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[EXECUTION COPY]
CREDIT AGREEMENT
among
GEORGIA-PACIFIC CORPORATION
THE LENDERS NAMED HEREIN
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
COMMERZBANK AG,
NEW YORK BRANCH,
as Documentation Agent,
and
THE CHASE MANHATTAN BANK
and
CITIBANK, N.A.,
as Co-Syndication Agents
BANC OF AMERICA SECURITIES LLC,
Sole Book Manager and Sole Lead Arranger
$1,000,000,000
Dated as of July 22, 1999
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS 1
1.01 Certain Defined Terms. 1
1.02 Computation of Time Periods. 15
1.03 Accounting Matters. 15
1.04 Certain Terms. 16
ARTICLE 2 AMOUNTS AND TERMS OF THE LOANS 16
2.01 Committed Loans. 16
2.02 Procedure for Committed Borrowings. 17
2.03 Bid Borrowings. 18
2.04 Procedure for Bid Borrowings. 18
2.05 Evidence of Indebtedness. 21
2.06 Optional Reduction of the Commitments. 21
2.07 Repayment. 21
2.08 Optional Prepayments. 22
2.09 Interest. 22
2.10 Default Interest. 23
2.11 Continuation and Conversion Elections for
Committed Loans. 23
2.12 Termination of Prior Commitments. 25
ARTICLE 3 THE LETTERS OF CREDIT 25
3.01 The Letter of Credit Subfacility. 25
3.02 Issuance, Amendment and Renewal of Letters of
Credit. 26
3.03 Role of the Issuing Bank. 28
3.04 Obligations Absolute. 29
3.05 Cash Collateral Pledge. 30
3.06 Letter of Credit Fees. 30
3.07 International Standby Practices. 31
ARTICLE 4 FEES; PAYMENTS; TAXES 31
4.01 Fees. 31
4.02 Computation of Interest, Fees. 32
4.03 Payments by the Company. 32
4.04 Payments by the Lenders. 33
4.05 Taxes. 34
4.06 Sharing of Payments, Etc. 38
ARTICLE 5 CHANGES IN CIRCUMSTANCES; ETC. 38
5.01 Eurodollar Rate Protection. 38
5.02 Additional Interest on Eurodollar Loans. 39
5.03 Increased Costs. 39
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5.04 Illegality. 39
5.05 Capital Adequacy. 39
5.06 Funding Losses. 40
5.07 Funding; Certificates of Lenders. 41
5.08 Change of Lending Office; Limitation on
Increased Costs. 41
5.09 Replacement of Lenders. 42
ARTICLE 6 REPRESENTATIONS AND WARRANTIES 42
6.01 Corporate Existence; Compliance with Law. 42
6.02 Corporate Power; Authorization. 43
6.03 Enforceable Obligations. 44
6.04 Taxes. 44
6.05 Financial Matters. 44
6.06 Litigation. 44
6.07 Subsidiaries. 45
6.08 Liens. 45
6.09 No Burdensome Restrictions; No Defaults. 45
6.10 Investment Company Act; Public Utility Holding
Company Act. 45
6.11 Margin Regulations. 45
6.12 Environmental Matters. 46
6.13 Labor Matters. 48
6.14 ERISA Plans. 48
6.15 Y2K Review. 48
6.16 Swap Obligations. 48
6.17 Full Disclosure. 48
ARTICLE 7 CONDITIONS PRECEDENT 49
7.01 Conditions Precedent to the First Loan. 49
7.02 Additional Conditions Precedent to the First
Loan. 50
7.03 Conditions Precedent to Each Committed Loan and
Letter of Credit. 50
7.04 Conditions Precedent to Each Bid Borrowing. 51
ARTICLE 8 AFFIRMATIVE COVENANTS 51
8.01 Application of Proceeds. 51
8.02 Compliance with Laws, Etc. 51
8.03 Payment of Taxes, Etc. 51
8.04 Maintenance of Insurance. 52
8.05 Preservation of Corporate Existence, Etc. 52
8.06 Access. 52
8.07 Keeping of Books. 52
8.08 Maintenance of Properties, Etc. 52
8.09 Financial Statements. 52
8.10 Reporting Requirements. 53
8.11 ERISA Plans. 54
8.12 Environmental Compliance; Notice. 54
8.13 New Subsidiaries. 54
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ARTICLE 9 NEGATIVE COVENANTS 54
9.01 Liens, Etc. 55
9.02 Sale-Leaseback Transactions. 57
9.03 Mergers, Etc. 58
9.04 Transactions with Affiliates. 58
9.05 Accounting Changes. 58
9.06 Margin Regulations. 58
9.07 Negative Pledges, Etc. 58
9.08 Leverage Ratio. 58
ARTICLE 10 EVENTS OF DEFAULT 58
10.01 Events of Default. 58
10.02 Remedies. 61
ARTICLE 11 THE AGENT 61
11.01 Appointment. 61
11.02 Delegation of Duties. 62
11.03 Liability of Agent. 62
11.04 Reliance by Agent. 62
11.05 Notice of Default. 63
11.06 Credit Decision. 63
11.07 Indemnification. 64
11.08 Agent in Individual Capacity. 64
11.09 Successor Agent. 64
11.10 Documentation, Co-Syndication, Managing Agents. 65
ARTICLE 12 MISCELLANEOUS 65
12.01 Notices, Etc. 65
12.02 Amendments, Etc. 66
12.03 No Waiver; Remedies. 66
12.04 Costs and Expenses. 67
12.05 Indemnity. 67
12.06 Right of Set-off. 68
12.07 Binding Effect. 68
12.08 Assignments, Participations, Etc. 69
12.09 Confidentiality. 70
12.10 Survival. 71
12.11 Severability. 71
12.12 Headings. 71
12.13 No Third Parties Benefited. 71
12.14 Governing Law. 72
12.15 Execution in Counterparts. 72
12.16 ENTIRE AGREEMENT. 72
12.17 WAIVER OF JURY TRIAL. 72
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SCHEDULES
Schedule Description
1.01(a) Commitments; Commitment Percentages
1.01(b) Lending Offices
6.02(d) Corporate Power; Authorizations
6.07 Subsidiaries
6.12 Environmental Matters
6.13 Labor Matters
6.14 ERISA
9.01 Existing Liens
EXHIBITS
Exhibit Description
2.02(a) Form of Notice of Borrowing
2.04(a) Form of Competitive Bid Request
2.05(b) Form of Promissory Note (Committed Loans)
2.05(c) Form of Promissory Note (Bid Loans)
2.11(b) Form of Notice of Conversion/Continuation
7.01(c) Form of Subsidiary Guaranty
7.01(d) Form of Opinion of Counsel for the Company
7.01(e) Form of Contribution Agreement
7.02(d) Form of Officer's Closing Certificate
8.09(c) Form of Compliance Certificate
12.08(b) Form of Assignment and Assumption Agreement
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of July 22, 1999
among GEORGIA-PACIFIC CORPORATION, a Georgia corporation (the
"Company"), the various LENDERS that are, or may from time to
time become, party hereto (the "Lenders") and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as administrative agent
for the Lenders (in such capacity, the "Agent"), COMMERZBANK AG,
NEW YORK BRANCH, as Documentation Agent, and THE CHASE MANHATTAN
BANK and CITIBANK, N.A., as Co-Syndication Agents.
WHEREAS, the Company, certain of the Lenders and the Agent
are party to the Credit Agreement, dated as of December 23, 1996,
as amended (the "1996 Credit Agreement");
WHEREAS, the Company has terminated the commitments under
the 1996 Credit Agreement and desires to enter into a new credit
facility; and
WHEREAS, the Company has obtained commitments from the
Lenders, pursuant to which the Lenders are willing to make loans
to the Company and to provide certain other credit facilities to
the Company (including a competitive bid facility) in a maximum
aggregate principal amount at any one time outstanding not to
exceed $1,000,000,000, on the terms and subject to the conditions
set forth herein;
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms.
As used in this Agreement and in any Schedules and
Exhibits to this Agreement, the following terms have the
following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Adjusted Reference Rate" means the fluctuating interest
rate per annum equal to the higher of (a) the sum of the Federal
Funds Rate plus 1/2% and (b) the rate of interest (the "Reference
Rate") publicly announced from time to time by Bank of America at
its executive offices, as its reference rate or prime rate. The
Reference Rate is a rate set by Bank of America based upon
various factors, including Bank of America's cost 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 the Reference Rate. Any change in the
Reference Rate shall take effect at the opening of business on
the day specified in the public announcement of such change.
"Affiliate" means, with respect to any Person, any
Subsidiary of such Person and any other Person which, directly or
indirectly, controls, or is controlled by, or is under common
control with, such Person (excluding any trustee under, or any
committee with responsibility for administering, any Plan). A
Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power:
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(a) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such other Person; or
(b) to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise.
"Agent" means Bank of America in its capacity as
administrative agent for the Lenders, together with any successor
thereto in such capacity.
"Agent-Related Persons" means Bank of America and any
successor agent arising under Section 11.09 and any successor
letter of credit issuing bank hereunder, together with their
respective Affiliates (including, in the case of Bank of America,
the Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Aggregate Tranche A Commitments" means the aggregate amount
of the Tranche A Commitments of all the Lenders as in effect from
time to time.
"Aggregate Tranche B Commitments" means the aggregate amount
of the Tranche B Commitments of all the Lenders as in effect from
time to time.
"Agreement" means this Credit Agreement.
"Arranger" means Banc of America Securities LLC.
"Assignee" means any Person which becomes a party to this
Agreement pursuant to Section 12.08.
"Available Tranche A Commitments" means, at any time, the
excess, if any, of the Aggregate Tranche A Commitments in effect
at such time over the sum of (a) the aggregate principal amount
of all Tranche A Loans then outstanding, plus (b) the aggregate
principal amount of all Tranche A Bid Loans then outstanding,
plus (c) the outstanding Tranche A L/C Obligations.
"Available Tranche B Commitments" means, at any time, the
excess, if any, of the Aggregate Tranche B Commitments in effect
at such time over the sum of (a) the aggregate principal amount
of all Tranche B Loans then outstanding, plus (b) the aggregate
principal amount of all Tranche B Bid Loans then outstanding,
plus (c), the aggregate principal amount of all 1996 Facility Bid
Loans then outstanding, plus (d) the outstanding Tranche ▇ ▇/C
Obligations.
"Bank of America" means Bank of America National Trust and
Savings Association, a national banking association and its
successors by merger and permitted assigns.
"Base Rate" has the meaning specified in
Section 2.04(a)(iv).
"Base Rate Bid Loan" means any Bid Loan that bears interest
at a rate determined with reference to a Base Rate.
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"Bid Borrowing" means an extension of credit hereunder
consisting of one or more Bid Loans made to the Company on the
same day by one or more Lenders.
"Bid Loan" means either a Tranche A Bid Loan or a Tranche B
Bid Loan.
"Borrowing" means a Bid Borrowing or a Committed Borrowing.
"Business Day" means any day other than a Saturday, Sunday
or other day on which commercial banks in New York City, New
York, or San Francisco, California, are authorized or required by
law to close and, if the applicable Business Day relates to any
Eurodollar Loan, means such a day on which dealings are carried
on in the London interbank market.
"Cash Collateralize" means to pledge and deposit with or
deliver to the Agent, for the benefit of the Agent, the Issuing
Bank and the Lenders, as collateral for the L/C Obligations, cash
or deposit account balances pursuant to documentation in form and
substance satisfactory to the Agent and the Issuing Bank (which
documents are hereby consented to by the Lenders). Derivatives
of such term shall have corresponding meaning. The Company
hereby grants the Agent, for the benefit of the Agent, the
Issuing Bank and the Lenders, a security interest in all such
cash and deposit account balances. Cash collateral shall be
maintained in blocked, non-interest bearing deposit accounts at
Bank of America.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act of 1980.
"CERCLIS" means the Comprehensive Environmental Response
Compensation Liability Information System List.
"Closing Date" means the date on which all the conditions
precedent set forth in Sections 7.01 and 7.02 shall have been
satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means for any Lender, either its Tranche A
Commitment or Tranche B Commitment, as applicable.
"Commitments" means, for any Lender, the sum of its Tranche
A Commitment and Tranche B Commitment.
"Commitment Percentage" means, as to any Lender at any time,
the percentage of the aggregate Commitments represented by such
Lender's Commitment at such time, as set forth on Schedule
1.01(a), as such percentage may be modified from time to time in
accordance with Notices of Assignment delivered hereunder
pursuant to Section 12.08.
"Committed Borrowing" means an extension of credit hereunder
consisting of Tranche A Loans or Tranche B Loans (but not
both) of the same type made on the same day by the Lenders
ratably according to their respective Commitment Percentages and,
in the case of Eurodollar Loans, having the same Interest
Periods.
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"Committed Loan" means a Tranche A Loan or a Tranche B Loan
by a Lender to the Company pursuant to Section 2.01 and may be in
the form of a Eurodollar Loan or a Reference Rate Loan, each of
which shall be a "type" of Committed Loan.
"Company" has the meaning specified in the introduction to
this Agreement.
"Competitive Bid" means an offer by a Lender to make a Bid
Loan in accordance with Section 2.04(b).
"Competitive Bid Request" has the meaning specified in
Section 2.04(a).
"Contractual Obligation" means, with respect 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 to which such Person is a party or by
which it or any of its property is subject.
"Contribution Agreement" means the Contribution Agreement of
even date herewith between the Company and each of its
Subsidiaries now or hereafter parties to the Subsidiary Guaranty
or the "Subsidiary Guaranty" as defined in the North American
Timber Agreement.
"Controlled Group" means all members of a controlled group
of corporations and all members of a controlled group of trades
or businesses (whether or not incorporated) under common control
which, together with the Company, are treated as a single
employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"Debt Rating" means, on any date, the rating of the
Company's senior unsecured long-term Indebtedness, as most
recently publicly announced by ▇▇▇▇▇'▇ and S&P, whichever is
higher; provided, however, that if only one such rating is
available, the applicable interest rate or fee to be determined
based on such rating shall be determined solely by reference to
such one rating.
"Default" means any event or condition which, with the
giving of notice or the lapse of time, or both, would become an
Event of Default.
"Dollar" and "$" mean lawful money of the United States of
America.
"EBITDA" means, as of the end of any Measurement Period, the
sum of the following, calculated for the Company and its
Subsidiaries on a consolidated basis: (a) net income (or net
loss) for such period, plus (b) all amounts treated as expenses
for depreciation, interest and the non-cash amortization of
intangibles of any kind to the extent included in the
determination of such net income (or loss), plus (c) cost of
timber sold by North American Timber Corporation (to the extent
it represents depletion) to the extent included in the
determination of such net income (or loss), plus (d) all accrued
taxes on or measured by income to the extent included in the
determination of such net income (or loss); provided, however,
that net income (or loss) shall be computed for these purposes
without giving effect to extraordinary cash gains or non-
recurring, non-cash items.
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"Eligible Assignee" means (a) 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 $250,000,000;
(b) 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 $250,000,000, provided that such bank is
acting through a branch or agency located in the United States;
(c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Lender,
(ii) a Subsidiary of a Person of which a Lender is a Subsidiary,
or (iii) a Person of which a Lender is a Subsidiary; and (d) any
other Person approved in writing by the Company, the Agent, and
the Issuing Bank.
"Environmental Laws" means all applicable federal, state or
local statutes, laws, ordinances, codes, rules and regulations
(including consent decrees and administrative orders) relating to
public health and safety and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, together with the regulations thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board, as in effect
from time to time.
"Eurodollar Loan" means any Committed Loan that bears
interest at a rate determined with reference to LIBOR.
"Eurodollar Reserve Percentage" means the maximum reserve
percentage of any Lender (expressed as a decimal) in effect on
the date LIBOR for any Interest Period is determined under
regulations issued from time to time by the Federal Reserve Board
for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve
requirement) with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities having a term equal to such
Interest Period.
"Event of Default" has the meaning specified in
Section 10.01.
"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 Board
(including any such successor, "H.15(519)") for such day opposite
the caption "Federal Funds (Effective)." If on any relevant day
such rate is not yet published in H.15(519), the rate for such
day will be the rate set forth in the daily statistical release
designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by
the Federal Reserve Bank of New York (including any such
successor, the "Composite 3:30 p.m. Quotations") for such day
under the caption "Federal Funds Effective Rate".
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Fee Letter" means the letter agreement dated the Closing
Date between the Company and Bank of America regarding the
payment of certain fees.
"Fixed Rate" means a fixed annual percentage rate.
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"Fixed Rate Bid Loan" means any Bid Loan that bears interest
determined with reference to a Fixed Rate.
"Form 1001" has the meaning specified in
Section 4.05(f)(i)(B).
"Form 4224" has the meaning specified in
Section 4.05(f)(i)(A).
"Form W-8" has the meaning specified in
Section 4.05(f)(i)(B).
"Form W-9" has the meaning specified in
Section 4.05(f)(i)(A).
"Funded Indebtedness" means, for any day, the sum of (i) all
Indebtedness for Borrowed Money of the Company and its
consolidated Subsidiaries outstanding on such day plus (ii) the
aggregate capital invested as of such day by Persons other than
the Company and its consolidated Subsidiaries in receivables and
other accounts sold to such Persons by the Company and its
consolidated Subsidiaries, excluding receivables and other
accounts sold in connection with the sale of a business or the
sale of the assets and/or operations generating such receivables
and other accounts.
"GAAP" means, as of any date of determination, generally
accepted accounting principles set forth 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 accounting profession) or in such other
statements by such other entity as may be in general use by
significant segments of the accounting profession.
"Governmental Authority" means any nation or government, any
federal, state, local or other political subdivision thereof and
any central bank thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Hazardous Material" means:
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, 42 U.S.C. Section 690, et seq., as
in effect from time to time;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any
other applicable federal, state or local law, regulation,
ordinance, or requirement (including consent decrees and
administrative orders) relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, all as amended or hereafter
amended.
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"Indebtedness" of any Person means, without duplication, the
consolidated Indebtedness for Borrowed Money of such Person and
guaranties of indebtedness of others provided by such Person, all
as determined in accordance with GAAP consistent with the
accounting principles applied in the preparation of the financial
statements referred to in Section 6.05(a).
"Indebtedness for Borrowed Money" of any Person means,
without duplication,
(a) all indebtedness of such Person for borrowed money,
including the Company's Premium Equity Participating Security
Units, whether or not treated as indebtedness under GAAP, until
such time as they are converted into common stock of the Company;
(b) all obligations of such Person issued or assumed as the
deferred purchase price of property or services other than bank
overdrafts and trade accounts payable arising in the ordinary
course of business consistent with past practices;
(c) all obligations of such Person evidenced by notes, bonds,
debentures, commercial paper or similar instruments, including
obligations so evidenced incurred in connection with the
acquisition of property, assets or businesses;
(d) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect
to property acquired by such Person (even though the rights and
remedies of the seller or creditor under such agreement in the
event of default are limited to repossession or sale of such
property);
(e) all rental obligations of such Person under leases
capitalized under GAAP as disclosed in the financial statements
delivered pursuant to Section 8.09; and
(f) all indebtedness of such Person or of others referred to in
paragraphs (a) through (e) 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 contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of
such indebtedness.
"Indemnified Party" has the meaning specified in
Section 12.05(a).
"Interest Payment Date" means (a) (i) with respect to any
Eurodollar Loan, the last day of each Interest Period applicable
to such Eurodollar Loan and, with respect to any Interest Period
of six months' duration, the date which falls three months after
the beginning of such Interest Period, and (ii) with respect to
any Reference Rate Loan, the last Business Day of each calendar
quarter and (b) with respect to any Bid Loan, the maturity date
or dates specified by the Company in the relevant Competitive Bid
Request.
"Interest Period" means, with respect to any Eurodollar
Loan, the period commencing on the Business Day such Eurodollar
Loan is disbursed or continued as a Eurodollar Loan or on the
date on which a Reference Rate Loan or any portion thereof is
converted into a Eurodollar Loan and ending on the date one, two,
three or six months thereafter, as selected by the Company in its
Notice of Borrowing or Notice of Conversion/Continuation;
provided that:
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(a) in the case of the continuation of a Eurodollar Loan
pursuant to Section 2.11, the Interest Period applicable after
the continuation of such Loan shall commence on the last day of
the preceding Interest Period;
(b) if any Interest Period would otherwise end on a day which is
not a Business Day, that Interest Period shall be extended to the
next succeeding Business Day, unless 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
immediately preceding Business Day;
(c) any Interest Period 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
(d) no Interest Period for any Eurodollar Loan shall extend
beyond the Tranche A Termination Date, in the case of a Borrowing
of Tranche A Loans, or the Tranche B Termination Date, in the
case of a Borrowing of Tranche B Loans.
"Investments" means all investments, whether by acquisition
of stock or indebtedness, or by loan, advance, transfer of
property, capital contribution or otherwise.
"Investments in Unrestricted Subsidiaries" means Investments
made by the Company or by any Restricted Subsidiary in
Unrestricted Subsidiaries, net of Investments made by
Unrestricted Subsidiaries in the Company or any Restricted
Subsidiary. If any corporation which becomes a Restricted
Subsidiary after the date of this Agreement shall, at the time it
becomes a Restricted Subsidiary, have any Investments in an
Unrestricted Subsidiary, such Investments shall be deemed to be
Investments made by the Company in such Unrestricted Subsidiary
at the time such corporation becomes a Restricted Subsidiary, in
the amount at which such Investments are then carried on the
books of such corporation. If any corporation shall become an
Unrestricted Subsidiary after the date of this Agreement, the
Investments of the Company and its Restricted Subsidiaries in
such corporation shall be deemed to be Investments made at the
time such corporation becomes an Unrestricted Subsidiary, in the
amount at which such Investments are then carried on the books of
the Company and its Restricted Subsidiaries.
"Issuance Date" has the meaning specified in
subsection 3.01(a).
"Issue" means, with respect to any Letter of Credit, to
issue or to extend the expiry of, or to renew or increase the
amount of, such Letter of Credit; and the terms "Issued,"
"Issuing" and "Issuance" have corresponding meanings.
"Issuing Bank" means Bank of America in its capacity as
issuer of one or more Letters of Credit hereunder.
"Lender" has the meaning specified in the introduction to
this Agreement and includes each Lender listed on the signature
pages hereof and each Assignee. References to the "Lenders"
shall include Bank of America in its capacity as Issuing Bank;
for purposes of clarification only, to the extent that Bank of
America may have any rights or obligations in addition to those
of the Lenders due to its status as Issuing Bank, its status as
such will be specifically referenced.
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"Lending Office" means, with respect to any Lender, (a) in
the case of a Committed Loan, the office or offices of such
Lender specified as its "Domestic Lending Office" or "Eurodollar
Lending Office", as the case may be, opposite its name on
Schedule 1.01(b) or in the applicable Notice of Assignment, or
such other office or offices of such Lender as such Lender may
from time to time specify to the Company and the Agent and (b) in
the case of a Bid Loan, the office of such Lender notified by
such Lender to the Company as its Lending Office with respect to
such Bid Loan or, if such Lender fails to so notify the Company,
such Lender's Domestic Lending Office.
"L/C Advance" means each Lender's participation in any L/C
Borrowing in accordance with its Commitment Percentage.
"L/C Amendment Application" means an application form for
amendment of outstanding standby letters of credit as shall at
any time be in use at the Issuing Bank, as the Issuing Bank shall
request.
"L/C Application" means an application form for issuances of
standby letters of credit as shall at any time be in use at the
Issuing Bank, as the Issuing Bank shall request.
"L/C Borrowing" means an extension of credit resulting from
a drawing under any Letter of Credit which shall not have been
reimbursed on the date when made.
"L/C Commitment" means the commitment of the Issuing Bank to
Issue, and the commitment of the Lenders severally to participate
in, Letters of Credit from time to time Issued or outstanding
under Article 3, in an aggregate amount not to exceed on any date
the amount of $150,000,000, as the same shall be reduced as a
result of a reduction in the L/C Commitment pursuant to
Section 2.06. The L/C Commitment is a part of the combined
Commitments, rather than a separate, independent commitment.
"L/C Obligations" means at any time the sum of Tranche A L/C
Obligations and Tranche ▇ ▇/C Obligations.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other
document relating to any Letter of Credit, including any of the
Issuing Bank's standard-form documents for Letter of Credit
Issuances.
"Letter of Credit" means any Tranche A Letter of Credit or
Tranche B Letter of Credit.
"LIBOR" means, for any Interest Period:
(a) the rate of interest per annum (carried out to the fifth
decimal point) equal to the rate determined by the Agent to be
the offered rate that appears on the page of the Telerate Screen
that displays an average British Bankers Association Interest
Settlement Rate (such page currently being page number 3750) for
deposits in dollars (for delivery on the first day of
sf712790 9
such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period;
or
(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or such
page or service shall cease to be available, the rate per annum
(carried to the fifth decimal place) equal to the rate determined
by the Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association
Interest Settlement Rate for deposits in dollars (for delivery on
the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period; or
(c) in the event the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per annum
determined by the Agent as the rate of interest at which dollar
deposits (for delivery on the first day of such Interest Period)
in same-day funds in the approximate amount of the applicable
Committed Loan and with a term equivalent to such Interest Period
would be offered by its London Branch to major banks in the
offshore dollar market at their request at approximately 11:00
a.m. (London time) two Business Days prior to the first day of
such Interest Period.
"Lien" means any mortgage, security interest, pledge or
lien.
"Loan" means a loan by a Lender to the Company pursuant to
Article 2 or Article 3 in the form of a Committed Loan, a Bid
Loan, or an L/C Advance.
"Loan Documents" means this Agreement, the Subsidiary
Guaranty, the Contribution Agreement, the L/C Related Documents,
and any promissory note issued pursuant hereto.
"Loan Parties" means, collectively, the Company and each
other Person (other than the Agent and the Lenders) who is a
party to a Loan Document.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any
adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), whether singly or in
conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or
not related, a material adverse change in, or a material adverse
effect upon, any of (a) the financial condition, operations,
business or properties of the Company and its Subsidiaries taken
as a whole or (b) the legality, validity or enforceability of any
Loan Document.
"Measurement Period" means a period consisting of four
consecutive fiscal quarters of the Company and ending on the last
day of the most recently completed fiscal quarter of the Company.
"Moody's" means ▇▇▇▇▇'▇ Investors Services, Inc. or any
successor to the rating agency business thereof.
"Net Tangible Assets" means, at any date, the aggregate
amount of assets, including the amount of any receivables or
other accounts of the Company and its Subsidiaries sold in
connection with any receivables sale transaction (less applicable
reserves and other properly deductible items) after deducting
sf712790 10
therefrom (a) all current liabilities, (b) any item representing
Investments in Unrestricted Subsidiaries and (c) all goodwill,
trade names, trademarks, patents, unamortized debt discount and
expenses and other like intangibles, all of the foregoing as set
forth on the then most recent consolidated balance sheet of the
Company and its Subsidiaries and computed in accordance with
GAAP.
"Net Worth" means, at any date, the excess of Total Assets
at such date over Total Liabilities at such date.
"1996 Credit Agreement" has the meaning specified in the
first recital of this Agreement.
"1996 Facility Bid Loan" means any bid loan outstanding
under the 1996 Credit Agreement on the Closing Date.
"North American Timber Agreement" means the Credit
Agreement, dated as of the date hereof, by and among North
American Timber Corporation, the Lenders, and Bank of America as
the agent for the Lenders.
"Notice of Assignment" has the meaning specified in
Section 12.08(b).
"Notice of Borrowing" has the meaning specified in
Section 2.02(a).
"Notice of Conversion/Continuation" has the meaning
specified in Section 2.11(b).
"Obligations" means all Loans, L/C Obligations and other
Indebtedness, advances, debts, liabilities, obligations,
covenants and duties owing by the Company, or any other Loan
Party to any Lender, the Agent, any Affiliate of any Lender or
the Agent or any Indemnified Party, of any kind or nature,
present or future, whether or not evidenced by any note, guaranty
or other instrument, but in each case only as arising under or in
connection with this Agreement or under or in connection with any
other Loan Document, whether or not for the payment of money,
whether arising by reason of an extension of credit, loan,
guaranty, indemnification or in any other manner, whether direct
or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter
arising and however acquired. The term "Obligations" includes
all interest, charges, expenses, fees, attorneys' fees and
disbursements (including the allocated cost of in-house
counsel) and any other sum chargeable to the Company, or any
other Loan Party under or in connection with this Agreement or
any other Loan Document.
"Other Taxes" has the meaning specified in Section 4.05(b).
"Participant" has the meaning specified in Section 12.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is
defined in Section 3(2) of ERISA, which is subject to Title IV of
ERISA (other than a multiemployer plan as defined in
Section 4001(a)(3) of ERISA), and to which the Company or any
corporation, trade, or business that is, along with the Company,
sf712790 11
a member of its Controlled Group, may have liability, including a
reasonable possibility of liability due to having been a
substantial employer within the meaning of Section 4063 of ERISA
at any time during the preceding five years, or by reason of
being deemed to be a contributing sponsor under Section 4069 of
ERISA.
"Permitted Liens" means the Liens permitted or required by
Section 9.01.
"Permitted Swap Obligations" means all obligations
(contingent or otherwise) of the Company or any Subsidiary
existing or arising under Swap Contracts, provided that 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".
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Plan" means each Pension Plan or Welfare Plan, and any
other employee benefit plan (within the meaning of
Section 3(3) of ERISA) sponsored or maintained by the Company or
any Subsidiary of the Company.
"Principal Property" means any mill, manufacturing plant,
manufacturing facility or timberlands, owned by the Company
and/or one or more Restricted Subsidiaries and located within the
continental United States of America; provided, however, that the
term "Principal Property" shall not include (a) any such mill,
plant, facility or timberlands or portion thereof (i) which is
financed by obligations issued by a State, a Territory or a
possession of the United States of America or any political
subdivision of any of the foregoing, or the District of Columbia,
the interest on which is excludable from gross income of the
holders thereof pursuant to the provisions of
Section 103(a)(1) (but only if by reason of
Section 103(b)(4)(E) or (F)) of the Internal Revenue Code of
1954, as amended (or any predecessor or successor to such
provision) as in effect at the time of the issuance of such
obligations, or (ii) which in the opinion of the Company's Board
of Directors is not of material importance to the total business
conducted by the Company and the Restricted Subsidiaries,
considered as a whole; or (b) any timberlands designated by the
Company's Board of Directors as being held primarily for
development and/or sale rather than for the production of timber;
or (c) any minerals or mineral rights.
"Principal Subsidiary" means each of North American Timber
Corp., a Delaware corporation, Unisource Worldwide, Inc., a
Delaware corporation, Great Northern Nekoosa Corporation, a Maine
corporation; Brunswick Pulp & Paper Company, a Delaware
corporation; Georgia-Pacific West, Inc., an Oregon corporation; G-
P Gypsum Corporation, a Delaware corporation; Leaf River Forest
Products, Inc., a Delaware corporation; Nekoosa Packaging
Corporation, a Delaware corporation, Nekoosa Papers Inc., a
Wisconsin corporation, and any other Subsidiary having assets
constituting at least 10% of the Company's consolidated assets.
sf712790 12
"Reference Rate" has the meaning specified in the definition
of Adjusted Reference Rate.
