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U.S.$100,000,000
CREDIT AGREEMENT
DATED AS OF MARCH 16, 1998
AMONG
SUPREMEX, INC.,
THE GUARANTORS
THAT ARE PARTY HERETO,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS ADMINISTRATIVE AGENT,
BANK OF NEW YORK,
CREDIT LYONNAIS NEW YORK BRANCH
FLEET NATIONAL BANK
NATIONSBANK OF TEXAS, N.A.,
AS CO-AGENTS,
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
ARRANGED BY
BANCAMERICA ROBERTSON STEPHENS
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS...................................................... 1
1.1 Certain Defined Terms............................................ 1
1.2 Other Interpretive Provisions.................................... 17
1.3 Accounting Principles............................................ 18
1.4 Currency Equivalents Generally................................... 18
ARTICLE II THE CREDIT....................................................... 18
2.1 The Revolving Credit............................................. 18
2.2 Loan Accounts.................................................... 19
2.3 Procedure for Borrowing.......................................... 19
2.4 Conversion and Continuation Elections for Borrowings............. 21
2.5 Utilization of Commitments in Canadian Dollars................... 22
2.6 Voluntary Termination or Reduction of Commitments................ 23
2.7 Optional Prepayments............................................. 24
2.8 Currency Exchange Fluctuations................................... 24
2.9 Mandatory Prepayments of Loans................................... 24
2.10 Repayment........................................................ 24
2.11 Interest......................................................... 25
2.12 Commitment Fee................................................... 25
2.13 Computation of Fees and Interest................................. 26
2.14 Payments by the Borrower......................................... 26
2.15 Payments by the Banks to the Administrative Agent................ 27
2.16 Sharing of Payments, Etc......................................... 28
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY........................... 28
3.1 Taxes............................................................ 28
3.2 Illegality....................................................... 29
3.3 Increased Costs and Reduction of Return.......................... 30
3.4 Funding Losses................................................... 30
3.5 Inability to Determine Rates..................................... 31
3.6 Certificates of Banks............................................ 32
3.7 Survival......................................................... 32
ARTICLE IV CONDITIONS PRECEDENT............................................. 32
4.1 Conditions of Initial Loans...................................... 32
(a) Credit Agreement; Notes..................................... 32
(b) Resolutions; Incumbency..................................... 32
(c) Organization Documents...................................... 32
(d) Legal Opinions.............................................. 32
(e) Certificate................................................. 33
i.
Page
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(f) Termination of Existing Facility............................ 33
(g).............................................................. 33
(g).............................................................. 33
(h) Other Documents............................................. 33
4.2 Conditions to All Credit Extensions.............................. 33
(a) Notice; Application......................................... 33
(b) Continuation of Representations and Warranties.............. 33
(c) No Existing Default......................................... 34
ARTICLE V REPRESENTATIONS AND WARRANTIES................................... 34
5.1 Corporate Existence and Power.................................... 34
5.2 Corporate Authorization; No Contravention........................ 34
5.3 Governmental Authorization....................................... 35
5.4 Binding Effect................................................... 35
5.5 Litigation....................................................... 35
5.6 No Default....................................................... 35
5.7 ERISA Compliance................................................. 35
5.8 Use of Proceeds; Margin Regulations.............................. 36
5.9 Title to Properties.............................................. 36
5.10 Taxes............................................................ 36
5.11 No Material Adverse Effect....................................... 37
5.12 Environmental Matters............................................ 37
5.13 Regulated Entities............................................... 37
5.14 No Burdensome Restrictions....................................... 37
5.15 Copyrights, Patents, Trademarks and Licenses, Etc................ 37
5.16 Subsidiaries..................................................... 37
5.17 Insurance........................................................ 38
5.18 Swap Obligations................................................. 38
5.19 Full Disclosure.................................................. 38
ARTICLE VI AFFIRMATIVE AND NEGATIVE COVENANTS............................... 38
ARTICLE VII EVENTS OF DEFAULT................................................ 39
7.1 Event of Default................................................. 39
(a) Non-Payment................................................. 39
(b) Representation or Warranty.................................. 39
(c) Specific Defaults........................................... 39
(d) Other Defaults.............................................. 39
(e) Cross-Default............................................... 39
(f) Insolvency; Voluntary Proceedings........................... 40
(g) Involuntary Proceedings..................................... 40
(h) ERISA....................................................... 40
(i) Monetary Judgments.......................................... 40
ii.
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(j) Non-Monetary Judgments...................................... 41
(k) Change of Control........................................... 41
(l) Loss of Licenses............................................ 41
(m) Adverse Change.............................................. 41
(n) Guarantor Defaults.......................................... 41
7.2 Remedies......................................................... 41
7.3 Rights Not Exclusive............................................. 42
ARTICLE VIII THE ADMINISTRATIVE AGENT......................................... 42
8.1 Appointment and Authorization; "Administrative Agent."........... 42
8.2 Delegation of Duties............................................. 43
8.3 Liability of Administrative Agent................................ 43
8.4 Reliance by Administrative Agent................................. 43
8.5 Notice of Default................................................ 44
8.6 Credit Decision.................................................. 44
8.7 Indemnification of Administrative Agent.......................... 45
8.8 Administrative Agent in Individual Capacity...................... 45
8.9 Successor Administrative Agent................................... 45
8.10 Withholding Tax.................................................. 46
8.11 Co-Agents........................................................ 47
ARTICLE IX MISCELLANEOUS.................................................... 47
9.1 Amendments and Waivers........................................... 47
9.2 Notices.......................................................... 48
9.3 No Waiver; Cumulative Remedies................................... 49
9.4 Costs and Expenses............................................... 49
9.5 Indemnity........................................................ 50
(a) General Indemnity........................................... 50
(b) Environmental Indemnity..................................... 50
(c) Survival; Defense........................................... 51
(d) Existing Indemnification Rights............................. 51
9.6 Payments Set Aside............................................... 51
9.7 Successors and Assigns........................................... 51
9.8 Assignments, Participations, Etc................................. 51
9.9 Confidentiality.................................................. 53
9.10 Set-off.......................................................... 54
9.11 Notification of Addresses, Lending Offices, Etc.................. 54
9.12 Counterparts..................................................... 54
9.13 Severability..................................................... 55
9.14 No Third Parties Benefitted...................................... 55
9.15 Governing Law and Jurisdiction................................... 55
9.16 Waiver of Jury Trial............................................. 55
iii.
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9.17 Guaranty......................................................... 56
(a) Guaranty.................................................... 56
(b) Separate Obligation......................................... 56
(c) Limitation of Guaranty...................................... 57
(d) Liability of Guarantor...................................... 57
(e) Consents of Guarantor....................................... 58
(f) Guarantor's Waivers......................................... 59
(g) Financial Condition of Borrower............................. 60
(h) Subrogation................................................. 60
(i) Subordination............................................... 61
(j) Continuing Guaranty......................................... 61
(k) Reinstatement............................................... 62
(l) Substantial Benefits........................................ 62
(m) Knowing and Explicit Waivers................................ 62
9.18 Entire Agreement................................................. 63
iv.
SCHEDULES
2.1 Commitments
3.3 Existing Letters of Credit
5.5 Litigation
5.7 ERISA
5.11 Permitted Liabilities
5.12 Environmental Matters
5.16 Subsidiaries and Minority Interests
5.17 Insurance Matters
9.2 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C-1 Form of Legal Opinion of Counsel to the Borrower
Exhibit C-2 Form of Legal Opinion of Counsel to the Guarantors
Exhibit D Form of Assignment and Acceptance Agreement
Exhibit E Form of Note
v.
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of March 16, 1998, by and among
SUPREMEX, INC., a Canadian corporation (hereinafter referred to as the
"Borrower"); the Guarantors party to this Agreement; the several financial
institutions party to this Agreement (collectively called the "BANKS" and
individually called a "BANK"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as administrative agent for itself and the other Banks (in such
capacity, the "ADMINISTRATIVE AGENT") and BANK OF NEW YORK, CREDIT LYONNAIS
NEW YORK BRANCH, FLEET NATIONAL BANK and NATIONSBANK OF TEXAS, N.A., as
co-agents (the "CO-AGENTS").
WHEREAS, the Borrower has requested the Banks to make available to it a
revolving loan in an aggregate principal amount not to exceed the Aggregate
Commitment.
WHEREAS, the Banks have agreed severally to make available to the
Borrower such term loan upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. The following terms have the following
meanings when used in this Agreement (including in the Preamble and
Recitals hereof):
"AFFILIATE" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of
the other Person, whether through the ownership of voting securities,
membership interests, partnership interests, by contract, or otherwise.
"ADMINISTRATIVE AGENT" means BofA in its capacity as administrative
agent for the Banks hereunder, and any successor agent arising under
Section 8.9.
"ADMINISTRATIVE AGENT'S PAYMENT OFFICE" means the address for payments
set forth on Schedule 9.2 or such other address as the Administrative Agent
may from time to time specify.
"AGENT-RELATED PERSONS" means BofA and any successor agent arising
under Section 9.7, together with their respective Affiliates (including, in
the case of BofA, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
1.
"AGGREGATE COMMITMENT" means, at any time, the combined Commitments of
all the Banks then in effect.
"AGREEMENT" means this Credit Agreement.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, on any date, the per
annum percentage set forth below based on the Leverage Ratio of Mail-Well I
as derived from the Parent's quarterly or annual financial statements most
recently delivered to the Administrative Agent under Section 7.1 of the
Mail-Well I Credit Agreement:
Applicable
LEVERAGE RATIO OF MAIL-WELL I COMMITMENT FEE PERCENTAGE
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Greater than or equal to 3.25 to 1.00 0.2500%
Less than 3.25 to 1.00 but greater than 0.2000%
or equal to 2.75 to 1.00
Less than 2.75 to 1.00 but greater than 0.1750%
or equal to 2.00 to 1.00
Less than 2.00 to 1.00 but greater than 0.1500%
or equal to 1.50 to 1.00
Less than 1.50 to 1.00 0.1375%
The Applicable Commitment Fee Percentage will become effective two (2)
Business Days after receipt by the Administrative Agent of the Compliance
Certificate delivered pursuant to Section 7.2(a) of the Mail-Well I Credit
Agreement in connection with the quarterly financial statements most
recently delivered to the Administrative Agent under Section 7.1 of the
Mail-Well I Credit Agreement. In the event that such Compliance
Certificate is not timely delivered to the Administrative Agent when
required under Section 7.2(a) of the Mail-Well I Credit Agreement, the
Applicable Commitment Fee Percentage will be 0.2500%, effective two (2)
Business Days after the date such Compliance Certificate was due until two
(2) Business Days after such Compliance Certificate is received by the
Administrative Agent. The Applicable Commitment Fee Percentage from the
Closing Date and continuing for the first two full fiscal quarters
thereafter, based upon the Borrower's financial performance for the fiscal
quarter ending September 30, 1997, will be greater than (based upon the
actual Leverage Ratio of Mail-Well I) or equal to 0.1750%. For purposes of
determining Applicable Commitment Fee Percentage, EBITDA, EBIT and interest
expense shall be adjusted for Acquisitions of "Acquired Subsidiaries" in
the same manner set forth in Section 8.15 of the Mail-Well I Credit
Agreement for calculating compliance with Sections 8.14 and 8.15 thereof.
2.
"APPLICABLE MARGIN" means, on any date:
(i) with respect to each Base Rate Loan or Prime Rate Loan
outstanding on such date, 0.00% per annum; and
(ii) with respect to each Offshore Rate Loan outstanding on such
date, the applicable margin (on a per annum basis) set forth below
based on the Leverage Ratio of Mail-Well I as derived from the
Parent's quarterly or annual financial statements most recently
delivered to the Administrative Agent under Section 7.1 of the
Mail-Well I Credit Agreement:
The Applicable Margin will become effective two (2) Business Days after
receipt by the Administrative Agent of the Compliance Certificate delivered
pursuant to Section 7.2(a) of the Mail-Well I Credit Agreement in
connection with the quarterly or annual financial statements most recently
delivered to the Administrative Agent under Section 7.1 thereof. In the
event that such Compliance Certificate is not timely delivered to the
Administrative Agent when required under Section 7.2(a) of the Mail-Well I
Credit Agreement, the Applicable Margin will be 0.875%, effective two (2)
Business Days after the date such Compliance Certificate was due until two
(2) Business Days after such Compliance Certificate is received by the
Administrative Agent. The Applicable Margin with respect to Offshore Rate
Loans from the Closing Date and continuing for the first two full fiscal
quarters thereafter, based upon Mail-Well I's financial performance for the
fiscal quarter ending September 30, 1997, will be greater than (based upon
the actual Leverage Ratio of Mail-Well I) or equal to 0.625%. For purposes
of determining Applicable Margin, EBITDA, EBIT and interest expense shall
be adjusted for Acquisitions of "Acquired Subsidiaries" in the same manner
set forth in Section 8.15 of the Mail-Well I Credit Agreement for
calculating compliance with Sections 8.14 and 8.15 thereof.
"ARRANGER" means BancAmerica Robertson Stephens.
3.
"ASSIGNEE" has the meaning specified in Section 9.8(a).
"ATTORNEY COSTS" means and includes all fees and disbursements of any
law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"BANK" has the meaning specified in the introductory clause hereto.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, ET SEQ.).
LEVERAGE RATIO OF MAIL-WELL I APPLICABLE MARGIN
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Greater than or equal to 3.25 to 1.00 0.875%
Less than 3.25 to 1.00 but greater than 0.750%
or equal to 2.75 to 1.00
Less than 2.75 to 1.00 but greater than 0.625%
or equal to 2.00 to 1.00
Less than 2.00 to 1.00 but greater than 0.500%
or equal to 1.50 to 1.00
Less than 1.50 to 1.00
"BASE RATE" means, for any day, the higher of: (a) 0.50% per annum
above the most recently announced Federal Funds Rate; and (b) the rate of
interest in effect for such day as publicly announced from time to time by
BofA in San Francisco, California, as its "reference rate." (The
"reference rate" is a rate set by BofA based upon various factors including
BofA's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may
be priced at, above, or below such announced rate.)
Any change in the reference rate announced by BofA shall take effect
at the opening of business on the day specified in the public announcement
of such change.
"BASE RATE LOAN" means a Loan that bears interest based on the Base
Rate. Base Rate Loans shall be denominated in U.S. Dollars.
"BOFA" means Bank of America National Trust and Savings Association, a
national banking association.
"BORROWING" means a borrowing hereunder consisting of Loans of the
same Type and in the same currency made to the Borrower on the same day by
the Banks pursuant to Article II and, other than in the case of Base Rate
Loans and Prime Rate Loans, having the same Interest Period.
"BORROWING DATE" means any date on which a Borrowing occurs.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which commercial banks in San Francisco and Toronto, Canada are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore interbank market and, with respect to
any disbursements and payments in and calculations pertaining to any
Canadian Dollar Loan, a day on which commercial banks are open for foreign
exchange business in London, England, and on which dealings in Canadian
dollars are carried on in the applicable offshore foreign exchange
interbank market in which disbursement of or payment in Canadian dollars
will be made or received hereunder.
4.
"CANADIAN DOLLARS" means lawful money of Canada.
"CANADIAN DOLLAR LOAN" means a Loan hereunder denominated in Canadian
dollars. Canadian Dollar Loans shall be Offshore Rate Loans or Prime Rate
Loans.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any corporation
controlling a bank.
"CHANGE OF CONTROL" means, in respect of any Person, the occurrence of
either of the following: (a) any "person" or "group" (as such terms are
used in subsections 13(d) and 14(d) of the Exchange Act and the regulations
thereunder), is or becomes the "beneficial owner" (as such term is used in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of 30% or more of
the then outstanding voting capital stock of such Person, or (b) the
Continuing Directors shall cease to constitute at least a majority of the
directors constituting the board of directors of such Person.
"CLOSING DATE" means the date on which all conditions precedent set
forth in Section 4.1 are satisfied, made conditions subsequent or waived by
all Banks.
