Exhibit 99.1
EXECUTION COPY
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CREDIT AGREEMENT
Dated as of December 23, 2005
among
LONGVIEW FIBRE COMPANY
and
LONGVIEW FIBRE PAPER AND PACKAGING, INC.
as Borrowers
Certain Subsidiaries of Longview Fibre Company from time to time party hereto
as Guarantors
THE LENDERS PARTY HERETO
and
BANK OF AMERICA, N.A.
as Administrative Agent, Swing Line Lender and L/C Issuer
BANC OF AMERICA SECURITIES LLC
as Joint Lead Arranger and Joint Book Manager
▇▇▇▇▇ FARGO BANK, N.A.
as Joint Lead Arranger, Joint Book Manager, and Co-Syndication Agent
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
as Joint Lead Arranger, Joint Book Manager, and Co-Syndication Agent
THE BANK OF NOVA SCOTIA
as Co-Documentation Agent
U.S. BANK NATIONAL ASSOCIATION
as Co-Documentation Agent
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TABLE OF CONTENTS
Section Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS........................................................................1
1.01 Defined Terms...............................................................................1
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1.02 Other Interpretive Provisions..............................................................29
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1.03 Accounting Terms...........................................................................30
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1.04 Rounding...................................................................................31
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1.05 References to Agreements and Laws..........................................................31
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1.06 Times of Day...............................................................................31
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1.07 Letter of Credit Amounts...................................................................31
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ARTICLE II COMMITMENTS AND CREDIT EXTENSIONS....................................................................32
2.01 Committed Loans............................................................................32
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2.02 Borrowings, Conversions and Continuations of Committed Loans...............................32
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2.03 Letters of Credit..........................................................................34
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2.04 Swing Line Loans...........................................................................43
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2.05 Prepayments................................................................................46
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2.06 Termination or Reduction of Commitments....................................................48
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2.07 Repayment of Loans.........................................................................49
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2.08 Interest...................................................................................49
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2.09 Fees.......................................................................................50
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2.10 Computation of Interest and Fees...........................................................50
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2.11 Evidence of Debt...........................................................................50
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2.12 Payments Generally.........................................................................51
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2.13 Sharing of Payments........................................................................53
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2.14 Joint and Several Liability of Borrowers...................................................54
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2.15 Appointment of the Company.................................................................55
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2.16 Increase in Commitments....................................................................56
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ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY...............................................................57
3.01 Taxes......................................................................................57
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3.02 Illegality.................................................................................58
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3.03 Inability to Determine Rates...............................................................58
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3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.....59
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3.05 Funding Losses.............................................................................60
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3.06 Mitigation Obligations; Replacement of Lenders.............................................60
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3.07 Matters Applicable to all Requests for Compensation........................................61
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3.08 Survival...................................................................................61
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ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.............................................................61
4.01 Conditions of Initial Credit Extension.....................................................61
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4.02 Conditions to all Credit Extensions........................................................64
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ARTICLE V REPRESENTATIONS AND WARRANTIES.........................................................................64
5.01 Existence, Qualification and Power; Compliance with Laws...................................65
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5.02 Authorization; No Contravention............................................................65
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5.03 Governmental Authorization; Other Consents.................................................65
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5.04 Binding Effect.............................................................................65
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5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event................66
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5.06 Litigation.................................................................................66
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5.07 No Default.................................................................................66
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5.08 Ownership of Property; Liens...............................................................67
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5.09 Environmental Compliance...................................................................67
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5.10 Insurance..................................................................................68
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5.11 Taxes......................................................................................68
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5.12 ERISA Compliance...........................................................................68
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5.13 Subsidiaries...............................................................................69
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5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.............69
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5.15 Disclosure.................................................................................69
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5.16 Compliance with Laws.......................................................................69
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5.17 Intellectual Property; Licenses, Etc.......................................................70
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5.18 Indebtedness...............................................................................70
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5.19 Purpose of Loans...........................................................................70
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5.20 Solvency...................................................................................70
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5.21 Investments................................................................................70
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5.22 No Burdensome Restrictions.................................................................70
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5.23 Brokers' Fees..............................................................................71
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5.24 Labor Matters..............................................................................71
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5.25 Collateral Documents.......................................................................71
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5.26 REIT Status................................................................................71
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ARTICLE VI AFFIRMATIVE COVENANTS.................................................................................71
6.01 Financial Statements.......................................................................71
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6.02 Certificates; Other Information............................................................72
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6.03 Notices....................................................................................74
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6.04 Payment of Obligations.....................................................................75
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6.05 Preservation of Existence, REIT Status, Etc...............................................75
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6.06 Maintenance of Properties; Management of Timberlands.......................................75
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6.07 Maintenance of Insurance...................................................................76
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6.08 Compliance with Laws.......................................................................76
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6.09 Books and Records..........................................................................76
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6.10 Inspection Rights..........................................................................77
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6.11 Use of Proceeds............................................................................77
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6.12 Performance of Obligations.................................................................77
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6.13 Guarantors.................................................................................77
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6.14 Pledged Collateral.........................................................................77
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6.15 Further Assurances.........................................................................78
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ARTICLE VII NEGATIVE COVENANTS...................................................................................79
7.01 Liens......................................................................................79
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7.02 Investments................................................................................81
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7.03 Subsidiary Indebtedness....................................................................83
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7.04 Fundamental Changes........................................................................84
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7.05 Dispositions...............................................................................84
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7.06 Restricted Payments........................................................................85
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7.07 Change in Nature of Business...............................................................85
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7.08 Transactions with Affiliates...............................................................85
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7.09 Burdensome Agreements......................................................................86
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7.10 Use of Proceeds............................................................................86
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7.11 Financial Covenants........................................................................87
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7.12 Fiscal Year; Organizational Documents......................................................88
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7.13 Ownership of Subsidiaries..................................................................88
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7.14 Sale Leasebacks............................................................................88
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7.15 No Further Negative Pledges................................................................88
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7.16 Operating Lease Obligations................................................................89
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7.17 Subsidiaries...............................................................................89
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7.18 Limitation on Actions with Respect to Other Indebtedness...................................89
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7.19 Certain Timberland Agreements..............................................................90
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ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES......................................................................90
8.01 Events of Default..........................................................................90
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8.02 Remedies Upon Event of Default.............................................................93
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8.03 Application of Funds.......................................................................93
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ARTICLE IX ADMINISTRATIVE AGENT..................................................................................94
9.01 Appointment and Authority..................................................................94
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9.02 Rights as a Lender.........................................................................94
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9.03 Exculpatory Provisions.....................................................................95
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9.04 Reliance by Administrative Agent...........................................................95
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9.05 Delegation of Duties.......................................................................96
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9.06 Resignation of Administrative Agent........................................................96
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9.07 Non-Reliance on Administrative Agent and Other Lenders.....................................97
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9.08 No Other Duties, Etc.......................................................................97
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9.09 Administrative Agent May File Proofs of Claim.............................................97
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9.10 Collateral and Guaranty Matters...........................................................98
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9.11 Fiduciary Duty.............................................................................99
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ARTICLE X MISCELLANEOUS..........................................................................................99
10.01 Amendments, Etc............................................................................99
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10.02 Notices; Effectiveness; Electronic Communication..........................................100
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10.03 No Waiver; Cumulative Remedies............................................................102
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10.04 Attorney Costs, Expenses and Taxes........................................................102
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10.05 Expenses; Indemnity; Damage Waiver........................................................103
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10.06 Payments Set Aside........................................................................105
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10.07 Successors and Assigns....................................................................105
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10.08 Confidentiality...........................................................................109
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10.09 Set-off...................................................................................110
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10.10 Interest Rate Limitation..................................................................111
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10.11 Counterparts; Integration; Effectiveness..................................................111
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10.12 Survival of Representations and Warranties................................................111
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10.13 Severability..............................................................................111
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10.14 Tax Forms.................................................................................112
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10.15 Replacement of Lenders....................................................................113
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10.16 Governing Law; Jurisdiction; Etc..........................................................114
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10.17 Waiver of Right to Trial by Jury..........................................................115
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10.18 USA Patriot Act Notice....................................................................115
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ARTICLE XI. GUARANTY............................................................................................115
11.01 The Guaranty..............................................................................115
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11.02 Obligations Unconditional.................................................................116
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11.03 Reinstatement.............................................................................117
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11.04 Certain Additional Waivers................................................................117
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11.05 Remedies..................................................................................117
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11.06 Rights of Contribution....................................................................117
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11.07 Guarantee of Payment; Continuing Guarantee................................................118
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iv
SCHEDULES
1.01 Existing Letters of Credit
2.01 Commitments and Applicable Percentages
5.03 Governmental Authorization; Other Consents
5.13 Subsidiaries and Other Equity Investments
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.08 Employee Termination Agreements
10.02 Administrative Agent's Office; Certain Addresses for Notices
10.07 Processing and Recordation Fees
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C-1 Revolving Note
C-2 Term Note
D Compliance Certificate
E Assignment and Assumption
F Joinder Agreement
G Collateral Value Report
H Timberland Mortgage
v
CREDIT AGREEMENT
This CREDIT AGREEMENT (as amended, modified, restated or supplemented
from time to time, the "Agreement") is entered into as of December 23, 2005
among LONGVIEW FIBRE COMPANY, a Washington corporation (the "Company"),
LONGVIEW FIBRE PAPER AND PACKAGING, INC., a Washington corporation ("TRS" and,
together with the Company, the "Borrowers"), certain Subsidiaries of the
Company from time to time party hereto, as Guarantors, each lender from time to
time party hereto (collectively, the "Lenders" and individually, a "Lender")
and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.