"Reference Rate Loan" means any Loan that bears interest at
a rate determined with reference to the Adjusted Reference Rate.
"Release" means a "release", as such term is defined in
CERCLA.
"Replacement Lender" has the meaning specified in
Section 5.09.
"Required Lenders" means at any time Lenders having 51% or
more of the Commitments and, if the Commitments have been
terminated, Lenders holding 51% or more of the then aggregate
unpaid principal amount of the Loans made by the Lenders.
"Requirement of Law" means, as to any Person, the charter
and by-laws or other organization or governing documents of such
Person, and any law, rule or regulation including the
requirements of Environmental Laws and ERISA, the Securities Act
of 1933, the Securities Exchange Act of 1934, Regulations T, U
and X of the Federal Reserve Board or any order, decree or other
determination of an arbitrator or a court or other Governmental
Authority applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is
subject.
"Responsible Officer" means, with respect to any Person, the
Chief Executive Officer, the President, any Vice-Chairman or any
of the Vice Presidents or the Treasurer of such Person or, with
respect to financial matters, the Chief Financial Officer, the
Executive Vice President-Finance and Chief Financial Officer or
the Vice President and Treasurer of such Person.
"Restricted Subsidiary" means any Subsidiary of the Company
(a) substantially all of the property of which is located within
the continental United States of America and (b) which itself, or
together with the Company and/or one or more other Restricted
Subsidiaries, owns a Principal Property.
"Sale-Leaseback Transaction" has the meaning specified in
Section 9.02.
"S&P" means Standard & Poor's or any successor to the rating
agency business thereof.
"Subsidiary" means, with respect to any Person, any
corporation of which more than 50% of the outstanding capital
stock having ordinary voting power to elect a majority of the
board of directors (or others performing a comparable
function) of such corporation is at the time directly or
indirectly owned by such Person, by such Person and one or more
other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person.
"Subsidiary Guaranty" has the meaning specified in Section
7.01(c).
"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 ▇▇▇▇ option,
interest rate option, forward foreign exchange transaction, cap,
sf712790 13
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 ▇▇▇▇-to-market
value(s) for such Swap Contracts, as determined by the 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 Lender).
"Taxes" has the meaning specified in Section 4.05(a).
"Total Assets" means, at any date, without duplication, the
total consolidated assets of the Company and its Subsidiaries, as
determined in accordance with GAAP.
"Total Liabilities" means, at any date, without duplication,
the total consolidated liabilities of the Company and its
Subsidiaries, determined in accordance with GAAP.
"Tranche A Bid Loan" means a Loan made by a Lender to the
Company pursuant to subsection 2.03(a) and may be a Base Rate Bid
Loan or a Fixed Rate Bid Loan.
"Tranche A Commitment" means for each Lender, as the context
may require, (a) the amount in dollars set forth on Schedule
1.01(a) opposite the name of such Lender under the heading
"Tranche A Commitments" or as otherwise set forth in any Notice
of Assignment, as such amount may be reduced pursuant to
Section 2.06 or as a result of one or more assignments pursuant
to Section 12.08; or (b) the obligation of such Lender to extend
credit to the Company hereunder in the amount specified in the
immediately preceding clause (a).
"Tranche A L/C Obligations" means at any time the sum of
(a) the aggregate undrawn amount of all Tranche A Letters of
Credit then outstanding, plus (b) the amount of all unreimbursed
drawings under all Tranche A Letters of Credit, including all
outstanding L/C Borrowings made on account of Tranche A Letters
of Credit.
"Tranche A Letter of Credit" means any letter of credit
Issued by the Issuing Bank pursuant to Article 3 and allocated in
the Company's request therefor to the Tranche A Commitments.
"Tranche A Loan" has the meaning set forth in
subsection 2.01(a).
"Tranche A Termination Date" means July 20, 2000.
"Tranche B Bid Loan" means a Loan made by a Lender to the
Company pursuant to subsection 2.03(b) and may be a Base Rate Bid
Loan or a Fixed Rate Bid Loan.
sf712790 14
"Tranche B Commitment" means for each Lender, as the context
may require (a) the amount in dollars set forth on Schedule
1.01(a) opposite the name of such Lender under the heading
"Tranche B Commitments" or as otherwise set forth in any Notice
of Assignment, as such amount may be reduced pursuant to
Section 2.06 or as a result of one or more assignments pursuant
to Section 12.08; or (b) the obligation of such Lender to extend
credit to the Company hereunder in the amount specified in the
immediately preceding clause (b).
"Tranche ▇ ▇/C Obligations" means at any time the sum of
(a) the aggregate undrawn amount of all Tranche B Letters of
Credit then outstanding, plus (b) the amount of all unreimbursed
drawings under all Tranche B Letters of Credit, including all
outstanding L/C Borrowings made on account of Tranche B Letters
of Credit.
"Tranche B Letter of Credit" means any letter of credit
Issued by the Issuing Bank pursuant to Article 3 and allocated in
the Company's request therefor to the Tranche B Commitments.
"Tranche B Loan" has the meaning set forth in
Section 2.01(b).
"Tranche B Termination Date" means July 22, 2004.
"Unrestricted Subsidiary" means any Subsidiary of the
Company other than a Restricted Subsidiary.
"Utilization Fee" has the meaning specified in
Section 4.01(a).
"Value" means, with respect to a Sale-Leaseback Transaction,
as of any particular time, the amount equal to the greater of
(a) the net proceeds of the sale or transfer of the property
leased pursuant to such Sale-Leaseback Transaction or (b) the
fair value in the opinion of the Board of Directors of the
Company of such property at the time of entering into such
Sale-Leaseback Transaction, in either case divided first by the
number of full years of the term of the lease and then multiplied
by the number of full years of such term remaining at the time of
determination, without regard to any renewal or extension options
contained in the lease.
"Welfare Plan" means a "welfare plan", as such term is
defined in Section (3)(1) of ERISA.
1.02 Computation of Time Periods.
In this Agreement, in the computation of periods of time
from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each
means "to but excluding."
1.03 Accounting Matters.
All accounting terms not specifically defined herein shall
be construed in accordance with GAAP, and all financial
statements referred to in Sections 8.09(a) and (b) shall be
prepared in accordance with GAAP; provided, however, that all
computations determining compliance with Article 8 shall use
accounting principles consistent with those applied in the
preparation of the financial statements of the Company referred
to in Section 6.05(a). The parties hereto agree that to the
extent that any change in GAAP affects the calculation of the
financial covenant contained herein, the Agent (at the direction
sf712790 15
of the Required Lenders) and the Company shall negotiate in good
faith to amend such financial covenant to account for such
changes in GAAP.
1.04 Certain Terms.
The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
The words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole, including
the Exhibits and Schedules hereto, and not to any particular
Article, Section, paragraph or clause in this Agreement. The word
"including" when used herein is not intended to be exclusive and
means "including, without limitation." References herein to an
Article, Section, paragraph or clause shall refer to the
appropriate Article, Section, paragraph or clause in this
Agreement.
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.
ARTICLE 2
AMOUNTS AND TERMS OF THE LOANS
2.01 Committed Loans.
(a) Tranche A Loans. Each Lender severally agrees, on the terms
and subject to the conditions hereinafter set forth, to make one
or more Committed Loans to the Company on any Business Day during
the period commencing on the Closing Date and ending on the
Business Day next preceding the Tranche A Termination Date (each
such loan, a "Tranche A Loan"), in an aggregate principal amount
at any time outstanding which does not exceed such Lender's
Tranche A Commitment; provided, however, that after giving effect
to any Committed Borrowing of Tranche A Loans, (i) the aggregate
principal amount of all Tranche A Loans then outstanding, plus
(ii) the aggregate principal amount of all Tranche A Bid Loans
then outstanding, plus (iii) the outstanding Tranche A L/C
Obligations shall not exceed the Aggregate Tranche A Commitments.
Any principal amount of the Tranche A Loans which is repaid or
prepaid by the Company may be reborrowed within the limitations
set forth in this Section 2.01(a).
(b) Tranche B Loans. Each Lender severally agrees, on the terms
and subject to the conditions hereinafter set forth, to make one
or more Committed Loans to the Company on any Business Day during
the period commencing on the Closing Date and ending on the
Business Day next preceding the Tranche B Termination Date (each
such loan, a "Tranche B Loan"), in an aggregate principal amount
at any time outstanding which does not exceed such Lender's
Tranche B Commitment.; provided, however, that after giving
effect to any Committed Borrowing of Tranche B Loans, (i) the
aggregate principal amount of all Tranche B Loans then
outstanding, plus (ii) the aggregate principal amount of all
Tranche B Bid Loans then outstanding, plus (iii) the aggregate
principal amount of all 1996 Facility Bid Loans then outstanding,
sf712790 16
plus (vi) the outstanding Tranche ▇ ▇/C Obligations shall not
exceed the Aggregate Tranche B Commitments. Any principal amount
of the Tranche B Loans which is repaid or prepaid by the Company
may be reborrowed within the limitations set forth in this
Section 2.01(b).
2.02 Procedure for Committed Borrowings.
(a) Each Committed Borrowing shall be made on notice, delivered
by the Company to the Agent not later than 12:00 noon (New York
City time) at least (i) four Business Days prior to the date of
such proposed Borrowing, in the case of Eurodollar Loans, and
(ii) one Business Day prior to the date of such proposed
Borrowing, in the case of Reference Rate Loans. Each such notice
of a Committed Borrowing (a "Notice of Borrowing") shall be
irrevocable and shall be delivered by facsimile, in substantially
the form of Exhibit 2.02(a), specifying therein:
(i) the date of such Borrowing, which shall be a
Business Day;
(ii) the amount of such Borrowing which, in the
case of a Borrowing of Eurodollar Loans, shall be in the
amount of $20,000,000 or an integral multiple of $10,000,000
in excess thereof and, in the case of a Borrowing of
Reference Rate Loans, shall be in the amount of $10,000,000
or an integral multiple of $5,000,000 in excess thereof and
shall not, in any case, exceed the unused Aggregate Tranche
A Commitments or Aggregate Tranche B Commitments, as
applicable, set forth in Section 2.01(a) or (b),
respectively, on the date such Borrowing is made (after
giving effect to each payment and prepayment made on such
date);
(iii) whether such Borrowing is to be of
Tranche A Loans or Tranche B Loans;
(iv) whether such Borrowing is to be comprised of
Eurodollar Loans or Reference Rate Loans; and
(v) if such Borrowing is to be comprised of
Eurodollar Loans, the duration of the initial Interest
Period applicable to such Loans.
If the Notice of Borrowing shall fail to specify the duration of
the initial Interest Period for any Committed Borrowing comprised
of Eurodollar Loans, such Interest Period shall be one month.
(b) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Lender thereof and of the amount of such
Lender's share of such Borrowing determined on the basis of such
Lender's Commitment Percentage. Each Lender shall make available
to the Agent the amount of its ratable share of such Borrowing in
the manner and at the time set forth in Section 4.04(a).
(c) After giving effect to any Committed Borrowing, there shall
not be more than seven different Interest Periods in effect.
(d) Unless any applicable condition specified in Article 7 has
not been satisfied or waived, the Agent will make the funds
received from the Lenders promptly available to the Company by
crediting the account of the Company on the books of Bank of
sf712790 17
America, or such other account as shall have been specified by
the Company, with the aggregate of the amounts made available to
the Agent by the Lenders and in like funds as received by the
Agent.
2.03 Bid Borrowings.
(a) In addition to Committed Borrowings pursuant to
Section 2.01, each Lender severally agrees that the Company may,
as set forth in Section 2.04, from time to time on any Business
Day during the period commencing on the Closing Date and ending
on the Business Day next preceding the Tranche A Termination Date
request the Lenders to submit offers to make Tranche A Bid Loans
to the Company; provided, however, that the Lenders may, but
shall have no obligation to, submit such offers and the Company
may, but shall have no obligation to, accept any such offers; and
provided, further, that at no time shall (a)(i) the aggregate
principal amount of all Tranche A Bid Loans made by all Lenders
then outstanding plus (ii) the aggregate principal amount of all
Tranche A Loans then outstanding plus (iii) the outstanding
Tranche A L/C Obligations exceed (b) the Aggregate Tranche A
Commitments.
(b) In addition to Committed Borrowings pursuant to
Section 2.01, each Lender severally agrees that the Company may,
as set forth in Section 2.04, from time to time on any Business
Day during the period commencing on the Closing Date and ending
on the Business Day next preceding the Tranche B Termination Date
request the Lenders to submit offers to make Tranche B Bid Loans
to the Company; provided, however, that the Lenders may, but
shall have no obligation to, submit such offers and the Company
may, but shall have no obligation to, accept any such offers; and
provided, further, that at no time shall (a)(i) the aggregate
principal amount of all Tranche B Bid Loans made by all Lenders
then outstanding plus (ii) the aggregate principal amount of all
Tranche B Loans then outstanding plus (iii) the aggregate
principal amount of all 1996 Facility Bid Loans then outstanding
plus (vi) the outstanding Tranche ▇ ▇/C Obligations exceed
(b) the Aggregate Tranche B Commitments.
2.04 Procedure for Bid Borrowings.
(a) The Company may request a Bid Borrowing hereunder by
delivering to the Agent by facsimile not later than 11:00 a.m.
(New York City time) at least (i) four Business Days prior to the
date of the proposed Borrowing, in the case of a request for Base
Rate Bid Loans, and (ii) two Business Days (or, in the event the
Company desires that Competitive Bids be furnished on the date of
the proposed Bid Borrowing, one Business Day) prior to the date
of the proposed Bid Borrowing in the case of a request for Fixed
Rate Bid Loans, a solicitation for Bid Loans (a "Competitive Bid
Request"), in substantially the form of Exhibit
2.04(a) specifying therein:
(i) the date of such Bid Borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Bid Borrowing,
which shall be a minimum amount of $10,000,000 in excess
thereof and shall not, in the case of a Tranche A Bid
Borrowing, exceed the Available Tranche A Commitments on the
date such proposed Borrowing is made (after giving effect to
each payment and prepayment made on such date) or, in the
case of a Tranche B Bid Borrowing, exceed the Available
Tranche B Commitments on the date such proposed Borrowing is
made (after giving effect to each payment and prepayment
made on such date);
sf712790 18
(iii) the maturity date or dates for the partial or
complete repayment of each Bid Loan to be made as part of such
Bid Borrowing (none of which shall occur after the Tranche B
Termination Date) and, in the case of each partial repayment, the
amount thereof;
(iv) whether the Bid Loans requested are Tranche A
Bid Loans or Tranche B Bid Loans, and whether the Bid Loans
requested are Base Rate Bid Loans or Fixed Rate Bid Loans
and, in the case of Base Rate Bid Loans, the basis of
calculation of such interest rate (the "Base Rate") to be
used by the Lenders in determining the rate or rates of
interest to be offered by them; and
(v) any other terms to be applicable to such Bid
Borrowing (including the extent to which terms similar to
Section 4.05 shall be applicable to such Bid Borrowing).
The Agent shall promptly notify each Lender of its receipt of a
Competitive Bid Request by sending such Lender by facsimile a
copy of such Competitive Bid Request.
(b) (i) Each Lender may, in response to a Competitive Bid
Request, at its option, irrevocably submit a Competitive Bid
containing an offer to make one or more Bid Loans at a rate or
rates of interest specified by such Lender in its sole
discretion. Each Competitive Bid must be submitted to the
Company before 10:00 a.m. (New York City time) (A) three Business
Days prior to the date of the proposed Bid Borrowing, in the case
of a request for Base Rate Bid Loans, and (B) one Business Day
prior to the date of the proposed Bid Borrowing (or, in the event
the Company desires that Competitive Bids be furnished on the
date of the proposed Bid Borrowing, on the date of such proposed
Borrowing), in the case of a request for Fixed Rate Bid Loans.
(ii) Each Competitive Bid (which shall be by telephone,
promptly confirmed in writing) shall specify:
(A) the minimum amount of each Bid Loan for which
such Competitive Bid is being made (which shall be at
least $5,000,000) and the maximum amount thereof (which
may exceed such Lender's Tranche A Commitment or its
Tranche B Commitment);
(B) the rate or rates of interest per annum
offered for each Bid Loan, which, in the case of a Base
Rate Bid Loan, shall be expressed as a margin to be
added to, or subtracted from, the Base Rate specified
by the Company in its Bid Request; and
(C) the applicable Lending Office of the quoting
Lender.
(iii) Any Competitive Bid may be
disregarded if it:
(A) does not specify all of the information
required by Section 2.04(b)(ii);
(B) contains qualifying, conditional or similar
language;
sf712790 19
(C) proposes terms other than, or in addition to,
those set forth in the applicable Competitive Bid
Request; or
(D) arrives after the time set forth in
Section 2.04(b)(i).
(c) Not later than 11:00 a.m. (New York City time) three
Business Days prior to the date of the proposed Bid Borrowing, in
the case of a Borrowing of Base Rate Bid Loans, and 11:00 a.m.
(New York City time) one Business Day prior to the date of the
proposed Bid Borrowing (or, in the event the Company desires that
Competitive Bids be furnished on the date of the proposed Bid
Borrowing, on the date of such proposed Borrowing), in the case
of a Borrowing of Fixed Rate Bid Loans, the Company shall either
(i) cancel such Bid Borrowing by giving the Agent and
the Lenders notice thereof (which notice may be given by
telephone and confirmed in writing by facsimile) or
(ii) accept one or more of the offers made by any
Lender or Lenders pursuant to Section 2.04(b), in its sole
discretion, by giving notice (which notice may be given by
telephone, confirmed in writing by facsimile) to such
Lenders of the amount of each Bid Loan (which amount shall
be equal to or greater than the minimum amount, and equal to
or less than the maximum amount, notified to the Company by
such Lender for such Bid Loan pursuant to
Section 2.04(b)) to be made by each such Lender as part of
such Bid Borrowing, and reject any remaining offers made by
giving the Lenders notice (which notice may be given by
telephone, confirmed in writing by facsimile) to that
effect; provided, however, that to the extent that the
Company elects to accept one or more Competitive Bids
submitted by Lenders for a given Interest Period, the
Company shall accept such Competitive Bids on the basis of
ascending interest rates; and, provided, further, that in
the event the Company does not, before the time stated
above, either cancel the proposed Bid Borrowing pursuant to
Section 2.04(c)(i) or accept one or more of the offers
pursuant to this Section 2.04(c)(ii), such Bid Borrowing
shall be deemed cancelled and provided, further, that in the
event the Company accepts one or more of the offers pursuant
to this Section 2.04(c)(ii) but does not expressly reject
the remaining offers, such offers shall be deemed rejected.
The Company shall promptly notify the Agent of the date and
amount of any proposed Bid Borrowing.
(d) For purposes of Sections 2.01, 2.06 and 4.01(a), each
outstanding Bid Loan (and until repayment in full thereof, each
1996 Facility Bid Loan) shall be deemed to utilize the Tranche A
Commitments of each Lender, in the case of Tranche A Bid Loans,
or the Tranche B Commitments of each Lender, in the case of
Tranche B Bid Loans, whether or not such Lender has made such Bid
Loan, by an amount equal to such Lender's Commitment Percentage
times the amount of such Bid Loan (or 1996 Facility Bid Loan).
(e) The rights of any Lender under the 1996 Credit Agreement
which is also a Lender under this Agreement and which has made
1996 Facility Bid Loans that are outstanding on the Closing Date
shall terminate on the Closing Date and such Lender shall have
the same rights with respect to its 1996 Facility Bid Loans as if
such 1996 Facility Bid Loans were Bid Loans hereunder.
sf712790 20
2.05 Evidence of Indebtedness.
(a) Each Lender, with respect to amounts payable to it
hereunder, and the Agent, with respect to all amounts payable
hereunder in respect of Committed Borrowings, shall maintain on
its books in accordance with its usual practice, loan accounts
and control accounts, respectively, setting forth each Committed
Loan and, in the case of each Lender having made a Bid Loan, each
such Bid Loan, the applicable interest rate and the amounts of
principal, interest and other sums paid and payable by the
Company from time to time hereunder with respect thereto;
provided, however, that the failure by any Lender to record any
such amount on its books shall not affect the obligations of the
Company with respect thereto. In the case of any dispute, action
or proceeding relating to any amount payable hereunder, the
entries in each such account shall be prima facie evidence of
such amount, absent manifest error. In case of any discrepancy
between the entries in the Agent's books and any Lender's books,
such Lender's books shall be considered correct in the absence of
manifest error.
(b) Notwithstanding the foregoing, if any Lender shall so
request for purposes of Section 12.08(a)(iii), the obligation to
repay the Committed Loans shall also be evidenced by a promissory
note in the form of Exhibit 2.05(b).
(c) The obligation to repay a Bid Loan shall also, if so
requested by the Lender making such Bid Loan in its Competitive
Bid, be evidenced by a promissory note in the form of Exhibit
2.05(c).
2.06 Optional Reduction of the Commitments.
The Company shall have the right, upon at least four
Business Days' prior notice to the Agent (which notice shall be
irrevocable), at any time permanently to terminate the remaining
Commitments in whole or reduce ratably in part the unused
portions of the Commitments of the Lenders, allocated between
Tranche A Commitments or Tranche B Commitments, as the Company
may elect; provided, however, that each partial reduction shall
be in the aggregate amount of $20,000,000 or an integral multiple
of $10,000,000 in excess thereof. No reduction in the
Commitments shall reduce the L/C Commitment until the aggregate
Commitments are reduced to $150,000,000, after which each
reduction in the Commitments shall reduce the L/C Commitment
dollar for dollar. The Agent shall promptly notify each Lender
of its receipt of any notice under this Section 2.06.
2.07 Repayment.
(a) The Committed Loans. The Company agrees to repay to the
Agent for the account of the Lenders the outstanding principal
amount of all Tranche A Loans on the Tranche A Termination Date.
The Company agrees to repay to the Agent for the account of the
Lenders the outstanding principal amount of all Tranche B Loans
on the Tranche B Termination Date.
(b) The Bid Loans. The Company agrees to repay to each Lender
which has made a Bid Loan on the maturity date of such Bid Loan
(as each such maturity date shall have been specified by the
Company in the applicable Competitive Bid Request pursuant to
Section 2.04(a)(iii)) the unpaid principal amount of such Bid
Loan then due and payable (each such amount being as specified
for such date in such Competitive Bid Request pursuant to
Section 2.04(a)(iii)).
sf712790 21
2.08 Optional Prepayments.
(a) Subject to Section 5.06(a), the Company may, upon (i) at
least four Business Days' prior notice to the Agent, in the case
of a prepayment of Eurodollar Loans, and (ii) at least one
Business Day's prior notice to the Agent, in the case of a
prepayment of Reference Rate Loans, stating the proposed date and
aggregate principal amount of the prepayment, prepay, ratably
among the Lenders in accordance with their Commitment
Percentages, the outstanding principal amount of the Committed
Loans, in whole or in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid.
(b) Each partial prepayment of Committed Loans shall, in the
case of Eurodollar Loans, be in the aggregate principal amount of
$20,000,000 or an integral multiple of $10,000,000 in excess
thereof, and, in the case of Reference Rate Loans, be in the
aggregate principal amount of $10,000,000 or an integral multiple
of $5,000,000 in excess thereof; provided, however, that, if the
aggregate amount of Eurodollar Loans comprised in the same
Committed Borrowing would be reduced as a result of any voluntary
prepayment to an amount less than $20,000,000, such Eurodollar
Loans shall automatically convert into Reference Rate Loans on
the last day of the then current Interest Period.
(c) If a notice of prepayment is given, such notice shall be
irrevocable and the principal amount stated in such notice,
together with accrued interest thereon and any amount payable
pursuant to Section 5.06(a), shall be due and payable on the date
specified in such notice. The Agent shall promptly notify each
Lender of its receipt of any notice of prepayment under this
Section 2.08.
(d) Bid Loans may not be prepaid.
2.09 Interest.
(a) Each Committed Loan shall bear interest on the outstanding
principal amount thereof from the date when made until paid in
full, at the option of the Company, as set forth in its Notice of
Borrowing or in its Notice of Conversion/Continuation,
(i) if such Loan is a Reference Rate Loan, at a rate
per annum equal to the Adjusted Reference Rate; or
(ii) if such Loan is a Eurodollar Loan, at a rate
per annum equal to the sum of (A) LIBOR plus (B) the
applicable margin, as follows:
Debt Rating Applicable Margin
on Eurodollar Loans
▇▇▇▇▇'▇ S&P Tranche A Loans / Tranche B Loans
Baal higher or BBB+ or higher 0.525% / 0.500%
Baa2 or BBB 0.625% / 0.600%
Baa3 or BBB- 0.725% / 0.700%
Bal or BB+ 1.075% / 1.050%
Ba2 or lower and BB or lower 1.275% / 1.250%
sf712790 22
provided, however, that if at any time no Debt Rating is
available, the applicable margin shall be 1.275% per annum for
Tranche A Loans and 1.250% per annum for Tranche B Loans.
(b) Any change in the applicable margin due to a change in the
applicable Debt Rating shall be effective on the effective date
of such change in the applicable Debt Rating and shall apply to
all Eurodollar Loans that are outstanding at any time during the
period commencing on the effective date of such change in
applicable Debt Rating and ending on the date immediately
preceding the effective date of the next such change in
applicable Debt Rating. In the event of a split rating, the
higher rating will apply; if the Debt Ratings are split by more
than one level, one level above the lower rating will apply.
(c) Accrued interest shall be paid on each Interest Payment Date
(and, after maturity, on demand), on the date of repayment or
prepayment of any Committed Loan on the amount repaid or prepaid
and, in the case of any Reference Rate Loan, on each date such
Loan is converted into a Eurodollar Loan.
(d) The Company shall pay to each Lender which has made a Bid
Loan interest on the unpaid principal amount of such Bid Loan
from the date when made until paid in full, on each Interest
Payment Date (and, after maturity, on demand), at the rate of
interest specified by such Lender in its Competitive Bid pursuant
to Section 2.04(b)(ii)(B).
2.10 Default Interest.
During the continuation of any Event of Default pursuant
to Section 10.01(a), the Company shall pay interest (after as
well as before judgment to the extent permitted by law) on the
principal amount of all Committed Loans outstanding and on all
other Obligations of the Company due and unpaid (other than Bid
Loans), at a rate per annum which is determined by increasing the
interest rate then in effect by 2% per annum for the principal
amount of the Eurodollar Loans outstanding and at a rate per
annum equal to the Adjusted Reference Rate plus 2% for any other
Obligation due hereunder (other than Bid Loans).
2.11 Continuation and Conversion Elections for Committed Loans.
(a) The Company may upon irrevocable written notice to the
Agent:
(i) elect to convert, on any Business Day, all or any
portion of outstanding Reference Rate Loans (in the aggregate
amount of $20,000,000 or an integral multiple of $10,000,000 in
excess thereof) into Eurodollar Loans;
(ii) elect to convert, on the last day of any
Interest Period therefor, all or any portion of outstanding
Eurodollar Loans comprising the same Borrowing (in the
aggregate amount of $10,000,000 or an integral multiple of
$5,000,000 in excess thereof) into Reference Rate Loans; or
(iii) elect to continue, on the last day of
any Interest Period therefor, any Eurodollar Loans;
provided, however, that if the aggregate amount of outstanding
Eurodollar Loans comprised in the same Borrowing would be reduced
as a result of any conversion of part thereof to Reference Rate
Loans to an amount less than $20,000,000, such Eurodollar Loans
sf712790 23
shall automatically convert into Reference Rate Loans on the last
day of the Interest Period on which such conversion occurs.
(b) The Company shall deliver a notice of conversion or
continuation (a "Notice of Conversion/Continuation"), in
substantially the form of Exhibit 2.11(b), to the Agent not later
than 12:00 noon (New York City time) (i) four Business Days prior
to the proposed date of conversion or continuation, if the
Committed Loans or any portion thereof are to be converted into
or continued as Eurodollar Loans, and (ii) one Business Day prior
to the proposed date of conversion, if the Committed Loans or any
portion thereof are to be converted into Reference Rate Loans.
Each such Notice of Conversion/Continuation shall be irrevocable
and shall be made by facsimile, specifying therein:
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Committed Loans to be
converted or continued;
(iii) whether such Committed Loans are Tranche
A Loans or Tranche B Loans; and
(iv) the duration of the applicable Interest
Period if such Committed Loans are Eurodollar Loans.
(c) If, on the fourth Business Day prior to the expiration of
any Interest Period applicable to Eurodollar Loans, the Company
shall have failed to select a new Interest Period to be
applicable to such Eurodollar Loans, the Company shall be deemed
to have elected to convert such Eurodollar Loans into Reference
Rate Loans effective as of the last day of such Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the
Agent shall promptly notify each Lender thereof. All conversions
and continuations shall be made ratably among the Lenders based
on their Commitment Percentages of the Committed Loans with
respect to which such notice was given.
(e) Notwithstanding any other provision contained in this
Agreement, after giving effect to any conversion or continuation
of any Committed Loans, there shall not be more than seven
different Interest Periods for Committed Loans in effect.
2.12 Termination of Prior Commitments.
The Company and each of the Lenders agree that the
"Commitments" (as defined in the 1996 Credit Agreement) will
terminate as of the Closing Date, and each Lender waives the
notice requirement set forth in Section 2.08(a) of the 1996
Credit Agreement regarding such termination.
sf712790 24
ARTICLE 3
THE LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility.
(a) On the terms and conditions set forth herein
(i) the Issuing Bank agrees, (A) from time to time on any
Business Day during the period from the Closing Date to the
Tranche A Termination Date to issue Tranche A Letters of Credit
for the account of the Company, and to amend or renew Tranche A
Letters of Credit previously issued by it, in accordance with
subsections 3.02(c) and 3.02(d), (B) from time to time on any
Business Day during the period from the Closing Date to the
Tranche B Termination Date to issue Tranche B Letters of Credit
for the account of the Company, and to amend or renew Tranche B
Letters of Credit previously issued by it, in accordance with
subsections 3.02(c) and 3.02(d), and (C) to honor drafts under
the Letters of Credit; and (ii) the Lenders severally agree to
purchase an irrevocable and unconditional participation in each
Letter of Credit Issued for the account of the Company; provided,
that the Issuing Bank shall not be obligated to Issue, and no
Lender shall be obligated to participate in, any Letter of Credit
if as of the date of Issuance of such Letter of Credit (the
"Issuance Date"), after giving effect to any requested Loans,
(A) (1) the aggregate principal amount of all Tranche A Loans
then outstanding plus (2) the aggregate principal amount of all
Tranche A Bid Loans then outstanding plus (3) the outstanding
Tranche A L/C Obligations exceeds the Aggregate Tranche A
Commitments; (B) (1) the aggregate principal amount of all
Tranche B Loans then outstanding plus (2) the aggregate principal
amount of all Tranche B Bid Loans then outstanding plus (3) the
aggregate principal amount of all 1996 Facility Bid Loans then
outstanding plus (4) the outstanding Tranche ▇ ▇/C Obligations
exceeds the Aggregate Tranche B Commitments; or (C) the total
amount of L/C Obligations exceeds the L/C Commitment. Within the
foregoing limits, and subject to the other terms and conditions
hereof, the Company's ability to obtain Letters of Credit shall
be fully revolving, and, accordingly, the Company may, during the
foregoing period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and
reimbursed.