"CODE" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"COMMITMENT" has the meaning set forth in Section 2.1.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of EXHIBIT C to the Mail-Well I Credit Agreement.
"COMPUTATION DATE" has the meaning specified in subsection 2.5(a).
"CONTINGENT OBLIGATION" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease, dividend,
letter of credit or other obligation (the "primary obligations") of another
Person (the "primary obligor"), including any obligation of that Person (i)
to purchase, repurchase or otherwise acquire such primary obligations or
any security therefor, (ii) to advance or provide funds for the payment or
discharge of any such primary obligation, or to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make
5.
payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in
respect thereof (each, a "GUARANTY OBLIGATION"); (b) with respect to any
Surety Instrument issued for the account of that Person or as to which
that Person is otherwise liable for reimbursement of drawings or
payments; (c) to purchase any materials, supplies or other property
from, or to obtain the services of, another Person if the relevant
contract or other related document or obligation requires that payment
for such materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such materials, supplies
or other property is ever made or tendered, or such services are ever
performed or tendered; or (d) in respect of any Swap Contract. The
amount of any Contingent Obligation shall, in the case of Guaranty
Obligations, be deemed equal to the stated or determinable amount of the
primary obligation in respect of which such Guaranty Obligation is made
or, if not stated or if indeterminable, the maximum reasonably
anticipated liability in respect thereof, and in the case of other
Contingent Obligations other than in respect of Swap Contracts, shall be
equal to the maximum reasonably anticipated liability in respect thereof
and, in the case of Contingent Obligations in respect of Swap Contracts,
shall be equal to the Swap Termination Value.
"CONTINUING DIRECTORS" means, in respect of any Person as of any date,
the collective reference to all members of the board of directors of such
Person who assumed office after such date and whose appointment or
nomination for election by such Person's shareholders was approved by a
vote of at least 50% of the Continuing Directors in office immediately
prior to such appointment or nomination.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or
agreement to which such Person is a party or by which it or any of its
property is bound.
"CONVERSION/CONTINUATION DATE" means any date on which, under Section
2.4, the Borrower (a) converts Loans of one Type to another Type, or (b)
continues as Loans of the same Type, but with a new Interest Period, Loans
having Interest Periods expiring on such date.
"DEFAULT" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (ii) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is
6.
acting through a branch or agency located in the United States or the
Cayman Islands; (iii) a Person that is primarily engaged in the business
of commercial banking and that is (A) a Subsidiary of a Bank, (B) a
Subsidiary of a Person of which a Bank is a Subsidiary, or (C) a Person
of which a Bank is a Subsidiary.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility of the Borrower or its Subsidiaries for violation of any
Environmental Law, or for release or injury to the environment.
"ENVIRONMENTAL LAWS" means all federal, state, local or foreign laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, licenses,
authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental, health, safety and
land use matters.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with the Borrower or any Subsidiary of
the Borrower within the meaning of subsection 414(b) or (c) of the Code
(and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any Subsidiary of the Borrower or
any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations which is treated
as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by the Borrower or any Subsidiary of the Borrower or any
ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination
under Section 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Borrower or any Subsidiary of the Borrower or any ERISA Affiliate.
"EVENT OF DEFAULT" means any of the events or circumstances specified
in Section 8.1.
7.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"EXISTING FACILITY" means collectively (i) the Promissory Note dated
November 19, 1997, from Supremex, Inc. to Bank of America Canada and (ii)
the Promissory Note dated November 19, 1997, from the Borrower to BofA.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"FEDERAL FUNDS RATE" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.15(519)") on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if for any relevant day such rate
is not so published on any such preceding Business Day, the rate for such
day will be the arithmetic mean as determined by the Administrative Agent
of the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that day by each of three
leading brokers of Federal funds transactions in New York City selected by
the Administrative Agent.
"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"FURTHER TAXES" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including, without limitation, net income taxes and franchise
taxes), and all liabilities with respect thereto, imposed by any
jurisdiction on account of amounts payable or paid pursuant to Section 3.1.
"FX TRADING OFFICE" means the Foreign Exchange Trading Center #5752,
Los Angeles, California, of BofA, or such other of BofA's offices as BofA
may designate from time to time.
"GAAP" means (i) generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), or (ii) in the case of
the Borrower, generally accepted accounting principles in the Province of
Ontario, Canada, in each case which are applicable to the circumstances and
consistently applied.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary
or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or
8.
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"GUARANTOR" means each of the Parent and Mail-Well I in its capacity
as a "guarantor" under Section 9.17 of this Agreement or, as the case may
be, under any separate agreement executed by it pursuant to which it
guarantees the Obligations.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section 9.17.
"GUARANTY" means the guaranty of each Guarantor made pursuant to
Section 9.17 and any other guaranty under any separate agreement executed
by any Guarantor pursuant to which it guarantees the Obligations.
"GUARANTY OBLIGATION" has the meaning specified in the definition of
"Contingent Obligation."
"HAZARDOUS MATERIALS" means all those substances that are regulated
by, or which may form the basis of liability under, any Environmental Law,
including any substance identified under any Environmental Law as a
pollutant, contaminant, hazardous waste, hazardous constituent, special
waste, hazardous substance, hazardous material, or toxic substance, or
petroleum or petroleum derived substance or waste.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
trade payables entered into in the ordinary course of business on ordinary
terms); (c) all noncontingent reimbursement or payment obligations with
respect to Surety Instruments; (d) all obligations evidenced by notes,
bonds, debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property, assets
or businesses; (e) all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the Person
(even though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or sale of
such property); (f) all obligations with respect to capital leases; (g) all
indebtedness referred to in clauses (a) through (f) above secured by (or
for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon or in property (including
accounts and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
Indebtedness; and (h) all Guaranty Obligations in respect of indebtedness
or obligations of others of the kinds referred to in clauses (a) through
(g) above.
For all purposes of this Agreement, the Indebtedness of any Person shall
include all recourse Indebtedness of any partnership or joint venture or
limited liability company in which such Person is a general partner or a
joint venturer or a member.
9.
"INDEMNIFIED LIABILITIES" has the meaning specified in Section 9.5.
"INDEMNIFIED PERSON" has the meaning specified in Section 9.5.
"INSOLVENCY PROCEEDING" means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or
other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshaling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial
portion of its creditors; in either event undertaken under U.S. Federal,
state or foreign law, including the Bankruptcy Code.
"INTEREST PAYMENT DATE" means, as to any Offshore Rate Loan, the last
day of each Interest Period applicable to such Loan and, as to any Base
Rate Loan or Prime Rate Loan, the last day of each calendar quarter and
each date such Base Rate Loan or Prime Rate Loan is converted into an
Offshore Rate Loan; PROVIDED, HOWEVER, that if any Interest Period for an
Offshore Rate Loan exceeds three months, the date that falls three months
after the beginning of such Interest Period and after each Interest Payment
Date thereafter is also an Interest Payment Date.
"INTEREST PERIOD" means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which a Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two,
three or six months thereafter as selected by the Borrower in its Notice
of Borrowing or Notice of Conversion/Continuation;
PROVIDED that:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, that Interest Period shall be extended to the
following Business Day unless, in the case of an Offshore Rate Loan,
the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall
end on the preceding Business Day;
(ii) any Interest Period pertaining to an Offshore Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iii) no Interest Period for any Loan shall extend beyond the
Revolving Termination Date.
10.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"LENDING OFFICE" means, as to any Bank, the office or offices of such
Bank specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office," as the case may be, on SCHEDULE 9.2, or such
other office or offices as such Bank may from time to time notify the
Borrower and the Administrative Agent.
"LIEN" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease, any financing
lease having substantially the same economic effect as any of the
foregoing, or the filing of any financing statement naming the owner of the
asset to which such lien relates as debtor, under the UCC or any comparable
law) and any contingent or other agreement to provide any of the foregoing,
but not including the interest of a lessor under an operating lease.
"LOAN" means an extension of credit by a Bank to the Borrower under
Article II, and may be an Offshore Rate Loan, a Base Rate Loan or a Prime
Rate Loan (each a "Type" of Loan).
"LOAN DOCUMENTS" means this Agreement, the Notes, if any, and all
other documents delivered to the Administrative Agent or any Bank in
connection herewith.
"LOAN PARTY" means the Borrower and each Guarantor.
"MAIL-WELL I" means Mail-Well I Corporation, a Delaware Corporation.
"MAIL-WELL I CREDIT AGREEMENT" means the Credit Agreement dated as of
March 16, 1998, by and among Mail-Well I, the "Guarantors" party thereto,
the "Banks" party thereto, the "Co-Agents" party thereto and BofA, as
administrative agent for such Banks.
"MAJORITY BANKS" means (a) at any time prior to the Revolving
Termination Date, Banks then holding at least 51% of the U.S. Dollar
Equivalent Amount of the Commitments, and (b) thereafter, Banks then
holding at least 51% of the aggregate unpaid U.S. Dollar Equivalent Amount
of the Loans. For purposes of determining whether the Majority Banks have
approved any amendment, waiver or consent or taken any other action
hereunder, the U.S. Dollar Equivalent Amount of all unpaid Canadian Dollar
Loans shall be calculated on the date such amendment, waiver or consent is
to become effective or such action is to be taken.
11.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) of any Loan Party (considering all of
its assets), or of such Loan Party and its Subsidiaries taken as a whole,
which would be expected to result in a material impairment of the ability
of such Loan Party (considering all of its assets), or of such Loan Party
and its Subsidiaries taken as a whole, to perform under any Loan Document
and to avoid any Default or Event of Default; or (b) a material adverse
effect upon the legality, validity, binding effect or enforceability
against the Borrower or any Guarantor of any Loan Document.
"MULTIEMPLOYER PLAN" means a "multiple employer plan" or a
"multiemployer plan," within the meaning of Sections 4064(a) and 4001(a)(3)
of ERISA, to which the Borrower or any Subsidiary of the Borrower or any
ERISA Affiliate makes, is making, or is obligated to make contributions or,
during the preceding three calendar years, has made, or been obligated to
make, contributions.
"NOTES" has the meaning specified in Section 2.2.
"NOTICE OF BORROWING" means a notice in substantially the form of
EXHIBIT A.
"NOTICE OF CONVERSION/CONTINUATION" means a notice in substantially
the form of EXHIBIT B.
"OBLIGATIONS" means all Loans and other Indebtedness arising under any
Loan Document and all other advances, debts, liabilities, obligations,
covenants and duties owing by the Borrower or any other Loan Party to any
Bank, the Administrative Agent, or any Indemnified Person, whether direct
or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising.
"OFFSHORE RATE" means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/16th of 1%) determined by
the Administrative Agent as follows:
Offshore Rate = LIBOR
---------------------------------------
1.00 -- Eurodollar Reserve Percentage
Where,
"EURODOLLAR RESERVE PERCENTAGE" means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on such
day (whether or not applicable to any Bank) under regulations issued
from time to time by the FRB
12.
for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"); and
"LIBOR" means the rate of interest per annum determined by the
Administrative Agent to be the arithmetic mean (rounded upward to the
nearest 1/16th of 1%) of the rates of interest per annum notified to
the Administrative Agent by BofA as the rate of interest at which
deposits in U.S. Dollars or Canadian dollars, as the case may be, in
the approximate amount of the Loans to be borrowed in such Borrowing
(or the approximate amount of the Loans to be continued as or
converted into Offshore Rate Loans) and having a maturity comparable
to such Interest Period, would be offered to major banks in the London
interbank market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest
Period.
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in the
Eurodollar Reserve Percentage.
"OFFSHORE RATE LOAN" means any Loan that bears interest based on the
Offshore Rate.
"ORGANIZATION DOCUMENTS" means, for any corporation, the certificate
or articles of incorporation, the bylaws, any certificate of determination
or instrument relating to the rights of preferred shareholders of such
corporation, any shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee thereof) of such
corporation, and for any partnership, the partnership agreement, any other
agreements or instruments relating to the rights of the partners of such
partnership or limiting or authorizing the activities of such partnership,
and all applicable resolutions of such partnership.
"OTHER TAXES" means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies
which arise from any payment made hereunder or from the execution,
delivery, performance, enforcement or registration of, or otherwise with
respect to, this Agreement or any other Loan Documents.
"OVERNIGHT RATE" means, for any day, the rate of interest per annum at
which overnight deposits in Canadian dollars, in an amount approximately
equal to the amount with respect to which such rate is being determined,
would be offered for such day by the Administrative Agent to major banks in
the applicable offshore interbank market.
"PARENT" means Mail-Well, Inc., a Delaware corporation.
13.
"PARTICIPANT" has the meaning specified in Section 9.8(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
"PENSION PLAN" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which the Borrower or any Subsidiary of
the Borrower or any ERISA Affiliate sponsors, maintains, or to which it
makes, is making, or is obligated to make contributions, or in the case of
a multiple employer plan (as described in Section 4064(a) of ERISA) has
made contributions at any time during the immediately preceding five (5)
plan years.
"PERMITTED SWAP OBLIGATIONS" means all obligations (contingent or
otherwise) of the Borrower or any Subsidiary existing or arising under Swap
Contracts, provided that each of the following criteria is satisfied: (a)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated
with liabilities, commitments or assets held or reasonably anticipated by
such Person, or changes in the value of securities issued by such Person in
conjunction with a securities repurchase program not otherwise prohibited
hereunder, and not for purposes of speculation or taking a "market view";
and (b) such Swap Contracts do not contain any provision ("walk-away"
provision) exonerating the nondefaulting party from its obligation to make
payments on outstanding transactions to the defaulting party.
"PERSON" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"PLAN" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Borrower or any Subsidiary of the Borrower sponsors or
maintains or to which the Borrower or any Subsidiary of the Borrower makes,
is making, or is obligated to make contributions and includes any Pension
Plan.
"PRIME RATE" means, for any day, the per annum rate of interest in
effect for such day as publicly announced from time to time by Bank of
America Canada in Toronto, Ontario, as its "prime rate." (The "prime rate"
is a rate set by Bank of America Canada based upon various factors
including Bank of America Canada's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced
rate.) Any change in the prime rate announced by Bank of America Canada
shall take effect at the opening of business on the day specified in the
public announcement of such change.
"PRIME RATE LOAN" means a Canadian Dollar Loan that bears interest
based on the Prime Rate.
14.
"PRO RATA SHARE" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at
such time of such Bank's Commitment divided by the combined Commitments of
all Banks.
"REPORTABLE EVENT" means, any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such event
for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC.
"REQUIREMENT OF LAW" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of
a Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject.
"RESPONSIBLE OFFICER" means, with respect to the Borrower or any other
Loan Party or any Subsidiary of the Borrower or such Loan Party, its chief
executive officer or its president, or any other officer having
substantially the same authority and responsibility; or, with respect to
compliance with financial covenants, its chief financial officer or its
treasurer, or any other officer having substantially the same authority and
responsibility.
"REVOLVING TERMINATION DATE" means the earlier to occur of:
(a) September 16, 1998; and
(b) the date on which the Commitments terminate in accordance
with the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"SPOT RATE" for a currency means the rate quoted by BofA as the spot
rate for the purchase by BofA of such currency with another currency
through its FX Trading Office at approximately 8:00 a.m. (San Francisco
time) on the date two Business Days prior to the date as of which the
foreign exchange computation is made.
"SUBSIDIARY" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests or
other equity interests (in the case of Persons other than corporations), is
owned or controlled directly or indirectly by the Person, or one or more of
the Subsidiaries of the Person, or a combination thereof. Unless the
context otherwise clearly requires, references herein to a "Subsidiary"
refer to a Subsidiary of the Borrower.
15.
"SURETY INSTRUMENTS" means all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, shipside bonds,
surety bonds and similar instruments.
"SWAP CONTRACT" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap
or option, bond, note or bill option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or
any combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the
foregoing.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a) the amount(s)
determined as the mark-to-market value(s) for such Swap Contracts, as
determined by the Administrative Agent based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in
such Swap Contracts (which may include any Bank).
