EXHIBIT 4.4
October 17, 1996
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.
Agents: The First National Bank of Chicago and Morgan Guaranty Trust
Company of New York (each an "Agent" and together, the "Agents") shall act as
Agents 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 First National Bank
of Chicago shall act as the Paying Agent on behalf of the Lenders (the "Paying
Agent"). 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 Agents (as amended, modified and supplemented
from time to time, the "Credit Agreement") shall apply to the duties,
obligations, rights and powers of the Agents 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", "Agents",
"Company", "Agreement", "Notes", "Loan Documents", "Required Banks",
"Commitment" and "Loans" shall be deemed to be references to Lenders, Agents,
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, but shall be interpreted in the context
of this Agreement.
Interpretation: In the event of the termination or expiration of the 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
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
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 Note (the "Availability Period"), subject to the limitations set forth
herein and in the promissory notes in favor of each of the Lenders
(collectively, the "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
business days notice to the Paying Agent, terminate at any time, or irrevocably
reduce from time to time, the unused amount of the Total Commitment pro rata to
the Commitment of each Lender in multiples of $1,000,000 or, if less, the amount
of the Total Commitment; provided, that no reduction shall reduce the Total
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
during the Availability Period at a rate per annum equal to 0.06%, 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.
Interest Rate: Each Loan shall bear interest as selected by Borrower and
provided in the Note.
Interest Periods; Maturity: Eurodollar Loans (defined in the Note) and
Variable Rate Loans (defined in the Note) shall be available for interest
periods ("Interest Periods") of, at Borrower's selection, one, two, three or six
months. Offered Rate Loans (defined in the Note) shall be available for Interest
Periods requested by Borrower and accepted by a Lender in its sole discretion.
Upon three business days notice to the Paying Agent, at the expiration of any
Interest Period, Borrower may elect to continue or convert
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any applicable Loans (other than Offered Rate Loans) consistent with the
provisions of this Agreement. No Interest Period may extend beyond the date
occurring 364 days after the date of the Note (as may be extended by the Lenders
at the request of the Borrower, the "Termination Date"), the date on which all
Loans shall finally mature.
Payments; Prepayments: All payments and prepayments of principal and
interest shall be made on the terms and conditions specified in the Note.
Drawdowns; Fundings: Borrower may borrow under the Total Commitment by
giving the Paying 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 and by 10:00 a.m. New York City time on the same
business day of an Offered Rate Loan. Immediately upon its receipt thereof, the
Paying Agent shall deliver copies of such notices to the Lenders. No later than
11:00 a.m. (Chicago time) (and 1:00 p.m. (Chicago time) in the case of an
Offered Rate Loan) on the date of the requested Loan, each Lender shall pay to
the Paying Agent its pro rata portion of the principal amount of the requested
Loan (other than Offered Rate Loans) to be made on such date. No later than 2:00
p.m. (Chicago time) on the date of the requested Loan (other than Offered Rate
Loans), the Paying Agent shall make available to Borrower the principal amount
of the requested Loan. The Applicable Lenders shall fund Offered Rate Loans
directly to Borrower or as instructed by Borrower.
Defaulting Lenders: No Lender shall be responsible for any default by any
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 or interest with respect to any amounts not
funded by such Lender in breach of its obligations hereunder. Either of the
Agents 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
Borrower is subject to the conditions precedent that (a) in the case of the
initial Loan, each Lender shall have received the 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 Note, (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
representations and warranties that relate solely to an earlier date) and (b) in
the case of all Loans, (i) no Event of Default (or event or circumstance
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which with the giving of notice or the passage of time or both would constitute
an Event of Default) under this Agreement or the Note 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).
Representations and Warranties: Borrower hereby represents and warrants
that: (a) this Agreement and the Note 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 Note have been authorized by all necessary corporate
action and do not and will not contravene Borrower's charter of 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" as such
terms are defined in the Credit 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, 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, and (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.
Covenants: During the term of this Agreement, Borrower will, for the
benefit of the Lenders, perform, comply with and be bound by its agreements,
covenants and obligations set forth in Sections 5, 6 and 10.5 (other than the
first sentence thereof) 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.