(b) The Issuing Bank is under no obligation to Issue
any Letter of Credit if:
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the Issuing Bank from Issuing
such Letter of Credit, or any Requirement of Law applicable
to the Issuing Bank or any request or directive (whether or
not having the force of law) from any Governmental Authority
with jurisdiction over the Issuing Bank shall prohibit, or
request that the Issuing Bank refrain from, the Issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Bank with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the Issuing Bank is not
otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the Issuing Bank any
unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the Issuing Bank in good ▇▇▇▇▇
▇▇▇▇▇ material to it;
sf712790 25
(ii) the Issuing Bank has received written
notice from any Lender, the Agent or the Company, on or
prior to the Business Day prior to the requested date of
Issuance of such Letter of Credit, that one or more of the
applicable conditions contained in Article 7 is not then
satisfied;
(iii) the expiry date of any requested
Letter of Credit is (A) more than one year after the date of
Issuance, unless the Required Lenders have approved such
expiry date in writing, (B) after the Tranche A Termination
Date, in the case of a Tranche A Letter of Credit, unless
all of the Lenders have approved such expiry date in
writing, or (C) after the Tranche B Termination Date, in the
case of a Tranche B Letter of Credit, unless all of the
Lenders have approved such expiry date in writing;
(iv) the expiry date of any requested Letter
of Credit is prior to the maturity date of any financial
obligation to be supported by the requested Letter of
Credit;
(v) any requested Letter of Credit does not
provide for drafts, or is not otherwise in form and
substance acceptable to the Issuing Bank, or the Issuance of
a Letter of Credit shall violate any applicable policies of
the Issuing Bank;
(vi) any standby Letter of Credit is for the
purpose of supporting the Issuance of any Letter of Credit
by any other Person; or
(vii) such Letter of Credit is in a face
amount less than $100,000 or is denominated in a currency
other than dollars.
3.02 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable
written request of the Company received by the Issuing Bank (with
a copy sent by the Company to the Agent) at least four days (or
such shorter time as the Issuing Bank may agree in a particular
instance in its sole discretion) prior to the proposed date of
issuance. Each such request for issuance of a Letter of Credit
shall be by facsimile, confirmed immediately in an original
writing, in the form of an L/C Application, and shall specify in
form and detail satisfactory to the Issuing Bank: (i) the
proposed date of issuance of the Letter of Credit (which shall be
a Business Day); (ii) the face amount of the Letter of Credit;
(iii) the expiry date of the Letter of Credit; (iv) the name and
address of the beneficiary thereof; (v) the documents to be
presented by the beneficiary of the Letter of Credit in case of
any drawing thereunder; (vi) the full text of any certificate to
be presented by the beneficiary in case of any drawing
thereunder; (vii) whether such Letter of Credit should be
allocated to the Tranche A Commitments or the Tranche B
Commitments; and (viii) such other matters as the Issuing Bank
may require.
(b) At least two Business Days prior to the Issuance of any
Letter of Credit, the Issuing Bank will confirm with the Agent
(by telephone or in writing) that the Agent has received a copy
of the L/C Application or L/C Amendment Application from the
Company and, if not, the Issuing Bank will provide the Agent with
a copy thereof. Unless the Issuing Bank has received notice on
or before the Business Day immediately preceding the date the
Issuing Bank is to issue a requested Letter of Credit from the
Agent (i) directing the Issuing Bank not to issue such Letter of
Credit because such issuance is not then permitted under
subsection 3.01(b)(iii) as a result of the limitations set forth
sf712790 26
in clauses (A) through (B) thereof or subsection 3.01(b)(ii); or
(ii) that one or more conditions specified in Article 7 are not
then satisfied; then, subject to the terms and conditions hereof,
the Issuing Bank shall, on the requested date, issue a Letter of
Credit for the account of the Company in accordance with the
Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding
and prior to the Tranche A Termination Date (in the case of
Tranche A Letters of Credit) or the Tranche B Termination Date
(in the case of Tranche B Letters of Credit), the Issuing Bank
will, upon the written request of the Company received by the
Issuing Bank (with a copy sent by the Company to the Agent) at
least five days (or such shorter time as the Issuing Bank may
agree in a particular instance in its sole discretion) prior to
the proposed date of amendment, amend any Letter of Credit issued
by it. Each such request for amendment of a Letter of Credit
shall be made by facsimile, confirmed immediately in an original
writing, made in the form of an L/C Amendment Application and
shall specify in form and detail satisfactory to the Issuing
Bank: (i) the Letter of Credit to be amended; (ii) the proposed
date of amendment of the Letter of Credit (which shall be a
Business Day); (iii) the nature of the proposed amendment; and
(iv) such other matters as the Issuing Bank may require. The
Issuing Bank shall be under no obligation to amend any Letter of
Credit if: (A) the Issuing Bank would have no obligation at such
time to issue such Letter of Credit in its amended form under the
terms of this Agreement; or (B) the beneficiary of any such
letter of Credit does not accept the proposed amendment to the
Letter of Credit. The Agent will promptly notify the Banks of
the receipt by it of any L/C Application or L/C Amendment
Application.
(d) The Issuing Bank and the Lenders agree that, while a Letter
of Credit is outstanding and prior to the Tranche A Termination
Date (in the case of Tranche A Letters of Credit) or the Tranche
B Termination Date (in the case of Tranche B Letters of Credit),
at the option of the Company and upon the written request of the
Company received by the Issuing Bank (with a copy sent by the
Company to the Agent) at least five days (or such shorter time as
the Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of notification of
renewal, the Issuing Bank shall be entitled to authorize the
renewal of any Letter of Credit issued by it. Each such request
for renewal of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, in the form of an
L/C Amendment Application, and shall specify in form and detail
satisfactory to the Issuing Bank: (i) the Letter of Credit to be
renewed; (ii) the proposed date of notification of renewal of the
Letter of Credit (which shall be a Business Day); (iii) the
revised expiry date of the Letter of Credit; and (iv) such other
matters as the Issuing Bank may require. The Issuing Bank shall
be under no obligation so to renew any Letter of Credit if:
(A) the Issuing Bank would have no obligation at such time to
issue or amend such Letter of Credit in its renewed form under
the terms of this Agreement; or (B) the beneficiary of any such
Letter of Credit does not accept the proposed renewal of the
Letter of Credit. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the Issuing Bank that
such Letter of Credit shall not be renewed, and if at the time of
renewal the Issuing Bank would be entitled to authorize the
sf712790 27
automatic renewal of such Letter of Credit in accordance with
this subsection 3.02(d) upon the request of the Company but the
Issuing Bank shall not have received any L/C Amendment
Application from the Company with respect to such renewal or
other written direction by the Company with respect thereto, the
Issuing Bank shall (unless such renewal would cause the expiry
date thereof to extend beyond the Tranche A Termination Date, in
the case of a Tranche A Letter of Credit, or the Tranche B
Termination Date, in the case of a Tranche B Letter of Credit)
nonetheless be permitted to allow such Letter of Credit to renew,
and the Company and the Lenders hereby authorize such renewal,
and, accordingly, the Issuing Bank shall be deemed to have
received an L/C Amendment Application from the Company requesting
such renewal.
(e) The Issuing Bank may, at its election (or as required by the
Agent at the direction of the Required Lenders), deliver any
notices of termination or other communications to any Letter of
Credit beneficiary or transferee, and take any other action as
necessary or appropriate, at any time and from time to time, in
order to cause the expiry date of such Letter of Credit to be a
date not later than the Tranche A Termination Date, in the case
of a Tranche A Letter of Credit, or in order to cause the expiry
date of such Letter of Credit to be a date not later than the
Tranche B Termination Date, in the case of a Tranche B Letter of
Credit.
(f) This Agreement shall control in the event of any conflict
with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Bank will also deliver to the Agent,
concurrently or promptly following its delivery of a Letter of
Credit, or amendment to or renewal of a Letter of Credit, to an
advising bank or a beneficiary, a true and complete copy of each
such Letter of Credit or amendment to or renewal of a Letter of
Credit.
3.03 Role of the Issuing Bank.
(a) Each Lender and the Company agree that, in paying any
drawing under a Letter of Credit, the Issuing Bank shall not have
any responsibility to obtain any document (other than any sight
draft and certificates expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or
delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Bank
shall be liable to any Lender for: (i) any action taken or
omitted in connection herewith at the request or with the
approval of the Lenders (including the Required Lenders, as
applicable); (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any L/C-
Related Document.
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its
use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the
Company's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other
agreement. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the Issuing Bank,
sf712790 28
shall be liable or responsible for any of the matters described
in subsections 3.04(a) through (g); provided, however, anything
in such clauses to the contrary notwithstanding, that the Company
may have a claim against the Issuing Bank, and the Issuing Bank
may be liable to the Company, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Company which the Company proves were
caused by the Issuing Bank's willful misconduct or gross
negligence or the Issuing Bank's willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary
of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and
not in limitation of the foregoing: (i) the Issuing Bank may
accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of
any notice or information to the contrary; and (ii) the Issuing
Bank shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.
3.04 Obligations Absolute.
The obligations of the Company under this Agreement and
any L/C-Related Document to reimburse the Issuing Bank for a
drawing under a Letter of Credit, and to repay any L/C Borrowing
and any drawing under a Letter of Credit converted into Revolving
Loans, shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement and each
such other L/C-Related Document under all circumstances,
including the following:
(a) any lack of validity or enforceability of this Agreement or
any L/C-Related Document;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Company
in respect of any Letter of Credit or any other amendment or
waiver of or any consent to departure from all or any of the L/C-
Related Documents;
(c) the existence of any claim, set-off, defense or other right
that the Company may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Person for whom
any such beneficiary or any such transferee may be acting), the
Issuing Bank or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the L/C-
Related Documents or any unrelated transaction;
(d) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; or any loss or delay
in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit;
(e) any payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any
payment made by the Issuing Bank under any Letter of Credit to
any Person purporting to be a trustee in bankruptcy, debtor-in-
possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any
beneficiary or any transferee of any Letter of Credit, including
any arising in connection with any Insolvency Proceeding;
sf712790 29
(f) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure
from any other guarantee, for all or any of the obligations of
the Company in respect of any Letter of Credit; or
(g) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available
to, or a discharge of, the Company or a guarantor.
3.05 Cash Collateral Pledge.
Upon the request of the Agent or the Required Lenders,
(a) if the Issuing Bank has honored any full or partial drawing
request on any Letter of Credit and such drawing has resulted in
an L/C Borrowing hereunder, (b) if, as of the Tranche A
Termination Date, any Tranche A Letters of Credit may for any
reason remain outstanding and partially or wholly undrawn, or
(c) if, as of the Tranche B Termination Date, any Tranche B
Letters of Credit may for any reason remain outstanding and
partially or wholly undrawn, then, the Company shall immediately
Cash Collateralize the L/C Obligations in an amount equal to such
L/C Obligations.
3.06 Letter of Credit Fees.
(a) The Company shall pay to the Agent for the account of each
of the Lenders a letter of credit fee with respect to the Tranche
A Letters of Credit equal to the applicable margin above LIBOR
then in effect under Section 2.09 for Tranche A Eurodollar Loans
for each day such Tranche A Letters of Credit are outstanding,
computed on a quarterly basis in arrears on the last Business Day
of each calendar quarter and based upon Tranche A Letters of
Credit outstanding for that quarter as calculated by the Agent.
The Company shall pay to the Agent for the account of each of the
Lenders a letter of credit fee with respect to the Tranche B
Letters of Credit equal to the applicable margin above LIBOR then
in effect under Section 2.09 for Tranche B Eurodollar Loans for
each day such Tranche B Letters of Credit are outstanding,
computed on a quarterly basis in arrears on the last Business Day
of each calendar quarter and based upon Tranche B Letters of
Credit outstanding for that quarter as calculated by the Agent.
Such letter of credit fees shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter during
which Letters of Credit are outstanding, commencing on the first
such quarterly date to occur after the Closing Date, through the
Tranche B Termination Date (or such later date upon which the
outstanding Letters of Credit shall expire), with the final
payment to be made on the Tranche A Termination Date (or such
later expiration date), in the case of Tranche A Letters of
Credit and on the Tranche B Termination Date (or such later
expiration date), in the case of Tranche B Letters of Credit.
(b) The Company shall pay to the Issuing Bank a letter of credit
fronting fee for each Letter of Credit Issued by the Issuing Bank
equal to 0.125% of the face amount (or increased face amount, as
the case may be) of such Letter of Credit. Such Letter of Credit
fronting fee shall be due and payable on each date of Issuance of
a Letter of Credit.
sf712790 30
(c) The Company shall pay to the Issuing Bank from time to time
on demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the
Issuing Bank relating to standby letters of credit as from time
to time in effect.
3.07 International Standby Practices.
The International Standby Practices as published by the
International Chamber of Commerce most recently at the time of
issuance of any Letter of Credit shall (unless otherwise
expressly provided in the Letters of Credit) apply to the Letters
of Credit.
ARTICLE 4
FEES; PAYMENTS; TAXES
4.01 Fees.
(a) Utilization Fee. The Company shall pay to the Agent for the
account of each Lender a utilization fee ("Utilization Fee") on
the actual daily aggregate principal amount of such Lender's
Committed Loans then outstanding hereunder with respect to each
day on which the principal amount of all Committed Loans then
outstanding is equal to or exceeds 33% of the aggregate
Commitments (each such day a "Utilization Fee Day"). Such fee
shall be computed with respect to each Utilization Fee Day at a
rate equal to 0.125% per annum, and shall accrue with respect to
each Utilization Fee Day occurring on and after the Closing Date
to the later to occur of (A) the Tranche B Termination Date and
(B) the date on which all Loans and interest thereon are paid in
full and the Commitments hereunder terminated, and, to the extent
accrued during such period, shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter
(commencing on September 30, 1999) through the later to occur of
(X) the Tranche B Termination Date and (Y) the date on which all
Loans, L/C Obligations and interest thereon are paid in full and
the Commitments hereunder terminated, with the final payment to
be made on the latest to occur of such dates.
(b) Facility Fee.
(i) The Company agrees to pay to the Agent for the account
of each Lender, a facility fee from the Closing Date until the
Tranche B Termination Date at a rate per annum times the Tranche
A Commitment and the Tranche B Commitment of such Lender
(regardless of utilization thereof) as follows:
Debt Rating Facility Fee
Moody's S&P Tranche A / Tranche B
Baal higher or BBB+ or higher 0.100% / 0.125%
Baa2 or BBB 0.125% / 0.150%
Baa3 or BBB- 0.150% / 0.175%
Bal or BB+ 0.175% / 0.200%
Ba2 or lower and BB or lower 0.225% / 0.250%
sf712790 31
provided, however, that if at any time no Debt Rating is
available, the facility fee shall be 0.225% per annum for
Tranche A Commitments and 0.250% per annum for Tranche B
Commitments. In the event of a split rating, the higher
rating will apply; if the Debt Ratings are split by more
than one level, one level above the lower rating will apply.
(ii) The facility fee shall be payable (A) quarterly in
arrears on the last Business Day of each calendar quarter,
commencing with the calendar quarter ending on September 30,
1999, (B) on any date of reduction or termination of the
Commitments and (C) on the Tranche B Termination Date.
(c) Agency Fee. The Company agrees to pay to the Agent for its
account an agency fee in such amounts and at such times as are
set forth in the Fee Letter.
4.02 Computation of Interest, Fees.
(a) All computations of interest payable in respect of Reference
Rate Loans shall be made on the basis of a year of 365 days or
366 days, as the case may be, and actual days elapsed. All
computations of interest in respect of Eurodollar Loans and Bid
Loans and all computations of fees under this Agreement shall be
made on the basis of a year of 360 days and actual days elapsed.
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) Each determination of an interest rate by the Agent pursuant
to any provision of this Agreement shall be conclusive and
binding on the Company and the Lenders in the absence of manifest
error. The Agent, upon determining LIBOR for any Interest
Period, shall promptly notify the Company and the Lenders
thereof.
4.03 Payments by the Company.
(a) The Company shall make each payment hereunder not later than
1:00 p.m. (New York City time) on the day when due (i) in respect
of any Committed Loan, to the Agent or (ii) in respect of any Bid
Loan, to the Lender which made such Bid Loan, without defense,
setoff or counterclaim, in dollars and in immediately available
funds to such account in the continental United States of America
as the Agent shall specify from time to time by notice to the
Company or, in the case of a Bid Loan made by a Lender, to the
Lending Office of such Lender. The Agent will promptly after
receiving any payment in respect of any Committed Loan from the
Company cause to be distributed like funds to the Lenders ratably
based on their Commitment Percentages (other than amounts payable
to any Lender or any amounts payable pursuant to Section 3.05,
4.02, 4.03, 4.04, 4.05 or 4.06) for the account of their
respective Lending Offices. Any payment which is received by the
Agent later than 1:00 p.m. (New York City time), as confirmed by
Federal Reserve wire number, shall be deemed to have been
received on the immediately succeeding Business Day.
(b) Whenever any payment of a Committed Loan (and, unless
otherwise stated in the relevant Competitive Bid Request, a Bid
Loan) shall be stated to be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business
Day, and such extension of time shall in such case be included in
the computation of payment of interest or fees, as the case may
be; provided, however, that if such extension would cause payment
sf712790 32
of principal of or interest on Eurodollar Loans to be made in the
next calendar month, such payment shall be made on the
immediately preceding Business Day.
(c) Unless the Agent shall have received notice from the Company
prior to the date on which any payment is due to the Lenders
hereunder that the Company will not make such payment in full,
the Agent may assume that the Company has made such payment in
full to the Agent on such date, and the Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender.
If and to the extent the Company shall not have so made such
payment in full to the Agent, each Lender shall repay to the
Agent forthwith on demand the excess of the amount distributed to
such Lender over the amount, if any, paid by the Company for the
account of such Lender, together with interest thereon at the
Federal Funds Rate, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such
amount to the Agent; provided, however, that if any Lender shall
fail to repay such amount within three Business Days after demand
therefor, such Lender shall, from and after such third Business
Day until payment is made to the Agent, pay interest thereon at a
rate per annum equal to the sum of the Adjusted Reference Rate
plus 1%.
4.04 Payments by the Lenders.
(a) Not later than 12:00 noon (New York City time) on the date
of each proposed Committed Borrowing, each Lender shall make
available to the Agent to such account as the Agent shall specify
from time to time in immediately available funds for the account
of the Company, the amount of such Lender's Commitment Percentage
of such Borrowing.
(b) Unless the Agent shall have received notice from a Lender at
least one Business Day prior to the date of any proposed
Committed Borrowing that such Lender will not make available to
the Agent for the account of the Company, the amount of such
Lender's Commitment Percentage of such Borrowing, the Agent may
assume that such Lender has made such amount available to the
Agent on the date of such Borrowing, and the Agent may, in
reliance upon such assumption, make available to the Company on
such date a corresponding amount. If and to the extent any
Lender shall not have made such full amount available to the
Agent, and the Agent in such circumstances makes available to the
Company such amount, such Lender shall, within two Business Days
following the date of such Borrowing, make such amount available
to the Agent, together with interest thereon for each day from
and including the date of such Borrowing, at a rate per annum
equal to the Federal Funds Rate. If such amount is so made
available, such payment to the Agent shall constitute such
Lender's Committed Loan on the date of such Borrowing for all
purposes of this Agreement. If such amount is not made available
to the Agent within two Business Days following the date of such
Borrowing, the Agent shall notify the Company of such failure to
fund, and, on the third Business Day following the date of such
Borrowing, the Company shall pay to the Agent such amount,
together with interest thereon for each day elapsed since the
date of such Borrowing, at a rate per annum equal to the interest
rate applicable at the time to the Loans comprising such
Borrowing. Nothing contained in this Section 4.04(b) shall
relieve any Lender which has failed to make available its
Commitment Percentage of any Committed Borrowing hereunder from
its obligation to do so in accordance with the terms hereof.
sf712790 33
(c) The failure of any Lender to make any Committed Loan on the
date of any Committed Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make a Committed
Loan on the date of such Borrowing pursuant to the provisions
contained herein, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such
other Lender on the date of any Committed Borrowing.
(d) If the Company accepts one or more of the offers made by any
Lender or Lenders pursuant to Section 2.04(c)(ii), each such
Lender which is to make a Bid Loan as part of any Bid Borrowing
shall before 12:00 noon (New York City time) on the date of such
proposed Bid Borrowing (or before 2:00 p.m. (New York City
time) on the date of such Bid Borrowing in the case of a Fixed
Rate Bid Loan) make available to the Company at such Lender's
Lending Office such Lender's portion of such Bid Borrowing in
immediately available funds. The Company will promptly notify
the Agent of the total amount of Bid Loans made in connection
with such Bid Borrowing, each date on which all or any part of
such Bid Loans shall mature and the principal amount which shall
mature on each such date, and the Agent will, in turn, promptly
notify each Lender of the amount of such Bid Borrowing and the
relevant maturity date or dates of the Bid Loans comprised in
such Bid Borrowing.
4.05 Taxes.
(a) Subject to Section 4.05(g), any and all payments by the
Company to the Agent for its account and for the account of any
Lender under this Agreement (other than on account of a Bid Loan,
except to the extent otherwise specified as being applicable to
any such Bid Loan) shall be made free and clear of, and without
deduction or withholding for, any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto incurred in connection with
any Borrowing pursuant to this Agreement, excluding (i) such
taxes (including income taxes or franchise taxes or branch profit
taxes) as are imposed on or measured by such Lender's or the
Agent's, as the case may be, net income and (ii) such taxes as
are imposed by a jurisdiction other than the United States of
America or any political subdivision thereof and that would not
have been imposed but for the existence of a connection between
such Lender or the Agent and the jurisdiction imposing such taxes
(other than a connection arising principally by reason of this
Agreement) (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes").
(b) In addition, the Company agrees to pay any present or future
stamp or documentary taxes or any other sales, excise or property
taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement (other than on
account of a Bid Loan, except to the extent otherwise specified
as being applicable to any such Bid Loan) or any other Loan
Document (hereinafter referred to as "Other Taxes").
(c) Subject to Section 4.05(g), the Company agrees to indemnify
and hold harmless each Lender and the Agent for the full amount
of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this
Section 4.05) paid by such Lender or the Agent, as the case may
be, and any liability (including penalties, interest, additions
to tax and expenses) arising therefrom or with respect thereto,
sf712790 34
whether or not such Taxes or Other Taxes were correctly or
legally asserted; provided, however, that each Lender and the
Agent agree to contest in good faith in cooperation with the
Company any Taxes or Other Taxes that such Lender or the Agent,
as the case may be, in consultation with the Company has
determined have been incorrectly asserted. This indemnification
shall be made within 30 days from the date such Lender or the
Agent, as the case may be, makes written demand therefor.
(d) If the Company shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum
payable hereunder to any Lender or the Agent, then, subject to
Section 4.05(g),
(i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 4.05), such Lender or the Agent, as the case may be,
receives an amount equal to the sum it would have received had no
such deductions been made;
(ii) the Company shall make such deductions; and
(iii) the Company shall pay the full amount
deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(e) Within 30 days after the date of any payment by the Company
of Taxes or Other Taxes under this Section 4.05, the Company will
furnish to the Agent, for the account of each Lender receiving a
payment from which Taxes or Other Taxes were deducted, the
original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment reasonably satisfactory to
the Agent.
(f) Each Lender that is other than a United States Person as
defined in the Code hereby agrees that:
(i) it shall, no later than the Closing Date (or, in the
case of a Lender which becomes a party hereto pursuant to
Section 12.08 after the Closing Date, the date upon which such
Lender becomes a party hereto) deliver to the Agent (two
(2) originals) and to the Company (one (1) original):
(A) if its Lending Office is located in the
United States of America, accurate and complete signed
originals of Internal Revenue Service Form 4224 or any
successor thereto ("Form 4224") and Internal Revenue
Service Form W-9 or any successor thereto ("Form W-9"),
and/or
(B) if its Lending Office is located outside the
United States of America, accurate and complete signed
originals of Internal Revenue Service Form 1001 or any
successor thereto ("Form 1001") and Internal Revenue
Service Form W-8 or any successor thereto ("Form W-8");
in each case indicating that such Lender is on the date of
delivery thereof entitled to receive payments of principal,
interest and fees for the account of such Lending Office or
Offices under this Agreement free from withholding of United
States Federal income tax;
sf712790 35
(ii) if at any time such Lender changes its Lending
Office or Offices or selects an additional Lending Office,
it shall, at the same time or reasonably promptly thereafter
but only to the extent the forms previously delivered by it
hereunder are no longer effective, deliver to the Agent (two
originals) and to the Company (one original) in replacement
for the forms previously delivered by it hereunder:
(A) if such changed or additional Lending Office
is located in the United States of America, accurate
and complete signed originals of Form 4224 and Form
W-9; or
(B) otherwise, accurate and complete signed
originals of Form 1001 and Form W-8,
in each case indicating that such Lender is on the date of
delivery thereof entitled to receive payments of principal,
interest and fees for the account of such changed or
additional Lending Office under this Agreement free from
withholding of United States Federal income tax;
(iii) it shall, before or promptly after the
occurrence of any event (including the passing of time and,
as provided above, any event mentioned in clause
(ii)) requiring a change in the most recent Form 4224, Form
W-9, Form 1001 or Form W-8 previously delivered by such
Lender and if no change in law shall have occurred since the
date of delivery of such most recent form that would make
the delivery of replacement forms hereunder unlawful,
deliver to the Agent (two originals) and to the Company (one
original) accurate and complete signed originals of Form
4224 and Form W-9 or Form 1001 and Form W-8 (or any
successor forms) in replacement for the forms previously
delivered by such Lender; and
(iv) it shall, promptly upon the request of the
Company to that effect, deliver to the Agent and the Company
such other accurate and complete forms or similar
documentation as may be required from time to time by any
applicable law, treaty, rule or regulation in order to
establish such Lender's tax status for withholding purposes
or may otherwise be appropriate to eliminate or minimize any
Taxes on payments under this Agreement.
(g) The Company shall not be required to pay any amounts
pursuant to Section 4.05(a), 4.05(b), 4.05(d), or 4.05(i) to any
Lender for the account of any Lending Office of such Lender in
respect of any sum payable hereunder:
(i) if the obligation to pay such additional amounts
would not have arisen but for a failure by such Lender to comply
with its obligations under Section 4.05(f) in respect of such
Lending Office;
(ii) if such Lender shall have delivered to the
Agent a Form 4224 and a Form W-9 in respect of such Lending
Office pursuant to Section 4.05(f)(i)(A), 4.05(f)(ii)(A) or
4.05(f)(iii) and such Lender shall not be entitled to
exemption from deduction or withholding of United States
Federal income tax in respect of the payment of such sum by
the Company hereunder for the account of such Lending Office
sf712790 36
for any reason other than a change in United States law or
regulations or in the official interpretation of such law or
regulations by any Governmental Authority charged with the
interpretation or administration thereof (whether or not
having the force of law) after the date of delivery of such
Form 4224 and Form W-9; provided, however, that if,
notwithstanding such change in law, a Lender would be
legally able to provide such other forms or information as
would reduce or eliminate United States withholding taxes
applicable to payments made hereunder, such Lender shall, if
requested by the Company, timely provide such forms or other
information to the Company, and the Company shall not be
required to pay any amounts pursuant to Section 4.05(a),
4.05(c) or 4.05(d) to the extent such amount would not have
been owed but for a failure of such Lender to comply with
its obligations under this proviso; or
(iii) if such Lender shall have delivered to the
Company a Form 1001 and a Form W-8 in respect of such
Lending Office pursuant to Section 4.05(f)(i)(B),
4.05(f)(ii)(B) or 4.05(f)(iii) and such Lender shall not be
entitled to exemption from deduction or withholding of
United States Federal income tax in respect of the payment
of such sum by the Company hereunder for the account of such
Lending Office for any reason other than a change in United
States law or regulations or any applicable tax treaty or
regulations or in the official interpretation of any such
law, treaty or regulations by any Governmental Authority
charged with the interpretation or administration thereof
(whether or not having the force of law) after the date of
delivery of such Form 1001 and Form W-8; provided, however,
that if, notwithstanding such change in law, a Lender would
be legally able to provide such other forms or information
as would reduce or eliminate United States withholding taxes
applicable to payments made hereunder, such Lender shall, if
requested by the Company, timely provide such forms or other
information to the Company, and the Company shall not be
required to pay any amounts pursuant to Section 4.05(a),
4.05(c) or 4.05(d) to the extent such amount would not have
been owed but for a failure of such Lender to comply with
its obligations under this proviso.
(h) Each Lender shall use reasonable efforts to avoid or
minimize any amounts which might otherwise be payable pursuant to
this Section 4.05; provided, however, that such efforts shall not
include the taking of any actions by a Lender that would result
in any tax, cost or other expense to such Lender (other than a
tax, cost or expense for which such Lender shall have been
reimbursed or indemnified by the Company pursuant to this
Agreement or otherwise) or any action which would in the
reasonable opinion of such Lender have an adverse effect upon its
financial condition, operations, business or properties.
(i) Each Lender agrees to indemnify the Agent and
hold the Agent harmless for the full amount of any and all
present or future Taxes, Other Taxes and related liabilities
(including penalties, interest, additions to tax and expenses,
and any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable to Agent under this Section 4.05(i)) which are
imposed on or with respect to principal, interest or fees payable
to such Lender hereunder and which are not paid by the Company
pursuant to this Section 4.05, whether or not such Taxes, Other
Taxes or related liabilities were correctly or legally asserted.
This indemnification shall be made within 30 days from the date
the Agent makes written demand therefor.
sf712790 37
4.06 Sharing of Payments, Etc.
If, other than as provided in Section 3.05, 4.02, 4.03,
4.04, 4.05 or 4.06, any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of
set-off or otherwise) on account of any Committed Loan made by it
or, after the occurrence and during the continuation of an Event
of Default pursuant to Section 10.01(a), in respect of any
Obligation owing to it (including with respect to any Bid Loan),
in excess of its Commitment Percentage of payments on account of
the Committed Loans or, after the occurrence and during the
continuation of an Event of Default pursuant to Section 10.01(a),
in excess of its pro rata share of all Obligations, such Lender
shall forthwith purchase from the other Lenders such
participations in the Committed Loans made by them or, after the
occurrence and during the continuation of an Event of Default
pursuant to Section 10.01(a), in all Obligations owing to them,
as shall be necessary to cause such purchasing Lender to share
the excess payment ratably with each of the other Lenders
according to their Commitment Percentages or, after the
occurrence and during the continuation of an Event of Default
pursuant to Section 10.01(a), their pro rata shares of all
Obligations then owing to them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase by such Lender from each
other Lender shall be rescinded and each other Lender shall repay
to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such paying Lender's
pro rata share (according to the proportion of (a) the amount of
such paying Lender's required repayment to the purchasing Lender
to (b) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered.