"TAXES" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Administrative Agent, respectively, taxes imposed on
or measured by its net income or gross receipts by the jurisdiction (or any
political subdivision thereof) under the laws of which such Bank or the
Administrative Agent, as the case may be, is organized or maintains a
lending office.
"TYPE" has the meaning specified in the definition of "Loan."
"UNFUNDED PENSION LIABILITY" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of
that Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"UNITED STATES," "US" and "U.S." each means the United States of
America.
"U.S. DOLLAR EQUIVALENT AMOUNT" means, at any time, (a) as to any
amount denominated in U.S. Dollars, the amount thereof at such time, and
(b) as to any amount denominated in Canadian dollars, the equivalent amount
in U.S. Dollars as determined by the Administrative Agent using the Spot
Rate for the purchase of U.S.
16.
Dollars with Canadian dollars on the most recent Computation Date provided
for in subsection 2.5(a).
"U.S. DOLLARS," "DOLLARS", "DOLLARS" and "$" each mean lawful money of
the United States.
"WHOLLY OWNED SUBSIDIARY" means any corporation in which (other than
directors' qualifying shares required by law) 100% of the capital stock of
each class having ordinary voting power, and 100% of the capital stock of
every other class, in each case, at the time as of which any determination
is being made, is owned, beneficially and of record, by the Borrower, or by
one or more of the other Wholly Owned Subsidiaries, or both.
1.2 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but excluding," and the word
"through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this Agreement.
17.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms. Unless otherwise expressly provided,
any reference to any action of the Administrative Agent or the Banks by way of
consent, approval or waiver shall be deemed modified by the phrase "in its/their
sole discretion."
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, the Borrower and its Subsidiaries, the Banks and the other parties, and
are the products of all parties. Accordingly, they shall not be construed
against the Banks or the Administrative Agent merely because of the
Administrative Agent's or Banks' involvement in their preparation.
1.3 ACCOUNTING PRINCIPLES.
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Borrower, unless otherwise specified.
1.4 CURRENCY EQUIVALENTS GENERALLY. For all purposes of this Agreement
(but not for purposes of the preparation of any financial statements delivered
pursuant hereto), the equivalent in Canadian dollars (or any other currency) of
an amount in U.S. Dollars, and the equivalent in U.S. Dollars of an amount in
Canadian dollars (or any other currency), shall be determined at the Spot Rate.
ARTICLE II
THE CREDIT
2.1 THE REVOLVING CREDIT. Each Bank severally agrees, on the terms and
conditions set forth herein, to make loans to the Borrower denominated in U.S.
Dollars or Canadian dollars (each such loan, a "LOAN") from time to time on any
Business Day during the period from the Closing Date to the Revolving
Termination Date, in an aggregate U.S. Dollar Equivalent Amount outstanding not
to exceed at any time the amount set forth on SCHEDULE 2.1 in respect of such
Bank (such amount as the same may be reduced under Section 2.6 or as a result of
one or more assignments under Section 9.8, the Bank's "COMMITMENT"); PROVIDED,
HOWEVER, that, after giving effect to any Borrowing of Loans, the U.S. Dollar
Equivalent Amount of the outstanding Loans of all the Banks together shall not
at any time exceed the aggregate Commitments of the Banks. Within the limits of
each Bank's Commitment, and subject to the other terms and conditions hereof,
the Borrower may borrow under this Section 2.1, prepay under Section 2.7 and
reborrow under this Section 2.1.
18.
The Borrower understands and agrees that the Existing Facility shall
terminate, without necessity of further act of the parties, upon execution of
this Agreement by the Borrower. The Borrower confirms and acknowledges its
obligations to pay to BofA on the Closing Date all amounts outstanding under the
Existing Facility, and the Borrower covenants and each other party hereto
acknowledges and agrees that proceeds of the initial Borrowings under this
Agreement shall be used to pay all principal and accrued interest (if any) and
all other amounts outstanding under the Existing Facility.
2.2 LOAN ACCOUNTS.
(a) The Loans made by each Bank shall be evidenced by one or more
accounts or records maintained by such Bank in the ordinary course of business.
The accounts or records maintained by the Administrative Agent and each Bank
shall be conclusive absent manifest error of the amount of the Loans made by the
Banks to the Borrower and the interest and payments thereon. Any failure so to
record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrower hereunder to pay any amount owing with respect to
the Loans.
(b) Upon the request of any Bank made through the Administrative
Agent, the Loans made by such Bank may be evidenced by one or more notes
("Notes") instead of or in addition to loan accounts. Each such Bank shall
endorse on the schedules annexed to its Note(s) the date, amount, applicable
currency and maturity of each Loan made by it and the amount and applicable
currency of each payment of principal made by the Borrower with respect
thereto. Each such Bank is irrevocably authorized by the Borrower to endorse
its Note(s) and each Bank's record shall be conclusive absent manifest error;
PROVIDED, HOWEVER, that the failure of a Bank to make, or an error in making,
a notation thereon with respect to any Loan shall not limit or otherwise
affect the obligations of the Borrower hereunder or under any such Note to
such Bank.
2.3 PROCEDURE FOR BORROWING.
(a) Each Borrowing shall be made upon the Borrower's irrevocable
written notice delivered to the Administrative Agent in the form of a Notice of
Borrowing (which notice must be received by the Administrative Agent prior to
9:00 a.m. (San Francisco time)) at least (i) four Business Days prior to the
requested Borrowing Date in the case of Canadian Dollar Loans, (ii) three
Business Days prior to the requested Borrowing Date, in the case of Offshore
Rate Loans denominated in U.S. Dollars; and (iii) one Business Day prior to the
requested Borrowing Date, in the case of Base Rate Loans or Prime Rate Loans,
specifying:
(A) the amount of the Borrowing in U.S. Dollars or Canadian
Dollars, as the case may be, which shall be in an aggregate minimum
U.S. Dollar Equivalent Amount of $5,000,000 or, in the case of any
Borrowing in U.S. Dollars only, any multiple of $1,000,000 in excess
thereof;
(B) the requested Borrowing Date, which shall be a Business
Day;
19.
(C) the Type of Loans comprising the Borrowing;
(D) with respect to Offshore Rate Loans, the duration of
the Interest Period applicable to such Loans included in such notice.
If the Notice of Borrowing fails to specify the duration of the
Interest Period for any Borrowing comprised of Offshore Rate Loans,
such Interest Period shall be three months; and
(E) whether such Borrowing shall be denominated in U.S.
Dollars or Canadian dollars;
PROVIDED, HOWEVER, that with respect to any Borrowing to be made on the Closing
Date, the Notice of Borrowing may be delivered to the Administrative Agent not
later than 11:00 a.m. (San Francisco time) at least three Business Days before
the Closing Date.
(b) The U.S. Dollar Equivalent Amount of any Borrowing of Canadian
Dollar Loans will be determined by the Administrative Agent for such Borrowing
on the Computation Date therefor in accordance with subsection 2.5(a). The
Administrative Agent will promptly notify each Bank of its receipt of any Notice
of Borrowing and of the amount of such Bank's Pro Rata Share of that Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of each
Borrowing available to the Administrative Agent for the account of the Borrower
at the Administrative Agent's Payment Office by 11:00 a.m. (San Francisco time)
on the Borrowing Date requested by the Borrower in funds immediately available
to the Administrative Agent and in the requested currency. The proceeds of all
such Loans will then be made available to the Borrower by the Administrative
Agent at such office by crediting the account of the Borrower on the books of
BofA with the aggregate of the amounts made available to the Administrative
Agent by the Banks and in like funds as received by the Administrative Agent, or
if requested by the Borrower, by wire transfer in accordance with written
instructions provided to the Administrative Agent by the Borrower of such funds
as received by the Administrative Agent, less customary fees for such wire
transfer.
(d) After giving effect to any Borrowing, unless the Administrative
Agent shall otherwise consent, there may not be more than ten (10) different
Interest Periods in effect in respect of all Loans then outstanding.
2.4 CONVERSION AND CONTINUATION ELECTIONS FOR BORROWINGS.
(a) The Borrower may, upon irrevocable written notice to the
Administrative Agent in accordance with Section 2.4(b),
(i) elect to convert, as of any Business Day, any Base Rate Loans or
Prime Rate Loans (or any part thereof in a U.S. Dollar Equivalent Amount
not less than
20.
$5,000,000, or, in the case of Base Rate Loans only, that is in an
integral multiple of $1,000,000 in excess thereof) into Offshore Rate
Loans of the same currency;
(ii) elect to convert, as of the last day of the applicable Interest
Period, any Offshore Rate Loans expiring on such day (or any part thereof
in a U.S. Dollar Equivalent Amount not less than $1,000,000, or, in the
case of Offshore Rate Loans denominated in U.S. Dollars only, that is in an
integral multiple of $1,000,000 in excess thereof) into Base Rate Loans or
Prime Rate Loans of the same currency; or
(iii) elect to continue (for the same or different Interest Period),
as of the last day of the applicable Interest Period, any Offshore Rate
Loans having Interest Periods expiring on such day (or any part thereof in
a U.S. Dollar Equivalent Amount not less than $5,000,000, or, in the case
of Offshore Rate Loans denominated in U.S. Dollars only, that is in an
integral multiple of $1,000,000 in excess thereof);
PROVIDED, that if at any time the aggregate U.S. Dollar Equivalent Amount of
Offshore Rate Loans is reduced, by payment, prepayment, or conversion of part
thereof to be less than $5,000,000, such Offshore Rate Loans shall automatically
convert into Base Rate Loans, in the case of Offshore Rate Loans denominated in
U.S. Dollars, or Prime Rate Loans, in the case of Offshore Rate Loans
denominated in Canadian dollars, and on and after such date the right of the
Borrower to continue such Loans as, and convert such Loans into, Offshore Rate
Loans shall terminate.
(b) To convert or continue a Loan as provided in subsection 2.4(a),
the Borrower shall deliver a Notice of Conversion/Continuation to be received by
the Administrative Agent not later than 9:00 a.m. (San Francisco time) at least
(i) three Business Days in advance of the Conversion/Continuation Date, if the
Loans are to be converted into or continued as Offshore Rate Loans denominated
in U.S. Dollars; (ii) four Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or continued
as Offshore Rate Loans denominated in Canadian dollars; and (iii) one Business
Day in advance of the Conversion/Continuation Date, if the Loans are to be
converted into Base Rate or Prime Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date,
(B) the aggregate amount in U.S. Dollars or Canadian
dollars, as the case may be, of Loans to be converted or continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into Base Rate
Loans or Prime Rate Loans, the duration of the requested Interest
Period.
21.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans denominated in U.S. Dollars, the Borrower has failed to
select a new Interest Period to be applicable to such Offshore Rate Loans prior
to the third Business Day in advance of the expiration date of the current
Interest Period applicable thereto as provided in Subsection 2.4(b), or if any
Default or Event of Default then exists, the Borrower shall be deemed to have
elected to convert such Offshore Rate Loans into Base Rate Loans effective as of
the expiration date of such Interest Period, and all conditions to such
conversion shall be deemed to have been satisfied. If the Borrower has failed
to select a new Interest Period to be applicable to Offshore Rate Loans
denominated in Canadian dollars prior to the fourth Business Day in advance of
the expiration date of the current Interest Period applicable thereto as
provided in subsection 2.4(b), or if any Default or Event of Default shall then
exist, subject to the provisions of subsection 2.5(d), the Borrower shall be
deemed to have elected to convert such Offshore Rate Loans into Prime Rate Loans
effective as of the expiration date of such Interest Period, and all conditions
to such conversion shall be deemed to have been satisfied.
(d) The Administrative Agent will promptly notify each Bank of its
receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by the Borrower, the Administrative Agent will promptly notify each
Bank of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans with respect to which the notice was given held
by each Bank.
(e) Unless the Majority Banks otherwise consent, during the existence
of a Default or Event of Default, the Borrower may not elect to have a Loan
converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of Loans,
unless the Administrative Agent shall otherwise consent, there may not be more
than ten (10) different Interest Periods in effect in respect of all Loans then
outstanding.
2.5 UTILIZATION OF COMMITMENTS IN CANADIAN DOLLARS. (a) The
Administrative Agent will determine the U.S. Dollar Equivalent Amount with
respect to any (i) Borrowing comprised of Canadian Dollar Loans as of the
requested Borrowing Date, (ii) outstanding Canadian Dollar Loans as of the last
Business Day of each calendar month, and (iii) outstanding Canadian Dollar Loans
as of any redenomination date pursuant to this Section 2.5 or Section 3.5 (each
such date under clauses (i) through (iii) a "COMPUTATION DATE").
(b) In the case of a proposed Borrowing of Canadian Dollar Loans, the
Banks shall be under no obligation to make such Canadian Dollar Loans as part of
such Borrowing if the Administrative Agent has received notice from any of the
Banks by 5:00 p.m. (San Francisco time) three Business Days prior to the date of
such Borrowing that such Bank cannot provide Loans in Canadian dollars, in which
event the Administrative Agent will give notice to the Borrower no later than
9:00 a.m. (San Francisco time) on the second Business Day prior to the requested
date of such Borrowing that the Borrowing in Canadian
22.
dollars is not then available, and notice thereof also will be given promptly
by the Administrative Agent to the Banks. If the Agent shall have so
notified the Borrower that any such Borrowing in Canadian dollars is not then
available, the Borrower may, by notice to the Administrative Agent not later
than 5:00 p.m. (San Francisco time) two Business Days prior to the requested
date of such Borrowing, withdraw the Notice of Borrowing relating to such
requested Borrowing. If the Borrower does so withdraw such Notice of
Borrowing, the Borrowing requested therein shall not occur and the
Administrative Agent will promptly so notify each Bank. If the Borrower does
not so withdraw such Notice of Borrowing, the Administrative Agent will
promptly so notify each Bank and such Notice of Borrowing shall be deemed to
be a Notice of Borrowing that requests a Borrowing comprised of Base Rate
Loans in an aggregate amount equal to the amount of the originally requested
Borrowing as expressed in U.S. Dollars in the Notice of Borrowing; and in
such notice by the Administrative Agent to each Bank the Administrative Agent
will state such aggregate amount of such Borrowing to be made in U.S. Dollars
and such Bank's Pro Rata Share thereof.
(c) In the case of a proposed continuation of Canadian Dollar Loans
for an additional Interest Period pursuant to Section 2.4, the Banks shall be
under no obligation to continue such Canadian Dollar Loans if the Administrative
Agent has received notice from any of the Banks by 5:00 p.m. (San Francisco
time) three Business Days prior to the day of such continuation that such Bank
cannot continue to provide Offshore Rate Loans denominated in Canadian dollars,
in which event the Agent will give notice to the Borrower not later than 9:00
a.m. (San Francisco time) on the second Business Day prior to the requested date
of such continuation that the continuation of such Canadian Dollar Loans is not
then available, and notice thereof also will be given promptly by the
Administrative Agent to the Banks. If the Administrative Agent shall have so
notified the Borrower that any such continuation of Canadian Dollar Loans is not
then available, any Notice of Conversion/Continuation with respect thereto shall
be deemed withdrawn and such Canadian Dollar Loans shall be automatically
converted into Prime Rate Loans with effect from the last day of the applicable
Interest Period with respect to such Canadian Dollar Loans, and all conditions
to such conversion shall be deemed to have been satisfied. The Agent will
promptly notify the Borrower and the Banks of any such automatic conversion.
(d) Notwithstanding anything herein to the contrary, during the
existence of a Default or an Event of Default, upon the request of the Majority
Banks, all or any part of any outstanding Canadian Dollar Loans shall be
redenominated and converted into Base Rate Loans in U.S. Dollars with effect
from (i) in the case of Prime Rate Loans, the next succeeding Business Day
following the Administrative Agent's receipt of such request from the Majority
Banks, or (ii) in the case of Offshore Rate Loans denominated in Canadian
dollars, the last day of the Interest Period with respect to such Canadian
Dollar Loans, and all conditions to such conversion shall be deemed to have been
satisfied. The Administrative Agent will promptly notify the Borrower of any
such redenomination and conversion request.