The Borrowers have requested that the Lenders provide senior credit
facilities in an aggregate principal amount of $400,000,000 for the purposes
hereinafter set forth, and the Lenders are willing to do so on the terms and
conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto covenant and
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.
As used in this Agreement, the following terms shall have the meanings
set forth below:
"Acquisition", by any Person, means the acquisition by such Person of
all of the Capital Stock or all or substantially all of the Property of another
Person or a division or business unit thereof, whether or not involving a
merger or consolidation with such other Person.
"Administrative Agent" means Bank of America in its capacity as
administrative agent and/or collateral agent under any of the Loan Documents,
or any successor administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify the Borrowers and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. Without
limiting the generality of the foregoing, a Person shall be deemed to be
Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 20% or more of the securities having ordinary voting
power for the election of directors, managing general partners or the
equivalent.
"Aggregate Commitments" means the Commitments of all the Lenders.
1
"Aggregate Revolving Commitments" means, from time to time, the
Revolving Commitments of all the Lenders. The initial amount of the Aggregate
Revolving Commitments of all of the Lenders as in effect on the Closing Date is
TWO HUNDRED MILLION DOLLARS ($200,000,000).
"Aggregate Term Loan Commitments" means, from time to time, the Term
Loan Commitments of all the Lenders. The aggregate principal amount of the Term
Loan Commitments of all of the Lenders as in effect on the Closing Date is TWO
HUNDRED MILLION DOLLARS ($200,000,000).
"Agreement" has the meaning set forth in the preamble hereto.
"Applicable Percentage" means with respect to any Lender at any time,
(a) with respect to such Lender's Revolving Commitment at any time, the
percentage (carried out to the ninth decimal place) of the Aggregate Revolving
Commitments represented by such Lender's Revolving Commitment at such time;
provided that if the commitment of each Lender to make Revolving Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02 or if the Aggregate Revolving Commitments have
expired, then the Applicable Percentage of each Lender shall be determined
based on the Applicable Percentage of such Lender most recently in effect,
giving effect to any subsequent assignments and (b) with respect to such
Lender's portion of the outstanding Term Loan at any time, the percentage
(carried out to the ninth decimal place) of the outstanding principal amount of
the Term Loan held by such Lender at such time. The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.
"Applicable Rate" means, from time to time, for the purposes of
calculating (a) the Commitment Fee for the purposes of Section 2.09(a), (b) the
Term Loan Ticking Fee for the purposes of Section 2.09(b), (c) the interest
rate applicable to Eurodollar Rate Loans for the purposes of Section 2.08, (d)
the interest rate applicable to Base Rate Loans for the purposes of Section
2.08 or (e) the Letter of Credit Fee for the purposes of Section 2.03(i), the
following percentages per annum, based upon the Funded Indebtedness to
Capitalization Ratio as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b):
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Applicable Rate
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Pricing Funded Applicable
Level Indebtedness to Commitment Rate for Letter of Applicable
Capitalization Ratio Fee/Ticking Eurodollar Credit Rate for Base
Fee Rate Loans Fee Rate Loans
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I <27.50% 0.150% 0.625% 0.625% 0.000%
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II =27.50% < 37.50% 0.200% 0.875% 0.875% 0.000%
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III =37.50% < 47.50% 0.250% 1.000% 1.000% 0.000%
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IV =47.50% < 55.00% 0.300% 1.250% 1.250% 0.250%
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V =55.00% 0.350% 1.500% 1.500% 0.500%
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Any increase or decrease in the Applicable Rate resulting from a
change in the Funded Indebtedness to Capitalization Ratio shall become
effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in
accordance with such Section, then Pricing Level V shall apply as of the first
Business Day after the date on which such Compliance Certificate was required
to have been delivered until such Compliance Certificate is actually delivered.
Notwithstanding the foregoing, with respect to each of the foregoing fees and
interest rates the Applicable Rate in effect from the Closing Date through the
first Business Day after the date on which the Borrowers deliver the required
financial statements and Compliance Certificate for the fiscal quarter ending
June 30, 2006 shall be no lower than the Applicable Rate determined based upon
Pricing Level IV.
"Application Period" means, in respect of any Asset Disposition, the
period of 360 days (or such earlier date on which an Event of Default shall
have occurred or as provided for reinvestment of the proceeds thereof under the
Senior Unsecured Note Indenture), following the consummation of such Asset
Disposition.
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arrangers" means a collective reference to each of Banc of America
Securities LLC, ▇▇▇▇▇ Fargo Bank, N.A., and ▇▇▇▇▇▇▇ Sachs Credit Partners L.P.
each in its capacity as joint lead arranger and joint book manager.
"Asset Disposition" means any disposition (including pursuant to a
Sale and Leaseback Transaction) of any or all of the Property (including
without limitation the Capital Stock of a Subsidiary) of any Consolidated Party
whether by sale, lease, licensing, transfer or otherwise, but other than
pursuant to any casualty or condemnation event; provided, however, the term
"Asset Disposition" shall be deemed to include any "Asset Sale" (or any
comparable term) under, and as defined in, the Senior Unsecured Note Indenture
or the documents evidencing or governing any Subordinated Indebtedness; and
provided, further, the term "Asset Disposition" shall not be deemed to include
(a) Equity Issuances, (b) a sale of inventory, electricity, timber or other
assets in the ordinary course of business or (c) a Section 1031 "like kind"
exchange.
"Asset Disposition Prepayment Event" means, with respect to any Asset
Disposition, the failure of the Borrowers to apply (or cause to be applied) the
Net Cash Proceeds of such Asset Disposition to Eligible Reinvestments during
the Application Period for such Asset Disposition to the extent such Net Cash
Proceeds exceed $15,000,000.
3
"Assignee Group" means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all
out-of-pocket expenses and disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear
on a balance sheet of such Person prepared as of such date in accordance with
GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized
amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP if such lease were accounted for as a Capital Lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Company and its Subsidiaries for the fiscal year ended October 31,
2004, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrowers and
their Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Revolving Commitments pursuant to Section 2.06(a), and (c) the date of
termination of the commitment of each Lender to make Loans and of the
obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section
8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Base Rate" means for any day a fluctuating rate per annum equal to
the higher of (a) the sum of (i) Federal Funds Rate and (ii) one half of one
percent (0.50%) per annum and (b) the rate of interest in effect for such day
as publicly announced from time to time by Bank of America as its "prime rate."
The "prime rate" is a rate set by Bank of America based upon various factors
including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest determined by
reference to the Base Rate.
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"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowers" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing, as
the context may require.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is required to be accounted for as a capital lease on the
balance sheet of that Person.
"Capital Stock" means (a) in the case of a corporation, capital stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means, as at any date, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
(12) months from the date of acquisition, (b) Dollar denominated time deposits
and certificates of deposit of (i) any Lender, (ii) any domestic commercial
bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating from
S&P is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1
or the equivalent thereof (any such bank being an "Approved Bank"), in each
case with maturities of not more than 270 days from the date of acquisition,
(c) commercial paper and variable or fixed rate notes issued by any Approved
Bank (or by the parent company thereof) or any variable rate notes issued by,
or guaranteed by, any domestic corporation rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or better by
Moody's and maturing within six (6) months of the date of acquisition, (d)
repurchase agreements entered into by any Person with a bank or trust company
(including any of the Lenders) or recognized securities dealer having capital
and surplus in excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States in which such Person shall have a perfected
first priority security interest (subject to no other Liens) and having, on the
date of purchase thereof, a fair market value of at least 100% of the amount of
the repurchase obligations and (e) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered under
the Investment Company Act of 1940, as amended, which are administered by
reputable financial
5
institutions having capital of at least $500,000,000 and the portfolios of
which are limited to Investments of the character described in the foregoing
subdivisions (a) through (d).
"Change of Control" means, with respect to any Person, an event or
series of events by which:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan)
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have "beneficial ownership" of all securities
that such person or group has the right to acquire conditioned, if at
all, only on the delivery of the funds and documents necessary to
exercise such right to acquire (such right, an "option right"),
whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of 35% or more of the equity
securities of such Person entitled to vote for members of the board of
directors or equivalent governing body of such Person on a
fully-diluted basis (and taking into account all such securities that
such person or group has the right to acquire pursuant to any option
right);
(b) during any period of twenty-four (24) consecutive months,
a majority of the members of the board of directors or other
equivalent governing body of such Person cease to be composed of
individuals (i) who were members of that board or equivalent governing
body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time
of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to
that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at
the time of such election or nomination at least a majority of that
board or equivalent governing body (excluding, in the case of both
clause (ii) and clause (iii), any individual whose initial nomination
for, or assumption of office as, a member of that board or equivalent
governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one
or more directors by any person or group other than a solicitation for
the election of one or more directors by or on behalf of the board of
directors);
(c) such Person shall merge or consolidate with any Person
other than in a transaction permitted under Section 7.04;
(d) any Asset Disposition shall be made that (of itself or
when combined with any or all other Asset Dispositions) constitutes a
sale of all or substantially all of the assets of the Borrowers and
their Subsidiaries, taken as a whole;
(e) any event shall occur that constitutes a "Change of
Control" (or any comparable term) under, and as defined in, the
documents evidencing or governing the Senior Unsecured Notes or any
Subordinated Indebtedness; or
6
(f) any event shall occur that requires the Borrowers or any
Subsidiary to repay, redeem, or repurchase (or to offer to repay,
redeem or repurchase) any Indebtedness outstanding in a principal
amount in excess of $20,000,000 by reason of any change of ownership
or control affecting the Borrowers or such Subsidiary.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied in accordance with Section 4.01 (or, in the case of
Section 4.01(d), satisfied or waived by the Person entitled to receive the
applicable payment).