The Company agrees that any Lender so purchasing a participation
from another Lender pursuant to the provisions of this
Section 4.06 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Company in the amount of
such participation. If under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured
claim in lieu of a setoff to which this Section 4.06 applies,
such Lender shall, to the extent practicable, exercise its rights
in respect of such secured claim in a manner consistent with the
rights of the Lenders entitled under this Section 4.06 to share
in the benefits of any recovery on such secured claim.
ARTICLE 5
CHANGES IN CIRCUMSTANCES; ETC.
5.01 Eurodollar Rate Protection.
If with respect to any Interest Period for Eurodollar Loans,
either (a) the Agent or the Required Lenders determine that for
any reason adequate and reasonable means do not exist for
ascertaining LIBOR for such Interest Period; or (b) by the first
day of such Interest Period, the Required Lenders notify the
Agent that LIBOR for such Interest Period will not adequately
reflect the cost to the Required Lenders of making such
Eurodollar Loans or funding or maintaining their respective
Eurodollar Loans for such Interest Period, the Agent shall
forthwith so notify the Company and the Lenders, whereupon the
obligations of the Lenders to make or continue Loans as
Eurodollar Loans or to convert Reference Rate Loans into
Eurodollar Loans shall be suspended until the Agent shall notify
the Company and the Lenders that the circumstances causing such
suspension no longer exist and any then outstanding Eurodollar
Loans shall at the end of the then current Interest Period for
such Loans be converted into Reference Rate Loans.
sf712790 38
5.02 Additional Interest on Eurodollar Loans.
The Company shall pay to each Lender, on demand of such
Lender, as long as such Lender shall be required under
regulations of the Federal Reserve Board to maintain reserves
with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurodollar Loan of such Lender from the
date such Eurodollar Loan is made until such principal amount is
paid in full, at a rate per annum equal at all times to the
remainder obtained by subtracting (a) LIBOR for the Interest
Period for such Eurodollar Loan from (b) the rate obtained by
dividing such LIBOR by a percentage equal to 100% minus the
Eurodollar Reserve Percentage of such Lender for such Interest
Period, payable on each Interest Payment Date for such Eurodollar
Loan.
5.03 Increased Costs.
If, due to either (a) the introduction of or any change
(other than any change by way of imposition of or increase in
reserve requirements covered by Section 5.02) in or in the
interpretation of any law or regulation after the date hereof
(except to the extent such introduction, change or interpretation
affects Taxes or Other Taxes) or (b) the compliance with any
guideline or request issued after the date hereof (except to the
extent such guideline or request affects Taxes or Other
Taxes) 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 any Lender of agreeing to make or making,
funding or maintaining any Eurodollar Loans or participating in
Letters of Credit or, in the case of the Issuing Bank, any
increase in the cost to the Issuing Bank of agreeing to issue,
issuing or maintaining any Letter of Credit or of agreeing to
make or making, funding or maintaining any unpaid drawing under
any Letter of Credit, then the Company shall, subject to
Section 5.08(b), be liable for, and shall from time to time, upon
demand therefor by such Lender to the Company through the Agent,
pay to the Agent for the account of such Lender, additional
amounts as are sufficient to compensate such Lender for such
increased costs. For purposes of this Section 5.03, the term
"Taxes" shall have the meaning specified in
Section 4.05(a) without regard to the exclusions set forth in
Section 4.05(a).
5.04 Illegality.
Notwithstanding any other provision of this Agreement, if
the introduction of any Requirement of Law, or in the
interpretation or administration of any Requirement of Law shall,
after the date hereof, make it unlawful, or any central bank or
other Governmental Authority shall assert that it is unlawful,
for any Lender or its applicable Lending Office to make or
continue Committed Loans as Eurodollar Loans or to convert
Reference Rate Loans into Eurodollar Loans, then, on notice
thereof and demand therefor by such Lender to the Company through
the Agent, (a) the obligation of such Lender to make or to
continue Committed Loans as Eurodollar Loans or to convert
Reference Rate Loans into Eurodollar Loans shall terminate and
(b) the Company shall forthwith prepay in full all Eurodollar
Loans of such Lender then outstanding, together with interest
accrued thereon, either on the last day of the then current
Interest Period applicable to each such Eurodollar Loan if such
Lender may lawfully continue to maintain such Eurodollar Loan to
such day, or immediately if such Lender may not lawfully continue
to maintain such Eurodollar Loan to such day, unless the Company,
on or prior to the date on which it would otherwise be required
to prepay such Eurodollar Loan, converts all Eurodollar Loans of
all Lenders then outstanding into Reference Rate Loans.
5.05 Capital Adequacy.
In the event that any Lender shall determine that the
compliance with any law, rule or regulation regarding capital
adequacy, or any change therein or in the interpretation or
application thereof or compliance by such Lender (or its Lending
sf712790 39
Office) or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not
having the force of law) from any central bank or other
Governmental Authority, affects or would affect the amount of
capital required or expected to be maintained by such Lender or
any corporation controlling such Lender and such Lender (taking
into consideration such Lender's or such corporation's policies
with respect to capital adequacy and such Lender's or such
corporation's desired return on capital) determines that the
amount of such capital is increased as a consequence of such
Lender's obligation under this Agreement, then the Company shall,
subject to Section 5.08(b), be liable for and shall from time to
time, upon demand therefor by such Lender through the Agent, pay
to the Agent for the account of such Lender such additional
amounts as are sufficient to compensate such Lender for such
increase.
5.06 Funding Losses.
(a) If the Company makes any payment or prepayment of principal
with respect to any Eurodollar Loan (including payments made
after any acceleration thereof) or converts any Loan from a
Eurodollar Loan to a Reference Rate Loan on any day other than
the last day of an Interest Period applicable thereto, the
Company shall pay to each Lender, upon demand therefor by such
Lender, the amount (if any) by which (i) the present value of the
additional interest which would have been payable on the amount
so received had it not been received until the last day of such
Interest Period exceeds (ii) the present value of the interest
which would have been recoverable by such Lender by placing such
amount so received on deposit in the London interbank market for
a period starting on the date on which it was so received and
ending on the last day of such Interest Period. For purposes of
determining present value under this Section 5.06(a), interest
amounts shall be discounted at a rate equal to the sum of
(A) LIBOR determined two Business Days before the date on which
such principal amount is received for an amount substantially
equal to the amount received and for a period commencing on the
date of such receipt and ending on the last day of the relevant
Interest Period, plus (B) the percentage above LIBOR payable in
respect of such Eurodollar Loan pursuant to Section 2.09(a)(ii).
(b) If the Company fails to prepay, borrow, convert or continue
any Eurodollar Loan after a notice of prepayment, borrowing,
conversion or continuation has been given (or is deemed to have
been given) to any Lender, the Company shall reimburse each
Lender, upon demand therefor by such Lender, for any resulting
loss and expense incurred by it, including any loss incurred by
reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender from third parties to fund any
Eurodollar Loan.
(c) If for any reason any Lender receives all or part of the
principal amount of a Bid Loan owed to it prior to the scheduled
maturity date thereof, the Company shall, on demand by such
Lender, pay such Lender the amount (if any) by which (i) the
present value of the additional interest which would have been
payable on the amount so received had it not been received until
such maturity date exceeds (ii) the present value of the interest
which would have been recoverable by such Lender by placing such
amount so received on deposit in the London interbank market for
a period starting on the date on which it was so received and
ending on such maturity date. For purposes of determining
present value under this Section 5.06(c), interest amounts shall
be discounted at a rate equal to the sum of (A) LIBOR determined
two Business Days before the date on which such principal amount
is received for an amount substantially equal to the amount
sf712790 40
received and for a period commencing on the date of such receipt
and ending on such maturity date, plus (B) the percentage above
LIBOR payable in respect of Eurodollar Loans constituting Tranche
A Loans pursuant to Section 2.09(a)(ii).
5.07 Funding; Certificates of Lenders.
(a) Each Lender may fulfill its obligation to make, continue or
convert Loans into Eurodollar Loans by causing one of its foreign
branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such Eurodollar
Loans; provided, however, that such Eurodollar Loans shall in
such event be deemed to have been made and to be held by such
Lender and the obligation of the Company to repay such Eurodollar
Loans shall be to such Lender for the account of such foreign
branch, Affiliate or international banking facility. In addition,
the Company hereby consents and agrees that, for purposes of any
determination to be made pursuant to Section 5.01, 5.02, 5.03,
5.04 or 5.06, it shall be conclusively assumed that each Lender
elected to fund all Eurodollar Loans by purchasing dollar
deposits in the interbank eurodollar market for its Eurodollar
Lending Office.
(b) Any Lender claiming reimbursement or compensation pursuant
to Sections 4.05, 5.02, 5.03, 5.05 and/or 5.06 shall deliver to
the Company through the Agent a certificate setting forth in
reasonable detail the basis for computing the amount payable to
such Lender hereunder and such certificate shall be conclusive
and binding on the Company in the absence of manifest error. The
Company shall pay to any Lender claiming compensation or
reimbursement from the Company pursuant to Sections 5.02, 5.03,
5.05 or 5.06 the amount requested by such Lender no later than
five Business Days after such demand.
5.08 Change of Lending Office; Limitation on Increased Costs.
(a) Each Lender agrees that upon the occurrence of any event
giving rise to the operation of Section 4.05(c) or (d) or
Sections 5.02, 5.03, 5.04 or 5.05 with respect to such Lender, it
will use commercially reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to
minimize the imposition of any costs and expenses pursuant to
such Sections and to designate a different Lending Office for any
Loans affected by such event with the object of avoiding the
consequence of the event giving rise to the operation of such
Section. Nothing in this Section 5.08 shall affect or postpone
any of the obligations of the Company or the right of any Lender
provided in Section 4.05(c) or (d) or Sections 5.02, 5.03, 5.04
or 5.05.
(b) Notwithstanding the provisions of Sections 4.05(c), 4.05(d),
5.02, 5.03 and 5.05, the Company shall only be obligated to
compensate any Lender for any amount arising or occurring during
(i) any time or period commencing (A) in the case of
Section 4.05(c) or (d), not more than six months and (B) in the
case of Sections 5.02, 5.03 or 5.05, not more than three months,
prior to the date on which such Lender notifies the Agent and the
Company that such Lender proposes to demand such compensation and
(ii) any time or period during which, because of the unannounced
retroactive application of any statute, regulation or other
basis, such Lender could not have known that such amount might
arise or accrue.
sf712790 41
5.09 Replacement of Lenders.
The Company may from time to time for reasonable cause, as
determined by the management of the Company, including invocation
of any provision of this Article 5 by any Lender, designate one
or more banks (any such bank so designated being herein called a
"Replacement Lender") willing, in its or their sole discretion,
to purchase all of the Committed Loans of any one or more Lenders
and each such Lender's rights hereunder (other than any such
rights with respect to Bid Loans), without recourse to or
warranty by, or expense to, such Lender for a purchase price
equal to the outstanding principal amount of the Committed Loans
payable to such Lender plus any accrued but unpaid interest on
such Committed Loans and accrued but unpaid Utilization Fees and
facility fees in respect of such Lender's Commitment, if any, and
any other amounts payable to such Lender under this Agreement or
any other Loan Document (other than with respect to Bid Loans),
including any amount payable pursuant to Section 5.06 as though
such Lender's Eurodollar Loans were being prepaid on the date of
such purchase, and to assume all the obligations of such Lender
hereunder (other than with respect to Bid Loans), and, upon such
purchase, such Lender shall no longer be a party hereto or have
any rights hereunder (except those that pertain to its Bid Loans
and those that survive full payment hereunder) and shall be
relieved from all obligations to the Company hereunder, and the
Replacement Lender shall succeed to the rights and obligations of
such Lender hereunder (other than with respect to Bid Loans).
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into
this Agreement and to induce the Lenders to extend their
Commitments and to make Loans, the Company represents and
warrants to the Lenders and the Agent as follows:
6.01 Corporate Existence; Compliance with Law.
The Company and each Restricted Subsidiary:
(a) is a corporation duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its
incorporation;
(b) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction in which the
character of the properties owned or held under lease by it or
the nature of the business transacted by it requires such
qualification except where the failure to be so qualified is not
likely to have a Material Adverse Effect;
(c) has all requisite corporate power and authority to own,
pledge, mortgage, hold under lease and operate its properties and
to conduct its business as now or currently proposed to be
conducted; and
(d) is in compliance with all Requirements of Law applicable to
it and its business except for such non-compliance which is not
likely to have a Material Adverse Effect.
sf712790 42
6.02 Corporate Power; Authorization.
The execution, delivery and performance by each Loan Party
of the Loan Documents to which such Loan Party is a party:
(a) are within the respective corporate powers of such Loan
Party;
(b) have been, or prior to such execution will have been, duly
authorized by all necessary corporate action, including the
consent of shareholders where required;
(c) do not:
(i) contravene the articles or certificate of incorporation
or by-laws of such Loan Party;
(ii) violate any other Requirement of Law;
(iii) conflict with or result in the breach
of, or constitute a default under, any Contractual
Obligation of such Loan Party, except for such conflicts,
breaches or defaults which are not likely to have a Material
Adverse Effect and which do not subject any Lender or the
Agent to any criminal liability or any material civil
liability; or
(iv) result in the creation or imposition of any
Lien upon any of the property of any Loan Party; and
(d) do not require the consent of, authorization by, approval of
or notice to, or filing or registration with, any Governmental
Authority or any other Person other than (i) as of the Closing
Date, those which have been obtained, made or given and which are
fully disclosed on Schedule 6.02(d) and (ii) those which are not
required to be obtained, made or given as of the Closing Date but
which will be obtained, made or given as and when required.
sf712790 43
6.03 Enforceable Obligations.
This Agreement and each other Loan Document to which any
Loan Party is a party have been duly executed and delivered by
such Loan Party. This Agreement is, and each other Loan Document
when delivered hereunder will be, legal, valid and binding
obligations of each Loan Party, a party thereto, enforceable
against each such Loan Party in accordance with their respective
terms except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws
relating to or limiting creditors' rights generally.
6.04 Taxes.
As of the Closing Date, the Company and each Restricted
Subsidiary have filed all federal, state, local and foreign tax
returns which are required to have been filed in any jurisdiction
and have paid all taxes shown to be due thereon or otherwise
assessed, to the extent the same have become due and payable and
before they have become delinquent, except for any taxes and
assessments the amount, applicability or validity of which is
currently being contested in good faith by appropriate
proceedings and with respect to which the Company has set aside
on its books reserves (adequate in accordance with, and
segregated to the extent required by, GAAP) and the non-filing or
non-payment of which is not likely to have a Material Adverse
Effect.
6.05 Financial Matters.
(a) The consolidated balance sheet of the Company and its
Subsidiaries as of the last day of the fiscal year ended on
December 31, 1998, and the related consolidated statements of
income and cash flows of the Company and its Subsidiaries for
such fiscal year, all with reports thereon by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
Co., independent public accountants, copies of which have been
delivered to the Agent and each Lender prior to the execution of
this Agreement, fairly present the consolidated financial
position of the Company and its Subsidiaries as of the date of
said balance sheet and the consolidated results of their
operations for the period covered by said statements of income
and cash flows, and have been prepared in accordance with GAAP
consistently applied in all material respects by the Company and
its Subsidiaries throughout the period involved, except as set
forth in the notes thereto. There are no material liabilities,
contingent or otherwise, of the Company or any Subsidiary not
reflected in the consolidated balance sheet as of December 31,
1998 or in the notes thereto which are required to be disclosed
therein.
(b) Since December 31, 1998, there has been no Material Adverse
Effect and no development which is likely to have a Material
Adverse Effect, except as reflected in the Company's periodic
reports filed with the Securities and Exchange Commission prior
to the Closing Date.
(c) There is no material obligation, contingent liability or
liability for taxes, long-term leases or unusual forward or long-
term commitments which is not reflected in the December 31, 1998
consolidated financial statements of the Company and its
Subsidiaries or in the notes thereto which are required by GAAP
to be disclosed therein and no liability reflected in such notes
is likely to have a Material Adverse Effect.
6.06 Litigation. As of the Closing Date, there are no pending
or, to the knowledge of the Company, threatened, actions or
proceedings affecting the Company or any Restricted Subsidiary
sf712790 44
before any court or other Governmental Authority or any
arbitrator that are likely to have a Material Adverse Effect.
6.07 Subsidiaries.
(a) Set forth on Schedule 6.07 is a complete and correct list of
all Restricted Subsidiaries and Unrestricted Subsidiaries of the
Company as of the Closing Date, showing, as to each such
Subsidiary, the correct name thereof, the jurisdiction of its
incorporation and the percentage of shares of each class of its
securities outstanding owned by the Company and each other
Subsidiary of the Company.
(b) (i) All of the outstanding shares of securities of each of
the Subsidiaries of the Company listed on Schedule 6.07 have been
validly issued, are fully paid and nonassessable and are owned by
the Company or another Subsidiary of the Company, free and clear
of any Lien, except as otherwise permitted hereunder, and (ii) no
Subsidiary of the Company owns any shares of securities of the
Company.
6.08 Liens. As of the Closing Date, there are no Liens of any
nature whatsoever on any properties owned by the Company or any
Restricted Subsidiary other than Permitted Liens.
6.09 No Burdensome Restrictions; No Defaults.
(a) As of the Closing Date, neither the Company nor any
Restricted Subsidiary is a party to any Contractual Obligation
the performance of which is likely to have a Material Adverse
Effect.
(b) As of the Closing Date, no provision or provisions of any
applicable Requirement of Law has or is likely to have a Material
Adverse Effect.
(c) Neither the Company nor any Restricted Subsidiary is in
default under or with respect to any Contractual Obligation which
default is likely to have a Material Adverse Effect.
(d) No Default or Event of Default has occurred and is
continuing.
6.10 Investment Company Act; Public Utility Holding Company Act.
No Loan Party is an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment
Company Act of 1940, as amended, or a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding
Company Act of 1935, as amended. The making of the Loans by the
Lenders, the application of the proceeds and repayment thereof by
the Company and the consummation of the transactions contemplated
by the Loan Documents will not violate any provision applicable
to any Loan Party of (a) the Investment Company Act of 1940, as
amended, or (b) any rule, regulation or order issued by the
Securities and Exchange Commission thereunder.
6.11 Margin Regulations. No part of the proceeds of any Loan
will be used in violation of Regulation T, U, or X of the Federal
Reserve Board. After giving effect to the
sf712790 45
application of the proceeds of the Loans (including the Loans to
be made on the Closing Date) less than twenty-five percent
(25%) of the assets of the Company, individually and on a
consolidated basis with its Subsidiaries, consists of margin
stock. The Company is not engaged principally, or as one of its
important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock. Terms for which
meanings are provided in Regulation U of the Federal Reserve
Board or any regulations substituted therefor, as from time to
time in effect, are used in this Section 6.11 with such meanings.
6.12 Environmental Matters.
Except as set forth on Schedule 6.12:
(a) all facilities and property (including underlying
groundwater) presently owned or leased by the Company or any of
its Subsidiaries have been, and continue to be, owned or leased
by the Company and its Subsidiaries in material compliance with
all Environmental Laws, except for such non-compliance as is not
likely to have a Material Adverse Effect;
(b) there are no pending or threatened
(i) claims, complaints, notices or requests for information
received by the Company or any of its Subsidiaries with respect
to any alleged violation of any Environmental Law which are
likely to have a Material Adverse Effect, or
(ii) claims, complaints, notices or inquiries to
the Company or any of its Subsidiaries regarding potential
liability under any Environmental Law which are likely to
have a Material Adverse Effect;
(c) except for Releases of Hazardous Materials which occurred
after the date that the Company or any of its Subsidiaries sold,
transferred, assigned or otherwise disposed of its interests in
any previously owned or leased property, there have been no
Releases of Hazardous Materials at, on or under any property now
or previously owned or leased by the Company or any of its
Subsidiaries that are likely to have a Material Adverse Effect;
(d) the Company and its Subsidiaries have been issued and are in
material compliance with all permits, certificates, approvals,
licenses and other authorizations relating to environmental
matters and necessary or desirable for their businesses except
for such non-compliance as is not likely to have a Material
Adverse Effect;
(e) (i) no property presently owned or leased by the Company or
any of its Subsidiaries, and (ii) to the best of the knowledge of
the Company, no property previously owned or leased by the
Company or any of its Subsidiaries, is listed or proposed for
listing on the National Priorities List pursuant to CERCLA or on
any similar published state list of sites requiring investigation
or clean-up;
(f) to the knowledge of the Company, there are no underground
storage tanks, active or abandoned, including petroleum storage
tanks, on or under any property now or previously owned or leased
by the Company or any of its Subsidiaries that are likely to have
a Material Adverse Effect;
sf712790 46
(g) neither the Company nor any of its Subsidiaries has directly
transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or proposed
for listing on the National Priorities List pursuant to CERCLA,
on the CERCLIS or on any similar published state list or which is
the subject of federal, state or local enforcement actions or
other investigations which may lead to claims against the Company
or such Subsidiary for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA,
except for such claims which are not likely to have a Material
Adverse Effect;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the
Company or any of its Subsidiaries that are likely to have a
Material Adverse Effect; and
(i) to the knowledge of the Company, no conditions exist at, on
or under any property now or previously owned or leased by the
Company or any of its Subsidiaries which, with the passage of
time, or the giving of notice or both, are likely to have a
Material Adverse Effect.
sf712790 47
6.13 Labor Matters.
Except as set forth on Schedule 6.13, there are no strikes
or other labor disputes or grievances or charges or complaints
with respect to any employee or group of employees pending or, to
the knowledge of the Company, threatened against the Company or
any Restricted Subsidiary which are likely to have a Material
Adverse Effect.
6.14 ERISA Plans.
During the twelve-consecutive-month period prior to the
Closing Date, no steps have been taken to terminate any Pension
Plan (other than a standard termination as defined in
Section 4041(b) of ERISA for which a commitment to make the
terminating Pension Plan sufficient is not required), and no
contribution failure has occurred with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of
ERISA. Other than liability for benefit payments or
contributions in the ordinary course, no condition exists or
event or transaction has occurred with respect to any Plan which
is likely to result in the incurrence by the Company or any
member of the Controlled Group of any material liability, fine or
penalty. Each Plan complies with the applicable provisions of
ERISA and the Code, except where such non-compliance is not
likely to have a Material Adverse Effect. Except as disclosed on
Schedule 6.14, neither the Company nor any Subsidiary of the
Company has any material contingent liability with respect to any
post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of
Subtitle B of Title I of ERISA.
6.15 Y2K Review.
On the basis of a comprehensive review and assessment of the
Company's and its Subsidiaries' systems and equipment and due
inquiry made of the Company's and its Subsidiaries' material
suppliers, vendors and customers, the Company's Responsible
Officers are of the view that the "Year 2000 problem" (i.e., the
inability of computers, as well as embedded microchips in non-
computing devices, to perform properly date-sensitive functions
with respect to certain dates prior to and after December 31,
1999), including costs of remediation, will not result in a
Material Adverse Effect. The Company and its Subsidiaries have
developed feasible contingency plans adequately to ensure
uninterrupted and unimpaired business operation in the event of
failure of their own or a third party's systems or equipment due
to the Year 2000 problem, including those of vendors, customers
and suppliers, as well as a general failure of or interruption in
its communications and delivery infrastructure.
6.16 Swap Obligations.
Neither the Company nor any of its Subsidiaries has incurred
any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations. The Company has undertaken its own
independent assessment of its consolidated assets, liabilities
and commitments and has considered 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.
6.17 Full Disclosure.
None of the representations or warranties made by the
Company or any Restricted 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 the
Company or any Restricted Subsidiary in connection with the Loan
Documents (including the offering and disclosure materials
delivered by or on behalf of the Company to the Lenders prior to
the Closing Date), contains any untrue statement of a material
fact or omits any material fact required to be stated therein or
otherwise 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.
sf712790 48
ARTICLE 7
CONDITIONS PRECEDENT
7.01 Conditions Precedent to the First Loan.
The obligation of each Lender to make its initial Loan and
the obligation of the Issuing Bank to Issue its initial Letter of
Credit is subject to the satisfaction of the condition precedent
that the Agent shall have received the following, each, unless
otherwise specified below, dated as of the Closing Date, in form
and substance satisfactory to the Agent and its counsel:
(a) Board Resolutions; Incumbency Certificates. A certificate
of the Secretary or an Assistant Secretary of each Loan Party
certifying (i) the resolutions of the Board of Directors of such
Loan Party approving each Loan Document to which such Loan Party
is a party and the transactions contemplated hereby and thereby,
(ii) all documents evidencing other necessary corporate action,
if any, by each Loan Party with respect to each Loan Document and
(iii) the names and signatures of the officers authorized to act
with respect to each Loan Document executed by it, upon which
certificate the Agent and each Lender may conclusively rely until
they shall have received a further certificate of the Secretary
or Assistant Secretary of such Loan Party canceling or amending
such prior certificate;
(b) Articles of Incorporation; By-Laws and Good Standing. Each
of the following documents:
(i) the articles or certificate of incorporation of each
Loan Party as in effect on the Closing Date, certified (A) by the
Secretary of State of the state of incorporation of such Loan
Party as of a date reasonably close to the Closing Date, and
(B) by the Secretary or an Assistant Secretary of such Loan Party
as of the Closing Date, and the by-laws of each Loan Party, as in
effect on the Closing Date, certified by the Secretary or an
Assistant Secretary of such Loan Party as of the Closing Date;
and
(ii) a good standing certificate for each Loan
Party from the Secretary of State of the state of
incorporation of such Loan Party as of a date reasonably
close to the Closing Date;
(c) Subsidiary Guaranty. A guaranty, duly executed by each
Principal Subsidiary, in substantially the form of Exhibit
7.01(c) (the "Subsidiary Guaranty");
(d) Legal Opinion. A favorable opinion addressed to the Agent
and all Lenders from counsel to the Company and its Subsidiaries,
in substantially the form of Exhibit 7.01(d) (which opinion the
Company and its Subsidiaries hereby expressly instruct such
counsel to prepare and deliver);
(e) Contribution Agreement. A duly executed copy of the
Contribution Agreement, in substantially the form of Exhibit
7.01(e) (the "Contribution Agreement"); and
(f) Termination of the 1996 Credit Agreement. Evidence
satisfactory to the Agent that the 1996 Credit Agreement and the
commitments of the lenders thereunder shall have been terminated
and all committed loans owing to the lenders thereunder shall
have been paid in full; provided, however, that the obligations
of the Company with respect to the 1996 Facility Bid Loans
sf712790 49
outstanding on the Closing Date shall survive the termination of
the 1996 Credit Agreement and such 1996 Facility Bid Loans shall
be repaid when due in accordance with their respective terms.
7.02 Additional Conditions Precedent to the First Loan.
The obligation of each Lender to make its initial Loan and
the obligation of the Issuing Bank to Issue its initial Letter of
Credit is subject to the further conditions precedent that:
(a) No Material Adverse Effect. Since December 31, 1998, there
shall have been no Material Adverse Effect and no development
which is likely to have a Material Adverse Effect, except as
reflected in the Company's periodic reports filed with the
Securities and Exchange Commission prior to the Closing Date.
(b) Margin Regulations. All Loans made by the Lenders shall be
in full compliance with all applicable Requirements of Law,
including Regulations T, U and X of the Federal Reserve Board.
(c) Fees Costs and Expenses. The Company shall have paid all
fees referred to in Section 4.01 to the extent then due and
payable and all reasonable costs and expenses referred to in
Section 12.04 (including legal fees and expenses) and any
indemnity pursuant to Section 12.05 which, in each case, may be
then due and payable.
(d) Company Officer's Certificate. The Company shall have
delivered to the Agent a certificate from a Responsible Officer
of the Company in substantially the form of Exhibit 7.02(d) as to
the satisfaction of the conditions set forth in this Section 7.02
and to the effect that on the Closing Date, the representations
and warranties contained in Article 6 are correct.
(e) North American Timber Agreement. All conditions precedent
described in Sections 7.01 and 7.02 of the North American Timber
Agreement shall have been satisfied.
7.03 Conditions Precedent to Each Committed Loan and Letter of
Credit.
The obligation of each Lender to make any Committed Loan
(including its initial Committed Loan) and the obligation of the
Issuing Bank to Issue any Letter of Credit (including the initial
Letter of Credit) shall be subject to the further conditions
precedent that:
(a) Notice of Borrowing. The Agent shall have received a Notice
of Borrowing as required by Section 2.02 or in the case of any
Issuance of any Letter of Credit, the Issuing Bank and the Agent
shall have received an L/C Application or L/C Amendment
Application, as required under Section 3.02.
(b) Accuracy of Representations; No Default; Etc. The following
statements shall be true on the date of each Committed Loan or
Issuance Date, as the case may be, before and after giving effect
thereto:
(i) The representations and warranties contained in
Article 6 are correct on and (except for representations and
warranties relating solely to a particular point in time and,
after the initial Committed Borrowing, other than under
Section 6.05(b)) as of such date as though made on and as of such
date; and
sf712790 50
(ii) No Default or Event of Default has occurred and is
continuing or would result from such Committed Loan being made or
Letter of Credit being Issued on such date.
(c) Other Assurances. The Agent shall have received such other
approvals, opinions or documents as any Lender through the Agent
may reasonably request related to the transactions contemplated
hereby.
7.04 Conditions Precedent to Each Bid Borrowing.
The obligation of each Lender which is to make a Bid Loan in
connection with a Bid Borrowing (including the initial Bid
Borrowing) to make such Bid Loan shall be subject to the further
conditions precedent:
(a) Promissory Notes. If so requested by such Lender, the
Company shall have delivered to such Lender a promissory note in
the form of Exhibit 2.05(c) evidencing the Indebtedness of the
Company in respect of such Bid Loan.
(b) Accuracy of Representations; No Default; Etc. The following
statements shall be true on the date of each Bid Borrowing,
before and after giving effect thereto and to the application of
the proceeds from the Bid Loans being made on such date:
(i) The representations and warranties contained in
Article 6 are correct on and (except for representations and
warranties relating solely to a particular point in time and
other than under Section 6.05(b) as of such date as though made
on and as of such date; and
(ii) No Default or Event of Default has occurred
and is continuing or would result from such Bid Loan being
made on such date.
ARTICLE 8
AFFIRMATIVE COVENANTS
The Company agrees that as long as the obligations of the
Lenders to make Loans shall remain in effect or any Letter of
Credit remain outstanding and until all Obligations shall have
been paid or performed in full, unless the Required Lenders shall
otherwise consent in writing:
8.01 Application of Proceeds.
The Company will apply the proceeds of the Loans for general
corporate purposes.
8.02 Compliance with Laws, Etc.
The Company will comply, and cause each of its Subsidiaries
to comply, in all material respects with all applicable
Requirements of Law except for such non-compliance as is being
contested in good faith by appropriate proceedings or is not
likely to have a Material Adverse Effect.