(e) Notwithstanding anything herein to the contrary, no Prime Rate
Loan may be outstanding for more than 10 consecutive Business Days.
23.
2.6 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS.
(a) The Borrower may, upon five Business Days' prior notice to the
Administrative Agent, terminate the Commitments, or permanently reduce the
Commitments by an aggregate minimum U.S. Dollar Equivalent Amount of $5,000,000
or any multiple of $1,000,000 in excess thereof; PROVIDED that (i) no such
reduction or termination shall be permitted if, after giving effect thereto and
to any prepayments of Loans made on the effective date thereof, the U.S. Dollar
Equivalent Amount of all Loans then outstanding would exceed the combined
Commitments then in effect; and (ii) once reduced in accordance with this
Section 2.6, the Commitments may not be increased. Any reduction of the
Commitments shall be applied ratably to each Bank's Commitment in accordance
with such Bank's Pro Rata Share. If the Commitments are terminated in their
entirety, all accrued commitment fees to the effective date of such termination
of Commitments, shall be paid on the effective date of such termination.
2.7 OPTIONAL PREPAYMENTS. Subject to Section 3.4, the Borrower may, at
any time or from time to time, upon irrevocable notice received by the
Administrative Agent, in the case of Offshore Rate Loans, not later than 9:00
a.m. (San Francisco time) three Business Days prior to the requested prepayment
date, and, in the case of Base Rate Loans or Prime Rate Loans, not less than one
Business Day prior to the requested prepayment date, ratably prepay Loans in
whole or in part, in minimum U.S. Dollar Equivalent Amounts of $5,000,000 (or
such lesser principal amount then outstanding) or, in the case of Loans
denominated in U.S. Dollars only, any multiple of $1,000,000 in excess thereof.
Such notice of prepayment shall specify the date and amount of such prepayment
and the Type(s) of Loans to be prepaid. The Administrative Agent will promptly
notify each Bank of its receipt of any such notice, and of such Bank's Pro Rata
Share of such prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein, together with accrued interest
to each such date on the amount prepaid and any amounts required pursuant to
Section 3.4.
2.8 CURRENCY EXCHANGE FLUCTUATIONS. Subject to Section 3.4, if on any
Computation Date the Administrative Agent shall have determined that the
aggregate U.S. Dollar Equivalent Amount of all outstanding Loans exceeds the
combined Commitments by more than $500,000, due to a change in the applicable
rate of exchange between U.S. Dollars and Canadian dollars, then the
Administrative Agent shall give notice to the Borrower that a prepayment is
required under this Section, and the Borrower agrees thereupon to make
prepayments of Loans such that, after giving effect to such prepayment, the
aggregate U.S. Dollar Equivalent Amount of all outstanding Loans does not exceed
the combined Commitments.
2.9 MANDATORY PREPAYMENTS OF LOANS. Subject to Section 3.4, if on any
date the U.S. Dollar Equivalent Amount of all outstanding Loans together exceeds
the combined Commitments, the Borrower shall immediately, and without notice or
demand, prepay the outstanding principal amount of the Loans by an amount equal
to the applicable excess.
24.
2.10 REPAYMENT. The Borrower shall repay to the Banks on the Revolving
Termination Date the aggregate principal amount of all Loans outstanding on such
date.
2.11 INTEREST.
(a) Each Loan shall bear interest on the outstanding principal amount
thereof from the applicable Borrowing Date at a rate per annum equal to the
Offshore Rate, the Base Rate or the Prime Rate, as the case may be, (and subject
to the Borrower's right to convert to other Types of Loans under Section 2.4),
PLUS the Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of
Loans under Section 2.7 for the portion of the Loans so prepaid and upon payment
(including prepayment) in full thereof and, during the existence of any Event of
Default, interest shall be paid on demand of the Administrative Agent at the
request or with the consent of the Majority Banks.
(c) Notwithstanding subsection (a) of this Section, during the
existence of any Event of Default under Section 7.1(a), 7.1(c), 7.1(e), 7.1(k),
or 7.1(m) as a consequence of the failure of the Borrower to observe or perform
or cause to be observed or performed any term, covenant or agreement contained
in Section 7.11 or Article VIII of the Mail-Well I Credit Agreement (as such
Section 7.11 and Article VIII are incorporated herein by reference), or after
acceleration, the Borrower shall pay interest (after as well as before any entry
of judgment thereon to the extent permitted by law) on the principal amount of
all outstanding Obligations, at a rate per annum which is determined by adding
two percent (2.00%) per annum to the Applicable Margin then in effect for such
Obligations and, in the case of Obligations not subject to an Applicable Margin,
at a rate per annum equal to the Base Rate plus two percent (2.00%); PROVIDED,
HOWEVER, that, on and after the expiration of any Interest Period applicable to
any Offshore Rate Loan outstanding on the date of occurrence of such Event of
Default or acceleration, the principal amount of such Loan shall, during the
continuation of such Event of Default or after acceleration, bear interest at a
rate per annum equal to the Base Rate PLUS two percent (2.00%). All such
interest shall be payable upon demand.
(d) Anything herein to the contrary notwithstanding, the obligations
of the Borrower to any Bank hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by such Bank would be contrary to the provisions of
any law applicable to such Bank limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Bank, and in such event
the Borrower shall pay such Bank interest at the highest rate permitted by
applicable law.
25.
2.12 COMMITMENT FEE. The Borrower shall pay to the Administrative Agent
for the account of each Bank a commitment fee on the actual daily unused portion
of such Bank's Commitment, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based upon the daily utilization for that
quarter as calculated by the Administrative Agent, equal to such unused portion
as so calculated multiplied by the Applicable Commitment Fee Percentage for such
period. Such commitment fee shall accrue from the Closing Date to the Revolving
Termination Date and shall be due and payable quarterly in arrears on the last
Business Day of each quarter commencing on March 31, 1998 through the Revolving
Termination Date, with the final payment to be made on the Revolving Termination
Date; PROVIDED that, in connection with any termination of the Commitments under
Section 2.6, the accrued commitment fee calculated for the period ending on such
date shall also be paid on the date of such termination. The commitment fees
provided in this Section shall accrue at all times after the Closing Date,
including at any time during which one or more conditions in Article IV are not
met.
2.13 COMPUTATION OF FEES AND INTEREST.
(a) All computations of interest for Base Rate Loans when the Base
Rate is determined by BofA's "reference rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall accrue during
each period during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) For purposes of determining utilization of each Bank's Commitment
in order to calculate the commitment fee due under Section 2.12, the amount of
any outstanding Canadian Dollar Loan on any date shall be determined based upon
the U.S. Dollar Equivalent Amount as of the most recent Computation Date with
respect to such Canadian Dollar Loan.
(c) Each determination of an interest rate or a U.S. Dollar
Equivalent Amount by the Administrative Agent shall be conclusive and binding on
the Borrower and the Banks in the absence of manifest error.
2.14 PAYMENTS BY THE BORROWER.
(a) All payments to be made by the Borrower shall be made without
set-off, recoupment or counterclaim. Except as otherwise expressly provided
herein, all payments by the Borrower shall be made to the Administrative
Agent for the account of the Banks at the Administrative Agent's Payment
Office, and shall be made in U.S. Dollars or, in the case of payments of
interest or principal on account of Canadian Dollar Loans, Canadian dollars,
and in immediately available funds, no later than 11:00 a.m. (San Francisco
time) on the date specified herein. The Administrative Agent will promptly
distribute to each Bank its Pro Rata Share (or other applicable share as
expressly provided herein) of such payment in like funds as received. Any
payment received by the Administrative Agent later than 11:00 a.m.
26.
(San Francisco time) shall be deemed to have been received on the following
Business Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the Borrower
prior to the date on which any payment is due to the Banks that the Borrower
will not make such payment in full as and when required, the Administrative
Agent may assume that the Borrower has made such payment in full to the
Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Borrower has not made such
payment in full to the Administrative Agent, each Bank shall repay to the
Administrative Agent on demand such amount distributed to such Bank, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Bank until the date repaid.
2.15 PAYMENTS BY THE BANKS TO THE ADMINISTRATIVE AGENT.
(a) Unless the Administrative Agent receives notice from a Bank on or
prior to the Closing Date or, with respect to any Borrowing after the Closing
Date, at least one Business Day prior to the date of such Borrowing, that such
Bank will not make available as and when required hereunder to the
Administrative Agent for the account of the Borrower the amount of that Bank's
Pro Rata Share of the Borrowing, the Administrative Agent may assume that each
Bank has made such amount available to the Administrative Agent in immediately
available funds on the Borrowing Date and the Administrative Agent may (but
shall not be so required), in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent any Bank
shall not have made its full amount available to the Administrative Agent in
immediately available funds and the Administrative Agent in such circumstances
has made available to the Borrower such amount, that Bank shall on the Business
Day following such Borrowing Date make such amount available to the
Administrative Agent, together with interest at the Federal Funds Rate or, in
the case of any Borrowing consisting of Canadian Dollar Loans, the Overnight
Rate, for each day during such period. A notice of the Administrative Agent
submitted to any Bank with respect to amounts owing under this subsection (a)
shall be conclusive, absent manifest error. If such amount is so made
available, such payment to the Administrative Agent shall constitute such Bank's
Loan on the date of Borrowing for all purposes of this Agreement. If such
amount is not made available to the Administrative Agent on the Business Day
following the Borrowing Date, the Administrative Agent will notify the Borrower
by the next succeeding Business Day of such failure to fund and, upon demand by
the Administrative Agent, the Borrower shall pay such amount to the
Administrative Agent for the Administrative Agent's account, together with
interest thereon for each day elapsed since the
27.
date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing Date
shall not relieve any other Bank of any obligation hereunder to make a Loan on
such Borrowing Date, but no Bank shall be responsible for the failure of any
other Bank to make the Loan to be made by such other Bank on any Borrowing Date.
2.16 SHARING OF PAYMENTS, ETC. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Pro Rata Share (or other share
contemplated hereunder), such Bank shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to cause such
purchasing Bank to share the excess payment pro rata with each of them;
PROVIDED, HOWEVER, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees that any Bank so purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off, but subject to Section 9.10) with respect to such
participation as fully as if such Bank were the direct creditor of the Borrower
in the amount of such participation. The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the
Banks following any such purchases or repayments.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1 TAXES.
(a) Any and all payments by the Borrower to each Bank, or the
Administrative Agent under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for, any Taxes. In
addition, the Borrower shall pay all Other Taxes.
(b) If the Borrower shall be required by law to deduct or withhold
any Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Bank or the Administrative Agent, then:
28.
(i) the sum payable shall be increased as necessary so
that, after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Bank or the Administrative Agent, as the case may be,
receives and retains an amount equal to the sum it would have received and
retained had no such deductions or withholdings been made;
(ii) the Borrower shall make such deductions and
withholdings;
(iii) the Borrower shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance
with applicable law; and
(iv) the Borrower shall also pay to each Bank or the
Administrative Agent for the account of such Bank, at the time interest is
paid, Further Taxes in the amount that the respective Bank specifies as
necessary to preserve the after-tax yield the Bank would have received if
such Taxes, Other Taxes or Further Taxes had not been imposed.
(c) The Borrower agrees to indemnify and hold harmless each Bank and
the Administrative Agent for the full amount of (i) Taxes, (ii) Other Taxes, and
(iii) Further Taxes in the amount that the respective Bank specifies as
necessary to preserve the after-tax yield the Bank would have received if such
Taxes, Other Taxes or Further Taxes had not been imposed, and any liability
(including penalties, interest, additions to tax and expenses) arising therefrom
or with respect thereto, whether or not such Taxes, Other Taxes or Further Taxes
were correctly or legally asserted. Payment under this indemnification shall be
made within 30 days after the date the Bank or the Administrative Agent makes
written demand therefor.
(d) Within 30 days after the date of any payment by the Borrower of
Taxes, Other Taxes or Further Taxes, the Borrower shall furnish to each Bank or
the Administrative Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory to such
Bank or the Administrative Agent.
(e) If the Borrower is required to pay any amount to any Bank or the
Administrative Agent pursuant to subsection (b) or (c) of this Section, then
such Bank shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Borrower which may thereafter
accrue, if such change in the sole and absolute judgment of such Bank is not
otherwise disadvantageous to such Bank.
3.2 ILLEGALITY.
(a) If any Bank determines that the introduction of any Requirement
of Law, or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for any Bank or its applicable
29.
Lending Office, to make Offshore Rate Loans, then, on notice thereof by the
Bank to the Borrower through the Administrative Agent, any obligation of that
Bank to make Offshore Rate Loans shall be suspended until the Bank notifies
the Administrative Agent and the Borrower that the circumstances giving rise
to such determination no longer exist.
(b) If a Bank determines that it is unlawful for such Bank to
maintain any Offshore Rate Loan, the Borrower shall, upon its receipt of notice
of such fact and demand from such Bank (with a copy to the Administrative
Agent), prepay in full such Offshore Rate Loans of that Bank then outstanding,
together with interest accrued thereon and amounts required under Section 3.4,
either on the last day of the Interest Period thereof, if the Bank may lawfully
continue to maintain such Offshore Rate Loans to such day, or immediately, if
the Bank may not lawfully continue to maintain such Offshore Rate Loans. If the
Borrower is required to so prepay any Offshore Rate Loan, then concurrently with
such prepayment, the Borrower shall borrow from the affected Bank, in the amount
of such repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or maintain Offshore Rate
Loans has been so terminated or suspended, the Borrower may elect, by giving
notice to the Bank through the Administrative Agent, that all Loans which would
otherwise be made or maintained by the Bank as Offshore Rate Loans shall be
instead Base Rate Loans.
3.3 INCREASED COSTS AND REDUCTION OF RETURN.
(a) If any Bank determines that, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation or (ii)
the compliance by that Bank with any guideline or request from any central bank
or other Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to such Bank of agreeing to make or making,
funding or maintaining any Loans, then the Borrower shall be liable for, and
shall from time to time, upon demand (with a copy of such demand to be sent to
the Administrative Agent), pay to the Administrative Agent for the account of
such Bank, additional amounts as are sufficient to compensate such Bank for such
increased costs.
(b) If any Bank shall have determined that (i) the introduction of
any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
the Bank (or its Lending Office) or any corporation controlling the Bank with
any Capital Adequacy Regulation, affects or would affect the amount of capital
required or expected to be maintained by the Bank or any corporation controlling
the Bank and (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy and such Bank's desired return on
capital) determines that the amount of such capital is increased as a
consequence of its Commitment, Loans, credits or obligations under this
Agreement, then, upon demand of such Bank to the Borrower through the
Administrative Agent, the Borrower shall immediately pay
30.
to the Bank, from time to time as specified by the Bank, additional amounts
sufficient to compensate the Bank for such increase.
