the date specified by the Bank.
(c) If there is any payment of a Eurodollar Loan prior to its stated
maturity (by reason of acceleration or otherwise) or a Eurodollar Loan is not
borrowed or prepaid after a notice of borrowing or prepayment has been received
by the Bank, the undersigned will promptly pay the Bank on demand an amount
determined by the Bank in good faith sufficient to compensate it for such
payment.
4. Events of Default. If an Event of Default shall have occurred and be
-----------------
continuing, THEN, in any case, Eurodollar Loans may not be continued for
additional interest periods and the Bank may instruct the Agent in writing to
declare that the unpaid principal amount of this Note, together with accrued but
unpaid interest, shall be immediately due and payable; provided, that such
principal, together with accrued but unpaid interest, shall not become
immediately due and payable unless the Required Lenders shall have so requested;
provided, further, that in the case of an Event of Default under clause (e) of
the definition thereof in the Letter Agreement, the unpaid principal amount of
this Note, together with accrued interest, shall immediately become due and
payable without any notice or other action by the Bank.
5. Miscellaneous.
-------------
(a) The undersigned waives presentment, notice of dishonor, protest
and any other formality with respect to this Note.
(b) The undersigned agrees to reimburse the Bank on demand for all
costs, expenses and charges (including, without limitation, reasonable fees and
charges of external legal counsel for the Bank and costs allocated by its
internal legal department) in connection with the enforcement of this Note and
the Letter Agreement.
(c) This Note shall be binding on the undersigned and its successors
and assigns and shall inure to the benefit of the Bank and its successors and
assigns, except that the undersigned may not delegate any obligations hereunder
without the prior written consent of the Bank.
(d) This Note shall be governed by and interpreted and construed in
accordance with the laws of the State of New York, provided that the foregoing
is not intended to limit the maximum rate of interest which may be charged or
collected by the Bank hereon if, under the law applicable to it, the Bank may
charge or collect such interest at a higher rate than is permissible under the
law of said State. In no case shall the interest hereon exceed the maximum
amount which the Bank may charge or collect under such law applicable to it.
THE MEAD CORPORATION
By: ____________________________________________
Its: ___________________________________________
Loan Number Amount of Balance
Amount and Maturity Payment and Remaining Notation
Date Interest Date of Loan Number Unpaid Made by
- ---- -------- -- ----------- ------ -------
Rate Loan
---- ----
SCHEDULE I
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Lenders
-------
Name and Address of Lenders Commitment
- ------------------------------------------------ -----------
BANK ONE, NA, a national banking association $27,000,000
with its principal office in Chicago, Illinois
c/o Bank One, NA
100 East Broad Street
Columbus, Ohio 43215
Attention: Paul Harris
Facsimile: (614) 248-5518
BANK OF AMERICA, N.A. $23,000,000
555 California Street, 41/st/ Floor
San Francisco, CA 94104
Attention: Michael Balok
Facsimile: (415) 622-4585
CITICORP USA, INC. $23,000,000
399 Park Avenue, 8/th/ Floor
Zone 6
New York, New York 10043
Attention: Wolfgang Viragh
Facsimile: (212) 793-0289
DEUTSCHE BANK AG New York Branch $18,500,000
and/or Cayman Island Branch
31 West 52/nd/ Street
24/th/ Floor
New York, New York 10019
Attention: Hans-Josef Thiele
Facsimile: (212-469-8212
MELLON BANK, NA $18,500,000
One Mellon Center, Room 4401
Pittsburgh, PA 15258
Attention: George Davis
Facsimile: (412) 234-8888
SCHEDULE I
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Lenders
-------
Name and Address of Lenders Commitment
- ------------------------------------------- -----------
MORGAN GUARANTY TRUST COMPANY OF NEW YORK $18,500,000
60 Wall Street
New York, New York 10260
Attention: Robert Bottamedi
Facsimile: (212) 648-5018
THE BANK OF NOVA SCOTIA $18,500,000
181 West Madison Street
Suite 3700
Chicago. Illinois 60602
Attention: Keith Rauschenberger
Facsimile: (312) 201-4106
With a copy to:
BNS Atlanta Office
600 Peachtree St. Northeast, Suite 2700
Atlanta, GA 30308
Attention: Shannon Dancila
Facsimile: (404) 888-8998
SOCIETE GENERALE $18,500,000
181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Attention: Michael Lincoln
Facsimile: (312) 578-5099
WACHOVIA BANK OF GEORGIA, NA $18,500,000
191 Peachtree Street Northeast, 28/th/ Floor
Atlanta, Georgia 30303
Attention: Bradford Watkins
Facsimile: (404) 332-6898
THE SUMITOMO BANK, LIMITED $16,000,000
New York Branch
277 Park Avenue
New York, New York 10172
Attention: Rohn Laudenschlager
Facsimile: (212) 224-4384