8.03 Payment of Taxes, Etc.
The Company will pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, all lawful claims and all taxes, assessments and
governmental charges or levies except where contested in good
faith, by proper proceedings, if adequate reserves therefor have
been established on the books of the Company in accordance with,
sf712790 51
and to the extent required by, GAAP, or if such non-payment
(individually and in the aggregate with all other such
non-payments) is not likely to have a Material Adverse Effect.
8.04 Maintenance of Insurance.
The Company will maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same
general areas in which the Company and such Subsidiaries operate;
provided, however, that the Company and its Subsidiaries may
self-insure to the extent that the Company or any such Subsidiary
may in its discretion determine; and provided, further, that the
Company may maintain insurance on behalf of any of its
Subsidiaries. Without limiting the generality of the foregoing,
the Company will, and will cause each of its Subsidiaries to,
maintain insurance coverages that are at least substantially the
same as the insurance coverages maintained on the Closing Date.
8.05 Preservation of Corporate Existence, Etc.
The Company will preserve and maintain, and cause each
Restricted Subsidiary to preserve and maintain, its corporate
existence, rights (charter and statutory), and franchises, except
as permitted under Section 9.03 or except to the extent that the
failure by the Company or any such Restricted Subsidiary to
comply with the foregoing is not likely to have a Material
Adverse Effect.
8.06 Access.
The Company will from time to time, during normal business
hours upon reasonable notice, or, if a Default or an Event of
Default shall have occurred and be continuing, at any time upon
notice to an officer of the Company having at least the rank of
Vice President, permit the Agent, any Lender and any agent or
representative thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Company and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Company and any
of its Subsidiaries with any of their respective officers.
8.07 Keeping of Books.
The Company will keep proper books of record and account, in
which full and correct entries, on a consolidated basis for the
Company and its Subsidiaries, shall be made of all financial
transactions and the assets and business of the Company and its
Subsidiaries in accordance with GAAP consistently applied.
8.08 Maintenance of Properties, Etc.
The Company will maintain and preserve, and cause each of
its Subsidiaries to maintain and preserve, all of its properties
in good repair, working order and condition, and from time to
time make or cause to be made all necessary and proper repairs,
renewals, replacements and improvements so that the business
carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this Section 8.08 shall prevent the Company or any of
its Subsidiaries from discontinuing the maintenance or
preservation of any of its properties if such discontinuance is,
in the opinion of the Company, desirable in the conduct of its
business and is not likely to have a Material Adverse Effect.
8.09 Financial Statements.
The Company will furnish to the Agent, with sufficient
copies for the Lenders:
sf712790 52
(a) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year
of the Company, consolidated balance sheets of the Company and
its Subsidiaries as of the end of such quarter and the related
statements of income and cash flows for such quarter and for the
period commencing at the end of the previous fiscal year and
ending with the end of such quarter;
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, audited consolidated
balance sheets of the Company and its Subsidiaries as of the end
of such year and the related consolidated statements of income,
changes in shareholders' equity and cash flows for the period
commencing at the end of the previous fiscal year and ending with
the end of such year; and
(c) at the same time it furnishes each set of financial
statements pursuant to subsections 8.09(a) and (b), (i) a
certificate of a Responsible Officer of the Company to the effect
that no Default or Event of Default has occurred and is
continuing (or if any Default or Event of Default has occurred
and is continuing, describing the same in reasonable detail and
the action which the Company proposes to take with respect
thereto) and (ii) a compliance certificate in substantially the
form of Exhibit 8.09(c).
8.10 Reporting Requirements.
The Company will furnish to the Agent, with sufficient
copies for the Lenders:
(a) promptly and in any event within three Business Days after
the Company becomes aware of the existence of any Default or
Event of Default, notice by telephone or facsimile specifying the
nature of such Default or Event of Default, which notice, if
given by telephone, shall be promptly confirmed in writing within
five Business Days;
(b) promptly after the sending or filing thereof, copies of all
reports which the Company sends to its security holders generally
and copies of all reports and registration statements which the
Company or any of its Subsidiaries files with the Securities and
Exchange Commission or any national securities exchange
(including the Company's Quarterly Report on Form 10-Q and Annual
Report on Form 10-K);
(c) promptly but not later than three Business Days after the
Company becomes aware of any change by ▇▇▇▇▇'▇ or S&P in its Debt
Rating, notice by telephone or facsimile of such change; and
(d) such other information respecting the business, prospects,
properties, operations or condition, financial or otherwise of
the Company or any of its Subsidiaries as any Lender through the
Agent may from time to time reasonably request.
sf712790 53
8.11 ERISA Plans.
The Company will maintain and operate, and cause each
Subsidiary to maintain and operate, each Plan in material
compliance with ERISA and the Code and all applicable regulations
thereunder.
8.12 Environmental Compliance; Notice.
The Company will, and will cause each of its Subsidiaries
to:
(a) endeavor to use and operate all of its facilities and
properties in substantial compliance with all Environmental Laws,
keep all necessary permits, approvals, certificates, licenses and
other authorizations relating to environmental matters in effect
and remain in substantial compliance therewith, and handle all
Hazardous Materials in substantial compliance with all applicable
Environmental Laws;
(b) promptly upon receipt of all written claims, complaints,
notices or inquiries relating to the condition of its facilities
and properties or compliance with Environmental Laws, evaluate
such claims, complaints, notices and inquiries and forward copies
of (i) all such claims, complaints, notices and inquiries which
individually are likely to have a Material Adverse Effect and
(ii) all such claims, complaints, notices and inquiries, arising
from a single occurrence which together are likely to have a
Material Adverse Effect, and endeavor to promptly resolve all
such actions and proceedings relating to compliance with
Environmental Laws; and
(c) provide such information and certifications which the Agent
may reasonably request from time to time to evidence compliance
with this Section 8.12.
8.13 New Subsidiaries.
If the Company or any of its Subsidiaries at any time after the
date hereof acquires, forms, or establishes any Principal
Subsidiary or any Subsidiary becomes a Principal Subsidiary, the
Company shall cause any such Principal Subsidiary to promptly
(a) execute and deliver to Agent each of the Subsidiary Guaranty
and the Contribution Agreement; and (b) provide such evidence of
due authorization, execution, and delivery of such Loan Documents
as the Agent or the Required Lenders may reasonably require.
ARTICLE 9
NEGATIVE COVENANTS
The Company agrees that as long as the obligations of the
Lenders to make Loans shall remain in effect and until all
Obligations shall have been paid or performed in full, unless the
Required Lenders shall otherwise consent in writing:
sf712790 54
9.01 Liens, Etc.
The Company shall not create or assume and shall not permit
any Restricted Subsidiary to create or assume, any Lien upon or
with respect to any of its Principal Properties or shares of
capital stock or Indebtedness of any Restricted Subsidiary,
whether now owned or hereafter acquired, without making effective
provision, and the Company in such case will make or cause to be
made effective provision, whereby the Obligations shall be
secured by such Lien equally and ratably with any and all other
Indebtedness or obligations thereby secured, so long as such
other Indebtedness or obligations shall be so secured; provided,
however, that the foregoing shall not apply to any of the
following:
(a) Liens existing on the Closing Date and set forth on Schedule
9.01;
(b) Liens on any Principal Property acquired, constructed or
improved after the date of this Agreement which are created or
assumed contemporaneously with, or within 120 days after, or
pursuant to financing arrangements for which a firm commitment is
made by a bank, insurance company or other lender or investor
(not including the Company or any Restricted Subsidiary) within
120 days after, the completion of such acquisition, construction
or improvement to secure or provide for the payment of any part
of the purchase price of such property or the cost of such
construction or improvement, or, in addition to Liens
contemplated by Sections 9.01(c) and 9.01(d), Liens on any
Principal Property existing at the time of acquisition thereof;
provided, however, that in the case of any such acquisition,
construction or improvement the Lien shall not apply to any
property theretofore owned by the Company and/or one or more
Restricted Subsidiaries other than, in the case of such
construction or improvement, any theretofore unimproved real
property on which the property so constructed, or the
improvement, is located;
(c) Liens on property or shares of capital stock or indebtedness
of a corporation existing at the time such corporation is merged
into or consolidated with the Company or a Restricted Subsidiary
or existing at the time of a sale, lease or other disposition of
the properties of a corporation as an entirety or substantially
as an entirety to the Company, or to a Restricted Subsidiary;
(d) Liens on property or shares of capital stock of a
corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(e) Liens to secure Indebtedness of a Restricted Subsidiary to
the Company or one or more Restricted Subsidiaries;
(f) Liens in favor of the United States of America or any State
thereof, or any department, agency or political subdivision of
the United States of America or any State thereof, to secure
partial, progress, advance or other payments pursuant to any
contract or statute or to secure any Indebtedness incurred for
the purpose of financing all or any part of the purchase price or
the cost of constructing or improving the property subject to
such Liens;
(g) Liens on timberlands in connection with an arrangement under
which the Company and/or one or more Restricted Subsidiaries are
obligated to cut or pay for timber in order to provide the
lienholder with a specified amount of money, however determined;
sf712790 55
(h) Liens created or assumed in the ordinary course of the
business of exploring for, developing or producing oil, gas or
other minerals (including in connection with borrowings of money
for such purposes) on, or on any interest in, or on any proceeds
from the sale of, property acquired or held for the purpose of
exploring for, developing or producing oil, gas or other
minerals, or production therefrom, or proceeds of such
production, or material or equipment located on such property;
(i) Liens in favor of any customer arising in respect of
performance deposits and partial, progress, advance or other
payments made by or on behalf of such customer for goods produced
or to be produced or for services rendered or to be rendered to
such customer in the ordinary course of business, which Liens
shall not exceed the amount of such deposits or payments;
(j) Liens on the property of the Company or any Restricted
Subsidiary incurred or pledges and deposits made in the ordinary
course of business in connection with worker's compensation,
unemployment insurance, old-age pensions and other social
security benefits other than in respect of employer plans subject
to ERISA;
(k) Liens pertaining to receivables or other accounts sold by
the Company or any of its Restricted Subsidiaries pursuant to a
receivables sale transaction in favor of the purchaser or
purchasers of such receivables or other accounts;
(l) purchase money liens or purchase money security interests
upon or in any other property acquired by the Company or any
Restricted Subsidiary in the ordinary course of business to
secure the purchase price of such property or to secure
Indebtedness incurred solely for the purpose of financing the
acquisition of such property;
(m) extensions, renewals and replacements of Liens referred to
in Section 9.01(a) through (l) or this Section 9.01(m), provided,
however, that the Indebtedness secured thereby shall not exceed
the principal amount of the Indebtedness so secured at the time
of such extension, renewal or replacement, and such extension,
renewal or replacement shall be limited to all or part of the
property or assets which secured the Lien extended, renewed or
replaced (plus improvements on such property);
(n) Liens imposed by law, such as workers', materialmen's,
mechanics', warehousemen's, carriers', lessors', vendors' and
other similar Liens incurred by the Company or any Restricted
Subsidiary arising in the ordinary course of business which
secure its obligations to any Person;
(o) Liens created by or resulting from any litigation or
proceedings which are being contested in good faith by
appropriate proceedings; Liens arising out of judgments or awards
against the Company and/or one or more Restricted Subsidiaries
with respect to which the Company and/or such Restricted
Subsidiary or Restricted Subsidiaries are in good faith
prosecuting an appeal or proceedings for review; or Liens
incurred by the Company and/or one or more Restricted
Subsidiaries for the purpose of obtaining a stay or discharge in
the course of any legal proceeding to which the Company and/or
such Restricted Subsidiary or Restricted Subsidiaries are a
party;
sf712790 56
(p) Liens for taxes, assessments or other governmental charges
or levies, either not yet due and payable or to the extent that
non-payment thereof shall be permitted by Section 7.03,
landlord's liens on property held under lease and tenants' rights
under leases;
(q) zoning restrictions, easements, licenses, reservations,
restrictions on the use of real property or minor irregularities
of title incident thereto which do not materially impair the
value of any parcel of property material to the operation of the
business of the Company and its Restricted Subsidiaries taken as
a whole or the value of such property for the purpose of such
business; and
(r) Liens arising in connection with Sale-Leaseback Transactions
permitted by Section 9.02.
9.02 Sale-Leaseback Transactions.
The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into any arrangement with any Person
providing for the leasing by the Company and/or one or more
Restricted Subsidiaries of any Principal Property (except for
temporary leases for a term, including any renewal thereof, of
not more than three years and except for leases between the
Company and one or more Restricted Subsidiaries or between
Restricted Subsidiaries) which property has been or is to be sold
or transferred by the Company and/or such Restricted Subsidiary
or Restricted Subsidiaries to such Person (a "Sale-Leaseback
Transaction") unless (a) the Company and/or such Restricted
Subsidiary or Restricted Subsidiaries would be entitled to incur
Indebtedness secured by a Lien on such property without equally
and ratably securing the Obligations pursuant to the provisions
of Section 9.01, or (b) the Company shall apply or cause to be
applied an amount equal to the Value of such Sale-Leaseback
Transaction within 120 days of the effective date of any
arrangement (i) to the retirement of Indebtedness for Borrowed
Money incurred or assumed by the Company or any Restricted
Subsidiary (other than indebtedness for borrowed money owed to
the Company and/or one or more Restricted Subsidiaries) which by
its terms matures on, or is extendable or renewable at the option
of the obligor to, a date more than 12 months after the date of
the incurrence or assumption of such indebtedness and which is
senior in right of payment to, or ranks pari passu with, the
Loans, or (ii) to the purchase of other property which will
constitute "Principal Property" having a fair value in the
opinion of the Board of Directors of the Company at least equal
to the Value of such Sale-Leaseback Transaction, or (c) the
Company shall use the net proceeds to repay Loans hereunder.
Notwithstanding the provisions of Sections 9.01 and 9.02,
the Company and any one or more of its Restricted Subsidiaries
may nevertheless create or assume Liens which would otherwise
require securing of the Obligations under said provisions, and
enter into Sale-Leaseback Transactions without compliance with
either Section 9.02(b) or 9.02(c), provided that the aggregate
amount of all such Liens and Sale-Leaseback Transactions
permitted by this Section 9.02 at any time outstanding (as
measured by the sum of (a) all Indebtedness secured by all such
Liens then outstanding or to be so created or assumed, but
excluding secured Indebtedness permitted under the exceptions in
Section 9.01, and (b) the Value of all such Sale-Leaseback
Transactions then outstanding or to be so entered into, but
excluding such transactions in which indebtedness is retired or
property is purchased or Loans are repaid) shall not exceed 10%
of Net Tangible Assets.
sf712790 57
9.03 Mergers, Etc.
The Company shall not merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially
all of its assets, whether now owned or hereafter acquired, to
any Person; provided, however, that the Company may merge or
consolidate with or into any corporation (whether or not
affiliated with the Company) or convey, transfer, lease or
otherwise dispose of all or substantially all of its assets, to
any other corporation (whether or not affiliated with the
Company) authorized to acquire or operate the same, so long as
(a) either (x) in the case of such merger or consolidation, the
Company is the surviving corporation or (y) if either (i) in the
case of such merger or consolidation, if the Company is not the
surviving corporation, or (ii) upon any such conveyance,
transfer, lease or other disposition, the surviving or transferee
corporation expressly assumes the due and punctual payment of all
Obligations according to their terms and the due and punctual
performance and observance of all of the covenants and conditions
of this Agreement to be performed by the Company; and (b) after
giving effect to such transaction, no Default or Event of Default
exists and the Company or such surviving Person, as applicable,
has demonstrated its compliance with Section 9.08 to the
reasonable satisfaction of the Required Lenders.
9.04 Transactions with Affiliates.
The Company shall not enter into or be a party to, or permit
any of its Restricted Subsidiaries to enter into or be a party
to, any transaction with any Affiliate of the Company except
(a) as may be permitted under Sections 9.01, 9.02, or 9.03 or
(b) transactions in the ordinary course of business which are not
likely to have a Material Adverse Effect.
9.05 Accounting Changes.
The Company (a) shall not make, or permit any of its
Subsidiaries to make, any significant change in accounting
treatment and reporting practices except as permitted or required
by GAAP or the Securities and Exchange Commission and (b) shall
not designate a different fiscal year other than a fiscal year
that ends on the closest Saturday to December 31 of each year.
9.06 Margin Regulations.
The Company shall not use the proceeds of any Loan in
violation of Regulation T, U or X of the Board of Governors of
the Federal Reserve System.
9.07 Negative Pledges, Etc.
The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into any agreement prohibiting compliance by
the Company with the provisions of the introduction to
Section 9.01 or restricting the ability of the Company or any
other Loan Party to amend or otherwise modify this Agreement or
any other Loan Document.
9.08 Leverage Ratio.
The Company shall not permit the ratio of (a) Funded
Indebtedness on the last day of any fiscal quarter to (b) EBITDA
for the Measurement Period ending on such date (in each case
calculated on a consolidated basis for the Company and its
consolidated Subsidiaries) to be greater than 4.50 to 1.00.
ARTICLE 10
EVENTS OF DEFAULT
10.01 Events of Default.
The term "Event of Default" shall mean any of the events set
forth in this Section 10.01.
sf712790 58
(a) Non-Payment. The Company shall (i) fail to pay any
principal of any Loan when the same shall become due and payable;
or (ii) fail to pay any interest on any Loan or fail to pay any
fee due under this Agreement within three Business Days after the
same shall become due and payable; or
(b) Representations and Warranties. Any representation or
warranty made by the Company in this Agreement or by any Loan
Party in any other Loan Document or in any certificate, document
or financial or other statement delivered at any time under or in
connection with this Agreement or any other Loan Document shall
prove to have been incorrect or untrue in any material respect
when made or deemed made; or
(c) Specific Defaults. The Company shall fail to perform or
observe any term, covenant or agreement contained in Sections
8.01, 8.05, 8.06 or 8.10(a) or Article 9; or
(d) Other Defaults. The Company shall fail to perform or
observe any other term or covenant contained in this Agreement or
any Loan Party shall fail to perform any other term or covenant
in any other Loan Document, and such Default shall continue
unremedied for a period of 30 days after the date upon which
written notice thereof shall have been given to the Company by
the Agent; or
(e) Default under Other Agreements. Any default shall occur and
be continuing under the terms applicable to:
(i) any Funded Indebtedness or any Indebtedness or items of
Indebtedness of the Company or any of its Subsidiaries (other
than under this Agreement or any other Loan Document) which
Funded Indebtedness or Indebtedness, as the case may be, has an
aggregate outstanding principal amount of $75,000,000 or more, or
(ii) under one or more Swap Contracts of the
Company or any of its Subsidiaries resulting in aggregate
Swap Termination Values of the Company and its Subsidiaries
of $75,000,000 or more and,
in either of the above cases, such default shall:
(A) consist of the failure to pay such
Indebtedness or such net obligations when due (whether
at scheduled maturity, upon early termination, by
required prepayment, acceleration, demand or
otherwise) after giving effect to any applicable grace
period; or
(B) result in, or continue unremedied and
unwaived for a period of time sufficient to permit, the
acceleration of such Indebtedness or the early
termination of any such Swap Contract; or
(f) Bankruptcy or Insolvency. The Company or any Restricted
Subsidiary shall:
(i) generally fail to pay, or admit in writing its
inability to pay, its debts as they become due;
sf712790 59
(ii) commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect;
(iii) seek the appointment of a trustee,
receiver, liquidator, custodian or other similar official of
it or any substantial part of its property or consent to any
such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding
commenced against it;
(iv) make a general assignment for the benefit of
creditors; or
(v) take any corporate action to authorize any of
the foregoing; or
(g) Involuntary Proceedings. An involuntary case or other
proceeding shall be commenced against the Company or any
Restricted Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or
any-substantial part of its property, and such involuntary case
or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered
against the Company or any Restricted Subsidiary under the
federal bankruptcy laws as now or hereafter in effect; or
(h) Monetary Judgments. One or more judgments or orders for the
payment of money exceeding in the aggregate $75,000,000 shall be
rendered against the Company or any of its Subsidiaries and
either (i) enforcement proceedings shall have been initiated by
any creditor upon such judgment or order or (ii) such judgment or
order shall continue unsatisfied or unstayed for a period of 30
days; or
(i) Pension Plans. Any of the following events shall occur with
respect to any Pension Plan:
(i) the institution of any steps by the Company, any
member of its Controlled Group or any other Person to terminate a
Pension Plan if, as a result of such termination, the Company or
any such member could reasonably expect to be required to make a
contribution to such Pension Plan, or could reasonably expect to
incur a liability or obligation to such Pension Plan or the PBGC,
in excess of $75,000,000; or
(ii) a contribution failure occurs with respect to
any Pension Plan which gives rise to a Lien under
Section 302(f) of ERISA with respect to a liability or
obligation in excess of $75,000,000; or
(j) Change in Control. The acquisition by any Person or group
(within the meaning of Rule 13d-5 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), or two or
more Persons acting in concert, of beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of either
(i) 33-1/3% or more of the outstanding shares of voting stock of
the Company or (ii) the power to direct or cause the direction of
the management and policies of the Company, whether through the
ownership of voting securities, by contract or otherwise; or
sf712790 60
(k) Impairment of Certain Documents. Except as otherwise
expressly permitted in any Loan Document, any of the Loan
Documents shall terminate or cease in whole or in part to be the
legally valid, binding, and enforceable obligation of the
relevant Loan Party, or such Loan Party or any Person acting for
or on behalf of any Loan Party, contests such validity, binding
effect or enforceability, or purports to revoke any Loan
Document; or
(l) North American Timber Agreement. An "Event of Default"
shall exist as defined in the North American Timber Agreement.
10.02 Remedies.
If any Event of Default shall have occurred and be
continuing:
(a) The Agent shall at the request of, or may with the consent
of, the Required Lenders, declare the Commitments and the
commitment of the Issuing Bank to Issue Letters of Credit to be
terminated, whereupon the Commitments and such commitment shall
forthwith be terminated; and/or
(b) The Agent shall at the request of, and may with the consent
of, the Required Lenders, declare an amount equal to the maximum
aggregate amount that is or at any time thereafter may become
available for drawing under any outstanding Letters of Credit
(whether or not any beneficiary shall have presented, or shall be
entitled at such time to present, the drafts or other documents
required to draw under such Letters of Credit) to be immediately
due and payable, which amount the Company shall immediately Cash
Collateralize in full, and declare the unpaid principal amount of
all outstanding Loans, all interest accrued and unpaid thereon
and all other Obligations payable hereunder or under any other
Loan Document to be immediately due and payable, whereupon the
Loans, all such interest and all such Obligations shall become
and be forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby
expressly waived by the Company; and/or
(c) The Agent shall at the request of, and may with the consent
of, the Required Lenders, exercise all rights and remedies
available to it as Agent under any Loan Document;
provided, however, that upon the occurrence of any Event of
Default specified in Section 10.01(f)(ii) or Section 10.01(g) or
in the event of an actual or deemed entry of an order for relief
with respect to the Company or any of its Subsidiaries under any
bankruptcy, insolvency or other similar law now or hereafter in
effect, the Commitments and the commitment of the Issuing Bank to
Issue Letters of Credit shall automatically terminate and the
unpaid principal amount of all outstanding Loans and all interest
accrued thereon and all other Obligations shall automatically
become due and payable without further action of the Agent or any
Lender.
ARTICLE 11
THE AGENT
11.01 Appointment. Each Lender hereby irrevocably appoints,
designates and authorizes the 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.
sf712790 60
Notwithstanding any provision to the contrary contained elsewhere
in this Agreement or in any other Loan Document, the Agent shall
not have any duties or responsibilities except those expressly
set forth herein or any fiduciary relationship with any Lender,
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 Agent.
Without limiting the generality of the foregoing sentence, the
use of the term "agent" in this Agreement with reference to the
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.
The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit Issued by it and the documents
associated therewith until such time and except for so long as
the Agent may agree at the request of the Required Lenders to act
for such Issuing Bank with respect thereto; provided, however,
that the Issuing Bank shall have all of the benefits and
immunities (i) provided to the Agent in this Article 11 with
respect to any acts taken or omissions suffered by the Issuing
Bank in connection with Letters of Credit Issued by it or
proposed to be Issued by it and the application and agreements
for letters of credit pertaining to the Letters of Credit as
fully as if the term "Agent", as used in this Article 11,
included the Issuing Bank with respect to such acts or omissions,
and (ii) as additionally provided in this Agreement with respect
to the Issuing Bank.
11.02 Delegation of Duties. The Agent may execute any of its
duties under this Agreement or any other Loan Document by or
through its employees, agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining
to such duties.
11.03 Liability of Agent. None of the Agent-Related Persons
shall be (a) 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 (except for its own gross negligence or
willful misconduct) or (b) responsible in any manner to any of
the Lenders for any recital, statement, representation or
warranty made by the Company or any of its officers contained in
this Agreement or by any Loan Party or any officer of any thereof
in any other Loan Document or in any certificate, report,
statement or other document referred to or provided for in, or
received by the Agent under or in connection with, this Agreement
or any other Loan Document or for the value of any collateral or
the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or for
any failure of the Company or any other Loan Party to perform its
obligations hereunder or thereunder. No Agent-Related Person
shall be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any
other Loan Document or to inspect the properties, books or
records of the Company or any of its Subsidiaries.
11.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, facsimile, 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 any advice and
sf712790 62
statements of legal counsel (including counsel to the Company),
independent accountants and other experts selected by the Agent.
The 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 Required
Lenders as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. Except to
the extent expressly provided in Section 12.02, the 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 the consent of the Required Lenders
and such request or consent and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Loans or any portion thereof.
(b) For purposes of determining compliance with the conditions
specified in Sections 7.01 and 7.02, each Lender shall be deemed
to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the
Lenders unless an officer of the Agent responsible for the
transactions contemplated by the Loan Documents shall have
received notice from such Lender prior to the initial Borrowing
specifying its objection thereto and either such objection shall
not have been withdrawn by notice to the Agent to that effect or
such Lender shall not have made available to the Agent such
Lender's Commitment Percentage of such Borrowing.
11.05 Notice of Default. The 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 payable to the Agent for the
account of the Lenders, unless the Agent shall have received
notice from a Lender or the Company referring to this Agreement
or any other Loan Document, describing such Default or Event of
Default and stating that such notice is a "notice of default". In
the event that the Agent receives such a notice, the Agent shall
give notice thereof to the Lenders. The Agent shall take such
action with respect to such Default or Event of Default as shall
be requested by the Required Lenders in accordance with
Article 10; provided, however, that unless and until the Agent
shall have received any such request from the Required Lenders,
the 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 in the best
interests of the Lenders.
11.06 Credit Decision. Each Lender expressly acknowledges
that no Agent-Related Person has made any representation or
warranty to it and that no act by the Agent hereinafter taken,
including any review of the affairs of the Company and its
Subsidiaries, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lender. Each Lender
represents to the Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such
documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, prospects,
properties, operations or condition, financial or otherwise, and
creditworthiness of the Company and its Subsidiaries and made its
own decision to enter into this Agreement and extend credit to
the Company hereunder. Each Lender 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 to make such investigations as it deems
necessary to inform itself as to the business, prospects,
sf712790 63
properties, operations or condition, financial or otherwise, and
creditworthiness of the Company and its Subsidiaries. Except for
notices, reports and other documents expressly required to be
furnished to the Lenders by the Agent hereunder, no Agent-Related
Person shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the
business, prospects, properties, operations or condition,
financial or otherwise, and creditworthiness of the Company and
its Subsidiaries which may come into the possession of any Agent-
Related Person.
11.07 Indemnification. The Lenders agree to indemnify the
Agent-Related Person (to the extent not reimbursed by or on
behalf of the Company and without limiting the obligation of the
Company to do so), ratably according to the respective amounts of
their outstanding Loans, or, if no Loans are outstanding, their
Commitments, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements of any kind whatsoever
which may at any time (including at any time after the repayment
of the Loans and all other Obligations) be imposed on, incurred
by or asserted against any Agent-Related Person in any way
relating to or arising out of this Agreement or any other Loan
Document or any document contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any
action taken or omitted by any Agent-Related Person under or in
connection with any of the foregoing; provided, however, that no
Lender shall be liable for the payment to any Agent-Related
Person of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from any Agent-Related Person's
gross negligence or willful misconduct. Without limiting the
generality of the foregoing, each Lender agrees to reimburse the
Agent-Related Persons promptly upon demand for its ratable share
of any out-of-pocket expenses and reasonable fees of counsel
(including the allocated cost of in-house counsel) incurred by
the Agent-Related Person in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiation, legal proceedings or
otherwise) of, or legal advice in respect of its or the Lenders'
rights or responsibilities under, this Agreement, any other Loan
Document or any document contemplated by or referred to herein to
the extent that any Agent-Related Person is not reimbursed for
such expenses by or on behalf of the Company.
11.08 Agent in Individual Capacity. Bank of America and its
Affiliates may make loans to, issue, amend, renew (or participate
in) 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 or other business with the
Company and its Subsidiaries and their respective Affiliates as
though Bank of America were not the Agent hereunder. With respect
to its Loans, Bank of America shall have the same rights and
powers under this Agreement as any Lender and may exercise the
same as though it were not the Agent or the Issuing Bank, and the
terms "Lender" and "Lenders" shall include Bank of America in its
individual capacity.
11.09 Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Company and
may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor Agent which
shall be a commercial bank organized, chartered or licensed under
the laws of the United States of America or of any State thereof
having combined capital and surplus of at least $500,000,000. If
no successor Agent shall have been so appointed by the Required
sf712790 64
Lenders, and shall have accepted such appointment within 30 days
after the notice of resignation or the removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders,
with the consent of the Company which consent shall not be
unreasonably withheld or delayed, appoint a successor Agent,
which shall be a commercial bank organized or chartered under the
laws of the United States of America or of any State thereof
having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from
its future duties and obligations under this Agreement and the
other Loan Documents. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article 11 and
Sections 12.04 and 12.05 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent
under this Agreement and the other Loan Documents.
Notwithstanding the foregoing, however, Bank of America may not
be removed as the Agent at the request of the Required Lenders
unless Bank of America shall also simultaneously be replaced as
"Issuing Bank" hereunder pursuant to documentation in form and
substance reasonably satisfactory to Bank of America.
11.10 Documentation, Co-Syndication, Managing Agents. None
of the Lenders identified on the facing page or signature pages
of this Agreement as a "Documentation Agent," "Co-Syndication
Agent," or "Managing Agent" shall have any right, power,
obligation, liability, responsibility, or duty under this
Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders so identified
as "Documentation Agent," "Co-Syndication Agent," or "Managing
Agent" shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders so identified in
deciding to enter into this Agreement or in taking or not taking
action hereunder.