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means those certain Timberlands upon which the Loan
Parties have granted Liens in favor of the Administrative Agent pursuant to and
in accordance with the terms of the Collateral Documents.
"Collateral Documents" means a collective reference to the Timberland
Mortgages, and such other security documents as may be executed and delivered
by the Borrowers and their Subsidiaries.
"Collateral Value" means, as of any date of determination with respect
to any Timberlands then constituting Collateral, the total aggregate value of
such Timberlands as set forth in and calculated in accordance with the
Collateral Value Report most recently delivered to the Administrative Agent.
"Collateral Value Report" means, for each quarterly period, a report
delivered to the Administrative Agent pursuant to Section 6.02(d), detailing
the Collateral Value for such period, substantially in the form attached hereto
as Exhibit G.
"Commitment" means, as to each Lender, the Revolving Commitment of
such Lender and/or the Term Loan Commitment of such Lender.
"Commitment Fee" has the meaning set forth in Section 2.09(a).
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to Section
2.01.
"Committed Loan" means the Revolving Loans and the Term Loan, or any
portion of either thereof.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other, or (c) a
continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if
in writing, shall be substantially in the form of Exhibit A.
"Company" has the meaning set forth in the first paragraph of this
Agreement.
7
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D delivered in accordance with Section 6.02(b).
"Consolidated Capital Expenditures" means, as of any date for the four
(4) fiscal quarter period ending on such date with respect to the Consolidated
Parties on a consolidated basis, all capital expenditures, as determined in
accordance with GAAP, including, without limitation, those capital expenditures
related to timberland operations; provided, however, that Consolidated Capital
Expenditures shall not include Eligible Reinvestments made with proceeds of any
Involuntary Disposition.
"Consolidated Cash Taxes" means, as of any date for the four (4)
fiscal quarter period ending on such date with respect to the Consolidated
Parties on a consolidated basis, the aggregate of all income taxes paid in cash
during such period (irrespective of when such taxes were accrued), as
determined in accordance with GAAP.
"Consolidated EBITDDA" means, as of any date for the four (4) fiscal
quarter period ending on such date with respect to the Consolidated Parties on
a consolidated basis, the sum of (i) Consolidated Net Income, plus (ii) an
amount which, in the determination of Consolidated Net Income, has been
deducted for (A) Consolidated Interest Expense, (B) income taxes and (C)
depreciation, depletion and amortization expense, all as determined in
accordance with GAAP.
"Consolidated Interest Expense" means, as of any date for the four (4)
fiscal quarter period ending on such date with respect to the Consolidated
Parties on a consolidated basis, interest expense (including the amortization
of debt discount and premium, the interest component under Capital Leases, the
implied interest component under Synthetic Lease Obligations and capitalized
interest), as determined in accordance with GAAP.
"Consolidated Net Income" means, as of any date for the applicable
period ending on such date with respect to the Consolidated Parties on a
consolidated basis, net income (excluding extraordinary items) after interest
expense, income taxes and depreciation and amortization, all as determined in
accordance with GAAP (it being understood that extraordinary items, if any,
shall be excluded only to the extent the Borrowers' accountants have concurred
with the treatment of such items as "extraordinary" in accordance with GAAP and
such items have been disclosed in the Company's financial statements filed with
the SEC).
"Consolidated Net Worth" means, as of any date with respect to the
Consolidated Parties on a consolidated basis, shareholders' equity or net
worth, as determined in accordance with GAAP; provided, however, that such
calculation shall exclude (i.e., there will be added back to Consolidated Net
Worth) (a) any non-cash, after-tax asset impairment charges taken by the
Company during the fiscal year ending October 31, 2005 and thereafter in an
aggregate amount for all such charges not to exceed $30,000,000 and (b) any
year-end, non-cash adjustments (on an after-tax basis) to other comprehensive
income to reflect any Additional Minimum Liability (as defined below). For
purposes hereof, "Additional Minimum Liability" means, as of any date, with
respect to any Pension Plan, the sum of the absolute values of (i) the unfunded
accumulated benefit obligation existing as of the end of the fiscal year then
ending or the most recently ended
8
fiscal year, as applicable, plus (ii) the Company's prepaid pension asset
position existing as of the end of the fiscal year then ending or the most
recently ended fiscal year, as applicable.
"Consolidated Parties" means a collective reference to the Company and
its Subsidiaries, and "Consolidated Party" means any one of them.
"Consolidated Tangible Net Worth" means, as of any date, with respect
to the Consolidated Parties on a consolidated basis, (a) the total assets of
the Consolidated Parties at such date as set forth on a consolidated balance
sheet of the Consolidated Parties prepared in accordance with GAAP (but
excluding therefrom for the purposes hereof, capitalized interest, debt
discount and expense, goodwill, patents, trademarks, copyrights, franchises,
licenses, amounts due from officers and directors, shareholders and Affiliates
of the Borrowers and any other items which would be treated as intangibles
under GAAP) less (b) the total liabilities of the Consolidated Parties at such
date as set forth on a consolidated balance sheet of the Consolidated Parties
prepared in accordance with GAAP.
"Consolidated Total Capitalization" means, as of any date of
determination with respect to the Consolidated Parties on a consolidated basis,
(a) Funded Indebtedness of the Consolidated Parties on a consolidated basis as
of such date plus (b) Consolidated Net Worth of the Consolidated Parties on a
consolidated basis as of such date.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Borrowing and
(b) an L/C Credit Extension.
"Debt Issuance" means the issuance by any Consolidated Party of any
Indebtedness of the type referred to in clause (a) or (b) of the definition
thereof set forth in this Section 1.01, other than any Indebtedness issued (a)
under this Agreement, (b) under the Senior Unsecured Note Indenture in an
amount not to exceed $250,000,000, or (c) to fund Permitted Acquisitions, which
would result, upon giving effect on a Pro Forma Basis to the incurrence of such
Indebtedness and to the concurrent retirement of any other Indebtedness of any
Consolidated Party, in the Borrowers being out of compliance with the financial
covenants set forth in Section 7.11(a)-(d).
"Debt Issuance Prepayment Event" means the receipt by any Consolidated
Party of proceeds from any Debt Issuance.
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or Moody's, as applicable, of the Borrowers'
non-credit enhanced, senior secured long term debt evidenced by the Loan
Documents.
9
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights
of creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other
than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2%
per annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including
any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and
(b) when used with respect to Letter of Credit Fees, a rate equal to the
Applicable Rate plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day of
the date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.
"Discretionary L/C Issuer" has the meaning specified in Section
2.03(b)(v).
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"E&P Declaration" means the declaration of the E&P Distribution.
"E&P Declaration Date" means the date of the E&P Declaration.
"E&P Distribution" means that certain earnings and profits
distribution to be made by the Company prior to December 31, 2006 in connection
with the REIT Conversion.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Company (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include either Borrower or any of the Borrowers' Affiliates or Subsidiaries.
"Eligible Reinvestment" means (a) any acquisition (whether or not
constituting a capital expenditure, but not constituting an Acquisition) of
assets or any business (or any substantial part
10
thereof) used or useful in the same or a similar line of business as the
Borrowers and their Subsidiaries were engaged in on the Closing Date (or any
reasonable extensions or expansions thereof) and (b) any Permitted Acquisition.
The term "Eligible Reinvestment" shall not include any item which is not a
permitted application of proceeds of an "Asset Sale" (or any comparable term)
under, and as defined in, the Senior Unsecured Note Indenture or the documents
evidencing or governing any Subordinated Indebtedness.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges
to waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Company or any of its Subsidiaries
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials
into the environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
"Equity Issuance" means any issuance by any Consolidated Party to any
Person of (a) shares of its Capital Stock, (b) any shares of its Capital Stock
pursuant to the exercise of options or warrants, (c) any shares of its Capital
Stock pursuant to the conversion of any debt securities to equity or (d) any
options or warrants relating to its Capital Stock. The term "Equity Issuance"
shall not be deemed to include (a) any Asset Disposition, (b) issuances of
equity pursuant to (i) employee plans of a Borrower that are in place as of the
Closing Date to the extent such issuances are permitted pursuant to the
documentation governing those plans as in effect as of the Closing Date or (ii)
new employee plans of a Borrower to the extent such issuances are consistent
with past practices of the Borrowers, (c) issuances of equity after the Closing
Date and prior to December 31, 2006 in connection with the REIT Conversion, (d)
issuances of equity to the extent the proceeds thereof are utilized to fund
Permitted Acquisitions or (e) issuances of equity in connection with the
creation of long-term incentive plans for employees of the Borrowers during the
term of this Loan Agreement to the extent such incentive plans are customary
for companies similarly situated to the Borrowers.