3.4 FUNDING LOSSES. The Borrower shall reimburse each Bank and hold each
Bank harmless from any loss or expense which the Bank may sustain or incur as a
consequence of:
(a) the failure of the Borrower to make on a timely basis any payment
of principal of any Offshore Rate Loan (including after any acceleration
thereof);
(b) the failure of the Borrower to borrow, continue or convert a Loan
after the Borrower has given (or is deemed to have given) a Notice of Borrowing
or a Notice of Conversion/Continuation;
(c) the failure of the Borrower to make any prepayment in accordance
with any notice delivered under Section 2.7;
(d) the prepayment or other payment (including after acceleration
thereof) of an Offshore Rate Loan on a day that is not the last day of the
relevant Interest Period; or
(e) the conversion of any Offshore Rate Loan to a Base Rate Loan on a
day that is not the last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans hereunder or from
fees payable to terminate the deposits from which such funds were obtained or
from charges relating to any Canadian Dollar Loans. For purposes of calculating
amounts payable by the Borrower to the Banks under this Section and under
Section 3.3(a), each Offshore Rate Loan made by a Bank (and each related
reserve, special deposit or similar requirement) shall be conclusively deemed to
have been funded at the Offshore Rate used in determining the interest rate for
such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
3.5 INABILITY TO DETERMINE RATES. If the Administrative Agent determines
that for any reason adequate and reasonable means do not exist for determining
the Offshore Rate for any requested Interest Period with respect to a proposed
Offshore Rate Loan, or that the Offshore Rate applicable pursuant to Section
2.11(a) for any requested Interest Period with respect to a proposed Offshore
Rate Loan does not adequately and fairly reflect the cost to the Banks of
funding such Loan, the Administrative Agent will promptly so notify the Borrower
and each Bank. Thereafter, the obligation of the Banks to make or maintain
Offshore Rate Loans hereunder shall be suspended until the Administrative Agent
upon the instruction of the Majority Banks revokes such notice in writing. Upon
receipt of such notice, the Borrower may revoke any Notice of Borrowing or
Notice of Conversion/Continuation then submitted by it. If the Borrower does
not revoke such notice, the Banks shall make, convert or continue the Loans, as
proposed by the Borrower, in the amount specified in the applicable notice
31.
submitted by the Borrower, but such Loans shall be made, converted or continued
as Base Rate Loans instead of Offshore Rate Loans. In the case of any Canadian
Dollar Loans, the Borrowing, conversion or continuation shall be in an aggregate
amount equal to the U.S. Dollar Equivalent Amount of the originally requested
Borrowing, conversion or continuation in Canadian dollars, and to that end any
outstanding Canadian Dollar Loans which are the subject of any such conversion
or continuation shall be redenominated and converted into Base Rate Loans in
U.S. Dollars with effect from the last day of the Interest Period with respect
to any such Canadian Dollar Loans, and all conditions to such conversion shall
be deemed to have been satisfied.
3.6 CERTIFICATES OF BANKS. Any Bank claiming reimbursement or
compensation under this Article III shall deliver to the Borrower (with a copy
to the Administrative Agent) a certificate setting forth in reasonable detail
the amount payable to the Bank hereunder and such certificate shall be
conclusive and binding on the Borrower in the absence of manifest error.
3.7 SURVIVAL. The agreements and obligations of the Borrower in this
Article III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 CONDITIONS OF INITIAL LOANS. The obligation of each Bank to make its
initial Loan hereunder is subject to the condition that the Administrative Agent
shall have received on or before the Closing Date all of the following, in form
and substance satisfactory to the Administrative Agent and each Bank, and in
sufficient copies for each Bank:
(a) CREDIT AGREEMENT; NOTES. This Agreement, and, if requested by
any Bank, the Notes, each executed by each party thereto;
(b) RESOLUTIONS; INCUMBENCY.
(i) Copies of the resolutions of the respective boards of
directors of each Loan Party authorizing the transactions contemplated
hereby, certified as of the Closing Date by the Loan Party's Secretary or
an Assistant Secretary, respectively; and
(ii) A certificate of the Secretary or Assistant Secretary
of each Loan Party, certifying the names and true signatures of the
officers of such Loan Party authorized to execute, deliver and perform, as
applicable, this Agreement, and all other Loan Documents to be delivered by
it hereunder;
(c) ORGANIZATION DOCUMENTS. Except as provided in Section 9.19, the
articles or certificate of incorporation and the bylaws of each Loan Party, each
as in effect on
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the Closing Date, certified by the Secretary or Assistant Secretary of each
Loan Party as of the Closing Date;
(d) LEGAL OPINIONS. An opinion of (i) Cassels, Brock & Blackwell,
Canadian counsel to the Borrower, and (ii) Rothgerber, Appel, Powers & Johnson
LLP, counsel to the Guarantors, each addressed to the Administrative Agent and
the Banks, substantially in the form of EXHIBIT C-1 and EXHIBIT C-2,
respectively;
(e) CERTIFICATE. A certificate signed by a Responsible Officer of
each Loan Party, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in Article
V are true and correct on and as of such date, as though made on and as of
such date;
(ii) no Default or Event of Default exists or would result
from the initial Borrowing; and
(iii) there has occurred since September 30, 1997, no
event or circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect;
(f) TERMINATION OF EXISTING FACILITY. Evidence satisfactory to the
Administrative Agent confirming that if any principal, interest, fees, costs or
other amounts are outstanding under the Existing Facility, all such amounts have
been paid in full by the Closing Date or that the Loans borrowed by the Borrower
on the Closing Date will be used to repay such outstanding amounts, and that the
Existing Facility shall thereby terminate on the Closing Date;
(g) SATISFACTION OF MAIL-WELL I CONDITIONS PRECEDENT. All conditions
to closing set forth in Section 5.1 of the Mail-Well I Credit Agreement shall
have been satisfied, made conditions subsequent or waived by the Banks party
thereto;
(g) FUNDING INDEMNITY LETTER. A funding indemnity letter in respect
of the Borrowing to be made on the Closing Date; and
(h) OTHER DOCUMENTS. Such other approvals, opinions, documents or
materials as the Administrative Agent or any Bank may reasonably request.
4.2 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Bank to
make any Loan to be made by it (including its initial Loan) or to continue or
convert any Loan under Section 2.4 (other than pursuant to Section 2.4(c)) is
subject to the satisfaction of the following conditions precedent on the
relevant Borrowing Date or Conversion/Continuation Date:
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(a) NOTICE; APPLICATION. In the case of any Borrowing or
Continuation/Conversion (other than pursuant to Section 2.4(c)), the
Administrative Agent shall have received (with, in the case of the initial
Loan only, a copy for each Bank) a Notice of Borrowing or a Notice of
Conversion/Continuation, as applicable;
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in Article V shall be true and correct on and as
of such Borrowing Date or Conversion/Continuation Date with the same effect as
if made on and as of such Borrowing Date or Conversion/Continuation Date (except
to the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier date); and
(c) NO EXISTING DEFAULT. No Default or Event of Default shall exist
or shall result from such Borrowing or continuation or conversion.
Each Notice of Borrowing and Notice of Conversion/Continuation submitted by the
Borrower hereunder shall constitute a representation and warranty by the
Borrower hereunder, as of the date of each such notice and as of each Borrowing
Date and Conversion/Continuation Date as applicable, that the conditions in this
Section 4.2 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower and each other Loan Party represents and warrants to the
Administrative Agent and each Bank that:
5.1 CORPORATE EXISTENCE AND POWER. Each Loan Party:
(a) is a corporation, limited liability company or partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, organization or formation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation or partnership and is
licensed and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification or license except to the extent that the failure to
do so could not reasonably be expected to have a Material Adverse Effect; and
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(d) is in compliance with all Requirements of Law except to the
extent that the failure to comply could not reasonably be expected to have a
Material Adverse Effect.
5.2 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and performance by each Loan Party of this Agreement and each other Loan
Document to which each Loan Party is party, have been duly authorized by all
necessary corporate action, and do not and will not:
(a) contravene the terms of any of such Loan Party's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual Obligation
to which any Loan Party is a party or any order, injunction, writ or decree of
any Governmental Authority to which any Loan Party or its property is subject;
or
(c) violate any Requirement of Law.
5.3 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, any Loan Party of
this Agreement or any other Loan Document.
5.4 BINDING EFFECT. This Agreement and each other Loan Document to which
any of the Loan Parties is a party constitute the legal, valid and binding
obligations of such Loan Party, enforceable against such Loan Party in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
5.5 LITIGATION. Except as specifically disclosed in SCHEDULE 5.5, there
are no actions, suits, proceedings, claims or disputes pending, or to the best
knowledge of the Loan Parties, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against any Loan Party, or its
Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to any Loan Party or its Subsidiaries,
would reasonably be expected to have a Material Adverse Effect. No injunction,
writ, temporary restraining order or any order of any nature has been issued by
any court or other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other Loan Document,
or directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
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5.6 NO DEFAULT. No Default or Event of Default exists or would result
from the incurring of any Obligations by any Loan Party. As of the Closing
Date, none of the Loan Parties nor any of their Subsidiaries is in default under
or with respect to any Contractual Obligation in any respect which, individually
or together with all such defaults, could reasonably be expected to have a
Material Adverse Effect, or that would, if such default had occurred after the
Closing Date, create an Event of Default under Section 7.1(e).
5.7 ERISA COMPLIANCE.
(a) As of the Closing Date, each Plan is in compliance with the
applicable provisions of ERISA, the Code and other federal or state law except
to the extent to which the failure to so comply could not reasonably be expected
to have a Material Adverse Effect. Each Plan which is intended to qualify under
subsection 401(a) of the Code has received a favorable determination letter from
the IRS and to the best knowledge of each Loan Party, nothing has occurred which
would cause the loss of such qualification. As of the Closing Date, each Loan
Party and each ERISA Affiliate has made all required contributions to any Plan
subject to Section 412 of the Code, and no application for a funding waiver or
an extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.
(b) As of the Closing Date, there are no pending or, to the best
knowledge of each Loan Party, threatened claims, actions or lawsuits, or action
by any Governmental Authority, with respect to any Plan which has or could
reasonably be expected to have a Material Adverse Effect. As of the Closing
Date, there has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(c) As of the Closing Date, (i) no ERISA Event has occurred or is
reasonably expected to occur; and (ii) no event or circumstance has occurred or
exists that, if such event or circumstance had occurred or arisen after the
Closing Date, would create an Event of Default under Section 8.1(h).
5.8 USE OF PROCEEDS; MARGIN REGULATIONS. The Borrower shall use the
proceeds of the Loans for working capital, other general corporate purposes and
for nonhostile, invited acquisitions, in each case not in contravention of any
Requirement of Law or of any Loan Document, and the Borrower shall not directly
or indirectly use the proceeds of the Loans for any acquisition of any Person if
such acquisition has not been approved by the board of directors (or other body
exercising similar authority) of such Person. None of the Loan Parties nor any
Subsidiary of a Loan Party is generally engaged in the business of purchasing or
selling Margin Stock or extending credit for the purpose of purchasing or
carrying Margin Stock.
5.9 TITLE TO PROPERTIES. Each Loan Party and each Subsidiary of a Loan
Party has good record and marketable title in fee simple to, or valid leasehold
interests in, all real property necessary or used in the ordinary conduct of its
respective businesses, except for
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such defects in title as could not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect. As of the Closing
Date, the property of the Loan Parties and their respective Subsidiaries is
subject to no Liens, other than Liens permitted under the Mail-Well I Credit
Agreement.
5.10 TAXES. The Loan Parties and their respective Subsidiaries have filed
all Federal and other material tax returns and reports required to be filed, and
have paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
any Loan Party or any Subsidiary of a Loan Party that would, if made, have a
Material Adverse Effect.
5.11 NO MATERIAL ADVERSE EFFECT. Since September 30, 1997 (assuming that
this Agreement were in effect on such date and thereafter), there has been no
Material Adverse Effect.
5.12 ENVIRONMENTAL MATTERS. Each Loan Party conducts in the ordinary
course of business a review of the effect of existing Environmental Laws and
existing Environmental Claims on its business, operations and properties, and as
a result thereof each Loan Party has reasonably concluded that, except as
specifically disclosed in SCHEDULE 5.12, such Environmental Laws and
Environmental Claims could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
5.13 REGULATED ENTITIES. No Loan Party, nor any Person controlling any
Loan Party, nor any Subsidiary of a Loan Party, is an "Investment Company"
within the meaning of the Investment Company Act of 1940. No Loan Party is
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, any state public utilities code,
or any other Federal or state statute or regulation limiting its ability to
incur Indebtedness.
5.14 NO BURDENSOME RESTRICTIONS. None of the Loan Parties nor any
Subsidiary of a Loan Party is a party to or bound by any Contractual Obligation,
or subject to any restriction in any Organization Document, or any Requirement
of Law, which could reasonably be expected to have a Material Adverse Effect.
5.15 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. To the best of
each Loan Party's knowledge, each Loan Party or its Subsidiaries own or are
licensed or otherwise have the right to use all of the patents, trademarks,
service marks, trade names, copyrights, contractual franchises, authorizations
and other rights that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person. To
the best knowledge of each Loan Party, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now
contemplated to be employed, by any Loan Party or any Subsidiary of any Loan
Party infringes upon any rights
37.
held by any other Person. Except as specifically disclosed in SCHEDULE 5.5,
no claim or litigation regarding any of the foregoing is pending or
threatened, and no patent, invention, device, application, principle or any
statute, law, rule, regulation, standard or code is pending or, to the
knowledge of each Loan Party, proposed, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
5.16 SUBSIDIARIES. As of the Closing Date, no Loan Party has any
Subsidiaries other than those specifically disclosed in part (a) of SCHEDULE
5.16 hereto, which shows the form of organization and ownership of each such
corporation, and has no equity investments in any other corporation or entity
other than those specifically disclosed in part (b) of SCHEDULE 5.16. Except as
disclosed on SCHEDULE 5.16, each Subsidiary is a Wholly Owned Subsidiary of the
Borrower.
5.17 INSURANCE. Except as specifically disclosed in SCHEDULE 5.17, the
properties of the Loan Parties and their respective Subsidiaries are insured
with financially sound and reputable insurance companies not Affiliates of any
Loan Party, in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where any Loan Party or such Subsidiary
operates.
5.18 SWAP OBLIGATIONS. None of the Loan Parties nor any of its
Subsidiaries has incurred any outstanding obligations under any Swap Contracts,
other than Permitted Swap Obligations. Each Loan Party has voluntarily entered
into each Swap Contract to which it is a party based upon its own independent
assessment of its consolidated assets, liabilities and commitments, in each case
as an appropriate means of mitigating and managing risks associated with such
matters, and has not relied on any swap counterparty or any Affiliate of any
swap counterparty in determining whether to enter into any Swap Contract.
5.19 FULL DISCLOSURE. To the best knowledge after due inquiry of any
Responsible Officer of any of the Loan Parties, none of the representations or
warranties made by any Loan Party or any Subsidiary in the Loan Documents as of
the date such representations and warranties are made or deemed made, and none
of the statements contained in any exhibit, report, statement or certificate
furnished by or on behalf of any Loan Party or any Subsidiary of any Loan Party
in connection with the Loan Documents (including the offering and disclosure
materials delivered by or on behalf of any Loan Party to the Banks prior to the
Closing Date), contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they are made, not
misleading as of the time when made or delivered.
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ARTICLE VI
AFFIRMATIVE AND NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Majority Banks
waive compliance in writing, the Borrower shall comply with all of the covenants
set forth in Articles VII and VIII (other than Sections 7.1, 7.2(a) and (b),
7.12, 8.13, 8.14, 8.15, 8.17 and 8.18 thereof) of the Mail-Well I Credit
Agreement, as if the Borrower were the "Borrower" and a "Loan Party" thereunder,
all of which covenants are incorporated herein by reference as if fully set
forth herein (without giving effect to any termination of the Mail-Well I Credit
Agreement), defined terms used in such Articles VII and VIII (and in the
definitions of such defined terms) having the meanings given to such terms in
the Mail-Well I Credit Agreement.
ARTICLE VII
EVENTS OF DEFAULT
7.1 EVENT OF DEFAULT. Any of the following shall constitute an "EVENT OF
DEFAULT":
(a) NON-PAYMENT. The Borrower fails to pay, (i) when and as required
to be paid herein, any amount of principal of any Loan, or (ii) within three (3)
days after the same becomes due, any interest, fee or any other amount payable
hereunder or under any other Loan Document; or
(b) REPRESENTATION OR WARRANTY. Any representation or warranty by
any Loan Party or any of their respective Subsidiaries made or deemed made
herein, in any other Loan Document, or which is contained in any certificate,
document or financial or other statement by any of the Loan Parties, any of
their respective Subsidiaries, or any Responsible Officer, furnished at any time
under this Agreement, or in or under any other Loan Document, is incorrect in
any material respect on or as of the date made or deemed made; or
(c) SPECIFIC DEFAULTS. Any Loan Party (other than the Parent) fails
to perform or observe any term, covenant or agreement contained in Article VI
hereof (other than any of Sections 7.2, 7.6, 7.7, 7.8 or 7.10 of the Mail-Well
Credit Agreement as incorporated herein by reference); or
(d) OTHER DEFAULTS. Any Loan Party (other than the Parent, except
for purposes of Section 9.17) fails to perform or observe any other term or
covenant contained in this Agreement or any other Loan Document, and such
default shall continue unremedied for a period of 20 days after the earlier of
(i) the date upon which a Responsible Officer knew or reasonably should have
known of such failure or (ii) the date upon which written notice thereof is
given to such Loan Party by the Administrative Agent or any Bank; or
39.