ARTICLE 12
MISCELLANEOUS
12.01 Notices, Etc. All notices, requests and other
communications provided to any party under this Agreement shall,
except as otherwise expressly specified herein, be in writing
(including by facsimile) and mailed by overnight delivery,
transmitted by facsimile or delivered: if to the Company, to its
address specified on the signature pages hereof; if to any
Lender, to its Domestic Lending Office specified opposite its
name on Schedule 1.01(b); and, if to the Agent, to its address
specified on the signature pages hereof; or, as to the Company or
the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each
other party, at such other address as shall be designated by such
party in a written notice to the Company and the Agent. All such
notices and communications shall be effective, if transmitted by
facsimile, when transmitted, or, if mailed by overnight delivery
or delivered, upon delivery, except that (a) notices and
facsimile communications to the Agent pursuant to Articles 2 or
11 shall not be effective until received by the Agent, (b) any
notice by facsimile to the Agent must be confirmed by telephone
or mail, and (c) notices pursuant to Article 3 to the Issuing
Bank shall not be effective until actually received by the
Issuing Bank at the address specified for the "Issuing Bank" on
the applicable signature page hereof.
sf712790 65
12.02 Amendments, Etc. No amendment or waiver of any
provision of this Agreement or of any other Loan Document, and no
consent to any departure by the Company or any other Loan Party
herefrom or therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders and,
in the case of amendments, the Company, 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
(a) no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders and, in the case of amendments, the
Company, do any of the following:
(i) increase the Commitments of the Lenders (other
than by assignment); provided, however, that any Lender may
increase its own Commitment without the consent of the other
Lenders;
(ii) reduce the principal of, or interest (other
than under Section 2.10) on, the Committed Loans or reduce
the amount of any fees payable hereunder;
(iii) postpone any date fixed for any payment
of principal of, or interest on, the Committed Loans or any
fees payable hereunder;
(iv) modify any requirement hereunder that any
particular action be taken by all of the Lenders or by the
Required Lenders or change the percentage of the Commitments
or of the aggregate unpaid principal amount of the Loans
which shall be required for the Lenders or any of them to
take any action hereunder;
(v) terminate the Subsidiary Guaranty and/or the
Contribution Agreement;
(vi) amend or waive the provisions of Sections
7.01 or 7.02; or
(vii) amend this Section 12.02;
(b) no amendment, waiver or consent which affects the rights or
duties of the Agent under this Agreement or any other Loan
Document shall become effective unless signed by the Agent in
addition to the Required Lenders or all the Lenders, as the case
may be;
(c) No amendment, waiver or consent which affect the rights or
duties of the Issuing Bank under the Agreement or any L/C-Related
Document relating to any Letter of Credit Issued or to be Issued
by it shall become effective unless signed by the Issuing Bank in
addition to the Required Lenders or all the Lenders, as the case
may be; and
(d) no amendment, waiver or consent which affects the principal
amount, the rate of interest or the maturity date of any
outstanding Bid Loan shall become effective without the consent
of the Agent and the Lender having made such Bid Loan in addition
to the Required Lenders or all the Lenders, as the case may be.
12.03 No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any
right, remedy, power or privilege hereunder or under any other
Loan Document shall operate as a waiver thereof; nor shall any
single
sf712790 66
or partial exercise of any such right, remedy, power or privilege
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The remedies herein
provided are cumulative and not exclusive of any remedies
provided by law.
12.04 Costs and Expenses. The Company agrees to pay on
demand:
(a) all out-of-pocket costs and expenses incurred by the Agent
in connection with the preparation, execution, delivery,
administration, modification and amendment of the Loan Documents
and any other document to be delivered hereunder or thereunder or
in connection with the transactions contemplated hereby or
thereby, including the out-of-pocket expenses and reasonable fees
of counsel for the Agent (including local counsel which may be
retained by the Agent and the allocated cost of in-house
counsel) with respect thereto and with respect to advising the
Agent as to its rights and responsibilities under the Loan
Documents;
(b) all out-of-pocket costs and expenses incurred by the Agent
or any Lender in connection with the preservation of any rights
under any Loan Document or in connection with any restructuring
or "work-out" of any of the Obligations (whether through
negotiations, legal proceedings or otherwise), including the
out-of-pocket expenses and reasonable fees of counsel for the
Agent (including the allocated cost of in-house counsel);
(c) all out-of-pocket costs and expenses incurred by the Agent
or any Lender in connection with the enforcement of any of the
Obligations, including the out-of-pocket expenses and reasonable
fees of counsel for the Agent or such Lender (including the
allocated cost of in-house counsel);
(d) all out-of-pocket costs and expenses incurred by the Agent
in connection with due diligence, transportation, use of
computers, duplication, search reports and all filing and
recording fees; and
(e) to each Lender being replaced pursuant to Section 5.09, the
reasonable out-of-pocket expenses and reasonable fees of counsel
(including the allocated cost of in-house counsel) not exceeding
$5,000 in connection with such replacement.
12.05 Indemnity.
(a) The Company agrees to indemnify and hold harmless the Agent-
Related Persons, and each Lender and each of their Affiliates and
all directors, officers, employees, agents and advisors of all of
the foregoing (each, an "Indemnified Party") from and against any
and all claims, actions, proceedings, suits, damages, losses,
liabilities, costs, expenses and disbursements, including the
out-of-pocket expenses and reasonable fees of counsel (including
the allocated cost of in-house counsel) which may be incurred by
or asserted against any Indemnified Party as a result of any
investigation, litigation, suit, action or proceeding (regardless
of whether an Indemnified Party is a party thereto) arising out
of, relating to, or in connection with this Agreement, any other
Loan Document or any transaction or proposed transaction (whether
or not consummated) financed or to be financed, in whole or in
part, directly or indirectly, with the proceeds of any Borrowing
(other than costs of the type covered by Section 12.04) or any
other transaction contemplated hereby; except to the extent such
claim, damage, loss, liability, cost or expense has resulted
primarily
sf712790 67
from such Indemnified Party's gross negligence or willful
misconduct as determined by a final judgment of a court of
competent jurisdiction. Notwithstanding any other provision
contained in this Agreement, this indemnity shall not be limited
in any way by the passage of time or the occurrence of any event.
(b) The Agent, the Arranger and each Lender agree that if any
investigation, litigation, suit, action or proceeding is asserted
or threatened in writing or instituted against it or any other
Indemnified Party, or any remedial, removal or response action is
requested of it or any other Indemnified Party, for which the
Agent, the Arranger or any Lender may desire indemnity or defense
hereunder, the Agent, the Arranger or such Lender shall promptly
notify the Company thereof in writing and agree, to the extent
appropriate, to consult with the Company with a view to
minimizing the cost to the Company of its obligations under this
Section 12.05. The Company will not be required to pay the fees
and expenses of more than one counsel for the Indemnified Parties
unless the employment of separate counsel has been authorized by
the Company, or unless any Indemnified Party reasonably concludes
that there may be defenses available to it which are not
available to the other Indemnified Parties or that there is a
conflict between its interests and those of the other Indemnified
Parties.
(c) No action taken by legal counsel chosen by the Agent, the
Arranger or any Lender in defending against any such
investigation, litigation, suit, action or proceeding or
requested remedial, removal or response action shall vitiate or
in any way impair the obligations and duties of the Company
hereunder to indemnify and hold harmless each Indemnified Party;
provided, however, that if the Company is required to indemnify
any Indemnified Party pursuant hereto, neither the Agent nor the
Arranger nor any Lender will settle or compromise any such
investigation, litigation, suit, action or proceeding without the
prior written consent of the Company (which consent shall not be
unreasonably withheld or delayed) so long as the Company has
provided evidence reasonably satisfactory to the Agent, the
Arranger or such Lender that the Company and its Subsidiaries on
a consolidated basis do not at such time have a negative Net
Worth.
12.06 Right of Set-off. Upon the occurrence and during the
continuation of any Event of Default, each Lender is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all
deposits in whatever currency (general or special, time or
demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the
credit or the account of the Company against any and all of the
Obligations, whether or not such Lender shall have made any
demand under this Agreement. Each Lender agrees promptly to
notify the Company after any such set-off and application made by
such Lender; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 12.06
are in addition to any other right or remedy (including any other
right of set-off) which such Lender may have under applicable law
or under any Loan Document.
12.07 Binding Effect. This Agreement shall become effective
when a counterpart hereof shall have been executed by the Agent
and counterparts hereof executed by the Company and each Lender
shall have been received by the Agent and notice thereof shall
have been given by the Agent to the other parties hereto and
thereafter shall be binding upon and inure to the benefit of the
Company, the Agent and each Lender and their respective
successors and assigns; provided, however, that (a) except as
permitted under clause (b)(ii) of Section 9.03, the Company may
not assign or transfer its rights or
sf712790 68
obligations hereunder without the prior written consent of all
the Lenders and (b) the rights of assignment and transfer of the
rights and obligations of the Lenders hereunder are subject to
the provisions of Section 12.08.
12.08 Assignments, Participations, Etc.
(a) Subject to Sections 12.08(b) and 12.08(e):
(i) Any Lender may with the prior consent of the
Company, the Agent, and the Issuing Bank (which consents will not
be unreasonably withheld and which consent of the Company shall
not be required if a Default or Event of Default exists) at any
time assign to one or more Eligible Assignees all or any fraction
of its Commitment and outstanding Committed Loans in a minimum
amount of $25,000,000 and in multiples of $1,000,000 in excess
thereof or, if its Commitment is less than $25,000,000, in the
amount of its Commitment.
(ii) Any Lender may without the prior consent of
the Company assign to another Lender all or any fraction of
its Commitment and outstanding Committed Loans in a minimum
amount of $5,000,000 and in multiples of $1,000,000 in
excess thereof or, if the Commitment is less than
$5,000,000, in the amount of its Commitment.
(iii) Any Lender may at any time assign all or
any portion of its rights under this Agreement and any note
issued pursuant to Section 2.05 to a Federal Reserve Bank;
provided, however, that no such assignment shall release any
Lender from its obligations hereunder.
(iv) Any Lender, if so requested by the Company
under Section 5.09, shall assign to another Eligible
Assignee its entire Commitment and all outstanding Committed
Loans.
(v) Except as provided in Section 12.08(a)(iii),
no Lender may assign any Bid Loans made by it hereunder
except to another Lender or to any other Person to which it
is also assigning all or a fraction of its Commitment and
outstanding Committed Loans pursuant to Section 12.08(a)(i).
(b) No assignment shall become effective, and the Company and
the Agent shall be entitled to continue to deal solely and
directly with each Lender in connection with the interests so
assigned by such Lender to an Assignee, until (i) such Lender and
such Assignee shall have executed an Assignment and Assumption
Agreement substantially in the form of Exhibit 12.08(b) and
written notice of such assignment, payment instructions,
addresses, and related information with respect to such Assignee
shall have been given to the Company and the Agent by such Lender
and such Assignee, in substantially the form of Attachment A to
Exhibit 12.08 (a "Notice of Assignment"); (ii) a processing fee
in the amount of $3,500 shall have been paid to the Agent by the
assignor Lender or the Assignee; and (iii) either (A) five
Business Days shall have elapsed after receipt by the Agent of
the items referred to in clauses (i) and (ii) or (B) if earlier,
the Agent has notified the assignor Lender and the Assignee of
its receipt of the items mentioned in clauses (i) and (ii) and
that it has acknowledged the assignment by countersigning the
Notice of Assignment.
sf712790 69
(c) From and after the effective date of any assignment
hereunder, (i) the Assignee thereunder shall be deemed
automatically to have become a party hereto and, to the extent
that rights and obligations hereunder have been assigned to such
Assignee by the assignor Lender, shall have the rights and
obligations of a Lender hereunder and under each other Loan
Document, and (ii) the assignor Lender, to the extent that rights
and obligations hereunder have been assigned by it to the
Assignee, shall be released from its future obligations hereunder
and under each other Loan Document.
(d) Subject to Section 12.08(e), any Lender may at any time sell
to one or more financial institutions or other Persons (each of
such Persons being herein called a "Participant") participating
interests in any of the Loans, its Commitment or other interests
of such Lender hereunder; provided, however, that
(i) no participation contemplated in this
Section 12.08(d) shall relieve such Lender from its Commitment or
its other obligations hereunder or under any other Loan Document;
(ii) such Lender shall remain solely responsible
for the performance of its Commitment and such other
obligations;
(iii) the Company, the Agent, and the Issuing
Bank shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and
obligations under this Agreement and each other Loan
Document; and
(iv) no Participant, unless such Participant is an
Affiliate of such Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder
or under any other Loan Document, except that such Lender
may agree with any Participant that such Lender will not,
without such Participant's consent, take any action of the
type described in Section 12.02.
The Company acknowledges and agrees that each Participant,
for purposes of Sections 4.05, 4.06, 5.02, 5.03, 5.05, 5.06 or
12.06, shall be considered a Lender; provided, however, that for
purposes of Sections 4.05, 5.02, 5.03, 5.05 and 5.06, no
Participant shall be entitled to receive any payment or
compensation in excess of that to which such Participant's
selling Lender would have been entitled with respect to the
amount of such Participant's participation interest if such
Lender had not sold such participation interest.
(e) No assignment (other than an assignment made pursuant to
Section 12.08(a)(iii)) or participation of any Committed Loans,
or Commitments shall be effective, and shall instead be null and
void, unless it represents an assignment of or participation in
identical percentages of a Lender's outstanding Tranche A Loans,
Tranche B Loans, Tranche A Commitment, Tranche B Commitment,
"Tranche A Loans," "Tranche B Loans," "Tranche A Commitment" and
"Tranche B Commitment" (as those quoted terms are defined in the
North American Timber Agreement).
12.09 Confidentiality. Each Lender agrees that all nonpublic
information provided to it by the Company or by the Agent on
behalf of the Company in connection with this Agreement or any
other Loan Document or the transactions contemplated
sf712790 70
hereby or thereby will be held and treated by such Lender, its
agents, directors, Affiliates, officers and employees in
confidence and further agrees and undertakes that neither it nor
any of its Affiliates shall use any such information for any
purpose or in any manner other than pursuant to the terms
contemplated by this Agreement or relating to other business
transactions between the Company and such Lender. Any Lender may
disclose such information (a) at the request of any bank
regulatory authority or in connection with an examination of such
Lender by any such authority or examiner; (b) pursuant to
subpoena or other court process; (c) when required to do so in
accordance with the provisions of any applicable law; (d) at the
written request or the express direction of any other agency of
any State of the United States of America or of any other
jurisdiction in which such Lender conducts its business; and
(e) to such Lender's independent auditors, counsel and other
professional advisors. Notwithstanding the foregoing, the Company
authorizes each Lender to disclose to any Participant or Assignee
and any prospective Participant or Assignee such financial and
other information in such Lender's possession concerning the
Company or its Subsidiaries which has been delivered to the
Lenders pursuant to this Agreement or any other Loan Document or
which has been delivered to the Lenders by the Company in
connection with the Lenders' credit evaluation of the Company and
its Subsidiaries prior to entering into this Agreement; provided
that such Participant or Assignee or prospective Participant or
Assignee agrees in writing to such Lender to keep such
information confidential to the same extent as required of the
Lenders hereunder.
12.10 Survival. The obligations of the Company under
Sections 4.05, 5.02, 5.03, 5.05, 5.06, 12.04 and 12.05, and the
obligations of the Lenders under Sections 4.05(i) and 11.07,
shall in each case survive the repayment of the Loans and all
other Obligations and the termination of this Agreement and the
Commitments; provided, however, that no request for reimbursement
pursuant to such Sections (other than Sections 12.04(b) and
(c) and 12.05) may be made more than six months after the
termination of this Agreement and the Commitments. The
representations and warranties made by the Company in this
Agreement and by each Loan Party in each other Loan Document
shall survive the execution and delivery of this Agreement and
such other Loan Document.
12.11 Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any
other jurisdiction.
12.12 Headings. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provisions hereof.
12.13 No Third Parties Benefited. This Agreement is made and
entered into for the sole protection and legal benefit of the
Company, the Lenders, the Agent 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.
sf712790 71
12.14 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
12.15 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
12.16 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE
COMPANY, THE LENDERS AND THE AGENT AND SUPERSEDE ALL PRIOR OR
CONTEMPORANEOUS AGREEMENTS AND UNDERSTANDINGS OF SUCH PERSONS,
VERBAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF EXCEPT
FOR THE FEE LETTER AND ANY PRIOR ARRANGEMENTS MADE WITH RESPECT
TO THE PAYMENT BY THE COMPANY OF (OR ANY INDEMNIFICATION FOR) ANY
FEES, COSTS OR EXPENSES PAYABLE TO OR INCURRED (OR TO BE
INCURRED) BY OR ON BEHALF OF THE AGENT OR THE LENDERS.
12.17 WAIVER OF JURY TRIAL. EACH OF THE AGENT, THE LENDERS
AND THE COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS
ENTERING INTO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above ▇▇▇▇▇▇▇.▇▇ WITNESS
WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized,
as of the date first above written.
sf712790 72
GEORGIA-PACIFIC CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Treasurer
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Agent, Issuing Bank, and as
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
COMMERZBANK AG,
NEW YORK BRANCH,
as Documentation Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP & Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
THE CHASE MANHATTAN BANK,
as Co-Syndication Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
CITIBANK, N.A.,
as Co-Syndication Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
THE BANK OF NEW YORK,
as Managing Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ ▇. ▇. ▇▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President & Manager
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
CIBC INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Director
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
FIRST NATIONAL BANK OF CHICAGO,
as Managing Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
HSBC BANK USA,
as Managing Agent
By: /s/ ▇▇▇▇▇▇ ▇. BOLLINGTON
Name: ▇▇▇▇▇▇ ▇. Bollington
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
THE SANWA BANK, LIMITED, NEW YORK
BRANCH
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
THE SUMITOMO BANK, LIMITED
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
SUNTRUST BANK, ATLANTA,
as Managing Agent
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
TORONTO DOMINION (TEXAS), INC.,
as Managing Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
UBS AG, STAMFORD BRANCH,
as Managing Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate Director
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
WACHOVIA BANK NA,
as Managing Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[DO NOT DELETE THIS PAGE]
[JUST THROW AWAY ONCE PRINTED]
Exhibit 2.02(a)
to GP Credit Agreement
FORM OF NOTICE OF BORROWING
Bank of America National Trust
and Savings Association
Agency Administrative Services #5596
Mail Code: CA 4-706-05-09
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Associate Agency Officer
Re: Georgia-Pacific Corporation Credit Agreement
dated as of July 22, 1999
Ladies and Gentlemen:
This Notice of Borrowing is delivered to you pursuant to
Section 2.02(a) of the Credit Agreement, dated as of July 22,
1999 (together with all amendments, if any, from time to time
made thereto, the "Credit Agreement"), among GEORGIA-PACIFIC
CORPORATION, a Georgia corporation (the "Company"), the Lenders
party thereto, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as administrative agent (the "Agent"), COMMERZBANK
AG, NEW YORK BRANCH, as Documentation Agent, and THE CHASE
MANHATTAN BANK and CITIBANK, N.A., as Co-Syndication Agents.
Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the
Credit Agreement.
The Company hereby requests the following Committed
Borrowing[s]: [Tranche A Loans in the aggregate principal amount
of $________________ on, ______________, _____ comprised of
[Eurodollar Loans having an Interest Period of_________________
months] [Reference Rate Loans]; [and] [Tranche B Loans in the
aggregate principal amount of $________________ on,
______________, _____ comprised of [Eurodollar Loans having an
Interest Period of_________________ months] [Reference Rate
Loans].
The Company hereby certifies and warrants that on the date
the Committed Borrowing[s] requested hereby [is/are] made (both
before and after giving effect to the making of such Committed
Borrowing[s] and after giving effect to the application, directly
or indirectly, of the proceeds thereof):
(a) the representations and warranties contained in
Article 6 of the Credit Agreement are correct on and (except
for representations and warranties relating solely to a
particular point in time) as of such date as though made on
and as of such date;
(b) no Default or Event of Default has occurred and is
continuing;
(c) the proceeds of the Committed Borrowing[s] hereby
requested are being or will be used in accordance with
Section 8.01 of the Credit Agreement; and
sf-709114
[(d) [If Tranche A Loans are requested: The sum of the
aggregate principal amount of (i) all Tranche A Loans
outstanding on the date of this request, after giving effect
to the Tranche A Loans requested hereby; plus (ii) the
aggregate principal amount of all Tranche A Bid Loans then
outstanding; plus (iii) the outstanding Tranche A L/C
Obligations, and giving effect to each payment and
prepayment to be made on the proposed Borrowing date, will
be $_________________, which amount does not exceed the
Aggregate Tranche A Commitments as of the Proposed Borrowing
Date.
[(e) [If the Tranche B Loans are requested: The sum of
the aggregate principal amount of (i) all Tranche B Loans
outstanding on the date of this request, after giving effect
to the Tranche B Loans requested hereby; plus (ii) the
aggregate principal amount of all Tranche B Bid Loans then
outstanding; (iii) plus the 1996 Facility Bid Loans then
outstanding; (iv) plus the outstanding Tranche ▇ ▇/C
Obligations, and giving effect to each payment and
prepayment to made on the proposed Borrowing date, will be
$_________________, which amount does not exceed the
Aggregate Tranche B Commitments as of the as of the Proposed
Borrowing Date.
The Company agrees that if prior to the time of the
Committed Borrowing requested hereby any matter certified to
herein by it will not be true and correct at such time as if then
made, it will immediately so notify the Agent. Except to the
extent, if any, that prior to the time of the Committed Borrowing
requested hereby the Agent shall receive written notice to the
contrary from the Company, each matter certified to herein shall
be deemed once again to be certified as true and correct at the
date of such Committed Borrowing as if then made.
Please wire transfer the proceeds of the Committed Borrowing
requested hereby to the accounts of the following Persons at the
financial institutions indicated respectively:
Amount to be Person to be Paid Name, Address, Etc.
Transferred Name Account No. of Transferee
$____________ ___________ ________
Attention:
$____________ ___________ ________
Attention:
$____________ ___________ ________
Attention:
Balance of ________
such Proceeds: The Attention:
Company
sf-709114 2
The Company has caused this Notice of Borrowing to be
executed and delivered, and the certification and warranties
contained herein to be made, by its duly authorized officer this
day of ____________________, ____.
GEORGIA-PACIFIC CORPORATION
By:
Title:
sf-709114 3
Exhibit 2.04(a)
to GP Credit Agreement
FORM OF COMPETITIVE BID REQUEST
Bank of America National Trust
and Savings Association
Agency Administrative Services #5596
Mail Code: CA 4-706-05-09
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Associate Agency Officer
Re: Georgia-Pacific Corporation Credit Agreement, dated as
of July 22, 1999
Ladies and Gentlemen:
This Competitive Bid Request is delivered to you pursuant to
Section 2.04(a) of the Credit Agreement, dated as of July 22,
1999 (together with all amendments, if any, from time to time
made thereto, the "Credit Agreement"), among GEORGIA-PACIFIC
CORPORATION, a Georgia corporation (the "Company"), the Lenders
party thereto, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, , as administrative agent (the "Agent"), COMMERZBANK
AG, NEW YORK BRANCH, as Documentation Agent, and THE CHASE
MANHATTAN BANK and CITIBANK, N.A., as Co-Syndication Agents.
Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the
Credit Agreement.
The Company hereby requests that the Lenders (or any of
them) furnish Competitive Bids for [Tranch A or Tranche B] Bid
Loan[s], subject to the terms of the Credit Agreement, as
follows:
(a) date of Bid Borrowing (which is a Business Day)
for the Bid Loan[s] that will result from the Competitive
Bids requested hereby: ____________, ____.
(b) maximum aggregate principal amount of Bid Loan[s]
that will result from the Competitive Bids requested hereby:
$_______________, which shall not [for a Tranche A Bid
Borrowing: exceed the Available Tranche A Commitments on the
date such Bid Borrowing[s] [is/are] to be made (after giving
effect to each payment and prepayment made on such
date)][for a Tranche B Bid Borrowing: exceed the Available
Tranche B Commitments on the date such Bid Borrowing[s]
[is/are] to be made (after giving effect to each payment and
prepayment made on such date)].
(c) The maturity date or dates for partial or complete
sf-709112
repayment of each Bid Loan resulting from the
Competitive Bids requested hereby (including, in
the case of each partial repayment, the amount to be
repaid).
Principal Amount Date of Complete Date[s] of Partial Amount[s] to be
Repayment Repayment Repaid
(d) Type of Bid Loan[s] for which Competitive Bids
are requested: [Base Rate Bid Loans bearing interest
calculated on the basis of a year consisting of 360 days and
actual days elapsed and with [insert interest rate basis for
Base Rate Bid Loans]] [Fixed Rate Bid Loans].
(e) The following additional terms shall be applicable
to the Bid Loan[s] resulting from the Competitive Bids
requested hereby:
The Company hereby certifies that on the date the Bid
Borrowing resulting from the Competitive Bids requested
hereby is made (both before and after giving effect to the
making of such Bid Borrowing and after giving effect to the
application, directly or indirectly, of the proceeds
thereof):
(1) the representations and warranties contained
in Article 6 of the Credit Agreement are correct on and
(except for representations and warranties relating
solely to a particular point in time) as of such date
as though made on and as of such date;
(2) no Default or Event of Default has occurred
and is continuing;
(3) The sum of the aggregate principal amount of
[(i) all Tranche A Bid Loans outstanding on the date of
the Bid Borrowing[s] requested hereby, after giving
effect to the Tranche A Bid Loan[s] resulting from this
Competitive Bid Request; plus (ii) Tranche A Loans then
outstanding; plus (iii) the outstanding Tranche A L/C
Obligations, and giving effect to each payment and
prepayment to be made on such date, will be
$_________________, which amount does not exceed the
Aggregate Tranche A Commitments][[(i) all Tranche B Bid
Loans outstanding on the date of the Bid Borrowing[s]
requested hereby, after giving effect to the Tranche B
Bid Loan[s] resulting from this Competitive Bid Request;
plus (ii) Tranche B Loans then outstanding; plus (iii)
the aggregate principal amount of all 1996 Facility Bid
Loans then outstanding; plus (iv) the outstanding
Tranche ▇ ▇/C Obligations, and giving effect to each
payment and prepayment to be made on such date, will be
$_________________, which amount does not exceed the
Aggregate Tranche B Commitments];
No such date may occur after the Tranche A Termination
Date or the Tranche B Termination Date, as applicable.
Such additional terms may include terms similar to
Section 2.08 of the Credit Agreement and terms specifying
prepayment rights of the Company.
sf-709112 2
The Company agrees that if prior to the time of the Bid
Borrowing requested hereby any matter certified to herein by it
will not be true and correct at such time as if then made, it
will immediately so notify the Agent. Except to the extent, if
any, that prior to the time of the Bid Borrowing requested hereby
the Agent shall receive written notice to the contrary from the
Company, each matter certified to herein shall be deemed once
again to be certified as true and correct at the date of such Bid
Borrowing as if then made.
[Wire transfer instructions with respect to the Bid
Borrowing requested hereby will be furnished at the time the
Company accepts any Competitive Bids.] Please wire transfer the
proceeds of the Bid Borrowing requested hereby to the accounts of
the following Persons at the financial institutions indicated
respectively:
financial institutions indicated respectively:
Amount to be Person to be Paid Name, Address, Etc.
Transferred Name Account No. of Transferee
$____________ ___________ ________
Attention:
$____________ ___________ ________
Attention:
$____________ ___________ ________
Attention:
Balance of ________
such Proceeds: The Company Attention:
The Company has caused this Competitive Bid Request to be
executed and delivered, and the certification and warranties
contained herein to be made, by its duly authorized officer this
day of ____________, _____.
GEORGIA-PACIFIC CORPORATION
By:
Title:
sf-709112 3
Exhibit 2.05(b)
to GP Credit Agreement
FORM OF PROMISSORY NOTE
([Tranche A/Tranche B] Loans)
$_________________ _______________, ____
For value received, on [ ], 200[ ], the undersigned promises
to pay to the order of
(the "Lender") at the office of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION (the "Agent"), specified
in the Credit Agreement referred to below, $____________ or, if
less, the aggregate unpaid principal amount of all [Tranche
A/Tranche B] Loans made by the Lender to the undersigned pursuant
to the Credit Agreement (as defined below), as shown in the
schedule attached hereto (and any continuation thereof).
The undersigned also promises to pay interest on the unpaid
principal amount hereof from time to time outstanding from the
date hereof until maturity (whether by acceleration or otherwise)
and, after maturity, until paid, at the rates per annum and on
the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in
lawful money of the United States of America and in immediately
available funds.
This Promissory Note is one of the promissory notes
evidencing [Tranche A/Tranche B] Loans described in, and is
subject to the terms and provisions of, the Credit Agreement,
dated as of July 22, 1999 among GEORGIA-PACIFIC CORPORATION,
certain financial institutions (including the Lender) party
thereto, the Agent, COMMERZBANK AG, NEW YORK BRANCH, as
Documentation Agent, and THE CHASE MANHATTAN BANK and CITIBANK,
N.A., as Co-Syndication Agents (as from time to time amended,
modified, or supplemented, the "Credit Agreement"). Reference is
hereby made to the Credit Agreement for a statement of the
prepayment rights and obligations of the undersigned, the
guaranty of this Promissory Note, and the terms and conditions
under which the due date of this Promissory Note may be
accelerated.
This Promissory Note may only be assigned as provided in the
Credit Agreement.
The undersigned promises to pay all costs of collection,
including reasonable attorney's fees, incurred in the collection
of this Promissory Note.
The undersigned hereby waives presentment for payment,
demand, protest, and notice of dishonor.
sf-709086 1
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
GEORGIA-PACIFIC CORPORATION
By:_______________________________
Title:_____________________________
sf-709086 2
LOANS AND PRINCIPAL PAYMENTS
Amount of Loan Made Amount of Principal Repaid Unpaid Principal Balance
Date Reference Eurodollar Interest Reference Eurodollar Total Eurodollar Made by
Rate Loan Loan Period (if Rate Loan Loan Made by
Applicable)
sf-709086 3
Exhibit 2.05(c)
to GP Credit Agreement
FORM OF PROMISSORY NOTE
(Tranche A/Tranche B Bid Loans)
$_________________ _______________, ____
For value received, on ________________, _____, the
undersigned
promises to pay to the order of
(the "Lender") in lawful
money of the United States and in immediately available funds the
principal amount of $___________________ and interest thereon at
the rate of ____% per annum, as well after as before maturity, at
the Lender's office specified in the Credit Agreement referred to
below. Interest will be computed on the basis of a year of 360
days and actual days elapsed.
This Promissory Note is one of the promissory notes
evidencing [Tranch A/Tranche B] Bid Loans described in, and is
subject to the terms and provisions of, the Credit Agreement
dated as of July 22, 1999 among GEORGIA-PACIFIC CORPORATION,
certain banks (including the Lender) party thereto, the Agent,
COMMERZBANK AG, NEW YORK BRANCH, as Documentation Agent, and THE
CHASE MANHATTAN BANK and CITIBANK, N.A., as Co-Syndication Agents
(as from time to time amended, modified, or supplemented, the
"Credit Agreement"). Reference is hereby made to the Credit
Agreement for a statement of the prepayment rights and
obligations of the undersigned, the guaranty of this Promissory
Note and the terms and conditions under which the due date of
this Promissory Note may be accelerated. The undersigned
promises to pay all costs of collection, including reasonable
attorney's fees, incurred in the collection of this Promissory
Note.
