BUCKEYE TECHNOLOGIES INC.
CREDIT AGREEMENT
Amendment No. 2
This Agreement, dated as of October 16, 2001 (this "Agreement"), is
among Buckeye Technologies Inc., a Delaware corporation, its subsidiaries set
forth on the signature pages hereto, and Fleet National Bank, as Agent for
itself and the other Lenders under the Credit Agreement referred to below. The
parties agree as follows:
1. Credit Agreement; Definitions. This Agreement amends the Credit
Agreement dated as of April 16, 2001 among the parties hereto and certain
lenders (as amended and in effect prior to giving effect to this Agreement, the
"Credit Agreement"). Terms defined in the Credit Agreement as amended hereby
(the "Amended Credit Agreement") and not otherwise defined herein are used with
the meaning so defined.
2. Amendment of Credit Agreement. Effective on the date all the
conditions set forth in Section 5 hereof are satisfied (the "Amendment Date"),
the Credit Agreement is amended as follows:
2.1. Amendment of Section 1. The definition of "Credit
Obligations" in Section 1 of the Credit Agreement is amended to read in
its entirety as follows:
""Credit Obligations" means (a) all present and
future liabilities, obligations and Indebtedness of the
Company, any of its Subsidiaries or any other Obligor owing to
the Agent or any Lender under or in connection with this
Agreement or any other Credit Document, including obligations
in respect of principal, interest, reimbursement obligations
under Letters of Credit and Hedge Agreements provided by a
Lender (or an Affiliate of a Lender), Irish Loans (subject to
the proviso hereto), commitment fees, Letter of Credit fees,
amounts provided for in Sections 3.2.4, 3.7 and 10 and other
fees, charges, indemnities and expenses from time to time
owing hereunder or under any other Credit Document (whether
accruing before or after a Bankruptcy Default and regardless
of whether allowed as a claim in bankruptcy or similar
proceedings) and (b) the liabilities and obligations of
Buckeye Mt. ▇▇▇▇▇ LLC pursuant to a Promissory Note dated
December 21, 2000 in the principal amount of $1,000,000
payable to Wachovia Bank, N.A.; provided, however, that the
aggregate principal amount of Irish Loans included in the
Credit Obligations at any one time outstanding shall not
exceed $25,000,000 in Irish Loan Equivalents."
2.2. Amendment of Section 2.1.2. Section 2.1.2 of the
Credit Agreement is amended to read in its entirety as follows:
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"2.1.2 Maximum Amount of Revolving Credit. The
term "Maximum Amount of Revolving Credit" means the lesser of:
(a)(i) $215,000,000 minus (ii) Net Asset Sale
Proceeds to the extent (A) such Net Asset Sale Proceeds exceed
both (1) $5,000,000 in any fiscal year and (2) $25,000,000 in
the aggregate after the Initial Closing Date and (B) the
amount of such excess in the foregoing clause (A) is not
allocated to an effective Permitted Reinvestment Reserve
Amount, minus (iii) Receivables Securitization Proceeds to the
extent such Receivables Securitization Proceeds exceed
$30,000,000 in the aggregate after the Initial Closing Date,
minus (iv) Net Equity Proceeds received at any time when
Consolidated Total Net Debt is greater than 350% of
Consolidated EBITDA for the most recent period of four
consecutive fiscal quarters for which financial reports have
been (or are required to have been) furnished to the Lenders
in accordance with Section 6.4.2; or
(b) the amount (in an integral multiple of
$1,000,000) to which the Maximum Amount of Revolving Credit
shall have been irrevocably reduced from time to time by
notice from the Company to the Agent."
2.3. Amendment to Section 6.7.16. Section 6.7.16 of the
Credit Agreement is amended by deleting the phrase "Buckeye Florida
Corporation" and replacing it with the phrase "Buckeye Florida, Limited
Partnership"
2.4. Amendment of Section 8.1.12. Section 8.1.12 of the
Credit Agreement is amended to read in its entirety as follows:
"8.1.12. On or before the earlier to occur of (a)
fourteen days after the closing of a Receivables
Securitization facility or (b) December 31, 2001, the Company
shall fail to provide the Lenders with a perfected security
interest in (i) Buckeye Lumberton Inc d/b/a Buckeye ▇▇▇▇▇▇'▇
real and personal property located in ▇▇▇▇▇▇, North Carolina,
(ii) Buckeye Mt. ▇▇▇▇▇ LLC's real and personal property
located in ▇▇▇▇▇▇, North Carolina, and (iii) the membership
interests in Buckeye Mt. ▇▇▇▇▇ LLC, all as more particularly
described in section 2.2.3 of the Security Agreement."