(e) CROSS-DEFAULT. (i) Any Loan Party (A) fails to make any payment
in respect of any Indebtedness or Contingent Obligation (other than in respect
of Swap Contracts), having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than $5,000,000
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise); or (B) fails to perform or observe any other condition or
covenant, or any other event shall occur or condition exist, under any agreement
or instrument relating to any such Indebtedness or Contingent Obligation, and
such failure continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure if the effect of
such failure, event or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity, or such Contingent Obligation to become payable or
cash collateral in respect thereof to be demanded; or (ii) there occurs under
any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the
Borrower, Mail-Well I or any such Subsidiary is the Defaulting Party (as defined
in such Swap Contract) or (B) any Termination Event (as so defined) as to which
the Borrower, Mail-Well I or any such Subsidiary is an Affected Party (as so
defined), and, in either event, the Swap Termination Value owed by the Borrower,
Mail-Well I or such Subsidiary as a result thereof is greater than $5,000,000;
or
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. Any Loan Party or any
Subsidiary of a Loan Party (i) ceases or fails to be solvent, or generally fails
to pay, or admits in writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) voluntarily ceases to conduct its business in the ordinary
course; (iii) commences any Insolvency Proceeding with respect to itself; or
(iv) takes any action to effectuate or authorize any of the foregoing; or
(g) INVOLUNTARY PROCEEDINGS. (i) Any involuntary Insolvency
Proceeding is commenced or filed against any Loan Party or any Subsidiary of a
Loan Party, or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of any Loan Party's or
any such Subsidiary's properties, and any such proceeding or petition shall not
be dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within 60 days
after commencement, filing or levy; (ii) any Loan Party or any Subsidiary of a
Loan Party admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any Insolvency Proceeding; or (iii) any Loan Party or any
Subsidiary of a Loan Party acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent therefor),
or other similar Person for itself or a substantial portion of its property or
business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability
40.
of the Loan Parties under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC; (ii) any Unfunded Pension Liability with
respect to any or all Pension Plans shall exist; or (iii) the Loan Parties or
any ERISA Affiliate shall fail to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan;
but only to the extent that any of the foregoing, separately or in the
aggregate, has or could reasonably be expected to have a Material Adverse
Effect; or
(i) MONETARY JUDGMENTS. One or more noninterlocutory judgments,
noninterlocutory orders, decrees or arbitration awards is entered against any of
the Loan Parties or any of their respective Subsidiaries involving in the
aggregate a liability (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage) as to any single or
related series of transactions, incidents or conditions, of $5,000,000 or more,
and the same shall remain unsatisfied, unvacated and unstayed pending appeal for
a period of 10 days after the entry thereof; or
(j) NON-MONETARY JUDGMENTS. Any non-monetary judgment, order or
decree is entered against any of the Loan Parties or any of their respective
Subsidiaries which does or would reasonably be expected to have a Material
Adverse Effect, and there shall be any period of 10 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(k) CHANGE OF CONTROL. There occurs any Change of Control in respect
of the Borrower or any other Loan Party; or
(l) LOSS OF LICENSES. Any Governmental Authority revokes or fails to
renew any material license, permit or franchise of the Borrower or any of its
Subsidiaries, or the Borrower or any of its Subsidiaries for any reason loses
any material license, permit or franchise, or the Borrower or any of its
Subsidiaries suffers the imposition of any restraining order, escrow, suspension
or impound of funds in connection with any proceeding (judicial or
administrative) with respect to any material license, permit or franchise if any
such revocation, failure, loss or imposition results, or is reasonably expected
to result, in a Material Adverse Effect; or
(m) ADVERSE CHANGE. There occurs a Material Adverse Effect; or
(n) GUARANTOR DEFAULTS. Any Guarantor fails in any material respect
to perform or observe any term, covenant or agreement as a guarantor of the
Obligations pursuant to Section 9.17 (or other separate guaranty agreement), or
the guaranty set forth therein (or in such other agreement) of any Guarantor is
for any reason partially (including with respect to future advances) or wholly
revoked or invalidated, or otherwise ceases to be in full force and effect, or
any Guarantor (or any other Person) contests in any manner the validity or
enforceability thereof or denies that it has any further liability or obligation
thereunder; or any event described at subsections (f) or (g) of this Section
occurs with respect to any Guarantor.
41.
(o) MAIL-WELL I DEFAULT. There occurs any "Event of Default" under
and as defined in the Mail-Well I Credit Agreement.
7.2 REMEDIES. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Majority Banks,
(a) declare the commitment of each Bank to make Loans to be
terminated, whereupon such commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower; and
(c) exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or applicable
law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 7.1 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each Bank
to make or maintain Loans shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the
Administrative Agent or any Bank.
7.3 RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
8.1 APPOINTMENT AND AUTHORIZATION; "ADMINISTRATIVE AGENT."
(a) Each Bank hereby irrevocably (subject to Section 8.9) appoints,
designates and authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any other Loan
Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent
42.
have or be deemed to have any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in this
Agreement with reference to the Administrative Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used merely as
a matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
(b) The provisions of this Article VIII shall survive the payment of
all Obligations hereunder and inure to the benefit of BofA, including after its
resignation or replacement as the Administrative Agent, as to any actions taken
or omitted to be taken by BofA while it was the Administrative Agent.
8.2 DELEGATION OF DUTIES. The Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
8.3 LIABILITY OF ADMINISTRATIVE AGENT.
(a) None of the Agent-Related Persons shall (i) be liable for any
action taken or omitted to be taken by any of them under or in connection with
this Agreement or any other Loan Document or the transactions contemplated
hereby (except for its own gross negligence or willful misconduct), or (ii) be
responsible in any manner to any of the Banks for any recital, statement,
representation or warranty made by the Borrower or any Subsidiary or Affiliate
of the Borrower, or any officer thereof, contained in this Agreement or in any
other Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Borrower or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Bank to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Borrower or any of its
Subsidiaries or Affiliates.
(b) Upon receipt thereof, the Administrative Agent shall forward to
each Bank originals or copies, as specified in this Agreement or any other Loan
Document, of all agreements, instruments, opinions, financial statements,
notices and other documents delivered by any Loan party, or any other Person to
the Administrative Agent pursuant to any Loan Document for distribution to the
Banks.
43.
8.4 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Majority Banks as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Majority Banks and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.1, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Bank
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Bank.
8.5 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Banks,
unless the Administrative Agent shall have received written notice from a Bank
or a Loan Party referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Banks of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Majority Banks in accordance with
Article VII; PROVIDED, HOWEVER, that unless and until the Administrative Agent
has received any such request, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Banks.
8.6 CREDIT DECISION. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Administrative Agent hereinafter taken, including any review of the
affairs of the Borrower or any other Loan Party and its respective Subsidiaries,
shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Bank. Each Bank represents to the Administrative
Agent that it has, independently and without reliance upon any Agent-Related
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Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and credit worthiness of the
Borrower and its respective Subsidiaries, and each other Loan Party, and all
applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Borrower hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and credit
worthiness of the Borrower and its respective Subsidiaries and each other Loan
Party. Except for notices, reports and other documents expressly herein
required to be furnished to the Banks by the Administrative Agent, the
Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or credit worthiness of the
Borrower or any other Loan Party which may come into the possession of any of
the Agent-Related Persons.
8.7 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Banks shall indemnify upon
demand the Agent-Related Persons (to the extent not reimbursed by or on behalf
of the Borrower and without limiting the obligation of the Borrower to do so),
pro rata, from and against any and all Indemnified Liabilities; PROVIDED,
HOWEVER, that no Bank shall be liable for the payment to the Agent-Related
Persons of any portion of such Indemnified Liabilities resulting solely from
such Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Bank shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by or
on behalf of the Borrower and its Subsidiaries. The undertaking in this Section
shall survive the payment of all Obligations hereunder and the resignation or
replacement of the Administrative Agent.
8.8 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. BofA and its Affiliates
may make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with the Borrower and
its Subsidiaries and Affiliates as though BofA were not the Administrative Agent
hereunder and without notice to or consent of the Banks. The Banks acknowledge
that, pursuant to such activities, BofA or its Affiliates may receive
information regarding the Borrower or its Affiliates (including information that
may be subject to confidentiality obligations in favor of the Borrower or such
Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such
45.
information to them. With respect to its Loans, BofA shall have the same
rights and powers under this Agreement as any other Bank and may exercise the
same as though it were not the Administrative Agent, and the terms "Bank" and
"Banks" include BofA in its individual capacity.
8.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may, and at
the request of the Majority Banks shall, resign as Administrative Agent upon 30
days' notice to the Banks. If the Administrative Agent resigns under this
Agreement, the Majority Banks shall appoint from among the Banks a successor
agent for the Banks. If no successor agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with the Banks and the Borrower, a successor agent
from among the Banks. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article VIII and Sections 9.4 and
9.5 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Agreement. If no successor
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Banks shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Majority Banks appoint a
successor agent as provided for above.
8.10 WITHHOLDING TAX.
(a) If any Bank is a "foreign corporation, partnership or trust"
within the meaning of the Code and such Bank claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code, such
Bank agrees with and in favor of the Administrative Agent, to deliver to the
Administrative Agent:
(i) if such Bank claims an exemption from, or a reduction
of, withholding tax under a United States tax treaty, two properly
completed and executed copies of IRS Form 1001 before the payment of any
interest in the first calendar year and before the payment of any interest
in each third succeeding calendar year during which interest may be paid
under this Agreement;
(ii) if such Bank claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such Bank,
two properly completed and executed copies of IRS Form 4224 before the
payment of any interest is due in the first taxable year of such Bank and
in each succeeding taxable year of such Bank during which interest may be
paid under this Agreement, and
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(iii) such other form or forms as may be required under
the Code or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Bank claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and such Bank
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations of the Borrower to such Bank, such Bank agrees to notify the
Administrative Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Borrower to such Bank. To the extent of
such percentage amount, the Administrative Agent will treat such Bank's IRS Form
1001 as no longer valid.
(c) If any Bank claiming exemption from United States withholding tax
by filing IRS Form 4224 with the Administrative Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of the
Borrower to such Bank, such Bank agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Bank an amount equivalent to the applicable withholding tax after taking
into account such reduction. However, if the forms or other documentation
required by subsection (a) of this Section are not delivered to the
Administrative Agent, then the Administrative Agent may withhold from any
interest payment to such Bank not providing such forms or other documentation an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent did
not properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered or was not properly executed, or
because such Bank failed to notify the Administrative Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Bank shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Banks under this subsection
shall survive the payment of all Obligations and the resignation or replacement
of the Administrative Agent.
8.11 CO-AGENTS. None of the Banks identified on the facing page or
signature pages of this Agreement as a "co-agent" shall have any right, power,
obligation, liability,
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responsibility or duty under this Agreement other than those applicable to
all Banks as such. Without limiting the foregoing, none of the Banks so
identified as a "co-agent" shall have or be deemed to have any fiduciary
relationship with any Bank. Each Bank acknowledges that it has not relied,
and will not rely, on any of the Banks so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
ARTICLE IX
MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Borrower or any other Loan Party therefrom, shall be effective
unless the same shall be in writing and signed by the Majority Banks (or by the
Administrative Agent at the written request of the Majority Banks) and the Loan
Parties party thereto and acknowledged by the Administrative Agent, and then any
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; PROVIDED, HOWEVER, that no such waiver,
amendment, or consent shall, unless in writing and signed by all the Banks and
the Loan Parties party thereto and acknowledged by the Administrative Agent, do
any of the following:
(a) increase or extend the Commitment of any Bank (or reinstate any
Commitment terminated pursuant to Section 7.2);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts due
to the Banks (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified herein
on any Loan, or any fees or other amounts payable hereunder or under any other
Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Banks or any of
them to take any action hereunder;
(e) release any Guarantor from its obligations under any Guaranty; or
(f) amend this Section, or Section 2.16, or any provision herein
providing for consent or other action by all Banks;
and, PROVIDED FURTHER, that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Majority Banks
or all the Banks, as the case may be, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document.
48.
9.2 NOTICES.
(a) All notices, requests, consents, approvals, waivers and other
communications shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that any matter
transmitted by any Loan Party by facsimile (i) shall be immediately confirmed by
a telephone call to the recipient at the number specified on SCHEDULE 9.2, and
(ii) shall be followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered, to the address or facsimile number specified for
notices on SCHEDULE 9.2; or, as directed to the Loan Parties or the
Administrative Agent, to such other address as shall be designated by such party
in a written notice to the other parties, and as directed to any other party, at
such other address as shall be designated by such party in a written notice to
the Loan Parties and the Administrative Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the fourth Business Day after the date
deposited into the U.S. mail or the Canadian mail, as the case may be, or if
delivered, upon delivery; except that notices pursuant to Article II or VIII to
the Administrative Agent shall not be effective until actually received by the
Administrative Agent.
(c) Any agreement of the Administrative Agent and the Banks herein to
receive certain notices by telephone or facsimile is solely for the convenience
and at the request of the Borrower. The Administrative Agent and the Banks
shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by any of the Loan Parties to give such notice and the
Administrative Agent and the Banks shall not have any liability to any of the
Loan Parties or other Person on account of any action taken or not taken by the
Administrative Agent or the Banks in reliance upon such telephonic or facsimile
notice. The obligation of the Borrower to repay the Loans shall not be affected
in any way or to any extent by any failure by the Administrative Agent and the
Banks to receive written confirmation of any telephonic or facsimile notice or
the receipt by the Administrative Agent and the Banks of a confirmation which is
at variance with the terms understood by the Administrative Agent and the Banks
to be contained in the telephonic or facsimile notice.
9.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no delay
in exercising, on the part of the Administrative Agent or any Bank, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege.
9.4 COSTS AND EXPENSES. The Borrower shall:
(a) whether or not the transactions hereby are consummated, pay or
reimburse BofA (including in its capacity as Administrative Agent) and the
Arranger within five Business Days after demand for all costs and expenses
incurred by BofA (including in its
49.
capacity as Administrative Agent) or the Arranger in connection with the
development, preparation, delivery, administration, syndication and execution
of, and any amendment, supplement, waiver or modification to (in each case,
whether or not consummated), this Agreement, any Loan Document and any other
documents prepared in connection herewith or therewith, and the consummation
of the transactions contemplated hereby and thereby, including reasonable
Attorney Costs incurred by BofA (including in its capacity as Administrative
Agent) with respect thereto; and
(b) pay or reimburse the Administrative Agent, the Arranger and each
Bank within five Business Days after demand for all costs and expenses
(including Attorney Costs) incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or any other Loan Document during the existence of an Event of Default
or after acceleration of the Loans (including in connection with any "workout"
or restructuring regarding the Loans, and including in any Insolvency Proceeding
or appellate proceeding).
9.5 INDEMNITY.
(a) GENERAL INDEMNITY. Whether or not the transactions contemplated
hereby are consummated, the Loan Parties shall indemnify, defend and hold the
Agent-Related Persons, and each Bank and each of its respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"INDEMNIFIED PERSON") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of the
Administrative Agent or replacement of any Bank) be imposed on, incurred by or
asserted against any such Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of this Agreement
or the Loans or the use of the proceeds thereof, or related to any foreign
exchange transactions entered into in connection herewith, whether or not any
Indemnified Person is a party thereto (all the foregoing, collectively, the
"INDEMNIFIED LIABILITIES"); PROVIDED, that the Loan Parties shall have no
obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities resulting solely from the gross negligence or willful misconduct of
such Indemnified Person. The agreements in this Section shall survive payment
of all other Obligations.