The undersigned hereby waives presentment for payment,
demand, protest, and notice of dishonor.
This Promissory Note may only be assigned as provided in the
Credit Agreement.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
GEORGIA-PACIFIC CORPORATION
By: ________________________________
Title:_______________________________
sf-709086 4
Exhibit 2.11(b)
to GP Credit Agreement
FORM OF NOTICE OF CONVERSION/CONTINUATION
Bank of America National Trust
and Savings Association
Agency Administrative Services #5596
Mail Code: CA 4-706-05-09
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Associate Agency Officer
Re: Georgia-Pacific Corporation Credit Agreement,
dated as of July 22, 1999
Ladies and Gentlemen:
This Notice of Conversion/Continuation is delivered to you
pursuant to Section 2.11(b) of the Credit Agreement, dated as of
July 22, 1999 (together with all amendments, if any, from time to
time made thereto, the "Credit Agreement"), among GEORGIA-PACIFIC
CORPORATION, a Georgia corporation (the "Company"), the Lenders
party thereto, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as administrative agent (the "Agent"), COMMERZBANK
AG, NEW YORK BRANCH, as Documentation Agent, and THE CHASE
MANHATTAN BANK and CITIBANK, N.A., as Co-Syndication Agents.
Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the
Credit Agreement.
The Company hereby requests that on ______________, ____,
(1) $__________ of the presently outstanding principal
amount of the [Tranche A/Tranche B] Committed Loans originally
made on __________, ____ ;
(2) all presently being maintained as [Reference Rate
Loans] [Eurodollar Loans];
(3) be [converted into] [continued as];
(4) [Eurodollar Loans having an Interest Period of
_________ months] [Reference Rate Loans].
The Company has caused this Notice of
Conversion/Continuation to be executed and delivered by its duly
authorized officer this __ day of _____________, ____.
GEORGIA-PACIFIC CORPORATION
By:
Title:
Select appropriate interest rate option.
sf-709120
[Execution Copy]
SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (the "Guaranty"), dated as of July
22, 1999, is made by NORTH AMERICAN TIMBER CORP., a Delaware
corporation; UNISOURCE WORLDWIDE, INC., a Delaware corporation;
GREAT NORTHERN NEKOOSA CORPORATION, a Maine corporation;
BRUNSWICK PULP & PAPER COMPANY, a Delaware corporation; GEORGIA-
PACIFIC WEST, INC., an Oregon corporation; G-P GYPSUM
CORPORATION, a Delaware corporation; LEAF RIVER FOREST PRODUCTS,
INC., a Delaware corporation; NEKOOSA PACKAGING CORPORATION, a
Delaware corporation; and NEKOOSA PAPERS INC., a Wisconsin
corporation (collectively, the "Guarantors" and, individually, a
"Guarantor"), in favor of BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, a national banking association, as
administrative agent (in such capacity, the "Agent") for each of
the Lenders (as defined below).
RECITALS:
A. Pursuant to the Credit Agreement, dated as of July 22, 1999
(together with all amendments, supplements, and other
modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), among Georgia-Pacific
Corporation, a Georgia corporation ("Georgia-Pacific") as
borrower, the various commercial lending and other financial
institutions (individually, a "Lender" and, collectively,
the "Lenders") as are, or may from time to time become,
party thereto, the Agent, Commerzbank AG, New York Branch,
as Documentation Agent, and The Chase Manhattan Bank and
Citibank, N.A. as Co-Syndication Agents, the Lenders have
extended commitments (the "Commitments") to make loans (the
"Loans") to Georgia-Pacific, and to extend other financial
accommodations to or for the account of Georgia-Pacific,
which Loans and other financial accommodations are to be
unconditionally guaranteed by each Principal Subsidiary
of Georgia-Pacific (which Principal Subsidiaries are the
Guarantors hereunder).
B. As a condition precedent to the initial Loan under the
Credit Agreement, each Guarantor is required to execute and
deliver this Guaranty.
C. Each Guarantor has duly authorized the execution, delivery,
and performance of this Guaranty.
D. It is in the best interests of each Guarantor to execute
this Guaranty inasmuch as such Guarantor will derive
substantial direct and indirect benefits from the Loans made
to Georgia-Pacific by the Lenders under the Credit
Agreement.
NOW THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, and in order to induce
the Lenders to make Loans (including the initial Loans) to
sf-709121
Georgia-Pacific pursuant to the Credit Agreement, each Guarantor
agrees, for the benefit of each Lender, as follows:
ARTICLE 13
DEFINITIONS
Unless otherwise defined herein or the context otherwise
requires, terms used in this Guaranty, including its preamble and
recitals, have the meanings provided in the Credit Agreement.
ARTICLE 14
GUARANTY PROVISIONS
14.01 Guaranty.
Each Guarantor, jointly and severally, hereby absolutely,
unconditionally, and irrevocably:
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration,
acceleration, demand, or otherwise, of all Obligations of
Georgia-Pacific and each other Loan Party (other than such
Guarantor) now or hereafter existing under the Credit Agreement
and each other Loan Document to which it is or may become a
party, whether for principal, interest, fees, expenses, or
otherwise (including all such amounts which would become due but
for the operation of the automatic stay under Section 362(a) of
the United States Bankruptcy Code, 11 U.S.C. 362(a)), and the
operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. 502(b) and 506(b)); and
(b) indemnifies and holds harmless the Agent and each
Lender for any and all out-of-pocket costs and expenses (including
the out-of-pocket expenses and reasonable fees of counsel and the
allocated cost of in-house counsel retained by the Agent or such
Lender) incurred by the Agent or such Lender in preserving and
enforcing any rights under this Guaranty;
provided, however, that each Guarantor shall be liable under this
Guaranty for the maximum amount of such liability that can
be hereby incurred without rendering this Guaranty, as it
relates to such Guarantor, voidable under applicable law
relating to fraudulent obligations, fraudulent conveyance,
or fraudulent transfer, and not for any greater amount.
This Guaranty constitutes a guaranty of payment when due and
not of collection or of performance, and each Guarantor
specifically agrees that it shall not be necessary or
required that the Agent or any Lender exercise any right,
assert any claim or demand, or enforce any remedy whatsoever
against Georgia-Pacific, any other Loan Party, or any other
Person before or as a condition to the obligations of each
Guarantor hereunder.
14.02 Acceleration of Guaranty.
Subject to the proviso of Section 2.1, each Guarantor agrees
that, in the event of the occurrence and continuance of an Event
of Default and the acceleration of the Obligations in accordance
with the terms of the Credit Agreement, each Guarantor will pay
to the Agent and the Lenders forthwith the full amount of the
Obligations.
sf-709121 2
14.03 Guaranty Absolute, etc.
This Guaranty shall in all respects be a continuing,
absolute, unconditional, and irrevocable guaranty of payment, and
shall remain in full force and effect until all Obligations of
Georgia-Pacific and each other Loan Party have been paid in cash
in full, and all Commitments shall have terminated. Each
Guarantor guarantees that the Obligations of Georgia-Pacific and
each other Loan Party will be paid strictly in accordance with
the terms of the Credit Agreement and each other Loan Document
under which they arise, regardless of any law, regulation, or
order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of the Agent or any Lender with
respect thereto. The liability of each Guarantor under this
Guaranty shall be absolute, unconditional, and irrevocable
irrespective of:
(a) any lack of validity, legality, or enforceability of the
Credit Agreement or any other Loan Document;
(b) the failure of the Agent or any Lender:
(i) to assert any claim or demand or to enforce any right or
remedy against Georgia-Pacific, any other Loan Party, or any
other Person (including any other guarantor) under the provisions
of the Credit Agreement, any other Loan Document, or otherwise;
or
(ii) to exercise any right or remedy against any other
guarantor of, or any collateral securing, any Obligations of
Georgia-Pacific or any other Loan Party;
(c) any change in the time, manner, or place of payment of, or
in any other term of, all or any of the Obligations of
Georgia-Pacific or any other Loan Party, or any other extension,
compromise, or renewal of any Obligations of Georgia-Pacific or
any other Loan Party;
(d) any reduction, limitation, impairment, or termination of the
Obligations of Georgia-Pacific or any other Loan Party for any
reason, including any claim of waiver, release, surrender,
alteration, or compromise, and shall not be subject to (and each
Guarantor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment, or termination whatsoever by
reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event
or occurrence affecting, the Obligations of Georgia-Pacific or
any other Loan Party or otherwise;
(e) any amendment to, rescission, waiver, or other modification
of, or any consent to departure from, any of the terms of the
Credit Agreement or any other Loan Document;
(f) any addition, exchange, release, surrender, or
non-perfection of any collateral, or any amendment to or waiver
or release or addition of, or consent to departure from, any
other guaranty, held by the Agent or any Lender securing any of
the Obligations of Georgia-Pacific or any other Loan Party; or
sf-709121 3
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of,
Georgia-Pacific, any other Loan Party, any surety, or any
guarantor.
14.04 Reinstatement, etc.
Each Guarantor agrees that this Guaranty shall continue to
be effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by the Agent or any
Lender, upon the insolvency, bankruptcy, or reorganization of
Georgia-Pacific, any other Loan Party, or otherwise, all as
though such payment had not been made.
14.05 Waiver, etc.
Each Guarantor hereby waives promptness, diligence, notice
of acceptance, and any other notice with respect to any of the
Obligations of Georgia-Pacific or any other Loan Party and this
Guaranty and any requirement that the Agent or any Lender
protect, secure, perfect, or insure any security interest or
lien, or any property subject thereto, or exhaust any right or
take any action against Georgia-Pacific, any other Loan Party, or
any other Person (including any other guarantor) or any
collateral securing the Obligations of Georgia-Pacific or any
other Loan Party, as the case may be.
14.06 Subordination.
Until such time as the Guaranteed Obligations have been paid
and performed in full and the period of time has expired during
which any payment made by Georgia-Pacific, a Guarantor, or any
other guarantor of the Guaranteed Obligations to Agent may be
subsequently invalidated, declared to be fraudulent or
preferential, set aside, or required to be repaid by Agent or
paid over to a trustee, receiver, or any other entity, whether
under any bankruptcy act or otherwise (any such payment being
hereinafter referred to as a "Preferential Payment"), any claim
or other rights which any Guarantor may now have or hereafter
acquire against Georgia-Pacific or such other guarantor that
arises from the existence or performance of any Guarantor's
obligations under this Guaranty or any other agreement (all such
claims and rights being hereinafter referred to as "Guarantor's
Conditional Rights"), including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, or
indemnification, any right to participate in any claim or remedy
of Agent or such other guarantor or any collateral which Agent
now has or hereafter acquires, whether or not such claim, remedy
or right arises in equity or under contract, statute, or common
law, by any payment made hereunder or otherwise, including,
without limitation, the right to take or receive from Georgia-
Pacific or such other guarantor, directly or indirectly, in cash
or other property or by setoff or in any other manner, payment,
or security on account of such claim or other rights, shall be
subordinate to Agent's right to full payment and performance of
the Guaranteed Obligations, and each Guarantor shall not enforce
Guarantor's Conditional Rights until such time as the Guaranteed
Obligations have been paid and performed in full and the period
of time has expired during which any payment made by Georgia-
Pacific or a Guarantor to Agent may be determined to be a
Preferential Payment.
14.07 Successors, Transferees and Assigns; Transfers of
Loans, etc. This Guaranty shall:
sf-709121 4
(a) be binding upon each Guarantor, and its successors,
transferees, and assigns; and
(b) inure to the benefit of and be enforceable by the Agent and
each Lender.
Without limiting the generality of subsection (b), any Lender may
assign or otherwise transfer (in whole or in part) any Loan
held by it to any other Person, and such other Person shall
thereupon become vested with all rights and benefits in
respect thereof granted to such Lender under any Loan
Document (including this Guaranty) or otherwise, subject,
however, to any contrary provisions in such assignment or
transfer, and to the provisions of Section 12.08 and Article
11 of the Credit Agreement.
14.08 Payments Free and Clear of Taxes, etc.
Each Guarantor hereby agrees that:
(a) Subject to paragraph (e) below, any and all payments made by
each Guarantor hereunder to or for the account of the Agent or
any Lender (other than on account of a Bid Loan, except to the
extent otherwise specified as being applicable to any such Bid
Loan) shall be made in accordance with Section 3.03 of the Credit
Agreement free and clear of, and without deduction or withholding
for, any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with
respect thereto, excluding (i) such taxes (including income taxes
or franchise taxes or branch profit taxes) as are imposed on or
measured by the Agent's or such Lender's net income and (ii) such
taxes as are imposed by a jurisdiction other than the United
States of America or any political subdivision thereof and that
would not have been imposed but for the existence of a connection
between the Agent or such Lender and the jurisdiction imposing
such taxes (other than a connection arising principally by reason
of the Credit Agreement or this Guaranty) (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings, and
liabilities being hereinafter referred to as "Taxes"). If any
Guarantor shall be required by law to deduct or withhold any
Taxes from or in respect of any sum payable hereunder to the
Agent or any Lender:
(i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 2.8) the Agent or such Lender receives an amount equal to
the sum it would have received had no such deductions been made;
(ii) such Guarantor shall make such deductions; and
(iii) such Guarantor shall pay the full amount deducted
to the relevant taxation authority or other governmental
authority in accordance with applicable law.
(b) Each Guarantor shall pay any present or future stamp or
documentary taxes or any other sales, excise, or property taxes,
charges, or similar levies which arise from any payment made
hereunder or from the execution, delivery,
sf-709121 5
or registration of, or otherwise with respect to, this
Guaranty (other than on account of a Bid Loan, except to the
extent otherwise specified as being applicable to such Bid
Loan) (hereinafter referred to as "Other Taxes")
(c) Subject to subsection (e) below, each Guarantor, jointly and
severally, hereby indemnifies and holds harmless the Agent and
each Lender for the full amount of Taxes or Other Taxes
(including any Taxes or Other Taxes imposed by any jurisdiction
on amounts payable under this Section 2.6) paid by the Agent or
such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or
not such Taxes or Other Taxes were correctly or legally asserted;
provided, however, that the Agent and each Lender agree to
contest in good faith any Taxes or Other Taxes that the Agent or
such Lender, in its sole discretion, believes have been
incorrectly asserted. A certificate as to the amount demanded by
the Agent or any Lender, or the Agent on behalf of any Lender,
absent manifest error, shall be binding and conclusive.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes, each Guarantor shall furnish to the Agent the
original or a certified copy of a receipt evidencing payment
thereof or other evidence of payment reasonably satisfactory to
the Agent.
(e) Each Lender shall, promptly upon the request of any
Guarantor to that effect, deliver to the Agent and such Guarantor
such accurate and complete forms or similar documentation as may
be required from time to time by any applicable law, treaty, rule
or regulation in order to establish (if appropriate) such
Lender's tax status for withholding purposes or may otherwise be
appropriate to eliminate or minimize any Taxes on payments under
this Guaranty. The provisions of Sections 3.05(f), (g), (h), and
(i) of the Credit Agreement are hereby incorporated by reference
into this Guaranty as if fully stated herein, except that each
reference to the "Company" contained therein shall be deemed to
be a reference to the "Guarantors" for purposes of this Guaranty.
(f) Without prejudice to the survival of any other agreement of
each Guarantor hereunder, the agreements and obligations of each
Guarantor contained in this Section 2.8 shall survive the payment
in full of the principal of and interest on the Loans.
ARTICLE 15
REPRESENTATIONS AND WARRANTIES
15.01 Representations and Warranties.
Each Guarantor hereby makes each of the representations and
warranties made by Georgia-Pacific in the Credit Agreement, to
the extent that any such representation or warranty made by
Georgia-Pacific in the Credit Agreement shall be applicable to
such Guarantor, its Subsidiaries, or any of its or their
properties.
sf-709121 6
ARTICLE 16
COVENANTS, ETC.
16.01 Affirmative Covenants.
Each Guarantor covenants and agrees that, so long as any
portion of the Obligations shall remain unpaid or any Lender
shall have any outstanding Commitment, such Guarantor will,
unless the Required Lenders shall otherwise consent in writing,
duly keep, perform, and observe for the benefit of the Agent and
the Lenders each and every covenant set forth in Article 8 of the
Credit Agreement to the extent that any such covenant shall be
applicable to such Guarantor, any of its Subsidiaries, or any of
its or their properties (all of which covenants, together with
related definitions and ancillary provisions, are hereby
incorporated herein by reference as if such terms were set forth
herein in full), without regard to any termination of the Credit
Agreement.
16.02 Negative Covenants.
Each Guarantor covenants and agrees that, so long as any
portion of the Obligations shall remain unpaid or any Lender
shall have any outstanding Commitment, such Guarantor will,
unless the Required Lenders shall otherwise consent in writing,
duly keep, perform, and observe for the benefit of the Agent and
the Lenders each and every covenant set forth in Article 9 of the
Credit Agreement to the extent that any such covenant shall be
applicable to such Guarantor, any of its Subsidiaries, or any of
its or their properties (all of which covenants, together with
related definitions and ancillary provisions, are hereby
incorporated herein by reference as if such terms were set forth
herein in full), without regard to any termination of the Credit
Agreement.
ARTICLE 17
MISCELLANEOUS PROVISIONS
17.01 Loan Document.
This Guaranty is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with
the terms and provisions thereof, including, without limitation,
Article 12 of the Credit Agreement.
17.02 Binding on Successors, Transferees and Assigns;
Assignment.
In addition to, and not in limitation of, Section 2.7, this
Guaranty shall be binding upon each Guarantor and its successors,
transferees, and assigns and shall inure to the benefit of and be
enforceable by the Agent, each Lender, and their respective
successors, transferees, and assigns (to the full extent provided
pursuant to Section 2.7); provided, however, that no Guarantor
may assign any of its obligations hereunder.
17.03 Amendment, etc.
No amendment to or waiver of any provision of this Guaranty,
nor consent to any departure by any Guarantor herefrom, shall in
any event be effective unless the same shall be in writing and
signed by the Guarantors, the Agent and consented to by the
Required Lenders (or, as provided in Section 12.02(e) of the
Credit Agreement, all Lenders), and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given.
17.04 Addresses for Notices to each Guarantor.
All notices and other communications hereunder to any
Guarantor shall be in writing (including by facsimile) and mailed
sf-709121 7
by overnight delivery, transmitted by facsimile, or delivered to
it, addressed to it at the address set forth below its signature
hereto or at such other address as shall be designated by such
Guarantor in a written notice to the Agent at the address
specified in the Credit Agreement complying as to delivery with
the terms of this Section 5.4. All such notices and other
communications shall be effective, if transmitted by facsimile
when transmitted or, if mailed by overnight delivery or
delivered, upon delivery, addressed as aforesaid
17.05 No Waiver; Remedies.
In addition to, and not in limitation of, Sections 2.3 and
2.5, no failure on the part of the Agent or any Lender to
exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
17.06 Section Captions.
Section captions used in this Guaranty are for convenience
of reference only, and shall not affect the construction of this
Guaranty.
17.07 Setoff.
In addition to, and not limitation of, any rights of the
Agent or any Lender under applicable law, the Agent and each
Lender shall, upon the occurrence and during the continuance of
any Event of Default, have the right to appropriate and apply to
the payment of the obligations of each Guarantor owing to it
hereunder, whether or not then due, any and all balances,
credits, deposits, accounts or moneys of such Guarantor then or
thereafter maintained with the Agent or such Lender; provided,
however, that any such appropriation and application shall be
subject to the provisions of Section 3.06 of the Credit
Agreement. Each Lender agrees promptly to notify the relevant
Guarantor after any such setoff and application made by such
party; provided, however, that the failure to give such notice
shall not affect the validity of such setoff and application.
The rights of the Agent and each Lender under this Section 5.7
are in addition to any other right or remedy (including any other
right of set off) which the Agent or such Lender may have.
17.08 Severability.
Wherever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
17.09 Governing Law, etc.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THIS GUARANTY
AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE AGREEMENT AND
UNDERSTANDING AMONG THE PARTIES TO THE LOAN DOCUMENTS WITH
RESPECT TO THE SUBJECT MATTER THEREOF AND SUPERSEDE ALL PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO, EXCEPT FOR THE
FEE LETTER AND ANY PRIOR ARRANGEMENT MADE WITH RESPECT TO THE
PAYMENT BY ANY LENDER OF (OR ANY INDEMNIFICATION FOR) ANY FEES,
COSTS OR EXPENSES PAYABLE TO OR INCURRED (OR TO BE INCURRED) BY
OR ON BEHALF OF THE AGENT OR ANY LENDER.
sf-709121 8
17.10 Waiver of Jury Trial.
EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY EAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH, THIS GUARANTY. EACH GUARANTOR ACKNOWLEDGES
AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE LENDERS ENTERING INTO THE CREDIT AGREEMENT.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty
to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
NORTH AMERICAN TIMBER CORP.
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
UNISOURCE WORLDWIDE, INC.
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
GREAT NORTHERN NEKOOSA CORPORATION
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BRUNSWICK PULP & PAPER COMPANY
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
GEORGIA-PACIFIC WEST, INC.
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
G-P GYPSUM CORPORATION
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
LEAF RIVER FOREST PRODUCTS, INC.
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
NEKOOSA PACKAGING CORPORATION
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
NEKOOSA PAPERS INC.
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Exhibit 7.01(d)
to GP Credit Agreement
FORM OF OPINION OF COUNSEL FOR THE COMPANY
[Letterhead of Counsel for the Company]
July 22, 1999
To each of the Lenders
party to the Credit Agreement
hereinafter referred to and
to Bank of America National
Trust and Savings Association, as Agent
Re: Georgia-Pacific Corporation Credit Agreement
dated as of July 22, 1999
Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section
7.01(d) of the Credit Agreement, dated as of July 22, 1999 (the
"Credit Agreement"), among GEORGIA-PACIFIC CORPORATION, a Georgia
corporation, as borrower (the "Company"), the Lenders party
thereto (collectively, the "Lenders"), BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as administrative agent (in such
capacity, the "Agent") for the Lenders thereunder, COMMERZBANK
AG, NEW YORK BRANCH, as Documentation Agent, and THE CHASE
MANHATTAN BANK and CITIBANK, N.A., as Co-Syndication Agents.
Unless otherwise defined herein, capitalized terms used herein
shall have the meanings assigned to such terms in the Credit
Agreement.
I am Vice President and Secretary of the Company and, as
such, I have acted as counsel to (a) the Company and (b) each
Principal Subsidiary (the Principal Subsidiaries together with
the Company being called herein, collectively, the "Loan Parties"
and, individually, a "Loan Party") in connection with the
negotiation, execution, and delivery of the Credit Agreement and
the Subsidiary Guaranty.
In so acting as such counsel, I have examined, or caused to
be examined, the following:
(a) the promissory notes delivered at the Closing;
(b) the Credit Agreement; and
(c) the Subsidiary Guaranty and the Parent Guaranty
(collectively, the "Loan Documents").
sf-709119
I have also examined, or caused to be examined, originals or
copies of originals, certified or otherwise identified to my
satisfaction, of such corporate records, agreements, documents,
instruments, certificates, and other statements of public and
governmental officials and corporate officers and other
representatives of the Loan Parties and have made such inquiries
of such corporate officers and other representatives, as I have
deemed relevant and necessary as a basis for the opinions
hereinafter set forth.
For purposes of the examination of the documents referred to
above, I have assumed the genuineness of all signatures (except
those on behalf of the Loan Parties), the authenticity of all
documents submitted to me as originals, and the conformity to
originals of all documents submitted to me as certified or
photostatic copies, which facts I have not independently
verified. As to all questions of fact material to this opinion
which have not been independently verified by me, I have relied
upon the representations and warranties of the Loan Parties
contained in the Loan Documents and other documents and
certificates related to these transactions.
I have assumed the due execution and delivery, pursuant to
due authorization, of each of the Loan Documents by all of the
parties thereto, other than any Loan Party, and that the Loan
Documents are enforceable against such other parties in
accordance with their respective terms.
I have further assumed that the Lenders and the Agent will
act in good faith and will seek to enforce their rights and
remedies under the Loan Documents in a commercially reasonable
manner.
Based upon the foregoing and subject to the qualifications
set forth herein, I am of the opinion that:
1. Each of the Loan Parties:
(a) is a corporation validly existing and in good
standing under the laws of the jurisdiction of its
incorporation;
(b) is duly qualified as a foreign corporation and in
good standing under the laws of each jurisdiction in which
the character of the properties owned or held under lease by
it or the nature of the business transacted by it requires
such qualification except where the failure to be so
qualified is not likely to have a Material Adverse Effect;
and
(c) has all requisite corporate power and authority to
own, pledge, mortgage, hold under lease, and operate its
properties and to conduct its business as now or currently
proposed to be conducted.
2. The execution, delivery, and performance by each Loan
Party of the Loan Documents to which such Loan Party is a party:
(a) are within the respective corporate powers of such
Loan Party;
(b) have been, or prior to such execution will have been, duly
authorized by all necessary corporate action, including the
consent of its shareholders where required; and
sf-709119 2
(c) do not:
(i) contravene the articles or certificate of
incorporation or by-laws of such Loan Party;
(ii) to the best of my knowledge after due
inquiry, violate any existing law or regulation of the
United States, of the States of Georgia, New York, or
the general corporation law of the State of Delaware
which, to my knowledge, is applicable, or any order,
decree, or other determination of an arbitrator or a
court or other governmental agency applicable to or
binding upon any Loan Party or any of its property or
to which such Loan Party or any of its property is
subject;
(iii) to the best of my knowledge after due
inquiry, conflict with or result in the breach of, or
constitute a default under, any Contractual Obligation
of such Loan Party, except for such conflicts,
breaches, or defaults which are not likely to have a
Material Adverse Effect;
(iv) to the best of my knowledge after due
inquiry, result in the creation or imposition of any
Lien upon any of the property of such Loan Party, other
than if the Obligations or certain other Indebtedness
of the Company is to be secured by certain Liens, for
Permitted Liens required to be created pursuant to
Section 9.01 of the Credit Agreement; or
(v) to the best of my knowledge after due
inquiry, require, as of the date hereof, the consent
of, authorization by, approval of or notice to, or
prior filing or registration with, any United States,
Georgia, or New York governmental agency.
3. The Loan Documents to which any Loan Party is a party
have been duly executed and delivered by such Loan Party. The
Loan Documents are the legal, valid, and binding obligations of
each Loan Party which is a party thereto, enforceable against
each such Loan Party in accordance with their respective terms.
4. To the best of my knowledge after due inquiry, there
are no pending or overtly threatened actions or proceedings
affecting the Company, any Principal Subsidiary or any Restricted
Subsidiary before any court or other Governmental Authority or
any arbitrator that is likely to have a Material Adverse Effect.
5. To the best of my knowledge after due inquiry, the
Company has no Subsidiaries other than the Subsidiaries of the
Company listed in Schedule 6.07 to the Credit Agreement.
The foregoing opinions are subject to the following
qualifications:
(a) My opinion as to enforceability is subject to the
effect of any applicable bankruptcy, insolvency,
reorganization, moratorium, or similar law affecting
creditors' rights generally.
(b) My opinion as to enforceability is also subject to
the effect of general principles of equity, including
concepts of materiality, reasonableness, good faith, and
fair
sf-709119 3
dealing (regardless of whether considered in a proceeding in
equity or at law). Pursuant to such equitable principles,
Section 2.3 of the Subsidiary Guaranty and the Parent
Guaranty, which provides that the liability of the Principal
Subsidiaries or Parent thereunder shall not be affected by
changes in or amendments to the agreements and documents
referred to in such Section, might be enforceable only to
the extent that such changes or amendments were not so
material as to constitute a new contract among the parties.
(c) My opinion as to enforceability is also subject to
the effect of limitations on enforceability of rights to
indemnification or contribution under the Loan Documents by
federal or state securities laws or regulations or public
policy relative thereto.
(d) My opinion as to enforceability is also subject to
the qualifications that certain provisions of the Loan
Documents are or may be unenforceable in whole or in part
under the laws of the State of New York, but the inclusion
of such provisions does not affect the validity of any of
the Loan Documents, and each of the Loan Documents contains
adequate provisions for enforcing payment of the obligations
of the Loan Parties (to the extent that any Loan Party is a
party thereto) thereunder and for the practical realization
of the rights and benefits afforded thereby, except for the
economic consequences resulting from any delay imposed by,
or any procedure required by, applicable New York laws,
rules, regulations and court decisions and by constitutional
requirements in and out of the State of New York.
(e) I express no opinion as to the enforceability of
the provisions of the last sentence of Section 12.08(d) of
the Credit Agreement (insofar as it pertains to Section
12.06 of the Credit Agreement), as to the proviso in Section
2.1 of the Subsidiary Guaranty or as to the proviso in the
first sentence of Section 5.7 of the Subsidiary Guaranty, or
to Section 2.1 of the Parent Guaranty.
(f) I express no opinion as to the enforceability of
any provision in the Loan Documents purporting to preserve
and maintain the liability of any party thereto despite the
fact that the guaranteed debt is unenforceable due to
illegality or the fact that the Lenders had voluntarily
released the primary obligor's liability on the guaranteed
debt.
(g) I express no opinion as to the applicability (and,
if applicable, the effect) of Section 548 of the Bankruptcy
Code, or any comparable provisions of state or foreign law,
to, or on, the Loan Documents.
(h) I express no opinion as to those provisions of the
Loan Documents purporting to waive the right to a jury
trial.
My opinions relate only to the laws of the States of New
York and Georgia, the general corporation laws of the State of
Delaware, and the Federal laws of the United States; and I do not
express any opinion with respect to the laws of any other
jurisdiction. This opinion letter is furnished to you by me as
counsel to the Loan Parties and is solely for your benefit and
for the benefit of each Lender and each Assignee, and may not be
quoted or relied upon by any other Person without my prior
written consent.
sf-709119 4
I am a member of the bar of the States of New Jersey and New
York and do not hold myself out to be an expert on the laws of
any other State, including the State of Wisconsin. In rendering
the foregoing opinion, I have relied as to matters of Georgia
law, insofar as such law affects the opinions expressed above,
upon an opinion of even date herewith addressed to me by an
attorney in the Law Department of the Company licensed to
practice law in the State of Georgia, which opinion contains no
qualifications or assumptions (other than those which limit such
opinions solely to matters of Georgia law) not contained in this
opinion. The opinion from the attorney in the Law Department of
the Company is satisfactory in form and scope to me and I believe
that I am justified in relying on such opinion as to the matters
covered thereby.
Very truly yours,
sf-709119 5
[Execution Copy]
CONTRIBUTION AGREEMENT
This Contribution Agreement ("Agreement") is entered into as
of July 22, 1999 by and among GEORGIA-PACIFIC CORPORATION, a
Georgia corporation (the "Parent"), NORTH AMERICAN TIMBER CORP.,
a Delaware corporation ("NAT"), UNISOURCE WORLDWIDE, INC., a
Delaware corporation, GREAT NORTHERN NEKOOSA CORPORATION, a Maine
corporation; BRUNSWICK PULP & PAPER COMPANY, a Delaware
corporation; GEORGIA-PACIFIC WEST, INC., an Oregon corporation; G-
P GYPSUM CORPORATION, a Delaware corporation; LEAF RIVER FOREST
PRODUCTS, INC., a Delaware corporation; NEKOOSA PACKAGING
CORPORATION, a Delaware corporation, NEKOOSA PAPERS INC., a
Wisconsin corporation, and such other Persons that may hereafter
become a party hereto pursuant to Section 3.1 (collectively,
including NAT but excluding the Parent, the "Contributing
Subsidiaries").