"Equity Issuance Prepayment Event" means the receipt by any
Consolidated Party of proceeds from any Equity Issuance.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with a Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
11
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by either Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by either Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a plan amendment as a termination under Sections 4041 or 4041A of
ERISA with respect to, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon either
Borrower or any ERISA Affiliate.
"Eurodollar Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated
by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two (2) Business Days prior to the commencement of such Interest
Period, for Dollar deposits (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the "Eurodollar Rate" for such
Interest Period shall be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars for delivery on the first day
of such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of America and
with a term equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the commencement of such Interest Period.
"Eurodollar Rate Loan" means a Committed Loan that bears interest at a
rate based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excess Proceeds" has the meaning assigned to such term in Section
6.07(b).
"Existing Credit Agreement" means that certain Credit Agreement dated
as of December 15, 2003 (as amended or modified prior to the Closing Date)
among the Company, certain subsidiaries of the Company from time to time party
thereto, Bank of America, N.A., as administrative agent, and a syndicate of
lenders.
"Existing Letters of Credit" means the letters of credit outstanding
on the Closing Date and identified on Schedule 1.01.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal
12
Reserve Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
"Fee Letters" means (a) the letter agreement, dated September 15,
2005, among the Company, the Administrative Agent, and the Arrangers and (b)
the letter agreement, dated September 15, 2005, among the Company, the
Administrative Agent and Banc of America Securities LLC.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrowers are residents for tax
purposes. For purposes of this definition, the United States, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Fully Satisfied" means, with respect to the Obligations as of any
date, those Obligations, as of such date, for which (a) all principal of and
interest accrued to such date which constitute Obligations shall have been
irrevocably paid in full in cash, (b) all fees, expenses and other amounts then
due and payable which constitute Obligations shall have been irrevocably paid
in cash, and (c) the Commitments shall have been expired or terminated in full.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded Indebtedness" means, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) all obligations of such Person
issued or assumed as the deferred purchase price of Property or services
purchased by such Person (other than trade debt incurred in the ordinary course
of business and due within six (6) months of the incurrence thereof) which
would appear as liabilities on a balance sheet of such Person, (e) the implied
principal component of all obligations of such Person under Capital Leases, (f)
the maximum amount of all performance and standby letters of credit issued or
bankers' acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed),
(g) all preferred Capital Stock issued by such Person and which by the terms
thereof could be (at the request of the holders thereof or otherwise) subject
to mandatory sinking fund payments, redemption or other acceleration (other
than as a result of a Change of Control or an Asset Disposition that does not
in fact result in a redemption of such preferred Capital Stock) at any time
prior to the Maturity Date, (h) the principal portion of all obligations of
such Person under Synthetic Lease Obligations and other Off-Balance Sheet
Liabilities, (i) all obligations of such Person to repurchase any securities
issued by such Person at
13
any time prior to the Maturity Date which repurchase obligations are related to
the issuance thereof, including, without limitation, obligations commonly known
as residual equity appreciation potential shares, (j) the aggregate amount of
uncollected accounts receivable of such Person subject at such time to a sale
of receivables (or similar transaction) to the extent such transaction is
effected with recourse to such Person (whether or not such transaction would be
reflected on the balance sheet of such Person in accordance with GAAP), (k) all
Funded Indebtedness of others secured by (or for which the holder of such
Funded Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of production from,
Property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (l) all Guarantees of such Person with
respect to Funded Indebtedness of another Person and (m) the Funded
Indebtedness of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer to the extent such Indebtedness
is recourse to such Person.
"Funded Indebtedness to Capitalization Ratio" means, as of the end of
any fiscal quarter of the Consolidated Parties with respect to the Consolidated
Parties on a consolidated basis, the ratio of (a) Funded Indebtedness of the
Consolidated Parties on a consolidated basis on the last day of such period to
(b) Consolidated Total Capitalization on the last day of such period.
"FRB" means the Board of Governors of the Federal Reserve System of
the United States.
"GAAP" means generally accepted accounting principles in the United
States 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
such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or
any other nation, or any political subdivision thereof, whether state or local
and any agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government
(including any supra-national bodies such as the European Union or the European
Central Bank).
"Granting Lender" has the meaning specified in Section 10.07(h).
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or
14
other obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Indebtedness or other obligation of the
payment or performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person
(or any right, contingent or otherwise, of any holder of such Indebtedness to
obtain any such Lien). The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guarantee is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the guaranteeing Person in good faith. The
term "Guarantee" as a verb has a corresponding meaning.
"Guarantors" means, collectively, each of those Persons identified as
a "Guarantor" on the signature pages hereto, and each Person that subsequently
becomes a Guarantor hereunder pursuant to Section 6.13 by executing a Joinder
Agreement in substantially the form of Exhibit F, and "Guarantor" means any one
of them.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent, on behalf of the Lenders, pursuant to Article XI hereof.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, with respect to any Person, without duplication,
all of the following, whether or not included as indebtedness or liabilities in
accordance with GAAP: (a) all obligations of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily made, (c)
all obligations of such Person under conditional sale or other title retention
agreements relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) all obligations of such Person
issued or assumed as the deferred purchase price of Property or services
purchased by such Person (other than trade debt incurred in the ordinary course
of business and due within six (6) months of the incurrence thereof) which
would appear as liabilities on a balance sheet of such Person, (e) all
obligations of such Person under take-or-pay or similar arrangements or under
commodities agreements under which such Person must make payments
notwithstanding the failure of the counter-party to deliver the goods or
services which such counter-party is required to deliver thereunder (and, for
the avoidance of doubt shall not include arrangements under which such Person
must pay for capacity or availability that must be delivered or made available
to entitle the counter-party to payment, notwithstanding that such Person may
not use such capacity or availability), (f) the implied principal component of
all obligations of such Person under Capital Leases, (g) all net obligations of
such Person under Swap Contracts, (h) the maximum amount of all performance and
standby letters of credit issued or bankers' acceptances facilities created for
the account of such Person and, without duplication, all drafts drawn
thereunder (to the extent unreimbursed), (i) all preferred Capital Stock issued
by such Person and which by the terms thereof could be (at the
15
request of the holders thereof or otherwise) subject to mandatory sinking fund
payments, redemption or other acceleration (other than as a result of a Change
of Control or an Asset Disposition that does not in fact result in a redemption
of such preferred Capital Stock) at any time prior to the Maturity Date, (j)
the principal portion of all obligations of such Person under Synthetic Lease
Obligations and other Off-Balance Sheet Liabilities (excluding Operating Leases
to the extent they would otherwise be included), (k) all obligations of such
Person to repurchase any securities issued by such Person at any time prior to
the Maturity Date which repurchase obligations are related to the issuance
thereof, including, without limitation, obligations commonly known as residual
equity appreciation potential shares, (l) the aggregate amount of uncollected
accounts receivable of such Person subject at such time to a sale of
receivables (or similar transaction) to the extent such transaction is effected
with recourse to such Person (whether or not such transaction would be
reflected on the balance sheet of such Person in accordance with GAAP), (m) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on,
or payable out of the proceeds of production from, Property owned or acquired
by such Person, whether or not the obligations secured thereby have been
assumed, (n) all Guarantees of such Person with respect to Indebtedness of
another Person and (o) the Indebtedness of any partnership or unincorporated
joint venture in which such Person is a general partner or a joint venturer to
the extent such Indebtedness is recourse to such Person. The amount of any net
obligation under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. The amount of any Capital Lease or
Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.
"Indemnitees" has the meaning set forth in Section 10.05.
"Information" has the meaning specified in Section 10.08.
"Interest Coverage Ratio" means, as of the last day of any fiscal
quarter of the Consolidated Parties, for the immediately preceding four (4)
fiscal quarter period ending on such date, with respect to the Consolidated
Parties on a consolidated basis, the ratio of (a) Consolidated EBITDDA for such
period to (b) Consolidated Interest Expense.
"Interest Payment Date" means, (a) as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three (3) months, the respective dates that fall every three
(3) months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the last Business Day of each of March, June, September and December and the
Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to
or continued as a Eurodollar Rate Loan and ending on the date one, two, three
or six (6) months thereafter, as selected by the Borrowers in the Committed
Loan Notice; provided that:
(a) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless such
16
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(b) 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;
(c) no Interest Period shall extend beyond the Maturity Date;
and
(d) only Interest Periods of one month shall be available
during the ninety (90) day period following the Closing Date.
"Internal Control Event" means a material weakness in, or fraud that
involves management or other employees who have a significant role in, each of
the Borrower's internal controls over financial reporting, in each case as
described in the Securities Laws.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of capital stock or other securities of another Person,
(b) a loan, advance or capital contribution to, Guarantee or assumption of debt
of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture
interest in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute a business unit or product line (other than equipment, timber,
timberlands, inventory and supplies in the ordinary course of business and
other than any acquisition of assets constituting a Consolidated Capital
Expenditure). For purposes of covenant compliance, the amount of any Investment
shall be the amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment.