(b) ENVIRONMENTAL INDEMNITY.
(i) The Loan Parties hereby agree to indemnify, defend and
hold harmless each Indemnified Person, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, charges, expenses or disbursements (including Attorney Costs
and the allocated cost of internal
50.
environmental audit or review services), which may be incurred by or
asserted against such Indemnified Person in connection with or arising
out of any pending or threatened investigation, litigation or
proceeding, or any action taken by any Person, with respect to any
Environmental Claim arising out of or related to any property of any of
the Loan Parties or any of their respective Subsidiaries. No action
taken by legal counsel chosen by the Administrative Agent or any Bank in
defending against any such investigation, litigation or proceeding or
requested remedial, removal or response action shall vitiate or any way
impair the Loan Parties' obligation and duty hereunder to indemnify and
hold harmless the Administrative Agent and each Bank.
(ii) In no event shall any site visit, observation, or
testing by the Administrative Agent or any Bank be deemed a representation
or warranty that Hazardous Materials are or are not present in, on, or
under the site, or that there has been or shall be compliance with any
Environmental Law. Neither the Loan Parties nor any other Person is
entitled to rely on any site visit, observation, or testing by the
Administrative Agent or any Bank. Neither the Administrative Agent nor any
Bank owes any duty of care to protect the Loan Parties or any other Person
against, or to inform the Loan Parties or any other party of, any Hazardous
Materials or any other adverse condition affecting any site or property.
Neither the Administrative Agent nor any Bank shall be obligated to
disclose to the Loan Parties or any other Person any report or findings
made as a result of, or in connection with, any site visit, observation, or
testing by the Administrative Agent or any Bank.
(c) SURVIVAL; DEFENSE. The obligations in this Section 9.5 shall
survive payment of all other Obligations. At the election of any Indemnified
Person, each of the Loan Parties shall defend such Indemnified Person using
legal counsel satisfactory to such Indemnified Person in such Person's sole
discretion, at the sole cost and expense of the Loan Parties.
(d) EXISTING INDEMNIFICATION RIGHTS. All rights of the
Administrative Agent and the Banks in respect of any indemnification and
otherwise for reimbursement or payment of any losses, costs, charges, expenses
or disbursements (including Attorney Costs) under or in respect of the Existing
Facility shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
9.6 PAYMENTS SET ASIDE. To the extent that any of the Loan Parties makes
a payment to the Administrative Agent or the Banks, or the Administrative Agent
or the Banks exercise their right of set-off, and such payment or the proceeds
of such set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Bank in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Bank
severally agrees to pay to the Administrative Agent upon
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demand its pro rata share of any amount so recovered from or repaid by the
Administrative Agent.
9.7 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that none of the Loan Parties may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Administrative Agent and each Bank.
9.8 ASSIGNMENTS, PARTICIPATIONS, ETC.
(a) Any Bank may, with the written consent of the Administrative
Agent and with the written consent of the Borrower at all times other than
during the existence of an Event of Default, which consent of the Borrower, if
required, and the Administrative Agent shall not be unreasonably withheld, at
any time assign and delegate to one or more Eligible Assignees (each an
"ASSIGNEE") all, or any ratable part of all, of the Loans, the Commitment and
the other rights and obligations of such Bank hereunder, in a minimum amount of
$10,000,000 (or the remaining amount of their Commitment, if lower); PROVIDED,
HOWEVER, that (i) such Bank also assigns and delegates to such Assignee(s) a
ratable portion of its "Loans" and "Revolving Commitment" under the Mail-Well I
Credit Agreement, and (ii) the Borrower and the Administrative Agent may
continue to deal solely and directly with such Bank in connection with the
interest so assigned to an Assignee until (A) written notice of such assignment,
together with payment instructions, addresses and related information with
respect to the Assignee, shall have been given to the Borrower and the
Administrative Agent by such Bank and the Assignee; (B) such Bank and its
Assignee shall have delivered to the Borrower and the Administrative Agent an
Assignment and Acceptance in the form of EXHIBIT D ("ASSIGNMENT AND ACCEPTANCE")
together with any Note or Notes subject to such assignment and (C) the assignor
Bank or Assignee has paid to the Administrative Agent a processing fee in the
amount of $3,500. If the consent of the Administrative Agent and of the
Borrower shall be required for any such assignment, the Bank proposing to make
such assignment shall give the Administrative Agent and the Borrower no less
than 20 calendar days' notice of such requested consent.
(b) From and after the date that the Administrative Agent notifies
the assignor Bank that it has received (and provided its consent with respect
to) an executed Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Bank under the Loan Documents, and (ii) the assignor Bank shall, to the extent
that rights and obligations hereunder and under the other Loan Documents have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the
Administrative Agent that it has received an executed Assignment and Acceptance
and
52.
payment of the processing fee and requesting new Notes (and provided that it
consents to such assignment in accordance with Section 9.8(a)), the Borrower
shall execute and deliver to the Administrative Agent, new Notes evidencing such
Assignee's assigned Loans and Commitment and, if the assignor Bank has retained
a portion of its Loans and its Commitment, replacement Notes in the principal
amount of the Loans retained by the assignor Bank (such Notes to be in exchange
for, but not in payment of, the Notes held by such Bank). Immediately upon each
Assignee's making its processing fee payment under the Assignment and
Acceptance, this Agreement shall be deemed to be amended to the extent, but only
to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Commitments arising therefrom. The Commitment
allocated to each Assignee shall reduce the Commitment of the assigning Bank PRO
TANTO.
(d) Any Bank may, with the written consent of the Borrower at all
times other than during the existence of an Event of Default, which consent of
the Borrower, if required, shall not be unreasonably withheld, at any time sell
to one or more commercial banks or other Persons not Affiliates of the Borrower
(a "PARTICIPANT") participating interests in any Loans, the Commitment of that
Bank and the other interests of that Bank (the "originating Bank") hereunder and
under the other Loan Documents; PROVIDED, HOWEVER, that (i) the originating
Bank's obligations under this Agreement shall remain unchanged, (ii) the
originating Bank shall remain solely responsible for the performance of such
obligations, (iii) the Borrower and the Administrative Agent shall continue to
deal solely and directly with the originating Bank in connection with the
originating Bank's rights and obligations under this Agreement and the other
Loan Documents, and (iv) no Bank shall transfer or grant any participating
interest under which the Participant has rights to approve any amendment to, or
any consent or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or waiver would require
unanimous consent of the Banks as pursuant to subsections (a), (b) or (c) of the
FIRST PROVISO to Section 9.1, in which event such Participant shall (if agreed
by the originating Bank) be entitled to vote with respect to such amendment,
consent or waiver. In the case of any such participation, the Participant shall
be entitled to the benefit of Sections 3.1, 3.3 and 9.5 as though it were also a
Bank hereunder, and if amounts outstanding under this Agreement are due and
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to have
the right of set-off in respect of its participating interest in amounts owing
under this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Bank (as the case may be) under this
Agreement. If the consent of the Borrower shall be required for any such
participation, the Bank proposing to make such participation shall give the
Administrative Agent and the Borrower no less than 20 calendar days' notice of
such requested consent.
(e) Notwithstanding any other provision in this Agreement, any Bank
may at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement and the Note held by it in favor
of any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner permitted under
applicable law.
53.
9.9 CONFIDENTIALITY. Each Bank agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information, identified as "confidential" or
"secret" by the Borrower and provided to it by any of the Loan Parties or any of
their respective Subsidiaries, or by the Administrative Agent on such Loan
Party's or such Subsidiary's behalf, under this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this Agreement
and the other Loan Documents or in connection with other business now or
hereafter existing or contemplated with any of the Loan Parties or any of their
respective Subsidiaries; except to the extent such information (i) was or
becomes generally available to the public other than as a result of disclosure
by the Bank, or (ii) was or becomes available on a nonconfidential basis from a
source other than the Loan Parties, provided that such source is not bound by a
confidentiality agreement with the Loan Parties known to the Bank; PROVIDED,
HOWEVER, that any Bank may disclose such information (A) at the request or
pursuant to any requirement of any Governmental Authority to which the Bank is
subject or in connection with an examination of such Bank by any such authority;
(B) pursuant to subpoena or other court process, provided that the Bank shall
use reasonable, good faith efforts to provide prior written notice to the
Borrower (unless the Bank is prohibited from doing so by any applicable
Requirement of Law); (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the
Administrative Agent, any Bank or their respective Affiliates may be party,
provided that the Bank shall use reasonable, good faith efforts to provide prior
written notice to the Borrower (unless the Bank is prohibited from doing so by
any applicable Requirement of Law); (E) to the extent reasonably required in
connection with the exercise of any remedy hereunder or under any other Loan
Document; (F) to such Bank's independent auditors and other professional
advisors; (G) to any Participant or Assignee, actual or potential, provided that
such Person agrees in writing to keep such information confidential to the same
extent required of the Banks hereunder; (H) as to any Bank or its Affiliate, as
expressly permitted under the terms of any other document or agreement regarding
confidentiality to which any of the Loan Parties or any of their respective
Subsidiaries is party to or is deemed party to with such Bank or such Affiliate;
and (I) to its Affiliates.
9.10 SET-OFF. In addition to any rights and remedies of the Banks provided
by law, if an Event of Default exists or the Loans have been accelerated, each
Bank is authorized at any time and from time to time, without prior notice to
the Loan Parties, any such notice being waived by the Loan Parties to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Bank to or for the credit or
the account of the Loan Parties against any and all Obligations owing to such
Bank, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Bank shall have made demand under this Agreement or
any Loan Document and although such Obligations may be contingent or unmatured.
Each Bank agrees promptly to notify the Loan Parties and the Administrative
Agent after any such set-off and application made by such Bank; PROVIDED,
HOWEVER, that the failure to give such notice shall not affect the validity of
such set-off and application.
54.
9.11 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each Bank shall
notify the Administrative Agent in writing of any changes in the address to
which notices to the Bank should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
9.12 COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
9.13 SEVERABILITY. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
9.14 NO THIRD PARTIES BENEFITTED. This Agreement is made and entered into
for the sole protection and legal benefit of the Loan Parties, the Banks, the
Administrative Agent, the Indemnified Persons and the Agent-Related Persons, and
their permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any of the other Loan Documents.
9.15 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE
ADMINISTRATIVE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA
OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE LOAN PARTIES, THE
ADMINISTRATIVE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE LOAN
PARTIES, THE ADMINISTRATIVE AGENT, AND THE BANKS IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE LOAN PARTIES, THE ADMINISTRATIVE
AGENT, AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
55.
9.16 WAIVER OF JURY TRIAL. THE LOAN PARTIES, THE BANKS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. THE LOAN PARTIES, THE BANKS, AND THE ADMINISTRATIVE AGENT EACH
AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION
AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
9.17 GUARANTY.
(a) GUARANTY. Each of the Parent and the Subsidiary Guarantors,
unconditionally and irrevocably, jointly and severally guarantees to the
Administrative Agent and the Banks, and their respective successors, endorsers,
transferees and assigns, the full and prompt payment when due (whether at stated
maturity, by required prepayment, declaration, acceleration, demand or
otherwise) and performance of the Obligations of the Borrower to the
Administrative Agent and the Banks (the "Guaranteed Obligations"). The
Guaranteed Obligations include interest which, but for an Insolvency Proceeding,
would have accrued on such Guaranteed Obligations, whether or not a claim is
allowed against the Borrower for such interest in any such Insolvency
Proceeding.
(b) SEPARATE OBLIGATION. Each Guarantor acknowledges and agrees (i)
that the Guaranteed Obligations are separate and distinct from any indebtedness,
obligations or liabilities arising under or in connection with any other
agreement, instrument or guaranty, including under any provision of this
Agreement other than this Section 9.17, executed at any time by such Guarantor
in favor of the Administrative Agent or any of the Banks, and (ii) such
Guarantor shall pay and perform all of the Guaranteed Obligations as required
under this Section 9.17, and the Administrative Agent and the Banks may enforce
any and all of their rights and remedies hereunder, without regard to any other
agreement, instrument or guaranty, including any provision of this Agreement
other than this Section 9.17, at any time executed by such Guarantor in favor of
the Administrative Agent or any of the Banks, regardless of whether or not any
such other agreement, instrument or guaranty, or any provision thereof or
hereof, shall for any reason become unenforceable or any of the indebtedness,
obligations or liabilities thereunder shall have been discharged, whether by
56.
performance, avoidance or otherwise. Each Guarantor acknowledges that in
providing benefits to the Borrower and such Guarantor, the Administrative Agent
and the Banks are relying upon the enforceability of this Section 9.17 and the
Guaranteed Obligations as separate and distinct indebtedness, obligations and
liabilities of such Guarantor, and each Guarantor agrees that the Administrative
Agent and the Banks would be denied the full benefit of their bargain if at any
time this Section 9.17 or the Guaranteed Obligations were treated any
differently. The fact that the Guaranty of each Guarantor is set forth in this
Agreement rather than in a separate guaranty document is for the convenience of
the Borrower and the Guarantors and shall in no way impair or adversely affect
the rights or benefits of the Banks or the Administrative Agent under this
Section 9.17. Each Guarantor agrees to execute and deliver a separate
agreement, immediately upon request at any time of the Administrative Agent or
any Bank, evidencing such Guarantor's obligations under this Section 9.17. Upon
the occurrence of any Event of Default, a separate action or actions may be
brought against each Guarantor, whether or not the Borrower or any other
guarantor or Person is joined therein or a separate action or actions are
brought against the Borrower or any such other guarantor or Person.
(c) LIMITATION OF GUARANTY. To the extent that any court of
competent jurisdiction shall impose by final judgment under applicable law
(including the California Uniform Fraudulent Transfer Act and Sections 544 and
548 of the Bankruptcy Code) any limitations on the amount of any Guarantor's
liability with respect to the Guaranteed Obligations which the Administrative
Agent or the Banks can enforce under this Section 9.17, the Administrative Agent
and the Banks by their acceptance hereof accept such limitation on the amount of
such Guarantor's liability hereunder to the extent needed to make this Section
9.17 fully enforceable and nonavoidable.
(d) LIABILITY OF GUARANTOR. The liability of each Guarantor under
this Section 9.17 shall be irrevocable, absolute, independent and unconditional,
and shall not be affected by any circumstance which might constitute a discharge
of a surety or guarantor other than the indefeasible payment and performance in
full of all Guaranteed Obligations. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:
(i) such Guarantor's liability hereunder shall be the
immediate, direct, and primary obligation of such Guarantor and shall not
be contingent upon the Administrative Agent's or any Bank's exercise or
enforcement of any remedy it may have against the Borrower or any other
Person, or against any collateral or other security for any Guaranteed
Obligations;
(ii) this Guaranty is a guaranty of payment when due and not
merely of collectibility;
(iii) the Administrative Agent and the Banks may enforce
this Section 9.17 upon the occurrence of an Event of Default
notwithstanding the existence
57.
of any dispute among the Administrative Agent and the Banks and the
Borrower with respect to the existence of such Event of Default;
(iv) such Guarantor's payment of a portion, but not all, of
the Guaranteed Obligations shall in no way limit, affect, modify or abridge
such Guarantor's liability for any portion of the Guaranteed Obligations
remaining unsatisfied; and
(v) such Guarantor's liability with respect to the
Guaranteed Obligations shall remain in full force and effect without regard
to, and shall not be impaired or affected by, nor shall such Guarantor be
exonerated or discharged by, any of the following events:
(A) any Insolvency Proceeding;
(B) any limitation, discharge, or cessation of the
liability of the Borrower or any other guarantor or Person for any
Guaranteed Obligations due to any statute, regulation or rule of law,
or any invalidity or unenforceability in whole or in part of any of
the Guaranteed Obligations or the Loan Documents;
(C) any merger, acquisition, consolidation or change in
structure of the Borrower or any other guarantor or Person, or any
sale, lease, transfer or other disposition of any or all of the assets
or shares of the Borrower or any other guarantor or other Person;
(D) any assignment or other transfer, in whole or in part,
of the Administrative Agent's or any Bank's interests in and rights
under this Guaranty or the other Loan Documents;
(E) any claim, defense, counterclaim or set-off, other than
that of prior performance, that the Borrower, such Guarantor, any
other guarantor or other Person may have or assert, including any
defense of incapacity or lack of corporate or other authority to
execute any of the Loan Documents;
(F) the Administrative Agent's or any Bank's amendment,
modification, renewal, extension, cancellation or surrender of any
Loan Document or any Guaranteed Obligations;
(G) the Administrative Agent's or any Bank's exercise or
nonexercise of any power, right or remedy with respect to any
Guaranteed Obligations or any collateral;
(H) the Administrative Agent's or any Bank's vote, claim,
distribution, election, acceptance, action or inaction in any
Insolvency Proceeding;
58.