Recitals
A. Parent, certain financial institutions which are or may
become parties thereto (the "Lenders"), Bank of America National
Trust and Savings Association, as administrative agent (the
"Parent Agent"), Commerzbank AG, New York Branch, as
Documentation Agent, and The Chase Manhattan Bank and Citibank,
N.A., as Co-Syndication Agents have entered into a Credit
Agreement, dated as of the date hereof (together with all
amendments from time to time made thereto, the "Parent Credit
Agreement"). Pursuant to the Parent Credit Agreement, the
Lenders have agreed to provide credit facilities to the Parent in
the aggregate amount of up to $1,000,000,000.
B. NAT, the Lenders, the Agent, Bank of America National
Trust and Savings Association, as administrative agent (the "NAT
Agent"), Commerzbank AG, New York Branch, as Documentation Agent,
and The Chase Manhattan Bank and Citibank, N.A., as Co-
Syndication Agents have also entered into a Credit Agreement,
dated as of the date hereof (together with all amendments, if
any, from time to time made thereto, the "NAT Credit Agreement"
and, together with the Parent Credit Agreement, the "Credit
Agreements"). Pursuant to the NAT Credit Agreement, the Lenders
have agreed to provide credit facilities to NAT in the aggregate
amount of up to $1,000,000,000.
E. Each of the Principal Subsidiaries (as defined in the
Parent Credit Agreement) is a direct or indirect beneficiary of
the credit facilities provided pursuant to the Parent Credit
Agreement, and each Person hereafter becoming a Principal
Subsidiary (as defined in the NAT Credit Agreement) will be a
direct or indirect beneficiary of the credit facilities provided
pursuant to the NAT Credit Agreement. Accordingly, each
Principal Subsidiary (as defined in the Parent Credit Agreement)
has entered into, and each Person becoming such a Principal
Subsidiary hereafter is obligated to enter into, the Subsidiary
sf-715802 1
Guaranty of even date herewith (as defined in the Parent Credit
Agreement) (the "Parent Subsidiary Guaranty"), and each Person
hereafter becoming a Principal Subsidiary (as defined in the NAT
Credit Agreement) is obligated to enter into the Subsidiary
Guaranty of even date herewith (as defined in the NAT Credit
Agreement) (the "NAT Subsidiary Guaranty" and, together with the
Parent Subsidiary Guaranty, the "Guaranties").
G. Because of the joint and several nature of the
Guaranties and the transactions contemplated by the Credit
Agreements, any of the Principal Subsidiaries may be called upon
or required to pay an amount in respect of such obligations which
is greater than the benefit actually received by such
Contributing Subsidiary as the result of the apportionment and
distribution of the Group Commitment loan proceeds, and so the
Parent desires to provide for rights of reimbursement and
contribution among the Parent on behalf of itself and its
Principal Subsidiaries in such event.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual promises of the parties hereto, the parties hereto hereby
agree as follows:
ARTICLE 18
REIMBURSEMENT AND CONTRIBUTION
18.01 Reimbursement and Contribution. The Parent hereby
agrees that, if a Contributing Subsidiary shall be called upon
and required to pay amounts (or suffer the loss of its collateral
pledged to secure amounts) in respect of the joint and several
obligations of the Principal Subsidiaries under either of the
Guaranties which exceed the aggregate benefit actually received
by such Contributing Subsidiary (the "Paying Subsidiary") as the
result of apportionment and distribution of the proceeds of the
Credit Agreements, then such Paying Subsidiary shall be entitled
to contribution and reimbursement from the Parent and the other
Principal Subsidiaries, and the Parent shall pay and contribute,
or shall cause one or more of the other Principal Subsidiaries to
pay and contribute, to such Paying Subsidiary and reimburse it
for an amount equal to the amount by which the amount such Paying
Subsidiary is actually called upon to pay exceeds the aggregate
benefit actually received by such Paying Subsidiary as the result
of the apportionment and distribution of the proceeds of the
Credit Agreements.
ARTICLE 19
REPRESENTATIONS AND WARRANTIES
19.01 Representations and Warranties. As of the date hereof
(in the case of Contributing Subsidiaries initially executing
this Agreement) and as of the date of execution and delivery
hereof (in the case of Contributing Signatories becoming a party
hereto pursuant to Section 3.1), each Contributing Subsidiary
hereby makes each of the representations and warranties made by
the Parent and, in the case of Principal Subsidiaries as defined
in the NAT Credit Agreement, NAT in the
sf-715802 2
Credit Agreements, to the extent that any such representation or
warranty made by the Parent or NAT in the Credit Agreements shall
be applicable to such Contributing Subsidiary, its Subsidiaries,
or any of its or their properties.
ARTICLE 20
ADDITIONAL SIGNATORIES
20.01 Additional Signatories. As required by the terms of
the Credit Agreements, Principal Subsidiaries as defined in
either Credit Agreement may from time to time hereafter become
parties hereto by executing and delivering to the NAT Agent and
the Parent Agent a signature page to this Agreement attached to a
photocopy of this Agreement as previously executed.
ARTICLE 21
MISCELLANEOUS PROVISIONS
21.01 Loan Document.
This Agreement is a Loan Document for purposes of both of
the Credit Agreements and shall (unless otherwise expressly
indicated herein) be construed, administered, and applied in
accordance with the terms and provisions thereof, including,
without limitation, Article 12 of the Parent Credit Agreement.
21.02 Binding on Successors, Transferees, and Assigns;
Assignment.
This Agreement shall be binding upon the Parent, each
Contributing Subsidiary and their respective successors,
transferees, and assigns and shall inure to the benefit of and be
enforceable by the Parent, each Contributing Subsidiary, the NAT
Agent, the Parent Agent, each Lender, and their respective
successors, transferees, and assigns; provided, however, that
neither the Parent nor any Contributing Subsidiary may assign any
of its obligations hereunder.
21.03 Amendment, etc.
No amendment to or waiver of any provision of this
Agreement, nor consent to any departure by the Parent or any
Contributing Subsidiary herefrom, shall in any event be effective
unless the same shall be in writing and signed by the NAT Agent,
the Parent Agent, and authorized by the Required Lenders as
defined in each Credit Agreement, and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given.
21.04 No Waiver; Remedies.
No failure on the part of the NAT Agent, the Parent Agent,
or any Lender to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
21.05 Section Captions.
Section captions used in this Agreement are for convenience
of reference only, and shall not affect the construction of this
Agreement.
sf-715802 3
21.06 Severability.
Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
21.07 Governing Law, etc.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE AGREEMENT AND
UNDERSTANDING AMONG THE PARTIES TO THE LOAN DOCUMENTS WITH
RESPECT TO THE SUBJECT MATTER THEREOF AND SUPERSEDE ALL PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO, EXCEPT FOR THE
FEE LETTER AND ANY PRIOR ARRANGEMENT MADE WITH RESPECT TO THE
PAYMENT BY ANY LENDER OF (OR ANY INDEMNIFICATION FOR) ANY FEES,
COSTS, OR EXPENSES PAYABLE TO OR INCURRED (OR TO BE INCURRED) BY
OR ON BEHALF OF THE AGENT OR ANY LENDER.
21.08 Waiver of Jury Trial.
EACH CONTRIBUTING SUBSIDIARY HEREBY KNOWINGLY, VOLUNTARILY,
AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY EAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT. EACH
CONTRIBUTING SUBSIDIARY ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS
ENTERING INTO THE CREDIT AGREEMENTS.
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
sf-715802 4
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the date set forth above.
GEORGIA-PACIFIC CORPORATION
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
NORTH AMERICAN TIMBER CORP.
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
UNISOURCE WORLDWIDE, INC.
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
GREAT NORTHERN NEKOOSA CORPORATION
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BRUNSWICK PULP & PAPER COMPANY
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
GEORGIA-PACIFIC WEST, INC.
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
G-P GYPSUM CORPORATION
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
LEAF RIVER FOREST PRODUCTS, INC.
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
NEKOOSA PACKAGING CORPORATION
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
NEKOOSA PAPERS INC.
By: ______________________________
Title:
Address: c/o Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer's Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Exhibit 7.02(d)
to GP Credit Agreement
FORM OF OFFICER'S CLOSING CERTIFICATE
July ___, 1999
To each of the Lenders party
to the Credit Agreement
hereinafter referred to and to
Bank of America National Trust
and Savings Association, as Agent
Re: Georgia-Pacific Corporation Credit Agreement
dated as of July 22, 1999
This Certificate is delivered to you pursuant to Section
7.02(d) of the Credit Agreement, dated as of July 22, 1999 (the
"Credit Agreement"), among GEORGIA-PACIFIC CORPORATION, a Georgia
corporation (the "Company"), the Lenders party thereto, BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
administrative agent (the "Agent"), COMMERZBANK AG, NEW YORK
BRANCH, as Documentation Agent, and THE CHASE MANHATTAN BANK and
CITIBANK, N.A., as Co-Syndication Agents. Unless otherwise
defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Credit Agreement.
The undersigned hereby certifies to each Lender and the
Agent as follows:
1. I hold, and at all pertinent times mentioned herein
have held, the position listed below my name below. I have read
and am familiar with the Credit Agreement and the other Loan
Documents, and I am familiar with the transactions contemplated
thereunder. I am authorized to execute and deliver this
Certificate on behalf of the Company.
2. The conditions precedent to the initial Borrowing
contained in Section 7.02 of the Credit Agreement have been and
remain satisfied in full as of the date hereof.
3. The representations and warranties contained in
Article 6 of the Credit Agreement are correct.
4. I understand that you are relying on this Certificate
in connection with the extensions of credit being made to or for
the account of the Company Pursuant to the Credit Agreement.
IN WITNESS WHEREOF, the undersigned, on behalf of the
Company, has caused this Certificate to be executed this ___ of
July, 1999.
GEORGIA-PACIFIC CORPORATION
By:
Title:
sf-709118
Exhibit 8.09(c)
to GP Credit Agreement
FORM OF COMPLIANCE CERTIFICATE
[ Date ]
Bank of America National Trust
and Savings Association, as Agent
Paper & Forest Products #9973
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ -- ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇, Managing Director
Re: Georgia-Pacific Corporation Credit Agreement
dated as of July 22, 1999
Ladies and Gentlemen:
This Compliance Certificate is delivered to you pursuant to
Section 8.09(c) of the Credit Agreement, dated as of July 22,
1999 (together with all amendments, if any, from time to time
made thereto, the "Credit Agreement"), among GEORGIA-PACIFIC
CORPORATION, a Georgia corporation (the "Company"), the Lenders
party thereto, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as administrative agent (the "Agent"), COMMERZBANK
AG, NEW YORK BRANCH, as Documentation Agent, and THE CHASE
MANHATTAN BANK and CITIBANK, N.A., as Co-Syndication Agents.
Unless otherwise defined herein or the context otherwise
requires, terms used herein (including the attachments hereto)
have the meanings provided in the Credit Agreement.
The Company hereby certifies and warrants that, as of the
dates set forth below:
(a) on _____________, ____ (the "Computation
Date"), the Leverage Ratio (as defined in Attachment A
hereto) for the Company and its consolidated Subsidiaries
was _____ to 1.0, as computed on Attachment A hereto;
(b) as of each of the Computation Date and the date
hereof, no Default or Event of Default has occurred and is
continuing; and
The last day of the most recently ended fiscal quarter
of the Company.
sf-709116
(c) as of the date hereof, there are no pending or, to
the knowledge of the Company, threatened, actions or
proceedings affecting the Company, any Principal Subsidiary
or any Restricted Subsidiary before any court or other
Governmental Authority or any arbitrator that are reasonably
likely to have a Material Adverse Effect.
The undersigned Responsible Officer of the Company executing
this Certificate on behalf of the Company is, and at all
pertinent times mentioned herein has been, the Chief Financial
Officer of the Company and in such capacity has been responsible
for the management of the financial affairs of the Company and
the preparation of financial statements of the Company and its
Subsidiaries on a consolidated basis.
IN WITNESS WHEREOF, the Company has caused this
Certificate to be executed and delivered, and the certification
and warranties contained herein to be made, this _____ day
of____________, ____.
GEORGIA-PACIFIC CORPORATION
By:
Title:
sf-709116 2
ATTACHMENT A
to GP Compliance Certificate
LEVERAGE RATIO
ON __________, ____
[Computation Date]
Item Measurement
All of the foregoing computed
for the Company and its
consolidated Subsidiaries
1. Indebtedness for Borrowed Money $_____________
outstanding as of the
Computation Date
2. aggregate capital invested by $_____________
Persons other than the Company
and its Restricted Subsidiaries
in receivables and other
accounts sold to such Persons by
the Company and its Restricted
Subsidiaries as of the
Computation Date, excluding
receivables and other accounts
sold in connection with the sale
of a business or the assets
and/or operations generating
such receivables and other
accounts
3. sum of Item 1 and Item 2 (Funded $_____________
Indebtedness)
4. net income or (or net loss) $_____________
during the Measurement Period
ending on the Computation Date
By necessity, the computations described in this
Compliance Certificate are less detailed than those contained in
the Credit Agreement. In the event of any conflict between the
two, the terms of the Credit Agreement shall in all instances
prevail.
sf-709116
5. all amounts treated as expenses $_____________
for depreciation, interest and
the non-cash amortization of
intangibles of any kind to the
extent included in the
determination of such net income
(or loss)
6. cost of timber sold by North $_____________
American Timber Corp. (to the
extent constituting depletion)
for such Measurement Period to
the extent included in the
determination of such net income
(or loss) computed without
giving effect to extraordinary
cash gains or non-recurring, non-
cash items.
7. all accrued taxes on or measured $_____________
by income to the extent included
8. in the determination of such net $______________
income (or loss)
Item 4, plus Item 5, plus Item
6, plus Item 7 (EBITDA)
9. ratio of Item 3 to Item 8 (the ______ to 1.0
"Leverage Ratio")
sf-709116 2
Exhibit 12.08(b)
to GP Credit Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Georgia-Pacific Corporation)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of
_________________, ____, is made by [NAME OF ASSIGNOR], a
___________________ (the "Assignor"), to [NAME OF ASSIGNEE], a
________________ ("Assignee").
RECITALS:
A. The Assignor has entered into a Credit Agreement dated as of
July 22, 1999 (together with all amendments, if any, from
time to time made thereto, the "Credit Agreement"), among
GEORGIA-PACIFIC CORPORATION, a Georgia corporation (the
"Company"), the Lenders party thereto, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as administrative
agent (the "Agent"), COMMERZBANK AG, NEW YORK BRANCH, as
Documentation Agent, and THE CHASE MANHATTAN BANK and
CITIBANK, N.A., as Co-Syndication Agents. Unless otherwise
defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Credit Agreement.
B. Pursuant to the Credit Agreement, the Assignor has, as of
the date hereof, a Tranche A Commitment of $___________ and
a Tranche B Commitment of $___________ (collectively, the
"Commitments").
C. The outstanding principal balance on this date of Assignor's
Tranche A Committed Loans is $__________, and the
outstanding principal balance on this date of Assignor's
Tranche B Committed Loans is $__________.
D. [The Assignor has acquired a participation in the Issuing
Bank's liability under Tranche A Letters of Credit in an
aggregate principal amount of $_____________ and under
Tranche B Letters of Credit in an aggregate principal amount
of $_____________ (the "L/C Obligations")] or [No Letters of
Credit are outstanding.]
E. The Assignor wishes to assign to the Assignee [part][all] of
its rights and obligations under the Credit Agreement in
respect of its Commitments, [together with a corresponding
portion of its L/C Obligations,] in an amount equal to
$____________ , [unless the Tranche A Commitments have
expired or been terminated: representing an identical
percentage of the Assignor's Tranche A Commitment and
Tranche B Commitment] on the terms and subject to the
conditions set forth herein, and the Assignee wishes to
accept the assignment of such rights and assume such
obligations from the Assignor on such terms and subject to
such conditions.
NOW, THEREFORE, In consideration of the premises and the mutual
covenants contained herein, the Assignor and the Assignee hereby
covenant and agree as follows:
sf-709110
1. Assignment and Assumption.
(a) Subject to the terms and conditions of this
Agreement, the Assignor and the Assignee agree that the Assignor
hereby sells, transfers, and assigns to the Assignee, and the
Assignee hereby purchases, assumes, and undertakes from the
Assignor, without recourse and without representation or warranty
(except as provided in this Agreement, (i) ____% of the Tranche A
Commitments, the Tranche B Commitments, the Tranche A Committed
Loans, the Tranche B Committed Loans, [and the Tranche A L/C
Obligations and Tranche ▇ ▇/C Obligations] of the Assignor
("Assignee's Percentage Share") (such assigned Commitments
representing ___% of the aggregate Commitments of all Lenders);
and (ii) all related rights, benefits, obligations, liabilities
and indemnities under and in connection with the Credit Agreement
and each other Loan Document (other than any such rights,
benefits, obligations, liabilities, or indemnities with respect
to any Bid Loan or 1996 Facility Bid Loan made by the Assignor),
including the right to receive payments of principal of and
interest on the Assignor's Committed Loans and L/C Obligations
hereby assigned, and the obligation to fund future Committed
Loans and L/C Commitments in respect of such assignment, and to
indemnify the Agent or any other party under the Credit Agreement
and to pay all other amounts payable by a Lender (in respect of
the Commitments and L/C Obligations assigned hereunder) under or
in connection with the Credit Agreement (other than any such
amounts payable in respect of a Bid Loan or a 1996 Facility Bid
Loan). After giving effect to the foregoing assignments, the
Tranche A Commitment of the Assignee shall be $___________, the
Tranche B Commitment of the Assignee shall be $___________, the
Tranche A Commitment of the Assignor shall be $____________, and
the Tranche B Commitment of the Assignor shall be $____________.
[If appropriate, add paragraph specifying payment to Assignor by
Assignee of outstanding principal of, accrued interest on, and
fees with respect to, Committed Loans or L/C Obligations
assigned.]
(b) With effect on or after the Effective Date (as
defined herein), the Assignee shall be a party to the Credit
Agreement and succeed to all the rights and be obligated to
perform all of the obligations of a Lender under the Credit
Agreement, with Commitments in the amount assigned hereunder.
The Assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender. It is
the intent of the parties that the Commitments of the Assignor
shall be reduced by an amount equal to Assignee's Percentage
Share thereof and the the Assignor shall reliquish its rights and
be released from its obligations under the Credit Agreement to
the extent such obligations have been assumed by the Assignee.
2. Payments.
(a)As consideration for the sale, assignment, and transfer
contemplated in Section 1, the Assignee shall pay to the Assignor
on the Effective Date in immediately available funds an amount
equal to $____________, representing the Assignee's Percentage
Share of the principal amount of all Committed Loans previously
made to the Company by the Assignor under the Credit Agreement
and outstanding on the Effective Date.
(b)The [Assignor/Assignee] further agrees to pay to the
Agent the processing fee referred to in the amount specified in
Section 12.08(b) of the Credit Agreement.
sf-709110 2
3. Reallocation of Payments. The Assignor shall notify
the Agent and the Company to make all payments with respect to
the Commitments, Loans, and L/C Obligations assigned hereunder
after the Effective Date directly to the Assignee, as its
interest may appear. The Assignor and the Assignee agree and
acknowledge that all payments of interest, commitment fees,
utilization fees, facility fees, utilization fees, and letter of
credit fees accrued up to, but not including, the Effective Date
are the property of the Assignor, and not the Assignee. The
Assignee shall, upon receipt by the Assignee of any interest,
commitment fees, utilization fees, or facility fees remit to the
Assignor all of such interest, commitment fees, utilization fees,
and facility fees accrued up to, but not including, the Effective
Date. The Assignor shall, upon receipt by the Assignor of any
interest, commitment fees, utilization fees, facility fees, and
letter of credit fees remit to the Assignee all of such interest,
commitment fees, utilization fees, facility fees, and letter of
credit fees accrued for any period from and after the Effective
Date. The Assignor shall promptly notify the Assignee of any
notices received by the Assignor in connection with the Credit
Agreement affecting or relating to the rights and obligations
assigned hereunder.
4. Independent Credit Decision. The Assignee
(a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with
copies of the most recent financial statements referred to in
Section 8.09 of the Credit Agreement, and such other documents
and information as it has deemed appropriate to make its own
credit and legal analysis and decision to enter into this
Agreement; and (b) agrees that it will, independently and without
reliance upon the Assignor, the Agent, or any other Lender and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit and
legal decisions in taking or not taking action under the Credit
Agreement.
5. Effective Date; Notices. As between the Assignor and
the Assignee, the effective date for this Agreement shall be
, ____ (the "Effective Date");
provided that the following conditions precedent have been
satisfied on or before the Effective Date:
(a)this Agreement shall be executed and delivered by the
Assignor and the Assignee;
(b)the consent of the Company, the Agent, and the Issuing
Bank required for an effective assignment of the Commitment and
outstanding Committed Loans assigned hereunder by the Assignor to
the Assignee under Section 12.08(a) of the Credit Agreement, if
any, shall have been duly obtained and shall be in full force and
effect as of the Effective Date;
(c)the Assignee shall pay to the Assignor all amounts due
to the Assignor under this Agreement;
(d)the Assignee shall have complied with Section 4.05(f)
of the Credit Agreement (if applicable);
(e)the processing fee referred to above and in Section
12.08(b) of the Credit Agreement shall have been paid by
[Assignor/Assignee] to the Agent; and
sf-709110 3
(f)Promptly following the execution of this Agreement, the
Assignor shall deliver to the Company and the Agent for
acknowledgment by the Agent, a Notice of Assignment in the form
attached hereto as Attachment A.
6. Agent. [Include only if Assignor is Agent:
(a)The Assignee hereby appoints and authorizes the
Assignor to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated
to the Agent by the Lenders pursuant to the terms of the Credit
Agreement.
(b)The Assignee shall assume no duties or obligations held
by the Assignor in its capacity as Agent under the Credit
Agreement.]
7. Withholding Tax. The Assignee agrees to comply with
Section 4.05(f) of the Credit Agreement (if applicable).
8. Representations and Warranties.
(a)The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any lien,
security interest, or other adverse claim; (ii) it is duly
organized and existing and it has the full power and authority to
take, and has taken, all action necessary to execute and deliver
this Agreement and any other documents required or permitted to
be executed or delivered by it in connection with herewith and to
fulfill its obligations hereunder; (iii) no notices to, or
consents, authorizations, or approvals of, any Person are
required (other than any already given or obtained) for its due
execution, delivery, and performance of this Agreement, and apart
from any agreements or undertakings or filings required by the
Credit Agreement, no further action by, or notice to, or filing
with, any person is required of it for such execution, delivery,
or performance; and (iv) this Agreement has been duly executed
and delivered by it and constitutes the legal, valid, and binding
obligation of the Assignor, enforceable against the Assignor in
accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization, and other
laws of general application relating to or affecting creditors'
rights and to general equitable principles.
(b)The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties, or representations made in or in connection with the
Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency, or value of the Credit
Agreement or any other instrument or document furnished pursuant
thereto. The Assignor makes no representation or warranty in
connection with, and assumes no responsibility with respect to,
the solvency, financial condition, or statements of the Company,
or the performance or observance by the Company, of any of its
respective obligations under the Credit Agreement or any other
instrument or document furnished in connection therewith.
(c)The Assignee represents and warrants that (i) it is
duly organized and existing and it has full power and authority
to take, and has taken, all action necessary to execute and
deliver this Agreement and any other documents required or
permitted to be executed or delivered by it in connection
herewith, and to fulfill its obligations hereunder; (ii) no
sf-709110 4
notices to, or consents, authorizations, or approvals of, any
Person are required (other than any already given or obtained)
for its due execution, delivery, and performance of this
Agreement; and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by,
or notice to, or filing with, any person is required of it for
such execution, delivery, or performance; (iii) this Agreement
has been duly executed and delivered by it and constitutes the
legal, valid, and binding obligation of the Assignee, enforceable
against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization, and other laws of general application
relating to or affecting creditors' rights and to general
equitable principles; and (iv) it is an Eligible Assignee.
9. Further Assurances. The Assignor and the Assignee each
hereby agrees to execute and deliver such other instruments, and
take such other action, as either party may reasonably request in
connection with the transactions contemplated by this Agreement,
including the delivery of any notices or other documents or
instruments to the Company or the Agent, which may be required in
connection with the assignment and assumption contemplated
hereby.
10. Miscellaneous.
(a)Any amendment or waiver of any provision of this
Agreement shall be in writing and signed by the parties hereto.
No failure or delay by either party hereto in exercising any
right, power, or privilege hereunder shall operate as a waiver
thereof and any waiver of any breach of the provisions of this
Agreement shall be without prejudice to any rights with respect
to any other or further breach thereof.
(b)All payments made hereunder shall be made without any
set-off or counterclaim.
(c)The Assignor and the Assignee shall each pay its own
costs and expenses incurred in connection with the negotiation,
preparation, execution, and performance of this Agreement.
(d)This Agreement may be executed in any number of
counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The
Assignor and the Assignee each irrevocably submits to the
non-exclusive jurisdiction of any New York State or Federal court
sitting in the City of New York over any suit, action or
proceeding arising out of or relating to this Agreement and
irrevocably agrees that all claims in respect of such suit,
action or proceeding may be heard and determined in such New York
State or Federal court, and each party to this Agreement hereby
irrevocably waives, to the fullest extent it may effectively do
so, the defense of an inconvenient forum to the maintenance of
such suit, Action or proceeding.
(f)THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, THE
CREDIT AGREEMENT, ANY RELATED DOCUMENTS AND AGREEMENTS, OR ANY
sf-709110 5
COURSE OF CONDUCT, COURSE OF DEALING, OR OTHER STATEMENTS
(WHETHER VERBAL OR WRITTEN).
[Other provisions to be added as may be negotiated between
the Assignor and the Assignee, provided that such provisions are
not inconsistent with the Credit Agreement.]
sf-709110 6
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed on their behalf by their duly authorized officers
as of the day and year first above written.
[ASSIGNOR]
Address:
____________________________ By: ____________________________
[Address of Assignor] _________________(print name)
Title: _________________________
[ASSIGNEE]
Address:
____________________________ By: ____________________________
[Address of Assignee] _________________(print name)
Title: _________________________
sf-709110 7
Attachment A to Exhibit 12.08(b)
Assignment and Assumption Agreement
FORM OF NOTICE OF ASSIGNMENT
To: Georgia-Pacific Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer's Department
To: Bank of America National Trust
and Savings Association, as Agent and Issuing Bank
Credit Products - Forest Products - SF #9973
Mail Code: CA5-705-41-01
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Managing Director
Re: Georgia-Pacific Corporation Credit Agreement,
dated as of July 22, 1999
Ladies and Gentlemen:
We refer to Section 12.08(b) of the Credit Agreement, dated
as of July 22, 1999 (together with all amendments, if any, from
time to time made thereto, the "Credit Agreement"), among GEORGIA-
PACIFIC CORPORATION, a Georgia corporation (the "Company"), the
Lenders party thereto, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as administrative agent (the "Agent"), COMMERZBANK
AG, NEW YORK BRANCH, as Documentation Agent, and THE CHASE
MANHATTAN BANK and CITIBANK, N.A., as Co-Syndication Agents.
Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the
Credit Agreement.
This Notice of Assignment is delivered to you pursuant to
Section 12.08(b) of the Credit Agreement and also constitutes
notice to each of you, pursuant to Section 12.08(b)(i) of the
Credit Agreement, of the assignment to ________________ (the
"Assignee") of [____%] of the Commitment and the Committed Loans
of ___________________________ (the "Assignor") outstanding under
the Credit Agreement on the date hereof, which assignment was
undertaken pursuant to an Assignment and Assumption Agreement,
duly executed and delivered by the Assignor and the Assignee on
_____________, _____. After giving effect to the foregoing
assignment, the Assignor's and the Assignee's Commitments for the
purposes of the Credit Agreement are set forth opposite such
Person's name on the signature pages hereof.
[If applicable: The Assignee hereby represents and warrants
sf-709110 8
to the Agent that it has obtained from the Company the prior
consent to the assignment required pursuant to Section 12.08(a).]
The Assignee hereby acknowledges and confirms that it has
received a copy of the Credit Agreement and the Schedules and
Exhibits thereto, together with copies of the documents which
were required to be delivered under the Credit Agreement as a
condition to the initial Borrowing thereunder. The Assignee
further confirms and agrees that in becoming a Lender and in
extending its Commitment and making its Committed Loans under the
Credit Agreement, such actions have and will be made without
recourse to, or representation or warranty by, the Agent.
Except as otherwise provided in the Credit Agreement,
effective as of the date contemplated by Section 12.08(b)(iii) of
the Credit Agreement for the effectiveness of the assignment
which is the subject of this Notice of Assignment (the "Effective
Date"):
(a) the Assignee
(i) shall be deemed automatically to have
become a party to the Credit Agreement, have all the
rights and obligations of a "Lender" under the Credit
Agreement and the other Loan Documents as if it were an
original signatory thereto to the extent specified in
the second paragraph hereof; and
(ii) agrees to be bound by the terms and
conditions set forth in the Credit Agreement and the
other Loan Documents as if it were an original
signatory thereto; and
(b) the Assignor shall be released from its
obligations under the Credit Agreement and the other Loan
Documents to the extent specified in the second paragraph
hereof.
The Assignor and the Assignee hereby agree that the
[Assignor] [Assignee] will pay to the Agent the processing fee
referred to in Section 12.08(b)(ii) of the Credit Agreement upon
the delivery hereof.
The Assignee hereby advises each of you of the following
administrative details with respect to the assigned Loans and
Commitments and requests the Agent to acknowledge receipt of this
document:
(A) Address for Notices:
Institution Name:
Attention:
Domestic Lending Office:
Telephone:
Facsimile:
sf-709110 9
Eurodollar Lending Office:
Telephone:
Facsimile:
(B) Payment Instructions:
The Assignee agrees to furnish to the Agent and the Company
on or before the Effective Date the tax form[s] required by
Section 4.05(f) (if so required) of the Credit Agreement.
This Notice of Assignment may be executed by the Assignor
and the Assignee in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same notice
and agreement.
Adjusted Tranche A Commitment: [ASSIGNOR]
By: __________________________
$__________________ Title: _______________________
Adjusted Tranche B Commitment:
$__________________
Tranche A Commitment: [ASSIGNEE]
By: __________________________
$_________________ Title: _______________________
Tranche B Commitment:
$_________________
sf-709110 10
ACCEPTED AND ACKNOWLEDGED
this _____ day of__________, ____
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent and Issuing Bank
By: __________________________
Title: _______________________
GEORGIA-PACIFIC CORPORATION
By: __________________________
Title: _______________________
sf-709110 11