"Involuntary Disposition" means any loss of, damage to or destruction
of, or any condemnation or other taking for public use of, any Property of any
Consolidated Party.
"Involuntary Disposition Prepayment Event" means, with respect to any
Involuntary Disposition, the failure of the Borrowers to apply (or cause to be
applied) an amount equal to the Excess Proceeds of such Involuntary
Disposition, if any, either (a) to prepay the Loans (and cash collateralize the
L/C Obligations) in accordance with the terms of Section 2.05(b)(ii)(B) or (b)
to make Eligible Reinvestments (including but not limited to the repair or
replacement of the Property affected by such Involuntary Disposition) within
the period of 360 days following the date of receipt of such Excess Proceeds,
subject to the terms and conditions of Section 6.07(b).
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance.
"Issuer Documents" means with respect to any Letter of Credit, the
Letter of Credit Application, and any other document, agreement and instrument
entered into by the L/C Issuer
17
and the Borrowers (or any Subsidiary) or in favor the L/C Issuer and relating
to any such Letter of Credit.
"Joinder Agreement" means a Joinder Agreement substantially in the
form of Exhibit F hereto, executed and delivered by a new Guarantor in
accordance with the provisions of Section 6.13.
"Joint Venture" means a single-purpose corporation, partnership,
limited liability company, joint venture or other similar legal arrangement
(whether created by contract or conducted through a separate legal entity) now
or hereafter formed by any Consolidated Party with another Person in order to
conduct a common venture or enterprise with such Person.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's
funding of its participation in any L/C Borrowing in accordance with its
Applicable Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit,
the issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of
Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder, and any Discretionary L/C Issuer.
"L/C Obligations" means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding Letters of Credit
plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.
For purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.07. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP
(relating to closure of the place for presentation and the thirty day extension
provided in such Rule for presentation after resumption of business) unless the
Letter of Credit provides otherwise, such Letter of Credit shall be deemed to
be "outstanding" in the amount so remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph
hereto and, as the context requires, includes the L/C Issuer and the Swing Line
Lender.
18
"Lending Office" means, as to any Lender, the office or offices of
such Lender described as such in such Lender's Administrative Questionnaire, or
such other office or offices as a Lender may from time to time notify the
Borrowers and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder
and shall include the Existing Letters of Credit.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to time
in use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is thirty five
(35) days prior to the Maturity Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Letter of Credit Sublimit" means an amount equal to $50,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Revolving Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), other security interest,
charge, or as to the assets of a Person, any preference, priority or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, and any financing lease
having substantially the same economic effect as any of the foregoing, but
excluding operating leases).
"Loan" means any extension of credit by a Lender to the Borrowers
under Article II in the form of a Revolving Loan, a Term Loan and/or a Swing
Line Loan, as the context may require. The term "Loan" also shall mean, as
appropriate, (a) any portion of a Revolving Loan bearing interest at the same
rate of interest and having an Interest Period which begins and ends on the
same date and (b) any portion of a Term Loan bearing interest at the same rate
of interest and having an Interest Period which begins and ends on the same
date.
"Loan Documents" means this Agreement, each Note, each Joinder
Agreement, each Issuer Document, the Collateral Documents and each Fee Letter.
"Loan Parties" means, collectively, the Borrowers and each Guarantor.
"Material Adverse Effect" means (a) a material adverse effect upon,
the operations, business, assets, properties, liabilities (actual or
contingent), condition (financial or otherwise) or prospects of a Borrower or
the Company and its Subsidiaries taken as a whole; (b) a material impairment of
the ability of any Borrower or the Company and its Subsidiaries taken as a
whole to perform its (their) obligations under any Loan Document to which it is
(they are) a party; or (c) a material adverse effect upon the material rights
and remedies of the Administrative Agent and/or the Lenders under the Loan
Documents.
"Material Domestic Subsidiary" means any Domestic Subsidiary that is a
Material Subsidiary.
19
"Material Subsidiary" means any Subsidiary of any Loan Party whose
contribution to Consolidated Tangible Net Worth exceeds 5% or more of total
Consolidated Tangible Net Worth as of the end of the most recently completed
fiscal year of the Company for which audited financial statements are
available; provided that, in the event the aggregate contribution to
Consolidated Tangible Net Worth of all Subsidiaries that do not constitute
Material Subsidiaries exceeds 5% of the Consolidated Tangible Net Worth as of
any such fiscal year end, the Borrowers (or the Administrative Agent, in the
event the Borrowers have failed to do so within ten (10) days of written
request therefor by the Administrative Agent) shall designate sufficient
Subsidiaries to be deemed to be "Material Subsidiaries" to the extent necessary
to eliminate such excess, and such designated Subsidiaries shall thereafter
constitute Material Subsidiaries.
"Maturity Date" means December 23, 2010.
"Maximum Senior Credit Facilities" means, as of any date of
determination, the sum of (a) the Aggregate Revolving Commitments plus (b) the
unfunded portion of the Aggregate Term Loan Commitments plus (c) the
outstanding amount of the Term Loan, in each case as of such date.
"Maximum Senior Credit Facilities to Collateral Value Ratio" means, as
of any date, the ratio of the Maximum Senior Credit Facilities as of such date
to (b) the Collateral Value as of such date.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which either Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five (5) plan years, has made or been obligated to make contributions.
"Net Cash Proceeds" means the aggregate cash proceeds received by any
Consolidated Party in respect of any Asset Disposition, Equity Issuance, Debt
Issuance or Involuntary Disposition, net of (a) direct costs (including,
without limitation, legal, accounting and investment banking fees, and sales
commissions) (b) taxes paid or payable as a result thereof and (c) in the case
of any Asset Disposition, the amount necessary to prepay or retire any
Indebtedness either secured by a Permitted Lien (ranking senior to any Lien of
the Administrative Agent) on the related Property or incurred specifically in
connection with the acquisition of the Property that is included in such Asset
Disposition; it being understood that "Net Cash Proceeds" shall include,
without limitation, any cash or Cash Equivalents received upon the sale or
other disposition of any non-cash consideration received by any such
Consolidated Party in any Asset Disposition, Equity Issuance, Debt Issuance or
Involuntary Disposition. In addition and without duplication, the "Net Cash
Proceeds" of any Asset Disposition shall include any other amounts which
constitute "Net Proceeds" (or any comparable term) of such transaction under,
and as defined in, the Senior Unsecured Note Indenture or the documents
evidencing or governing any Subordinated Indebtedness.
"Note" or "Notes" means the Revolving Notes and/or the Term Notes,
individually or collectively, as appropriate.
20
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including (a) interest and fees that accrue after the commencement by or
against any Loan Party or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such
proceeding and (b) any Swap Contract of any Loan Party to which a Lender or any
Affiliate of such Lender is a party (determined at the time such Swap Contract
was entered into).
"Off-Balance Sheet Liabilities" means, with respect to any Person as
of any date of determination thereof, without duplication and to the extent not
included as a liability on the consolidated balance sheet of such Person and
its Subsidiaries in accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts receivable purchase
facility) (i) the unrecovered investment of purchasers or transferees of assets
so transferred and (ii) any other payment, recourse, repurchase, hold harmless,
indemnity or similar obligation of such Person or any of its Subsidiaries in
respect of assets transferred or payments made in respect thereof, other than
limited recourse provisions that are customary for transactions of such type
and that neither (x) have the effect of limiting the loss or credit risk of
such purchasers or transferees with respect to payment or performance by the
obligors of the assets so transferred nor (y) impair the characterization of
the transaction as a true sale under applicable Laws (including Debtor Relief
Laws); (b) the monetary obligations under any financing lease (excluding any
operating lease) or so-called "synthetic," tax retention or off-balance sheet
lease transaction which, upon the application of any Debtor Relief Law to such
Person or any of its Subsidiaries, would be characterized as indebtedness; or
(c) the monetary obligations under any sale and leaseback transaction which
does not create a liability on the consolidated balance sheet of such Person
and its Subsidiaries; or (d) any other monetary obligation arising with respect
to any other transaction which (i) upon the application of any Debtor Relief
Law to such Person or any of its Subsidiaries, would be characterized as
indebtedness or (ii) is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated balance
sheet of such Person and its Subsidiaries (for purposes of this clause (d), any
transaction structured to provide tax deductibility as interest expense of any
dividend, coupon or other periodic payment will be deemed to be the functional
equivalent of a borrowing).
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the lessee at
any time) of any Property (whether real, personal or mixed) which is not a
Capital Lease other than any such lease in which that Person is the lessor.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
21
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" has the meaning set forth in Section 3.01(b).
"Outstanding Amount" means (a) with respect to Revolving Loans, the
Term Loan and Swing Line Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or
repayments of Revolving Loans, the Term Loan and Swing Line Loans, as the case
may be, occurring on such date; and (b) with respect to any L/C Obligations on
any date, the amount of such L/C Obligations on such date after giving effect
to any L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements by the Borrowers of Unreimbursed Amounts or any
reductions in the maximum amount available under Letters of Credit taking
effect on such date.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by either Borrower
or any ERISA Affiliate or to which either Borrower or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five (5) plan years.