(I) any other guaranty, whether by any Guarantor or any
other Person, of all or any part of the Guaranteed Obligations or any
other indebtedness, obligations or liabilities of the Borrower to the
Administrative Agent or the Banks.
(e) CONSENTS OF GUARANTOR. Each Guarantor hereby unconditionally
consents and agrees that, without notice to or further assent from such
Guarantor:
(i) the principal amount of the Guaranteed Obligations may
be increased or decreased and additional indebtedness or obligations of the
Borrower under the Loan Documents may be incurred and the time, manner,
place or terms of any payment under any Loan Document be extended or
changed, by one or more amendments, modifications, renewals or extensions
of any Loan Document or otherwise;
(ii) the time for the Borrower's (or any other Person's)
performance of or compliance with any term, covenant or agreement on its
part to be performed or observed under any Loan Document may be extended,
or such performance or compliance waived, or failure in or departure from
such performance or compliance consented to, all in such manner and upon
such terms as the Administrative Agent and the Banks (or the Majority
Banks, as the case may be) may deem proper;
(iii) the Administrative Agent and the Banks may request
and accept other guaranties and may take and hold other security as
collateral for the Guaranteed Obligations, and may, from time to time, in
whole or in part, exchange, sell, surrender, release, subordinate, modify,
waive, rescind, compromise or extend such other guaranties or security and
may permit or consent to any such action or the result of any such action,
and may apply such security and direct the order or manner of sale thereof;
(iv) the Administrative Agent and the Banks may exercise, or
waive or otherwise refrain from exercising, any other right, remedy, power
or privilege even if the exercise thereof affects or eliminates any right
of subrogation or any other right of such Guarantor against the Borrower;
(f) GUARANTOR'S WAIVERS. Each Guarantor waives and agrees not to
assert:
(i) any right to require the Administrative Agent or any
Bank to proceed against the Borrower, any other guarantor or any other
Person, or to pursue any other right, remedy, power or privilege of the
Administrative Agent or any Bank whatsoever;
(ii) the defense of the statute of limitations in any action
hereunder or for the collection or performance of the Guaranteed
Obligations;
59.
(iii) any defense arising by reason of any lack of
corporate or other authority or any other defense of the Borrower, such
Guarantor or any other Person;
(iv) any defense based upon the Administrative Agent's or
any Bank's errors or omissions in the administration of the Guaranteed
Obligations;
(v) any rights to set-offs and counterclaims;
(vi) without limiting the generality of the foregoing, to
the fullest extent permitted by law, any defenses or benefits that may be
derived from or afforded by applicable law limiting the liability of or
exonerating guarantors or sureties, or which may conflict with the terms of
this Section 9.17, including any and all benefits that otherwise might be
available to such Guarantor under California Civil Code Sections 1432,
2809, 2810, 2815, 2819, 2839, 2845, 2848, 2849, 2850, 2899 and 3433 and
California Code of Civil Procedure Sections 580a, 580b, 580d and 726; and
(vii) any and all notice of the acceptance of this
Guaranty, and any and all notice of the creation, renewal, modification,
extension or accrual of the Guaranteed Obligations, or the reliance by the
Administrative Agent and the Banks upon this Guaranty, or the exercise of
any right, power or privilege hereunder. The Guaranteed Obligations shall
conclusively be deemed to have been created, contracted, incurred and
permitted to exist in reliance upon this Guaranty. Each Guarantor waives
promptness, diligence, presentment, protest, demand for payment, notice of
default, dishonor or nonpayment and all other notices to or upon the
Borrower, such Guarantor or any other Person with respect to the Guaranteed
Obligations.
(g) FINANCIAL CONDITION OF BORROWER. No Guarantor shall have any
right to require the Administrative Agent or the Banks to obtain or disclose any
information with respect to: the financial condition or character of the
Borrower or the ability of the Borrower to pay and perform the Guaranteed
Obligations; the Guaranteed Obligations; any collateral or other security for
any or all of the Guaranteed Obligations; the existence or nonexistence of any
other guarantees of all or any part of the Guaranteed Obligations; any action or
inaction on the part of the Administrative Agent or the Banks or any other
Person; or any other matter, fact or occurrence whatsoever. Each Guarantor
hereby acknowledges that it has undertaken its own independent investigation of
the financial condition of the Borrower and all other matters pertaining to this
Guaranty and further acknowledges that it is not relying in any manner upon any
representation or statement of the Administrative Agent or any Bank with respect
thereto.
(h) SUBROGATION. Until the Guaranteed Obligations shall be satisfied
in full and the Commitments shall be terminated, each Guarantor shall not have,
and shall not directly or indirectly exercise, (i) any rights that it may
acquire by way of subrogation under this Section 9.17, by any payment hereunder
or otherwise, (ii) any rights of contribution, indemnification, reimbursement or
similar suretyship claims arising out of this Section 9.17 or (iii) any other
right which it might otherwise have or acquire (in any way whatsoever) which
60.
could entitle it at any time to share or participate in any right, remedy or
security of the Banks or the Administrative Agent as against the Borrower or
other guarantors, whether in connection with this Section 9.17, any of the other
Loan Documents or otherwise. If any amount shall be paid to any Guarantor on
account of the foregoing rights at any time when all the Guaranteed Obligations
shall not have been paid in full, such amount shall be held in trust for the
benefit of the Administrative Agent and the Banks and shall forthwith be paid to
the Administrative Agent to be credited and applied to the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.
(i) SUBORDINATION. All payments on account of all indebtedness,
liabilities and other obligations of the Borrower to any Guarantor, whether now
existing or hereafter arising, and whether due or to become due, absolute or
contingent, liquidated or unliquidated, determined or undetermined (the
"Subordinated Debt") shall be subject, subordinate and junior in right of
payment and exercise of remedies, to the extent and in the manner set forth
herein, to the prior payment in full in cash or cash equivalents of the
Guaranteed Obligations. As long as any of the Guaranteed Obligations shall
remain outstanding and unpaid, each Guarantor shall not accept or receive any
payment or distribution by or on behalf of the Borrower, directly or indirectly,
or assets of the Borrower, of any kind or character, whether in cash, property
or securities, including on account of the purchase, redemption or other
acquisition of Subordinated Debt, as a result of any collection, sale or other
disposition of collateral, or by setoff, exchange or in any other manner, for or
on account of the Subordinated Debt ("Subordinated Debt Payments"), except that
prior to the occurrence of any Default, such Guarantor shall be entitled to
accept and receive regularly scheduled payments on the Subordinated Debt, in
accordance with past business practices of such Guarantor and the Borrower and
not in contravention of the terms of the Loan Documents.
In the event that any Subordinated Debt Payments shall be received in
contravention of this Section, such Subordinated Debt Payments shall be held in
trust for the benefit of the Administrative Agent and the Banks and shall be
paid over or delivered to the Administrative Agent for application to the
payment in full in cash or cash equivalents of all Guaranteed Obligations
remaining unpaid to the extent necessary to give effect to this Section after
giving effect to any concurrent payments or distributions to the Administrative
Agent and the Banks in respect of the Guaranteed Obligations.
(j) CONTINUING GUARANTY. This Guaranty is a continuing guaranty and
agreement of subordination and shall continue in effect and be binding upon each
Guarantor until termination of the Commitments and payment and performance in
full of the Guaranteed Obligations, including Guaranteed Obligations which may
exist continuously or which may arise from time to time under successive
transactions, and each Guarantor expressly acknowledges that this Guaranty shall
remain in full force and effect notwithstanding that there may be periods in
which no Guaranteed Obligations exist. This Guaranty shall continue in effect
and be binding upon each Guarantor until actual receipt by the Administrative
Agent of written notice from such Guarantor of its intention to discontinue its
Guaranty as to future transactions (which notice shall not be effective until
noon on the day five Business Days following such receipt); PROVIDED that no
revocation or termination of this Guaranty in respect
61.
of any Guarantor shall affect in any way any rights of the Administrative
Agent and the Banks hereunder with respect to any Guaranteed Obligations
arising or outstanding on the date of receipt of such notice, including any
subsequent continuation, extension, or renewal thereof, or change in the
terms or conditions thereof, or any Guaranteed Obligations made or created
after such date to the extent made or created pursuant to a legally binding
commitment of any of the Banks in existence as of the date of such revocation
(collectively, "Existing Guaranteed Obligations"), and the sole effect of
such notice shall be to exclude from this Guaranty in respect of such
Guarantor Guaranteed Obligations thereafter arising which are unconnected to
any Existing Guaranteed Obligations.
(k) REINSTATEMENT. This Guaranty shall continue to be effective or
shall be reinstated and revived, as the case may be, if, for any reason, any
payment of the Guaranteed Obligations by or on behalf of the Borrower (or
receipt of any proceeds of collateral) shall be rescinded, invalidated, declared
to be fraudulent or preferential, set aside, voided or otherwise required to be
repaid to the Borrower, its estate, trustee, receiver or any other Person
(including under the Bankruptcy Code or other state or federal law), or must
otherwise be restored by the Administrative Agent or any Bank, whether as a
result of Insolvency Proceedings or otherwise. All losses, damages, costs and
expenses that the Administrative Agent or the Banks may suffer or incur as a
result of any voided or otherwise set aside payments shall be specifically
covered by the indemnity in favor of the Banks and the Administrative Agent
contained in Section 9.5.
(l) SUBSTANTIAL BENEFITS. The funds that have been borrowed from the
Banks by the Borrower have been and are to be contemporaneously used for the
direct or indirect benefit of the Borrower and each Guarantor. It is the
position, intent and expectation of the parties that the Borrower and each
Guarantor have derived and will derive significant and substantial direct or
indirect benefits from the accommodations that have been made by the Banks under
the Loan Documents. Each Guarantor has received at least "reasonably equivalent
value" (as such phrase is used in Section 548 of the Bankruptcy Code, in Section
3439.04 of the California Uniform Fraudulent Transfer Act and in comparable
provisions of other applicable law) and more than sufficient consideration to
support its obligations hereunder in respect of the Guaranteed Obligations and
under any of the Loan Documents to which it is a party. Immediately prior to
and after and giving effect to the incurrence of each Guarantor's obligations
under this Guaranty, such Guarantor will be solvent.
(m) KNOWING AND EXPLICIT WAIVERS. EACH GUARANTOR ACKNOWLEDGES THAT
IT EITHER HAS OBTAINED THE ADVICE OF LEGAL COUNSEL OR HAS HAD THE OPPORTUNITY TO
OBTAIN SUCH ADVICE IN CONNECTION WITH THE TERMS AND PROVISIONS OF THIS SECTION
9.17. EACH GUARANTOR ACKNOWLEDGES AND AGREES THAT EACH OF THE WAIVERS AND
CONSENTS SET FORTH HEREIN ARE MADE WITH FULL KNOWLEDGE OF THEIR SIGNIFICANCE AND
CONSEQUENCES, AND THAT ALL SUCH WAIVERS AND CONSENTS HEREIN ARE EXPLICIT AND
KNOWING AND WHICH EACH GUARANTOR EXPECTS TO BE FULLY ENFORCEABLE.
62.
If, while any Subordinated Debt is outstanding, any Insolvency Proceeding is
commenced by or against the Borrower or its property, the Administrative Agent,
when so instructed by the Majority Banks, is hereby irrevocably authorized and
empowered (in the name of the Banks or in the name of the applicable Guarantor
or otherwise), but shall have no obligation, to demand, sue for, collect and
receive every payment or distribution in respect of the Subordinated Debt and
give acquittance therefor and to file claims and proofs of claim and take such
other action (including voting the Subordinated Debt) as it may deem necessary
or advisable for the exercise or enforcement of any of the rights or interests
of the Administrative Agent and the Banks; and each Guarantor shall promptly
take such action as the Administrative Agent (on instruction from the Majority
Banks) may reasonably request (A) to collect the Subordinated Debt for the
account of the Banks and to file appropriate claims or proofs of claim in
respect of the Subordinated Debt, (B) to execute and deliver to the
Administrative Agent such powers of attorney, assignments and other instruments
as it may request to enable it to enforce any and all claims with respect to the
Subordinated Debt, and (C) to collect and receive any and all Subordinated Debt
Payments.
9.18 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Loan
Parties, the Banks and the Administrative Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
9.19 CERTAIN POST-CLOSING MATTERS. The Borrower shall deliver to the
Administrative Agent, not later than 10 days following the Closing Date, the
items listed on SCHEDULE 9.19.
[SIGNATURE PAGES FOLLOW]
63.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in San Francisco, California by their properly and
duly authorized officers as of the day and year first above written.
SUPREMEX, INC.
By: /s/ Kevin R. Howley
------------------------------
Kenin R. Howley
Title: Vice President - Treasurer
---------------------------
MAIL-WELL, INC., a Delaware
Corporation, as a Guarantor
By: /s/ Kevin R. Howley
------------------------------
Kenin R. Howley
Title: Vice President - Treasurer
---------------------------
MAIL-WELL I CORPORATION, a
Delaware Corporation, as a
Guarantor
By: /s/ Kevin R. Howley
------------------------------
Kenin R. Howley
Title: Vice President - Treasurer
---------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent and a
Bank
By: /s/
---------------------------------
Title: Vice President
------------------------------
BANK OF NEW YORK, as
Co-Agent and a Bank
By: /s/ Robert Louk
-------------------------------
Robert Louk
Title: Vice President
----------------------------
CREDIT LYONNAIS NEW YORK
BRANCH, as Co-Agent and a Bank
By: /s/ Robert Ivosevich
---------------------------------
Robert Ivosevich
Title: Senior Vice President
------------------------------
FLEET NATIONAL BANK, as
Co-Agent and a Bank
By: /s/ Jeffrey C. Lynch
--------------------------------
Jeffrey C. Lynch
Title: Vice President
-----------------------------
NATIONSBANK OF TEXAS, N.A., as
Co-Agent and a Bank
By: /s/ Kimerley A. Knop
----------------------------
Kimerley A. Knop
Title: Vice President
------------------------
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
------------------------
F.C.H. Ashby
Title: Senior Management
Loan Operations
---------------------
67.
THE CHASE MANHATTAN BANK
By: /s/ Mary Elisabeth Swerz
----------------------------
Mary Elisabeth Swerz
Title: Vice President
-------------------------
COLORADO NATIONAL BANK
By: /s/ Wesley G. Zeplin
--------------------------------
Wesley G. Zeplin
Title: Vice President
-----------------------------
HARRIS TRUST AND SAVINGS BANK
By: /s/
-----------------------------
Title: Vice President
--------------------------
KEYBANK NATIONAL ASSOCIATION
By: /s/
----------------------------
Title: Vice President
-------------------------
NORWEST BANK COLORADO,
NATIONAL ASSOCIATION
By: /s/ Catherine M. Jones
-------------------------
Title: Vice President
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UNION BANK OF CALIFORNIA, N.A.,
By: /s/ David W. Kinkela
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David W. Kinkela
Title: Assistant Vice President
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