3. Amendment of Security Agreement. Effective on the Amendment
Date, the Security Agreement is amended as follows:
3.1. Amendment to Section 2.2.3. Section 2.2.3 of the
Security Agreement is amended to read in its entirety as follows:
"Mt. ▇▇▇▇▇ Property. The Agent's security interest in
(i) Buckeye Mt. ▇▇▇▇▇ LLC's real and personal property located
in ▇▇▇▇▇▇, North Carolina, and in the membership interests in
Buckeye Mt. ▇▇▇▇▇ LLC, and (ii) Buckeye Lumberton Inc. d/b/a
Buckeye ▇▇▇▇▇▇'▇ real and personal property located in ▇▇▇▇▇▇,
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North Carolia, will not be granted or perfected unless and
until the Company makes its scheduled note payment to
UPM-Kymmene in respect of the deferred purchase price for the
Walkisoft assets on or about December 31, 2001 or at such
earlier time as such note payment is made or as may be
permitted by UPM-Kymmene. On the Initial Closing Date Buckeye
Lumberton Inc. will execute for immediate filing appropriate
UCC financing statements that specifically exclude the pledge
of the Buckeye Mt. ▇▇▇▇▇ LLC membership interests to the
extent contemplated by this Section 2.2.3. On the Initial
Closing Date (i) Buckeye Mt. ▇▇▇▇▇ LLC will execute
appropriate UCC financing statements, a deed of trust for the
▇▇▇▇▇▇, North Carolina facility and a joinder to this
Agreement as an Obligor, and (ii) Buckeye Lumberton Inc. d/b/a
Buckeye ▇▇▇▇▇▇ will execute appropriate UCC financing
statements and a deed of trust for the ▇▇▇▇▇▇, North Carolina
facility, all to be placed in escrow with a title company
reasonably satisfactory to the Agent in accordance with an
escrow agreement reasonably satisfactory to the Agent. On the
Initial Closing Date Buckeye Lumberton Inc. will also execute
and deliver replacement UCC financing statements that do not
specifically exclude the pledge of the Buckeye Mt. ▇▇▇▇▇ LLC
membership interests, which replacement UCC financing
statements shall also be placed in escrow. The UCC financing
statements, deeds of trust and joinder will be released from
escrow to the Agent for filing and recording only after the
Company makes its scheduled note payment to UPM-Kymmene in
respect of the deferred purchase price for the Walkisoft
assets on or about Decmeber 31, 2001 or at such earlier time
as such note payment is made or as may be permitted by
UPM-Kymmene.
4. Representations and Warranties. In order to induce the Agent and the
documentation agents to enter into this Agreement, each of the Company and the
Guarantors jointly and severally represents and warrants that after giving
effect to this Agreement, (a) no Default exists and (b) the representations and
warranties contained in Section 7 of the Credit Agreement are true and correct
on and as of the date hereof with the same force and effect as though made on
and as of such date (except as to any representation or warranty which refers to
a specific earlier date).
5. Conditions to Effectiveness.
5.1. Proper Proceedings. This Agreement, each other Credit
Document and the transactions contemplated hereby and thereby shall have
been authorized by all necessary proceedings of the Company and the
Guarantors. All necessary consents, approvals and authorizations of any
governmental or administrative agency or any other Person with respect
to any of the transactions contemplated hereby or by any other Credit
Document shall have been obtained and shall be in full force and effect.
The Agent shall have received copies of all documents, including
acquisition agreements, certificates, records of corporate and
partnership proceedings and opinions of counsel, which the Agent may
have reasonably requested in connection therewith, such documents where
appropriate to be certified by proper corporate, partnership or
governmental authorities.
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6. General. The Amended Credit Agreement and all of the Credit Documents
are each confirmed as being in full force and effect. This Agreement, the
Amended Credit Agreement and the other Credit Documents referred to herein or
therein constitute the entire understanding of the parties with respect to the
subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral. Interest and fees under
the Credit Agreement shall be calculated for all periods as provided in the
Amended Credit Agreement. Each of this Agreement and the Amended Credit
Agreement is a Credit Document and may be executed in any number of
counterparts, which together shall constitute one instrument, and shall bind and
inure to the benefit of the parties and their respective successors and assigns,
including as such successors and assigns all holders of any Credit Obligation.
This Agreement shall be governed by and construed in accordance with the laws
(other than the conflict of law rules) of The Commonwealth of Massachusetts.
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
BUCKEYE TECHNOLOGIES INC.
BUCKEYE FLORIDA CORPORATION
BUCKEYE ▇▇▇▇▇ CORPORATION
BUCKEYE LUMBERTON INC.
BKI FINANCE CORPORATION
BKI INTERNATIONAL INC.
By:/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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As an authorized officer of each of the
foregoing corporations
BUCKEYE FLORIDA, LIMITED PARTNERSHIP
By Buckeye Florida Corporation, general partner
By: /S ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
BUCKEYE MT. ▇▇▇▇▇ LLC
By Buckeye Lumberton Inc., manager
By:/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
BKI ASSET MANAGEMENT CORPORATION
BKI HOLDING CORPORATION
By:/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
BKI LENDING INC.
By:/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
BFC I CORP.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
BFOL 1 CORP.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, President
BFC 2 LP
By: BFOL 1 Corp., its general partner
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, President
BFOL 2 LP
By: BFC I Corp., its general partner
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
BFC 3 LLC
By: BFOL 2 LP, its manager
By: BFC I Corp., its general partner
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
BFOL 3 LLC
By: BFC 2 LP, its manager
By: BFOL 1 Corp., its general partner
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, President
MERFIN SYSTEMS INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
FLEET NATIONAL BANK
By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Director
ABN AMRO BANK, N.V.
By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Group Vice President
By /S/ ▇▇▇▇ ▇. PSATORE
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Title: Assistant Vice President
BANK OF AMERICA, N.A.
By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By /S/ M. D. ▇▇▇▇▇
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Title: Agent
FIRST PIONEER FARM CREDIT, ACA
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
FIRST UNION NATIONAL BANK
By /S/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
FIRSTAR BANK, NATIONAL ASSOCIATION
By
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Title:
TORONTO DOMINION (TEXAS), INC.
By /S/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
UNION PLANTERS BANK, NA
By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Senior Vice President
WACHOVIA BANK, NA
By /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President