"Permitted Acquisition" means an Acquisition by the Company or any
Subsidiary of the Company permitted pursuant to the terms of Section 7.02(i).
"Permitted Asset Disposition" means any Asset Disposition permitted by
Section 7.05.
"Permitted Investments" means, at any time, Investments by the
Consolidated Parties permitted to exist at such time pursuant to the terms of
Section 7.02.
"Permitted Liens" means, at any time, Liens in respect of Property of
the Consolidated Parties permitted to exist at such time pursuant to the terms
of Section 7.01.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by either Borrower or, with respect to any
such plan that is subject to Section 412 of the Code or Title IV of ERISA, any
ERISA Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Pro Forma Basis" means, for purposes of calculating (utilizing the
principles set forth in the second paragraph of Section 1.03) compliance with
each of the financial covenants set forth
22
in Section 7.11(a)-(d) (including for purposes of determining the Applicable
Rate), that the relevant transaction shall be deemed to have occurred as of the
first day of the four (4) fiscal-quarter period ending as of the most recent
fiscal quarter end preceding the date of such transaction with respect to which
the Administrative Agent has received the Required Financial Information. As
used herein, "transaction" shall mean (a) any Asset Disposition or (b) any
Acquisition. In connection with any calculation of the financial covenants set
forth in Section 7.11(a)-(d) upon giving effect to a transaction on a Pro Forma
Basis:
(i) for purposes of any such calculation in respect of any
Asset Disposition, (1) income statement items (whether
positive or negative) attributable to the Property disposed
of shall be excluded and (2) any Indebtedness which is
retired in connection with such transaction shall be excluded
and deemed to have been retired as of the first day of the
applicable period; and
(ii) for purposes of any such calculation in respect of any
Acquisition, (1) any Indebtedness incurred by any
Consolidated Party in connection with such transaction (x)
shall be deemed to have been incurred as of the first day of
the applicable period and (y) if such Indebtedness has a
floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this
definition determined by utilizing the rate which is or would
be in effect with respect to such Indebtedness as at the
relevant date of determination, (2) income statement items
(whether positive or negative) attributable to the Person or
Property acquired shall be included beginning as of the first
day of the applicable period and (3) pro forma adjustments
may be included to the extent that such adjustments would be
permitted under GAAP and give effect to events that are (x)
directly attributable to such transaction, (y) expected to
have a continuing impact on the Consolidated Parties and (z)
factually supportable.
"Pro Forma Compliance Certificate" means a certificate of a
Responsible Officer of the Borrowers delivered to the Administrative Agent, and
containing reasonably detailed calculations, upon giving effect to the
applicable transaction on a Pro Forma Basis, of the Funded Indebtedness to
Capitalization Ratio, the Interest Coverage Ratio, Consolidated Net Worth and
Maximum Senior Credit Facilities to Collateral Value Ratio as of the most
recent fiscal quarter end preceding the date of the applicable transaction with
respect to which the Administrative Agent shall have received the Required
Financial Information.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Register" has the meaning set forth in Section 10.07(c).
"REIT" means a Real Estate Investment Trust within the
meaning of Sections 856-860 of the Code.
"REIT Conversion" means the conversion of the Company into a
REIT as described in the Company's filings with the SEC.
23
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and
advisors of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than events for which the thirty (30) day notice period
has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b)
with respect to an L/C Credit Extension, a Letter of Credit Application, and
(c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Financial Information" means, with respect to each fiscal
period or quarter of the Company, (a) the financial statements required to be
delivered pursuant to Section 6.01(a) or (b) for such fiscal period or quarter,
and (b) the certificate of a Responsible Officer of the Company required by
Section 6.02(b) to be delivered with the financial statements described in
clause (a) above.
"Required Lenders" means, at any time, Lenders holding in the
aggregate more than 50% of (a) the unfunded Commitments and the outstanding
Loans, L/C Obligations and participations therein or (b) if the Commitments
have been terminated, the outstanding Loans, L/C Obligations and participations
therein. The unfunded Commitments of, and the outstanding Loans held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"Responsible Officer" means the chief executive officer, chief
operating officer, president, chief financial officer, treasurer or assistant
treasurer of a Loan Party. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means (a) any dividend or other payment or
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of any Consolidated Party, now or hereafter outstanding
(including without limitation any payment in connection with any dissolution,
merger, consolidation or disposition involving any Consolidated Party), or to
the holders, in their capacity as such, of any shares of any class of Capital
Stock of any Consolidated Party, now or hereafter outstanding (other than
dividends or distributions payable in Capital Stock of the applicable Person
and dividends or distributions payable (directly or indirectly through
Subsidiaries) to the Company), (b) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect,
of any shares of any class of Capital Stock of any Consolidated Party, now or
hereafter outstanding, (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of Capital Stock of any Consolidated Party, now or
hereafter outstanding, and (d) any payment or prepayment of principal of, or
premium, if any, on (including any redemption, purchase, retirement,
defeasance, sinking fund or similar payment with respect to) the Senior
Unsecured Notes or any Subordinated Indebtedness. Notwithstanding the
foregoing, the term Restricted Payment shall not
24
include any redemption of share purchase rights issued pursuant to the
Company's shareholder rights plan existing on the Closing Date (as the same may
be amended from time to time) or any similar successor or replacement
shareholder rights plan, for a redemption price not to exceed $0.01 per share
purchase right.
"Revolving Commitment" means, as to each Lender, its obligation to
(a) make Revolving Loans to the Borrowers pursuant to Section 2.01(a) and the
other terms and conditions of this Agreement, (b) purchase participations in
L/C Obligations and (c) purchase participations in Swing Line Loans, in an
aggregate maximum principal amount at any one time outstanding not to exceed
such Lender's Applicable Percentage, as such amount may be adjusted from time
to time in accordance with this Agreement.
"Revolving Lender" shall mean, as of any date of determination, any
Lender holding a Revolving Commitment.
"Revolving Loan" has the meaning specified in Section 2.01(a).
"Revolving Note" has the meaning specified in Section 2.11(a).
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means any arrangement pursuant to
which any Consolidated Party, directly or indirectly, becomes liable as lessee,
guarantor or other surety with respect to any lease, whether an Operating Lease
or a Capital Lease, of any Property (a) which such Consolidated Party has sold
or transferred (or is to sell or transfer) to a Person which is not a
Consolidated Party or (b) which such Consolidated Party intends to use for
substantially the same purpose as any other Property which has been sold or
transferred (or is to be sold or transferred) by such Consolidated Party to
another Person which is not a Consolidated Party in connection with such lease,
provided that any transaction that satisfies the conditions in preceding
subsection (a) or (b) shall not constitute a "Sale and Leaseback Transaction"
where lessor under such lease is organized under the laws of a jurisdiction
outside of the United States, the Property is located in the United States and
the obligations in respect of the lease or incurred in connection therewith for
which the Consolidated Party is liable have been defeased.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Securities Laws" means the Securities Act of 1933, the Securities
Exchange Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or
incorporated by the SEC or the Public Company Accounting Oversight Board, as
each of the foregoing may be amended and in effect on any applicable date
hereunder, or any successor statutes thereof.
"Senior Subordinated Note" means any one of the 10.0% Senior
Subordinated Notes due 2009, issued by the Company in favor of the Senior
Subordinated Noteholders pursuant to the
25
Senior Subordinated Note Indenture, as such Senior Subordinated Notes may be
amended, modified, restated or supplemented and in effect from time to time in
accordance with the terms hereof.
"Senior Subordinated Note Indenture" means the Indenture, dated as of
January 25, 2002, by and among the Company and the Trustee (as defined therein)
for the Senior Subordinated Noteholders, as the same may be amended, modified,
restated or supplemented and in effect from time to time in accordance with the
terms hereof.
"Senior Subordinated Noteholder" means any one of the holders from
time to time of the Senior Subordinated Notes.
"Senior Unsecured Notes" means any senior unsecured notes, issued by
the Company in favor of the noteholders pursuant to a Senior Unsecured Note
Indenture, as such senior unsecured notes may be amended, modified, restated or
supplemented and in effect from time to time in accordance with the terms
hereof.
"Senior Unsecured Note Indenture" means any indenture governing Senior
Unsecured Notes, by and among the Company and the trustee for the holders of
the Senior Unsecured Notes, in form and substance reasonably acceptable to the
Administrative Agent, as the same may be amended, modified, restated or
supplemented and in effect from time to time in accordance with the terms
hereof.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the normal course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary course,
(c) such Person is not engaged in a business or a transaction, and is not about
to engage in a business or a transaction, for which such Person's Property
would constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged or is
to engage, (d) the fair value of the Property of such Person is greater than
the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair salable value of the
assets of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light
of all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"SPC" has the meaning specified in Section 10.07(h).
"Subordinated Indebtedness" means Indebtedness outstanding under the
Senior Subordinated Note Indenture and the Senior Subordinated Notes and any
other Indebtedness of the Borrowers which by its terms is subordinated to the
Obligations in a manner and to an extent acceptable to the Required Lenders.
26
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries
of the Company.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other master agreement
(any such master agreement, together with any related schedules, a "Master
Agreement"), including any such obligations or liabilities under any Master
Agreement.