Events of Default: Any following events shall be an "Event of Default": (a)
Borrower shall fail to pay (i) the principal of the Note as and when due and
payable, or (ii) any interest on, or any other amount due under, the Note or
this Agreement within ten (10) days of the due date thereof; (b) any material
representation or warranty made by Borrower in the 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)
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days after written notice thereof from the Agents; (d) Borrower or any
Significant Subsidiary (as defined in the Credit Agreement) defaults in the
payment of principal of, or interest on, Loans (as defined in the Credit
Agreement) under the Credit Agreement or any other indebtedness for borrowed
money in an amount equal to at least $50,000,000 and, in either case, such
default has not been cured within any period of grace provided with respect
thereto; (e) 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 consent or
acquiesce thereto; or (v) shall have had a receiver, custodian or trustee
appointed for all or a substantial part of its property; or (f) 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 Agents, 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
under the Note immediately due and payable, and the Agents, 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 Note 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
Lenders and borrower, any provision of this Agreement or the 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 Note, to reduce the rate of interest on
principal or the amount of the facility fee, to extend the time of payment of
principal, interest or the facility fee, to reduce the amount of unpaid
principal of any Loan or 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.
Governing Law: This Agreement shall be governed by the laws of the State of
New York.
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Please evidence your acceptance of the foregoing by signing and returning
to us the enclosed copy of this Agreement on or before November 1, 1996, the
date on which our commitment to enter into this Agreement (if not accepted prior
thereto) will expire.
Very truly yours,
THE FIRST NATIONAL BANK OF
CHICAGO, as Agent and Paying Agent
By: /s/ ROBERT L. JACKSON
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Name: Robert L. Jackson
Title: Authorized Agent
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Agent
By: /s/ JOHN M. MIKOLAY
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Name: John M. Mikolay
Title: Vice President
LENDERS:
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THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ ROBERT L. JACKSON
--------------------------
Name: Robert L. Jackson
Title: Authorized Agent
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ PATRICIA P. LUNKA
--------------------------
Name: Patricia P. Lunka
Title: Vice President
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CITIBANK, N.A.
By: /s/ THOMAS D. STOTT
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Name: THOMAS D. STOTT
Title: VICE PRESIDENT
ABN AMRO BANK N.V.
By: /s/ J. M. JANOVSKY/KATHRYN C. TOTH
-----------------------------------------
Name: J. M. JANOVSKY/KATHRYN C. TOTH
Title: GROUP V. P. AND/GROUP V. P. AND
DIRECTOR/OPERATIONAL MANAGER
DEUTSCHE BANK AG
By: /s/ FLORE F. BLAISE WILLIAMS
-----------------------------------------
Name: FLORE F. BLAISE WILLIAMS
Title: VICE PRESIDENT
By: /s/ BELINDA J. WHEELER
-----------------------------------------
Name: BELINDA J. WHEELER
Title: ASSISTANT VICE PRESIDENT
THE BANK OF NOVA SCOTIA (Scotia Bank)
By: /s/ F.C.H. ASHBY
-----------------------------------------
Name: F.C.H. ASHBY
Title: SENIOR MANAGER LOAN OPERATIONS
SWISS BANK CORPORATION, INC.
By: /s/ THOMAS R. SALZANO
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Name: THOMAS R. SALZANO
Title: ASSOCIATE DIRECTOR,
BANKING FINANCE SUPPORT, N.A.
By: /s/ GARY RIDDELL
-----------------------------------------
Name: GARY RIDDELL
Title: DIRECTOR, CREDIT RISK MANAGEMENT
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THE SUMITOMO BANK, LIMITED,
New York Branch
By: /s/ YOSHINORI KAWAMURA
--------------------------------
Name: Yoshinori Kawamura
Title: Joint General Manager
UNION BANK OF SWITZERLAND
By: /s/ PAUL E. BARBIAN
--------------------------------
Name: Paul E. Barbian
Title: Managing Director
By: /s/ DANIEL R. STRICKFORD
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Name: Daniel R. Strickford
Title: Assistant Vice President
WACHOVIA BANK OF GEORGIA
By: /s/ MICHAEL RIPPS
--------------------------------
Name: Michael Ripps
Title: Assistant Vice President
NATIONSBANK, N.A.
By: /s/ MICHAEL SHORT
--------------------------------
Name: Michael Short
Title: Vice President
SOCIETE GENERALE
By: /s/ ERIC BELLAICHE
--------------------------------
Name: Eric Bellaiche
Title: Vice President
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Agreed and Accepted this 28th day of October, 1996:
THE MEAD CORPORATION
By: /s/ WILLIAM R. GRABER
----------------------------------------
William R. Graber
Vice President and Chief Financial Officer
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