"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 based upon
one or more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.04(b), which, if in writing, shall be substantially in
the form of Exhibit B.
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"Swing Line Sublimit" means an amount equal to the lesser of (a)
$20,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line
Sublimit is part of, and not in addition to, the Aggregate Revolving
Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations
that do not appear on the balance sheet of such Person but which, upon the
insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment). In no
event shall any Operating Lease be construed as a Synthetic Lease Obligation.
"Taxes" has the meaning set forth in Section 3.01(a).
"Term Loan" has the meaning specified in Section 2.01(b).
"Term Loan Commitment" means, as to each Lender, its obligation to
make its portion of the Term Loan to the Borrowers pursuant to Section 2.01(b)
and the other terms and conditions of this Agreement, in the principal amount
set forth opposite such Lender's name on Schedule 2.01, as such amounts may be
adjusted from time to time in accordance with this Agreement. The Term Loan
Commitment of each Lender shall automatically expire upon the earlier of (a)
the expiration of the Term Loan Commitment Period and (b) the date upon which
any remaining unfunded amount of the aggregate the Term Loan Commitments is
voluntarily terminated in full by the Company pursuant to Section 2.06(c).
"Term Loan Commitment Period" means, subject to Section 2.16, the
period from the Closing Date to June 23, 2006.
"Term Loan Funding Date" means any date upon which the Borrowers draw
the full amount of the Aggregate Term Loan Commitments or any portion thereof,
which date(s) shall occur during the Term Loan Commitment Period and shall be
limited to a maximum of four (4) such dates.
"Term Loan Lender" shall mean, as of any date of determination, any
Lender holding a Term Loan Commitment.
"Term Loan Ticking Fee" has the meaning set forth in Section 2.09(b).
"Term Note" has the meaning specified in Section 2.11(a).
"Threshold Amount" means $7,500,000.
"Timberland Mortgages" means, collectively, the trust deed/deed of
trust, security agreement, assignment of rents and leases and fixture filing
documents dated as of the date hereof executed by and from the Company for the
benefit of the Administrative Agent, as representative of the Lenders,
substantially in the form of Exhibit H to this Agreement, as the same may be
amended from time to time.
"Timberlands" means all the timberlands owned by the Loan Parties.
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"Total Outstandings" means the sum of the Total Revolving Outstandings
and the Total Term Outstandings.
"Total Revolving Outstandings" means the aggregate Outstanding Amount
of all Revolving Loans, all Swing Line Loans and all L/C Obligations.
"Total Term Outstandings" means the Outstanding Amount under the Term
Loan.
"TRS" has the meaning set forth in the first paragraph of this
Agreement.
"Type" means, with respect to a Committed Loan, its character as a
Base Rate Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
------------- ----
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
1.02 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include," "includes"
and "including" shall be deemed to be followed by the phrase "without
limitation." The word "will" shall be construed to have the same
meaning and effect as the word "shall." Unless the context requires
otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document)
shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein or in any other Loan Document), (ii)
any reference herein to any Person shall be construed to include such
Person's successors and assigns, (iii) the words "herein," "hereof"
and "hereunder," and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all
references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, the Loan Document in which such references
appear, (v) any reference to any law shall include all statutory and
regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as
amended, modified or supplemented from time to time, and (vi) the
words "asset" and "property" shall be construed to have the same
meaning
29
and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract
rights.
(b) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including;" the words "to" and "until" each mean "to but excluding;"
and the word "through" means "to and including."
(c) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect
the interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP applied
on a consistent basis, as in effect from time to time, applied in a manner
consistent with that used in preparing the Audited Financial Statements, except
as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Company or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrowers shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided that, until
so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrowers shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
(c) Notwithstanding the above, the parties hereto acknowledge and
agree that, for purposes of all calculations made under the financial covenants
set forth in Section 7.11 (including without limitation for purposes of the
definitions of "Applicable Percentage" and "Pro Forma Basis" set forth in
Section 1.01), (i) after consummation of any Asset Disposition for
consideration (cash and non-cash) in excess of $15,000,000 (A) income statement
items (whether positive or negative) and capital expenditures attributable to
the Property disposed of shall be excluded to the extent relating to any period
occurring prior to the date of such transaction and (B) Indebtedness which is
retired shall be excluded and deemed to have been retired as of the first day
of the applicable period and (ii) after consummation of any Acquisition for an
Investment for consideration (cash and non-cash) in excess of $15,000,000 (A)
income statement items (whether positive or negative) and capital expenditures
attributable to the Person or Property acquired shall, to the extent not
otherwise included in such income statement items for the Consolidated Parties
in accordance with GAAP or in accordance with any defined terms set forth in
Section 1.01, be included to the extent relating to any period applicable in
such calculations, (B) to the extent not retired in connection with such
Acquisition, Indebtedness of
30
the Person or Property acquired shall be deemed to have been incurred as of the
first day of the applicable period and (C) pro forma adjustments may be
included to the extent that such adjustments would be permitted under GAAP and
give effect to items that are (x) directly attributable to such transaction,
(y) expected to have a continuing impact on the Consolidated Parties and (z)
factually supportable.
(d) Notwithstanding anything herein to the contrary: (i) the Company's
fiscal year 2005 shall end on October 31, 2005; (ii) December 31, 2005 shall be
deemed to be the end of a fiscal quarter period consisting of the months of
November 2005 and December 2005; and (iii) with respect to calculations of the
financial covenants set forth in Section 7.11 (including without limitation for
purposes of the definitions of "Applicable Percentage" and "Pro Forma Basis"
set forth in Section 1.01) to be made as of the last day of the fiscal quarter
ending December 31, 2005, March 31, 2006, June 30, 2006 or September 30, 2006,
any calculation that is to be made for the immediately preceding four fiscal
quarter period then ending pursuant to the terms of this Agreement shall
instead be made for the immediately preceding twelve month period then ending.
1.04 Rounding.
Any financial ratios required to be maintained by the Borrowers
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than
the number of places by which such ratio is expressed herein and rounding the
result up or down to the nearest number (with a rounding-up if there is no
nearest number).
1.05 References to Agreements and Laws.
Unless otherwise expressly provided herein, (a) references to
Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only
to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Loan Document; and (b) references
to any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.06 Times of Day.
Unless otherwise specified, all references herein to times of day
shall be references to Pacific time (daylight or standard, as applicable).
1.07 Letter of Credit Amounts.
Unless otherwise specified herein, the amount of a Letter of Credit at
any time shall be deemed to be the stated amount of such Letter of Credit in
effect at such time; provided, however, that with respect to any Letter of
Credit that, by its terms or the terms of any Issuer Document related thereto,
provides for one or more automatic increases in the stated amount
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thereof, the amount of such Letter of Credit shall be deemed to be the maximum
stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.
ARTICLE II
COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans.
(a) Revolving Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a
"Revolving Loan") to the Borrowers from time to time, on any Business Day
during the Availability Period, in an aggregate amount not to exceed at any
time outstanding the amount of such Lender's Commitment; provided, however,
that after giving effect to any Borrowing of Revolving Loans, (i) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments,
and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender,
plus such Lender's Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender's Applicable Percentage of the Outstanding Amount
of all Swing Line Loans shall not exceed such Lender's Revolving Commitment.
Within the limits of each Lender's Revolving Commitment, and subject to the
other terms and conditions hereof, the Borrowers may borrow under this Section
2.01, prepay under Section 2.05, and reborrow under this Section 2.01.
Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
(b) Term Loan. Subject to the terms and conditions set forth herein,
each Lender severally agrees to fund its Applicable Percentage of a term loan
(the "Term Loan") to the Borrowers on the Term Loan Funding Date(s) in an
aggregate amount not to exceed such Lender's Term Loan Commitment; provided,
however, that after giving effect to any Borrowing under the Term Loan, the
Total Term Outstandings of the Term Loan shall not exceed the Aggregate Term
Loan Commitments. Amounts repaid on the Term Loan may not be reborrowed. The
Term Loan may consist of Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
2.02 Borrowings, Conversions and Continuations of Committed Loans.
------------------------------------------------------------
(a) Each Committed Borrowing, each conversion of Committed Loans from
one Type to the other, and each continuation of Eurodollar Rate Loans shall be
made upon the Company's irrevocable notice to the Administrative Agent, which
may be given by telephone (provided that such telephonic notice complies with
the information requirements of the form of Committed Loan Notice attached
hereto). Each such notice must be received by the Administrative Agent not
later than 9:00 a.m. (i) three (3) Business Days prior to the requested date of
any Borrowing of, conversion to or continuation of Eurodollar Rate Loans, and
(ii) on the requested date of any Borrowing of Base Rate Committed Loans. Each
telephonic notice by the Company pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Company. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Loans shall be in a principal amount of
32
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as
provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to
Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrowers are requesting a
Committed Borrowing, a conversion of Committed Loans from one Type to the
other, or a continuation of Eurodollar Rate Loans, (ii) whether the Borrowers
are requesting a Revolving Loan or a Term Loan, (iii) the identity of the
Borrower(s) with respect to the Borrowing, conversion or continuation, as the
case may be, (iv) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (v) the
principal amount of Committed Loans to be borrowed, converted or continued,
(vi) the Type of Committed Loans to be borrowed or to which existing Committed
Loans are to be converted, and (vii) if applicable, the duration of the
Interest Period with respect thereto. If the Company fails to specify a Type of
Committed Loan in a Committed Loan Notice or if the Company fails to give a
timely notice requesting a conversion or continuation, then the applicable
Committed Loans shall be made as, or converted to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day
of the Interest Period then in effect with respect to the applicable Eurodollar
Rate Loans. If the Company requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month. Notwithstanding the foregoing, all Borrowings
made on the Closing Date shall be made as Base Rate Loans unless the
Administrative Agent shall have received an appropriate funding indemnity
letter executed by the Borrowers and reasonably acceptable to the
Administrative Agent at least three (3) Business Days prior to the Closing
Date.
(b) The Company, on behalf of the Borrowers, may request to draw all
or any portion of the Aggregate Term Loan Commitments in a single Borrowing or
a combination of no more than four (4) Borrowings, in accordance with Section
2.02(a) and the definition of Term Loan Funding Date, during the Term Loan
Commitment Period.
(c) Following receipt of a Committed Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Applicable
Percentage of the applicable Committed Loans, and if no timely notice of a
conversion or continuation is provided by the Company, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base
Rate Loans as described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available to
the Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 11:00 a.m. on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the initial
Credit Extension, Section 4.01), the Administrative Agent shall make all funds
so received available to the Borrowers in like funds as received by the
Administrative Agent either by (i) crediting the account of the Company on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Company; provided,
however, that if, on the date the Committed Loan Notice with respect to such
Borrowing consisting of Committed Loans is given by the Company, there are
Swing Line Loans or L/C Borrowings outstanding, then the proceeds of such
Borrowing shall be applied, first, to the payment in full of any such L/C
Borrowings, and second, to the Borrowers as provided above.
33
(d) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(e) The Administrative Agent shall promptly notify the Company and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Company and the Lenders of any change in
Bank of America's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(f) After giving effect to all Committed Borrowings, all conversions
of Committed Loans from one Type to the other, and all continuations of
Committed Loans as the same Type, there shall not be more than six (6) Interest
Periods in effect with respect to Committed Loans.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A)
the L/C Issuer agrees, in reliance upon the agreements of the Lenders
set forth in this Section 2.03, (1) from time to time on any Business
Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of a
Borrower or any Subsidiary, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and
(2) to honor drawings under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the
account of a Borrower or any Subsidiary and any drawings thereunder;
provided that after giving effect to any L/C Credit Extension with
respect to any Letter of Credit, (w) the Total Outstandings shall not
exceed the Aggregate Commitments, (x) the Total Revolving Outstandings
shall not exceed the Aggregate Revolving Commitments, (y) the
aggregate Outstanding Amount of the Revolving Loans of any Lender,
plus such Lender's Applicable Percentage of the Outstanding Amount of
all L/C Obligations, plus such Lender's Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each
request by the Company for the issuance or amendment of a Letter of
Credit shall be deemed to be a representation by the Borrowers that
the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrowers'
ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrowers may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or
that have been drawn upon and reimbursed. All Existing Letters of
Credit shall be deemed to have been issued pursuant hereto, and from
and after the Closing Date shall be subject to and governed by the
terms and conditions hereof. Each Letter of Credit Application shall
be prepared and signed by the Company; provided, however, that the
34
Company shall be permitted to designate any Subsidiary or other third
party as the account party for the requested Letter of Credit,
although, notwithstanding such designation, the Borrowers shall be the
actual account parties for all purposes of this Agreement for such
Letters of Credit and such designation shall not affect the Borrowers'
reimbursement obligations hereunder with respect to such Letter of
Credit.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date
of such requested Letter of Credit would occur more than
twelve (12) months after the date of issuance, or last
renewal (provided that any such Letter of Credit may have an
expiration date more than one year from the date of issuance
if required under related industrial revenue bond documents
and agreed to by the L/C Issuer), unless the Required Lenders
have approved such expiry date; or
(B) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration
Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to
issue any Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the L/C Issuer from issuing
such Letter of Credit, or any Law applicable to the L/C
Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request
that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or
shall impose upon the L/C Issuer with respect to such Letter
of Credit any restriction, reserve or capital requirement
(for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose
upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the
L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer applicable to
all applicants for Letters of Credit of the L/C Issuer
generally;
(C) except as otherwise agreed by the Administrative
Agent and the L/C Issuer, such Letter of Credit is in an
initial stated amount less $100,000;
(D) such Letter of Credit is to be denominated in a
currency other than Dollars; or
(E) a default of any Lender's obligations to fund
under Section 2.03(c) exists or any Lender is at such time a
Defaulting Lender hereunder, unless the L/C
35
Issuer has entered into satisfactory arrangements with the
Borrowers or such Lender to eliminate the L/C Issuer's risk
with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if
the L/C Issuer would not be permitted at such time to issue such
Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in
Article IX with respect to any acts taken or omissions suffered by the
L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term "Administrative Agent" as
used in Article IX included the L/C Issuer with respect to such acts
or omissions, and (B) as additionally provided herein with respect to
the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of the Company delivered
to the L/C Issuer (with a copy to the Administrative Agent) in the
form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the Company. Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative
Agent not later than 11:00 a.m. at least two (2) Business Days (or
such later date and time as the Administrative Agent and the L/C
Issuer may agree in a particular instance in their sole discretion)
prior to the proposed issuance date or date of amendment, as the case
may be. In the case of a request for an initial issuance of a Letter
of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date
of the requested Letter of Credit (which shall be a Business Day); (B)
the amount thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented
by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of
any drawing thereunder; and (G) such other matters as the L/C Issuer
may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer (A) the
Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may
reasonably require. Additionally, the Company shall furnish to the L/C
Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.
36
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has
received a copy of such Letter of Credit Application from the Company
and, if not, the L/C Issuer will provide the Administrative Agent with
a copy thereof. Unless the L/C Issuer has received written notice from
any Lender, the Administrative Agent or any Loan Party, at least one
(1) Business Day prior to the requested date of issuance or amendment
of the applicable Letter of Credit, that one or more applicable
conditions contained in Article IV shall not then be satisfied, then,
subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the
Borrowers or enter into the applicable amendment, as the case may be,
in each case in accordance with the L/C Issuer's usual and customary
business practices. Immediately upon the issuance of each Letter of
Credit, each Revolving Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount
equal to the product of (x) such Lender's Applicable Percentage and
(y) the amount of such Letter of Credit.
(iii) If the Company so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an "Auto-Extension Letter of Credit");
provided that any such Auto-Extension Letter of Credit must permit the
L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the "Non-Extension Notice Date") in each such
twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the L/C Issuer, a
Borrower shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of Credit
has been issued, the Lenders shall be deemed to have authorized (but
may not require) the L/C Issuer to permit the extension of such Letter
of Credit at any time to an expiry date not later than the Letter of
Credit Expiration Date; provided, however, that the L/C Issuer shall
not permit any such extension if (A) the L/C Issuer has determined
that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as extended)
under the terms hereof (by reason of the provisions of clause (ii) or
(iii) of Section 2.03(a) or otherwise), or (B) it has received notice
(which may be by telephone or in writing) on or before the day that is
five (5) Business Days before the Non-Extension Notice Date (1) from
the Administrative Agent that the Required Lenders have elected not to
permit such extension or (2) from the Administrative Agent, any Lender
or the Company that one or more of the applicable conditions specified
in Section 4.02 is not then satisfied, and in each such case directing
the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also
deliver to the Company and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
37
(v) Any Lender with a Revolving Commitment (in such capacity,
a "Discretionary L/C Issuer") may from time to time, at the written
request of the Company (with a copy to the Administrative Agent) and
with the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed), and in such Lender's sole
discretion, agree to issue one or more Letters of Credit for the
account of the Borrowers on the same terms and conditions in all
respects as are applicable to the Letters of Credit issued by the L/C
Issuer hereunder by executing and delivering to the Administrative
Agent a written agreement to such effect, among (and in form and
substance satisfactory to) the Borrowers, the Administrative Agent and
such Discretionary L/C Issuer; provided, however, there shall be no
more than two (2) Discretionary L/C Issuers (in addition to Bank of
America, as initial L/C Issuer) at any time. With respect to each of
the Letters of Credit issued (or to be issued) thereby, each of the
Discretionary L/C Issuers shall have all of the same rights and
obligations under and in respect of this Agreement and the other Loan
Documents, and shall be entitled to all of the same benefits
(including, without limitation, the rights, obligations and benefits
set forth in Sections 2.03, 9.07 and 10.01), as are afforded to the
L/C Issuer hereunder and thereunder. The Administrative Agent shall
promptly notify each of the Lenders with a Revolving Commitment of the
appointment of any Discretionary L/C Issuer. Each Discretionary L/C
Issuer shall provide to the Administrative Agent, on a monthly basis,
a report that details the activity with respect to each Letter of
Credit issued by such Discretionary L/C Issuer (including an
indication of the maximum amount then in effect with respect to each
such Letter of Credit).
(vi) The L/C Issuer may, in its sole discretion, issue one or
more Letters of Credit hereunder, with expiry dates that would occur
after the Letter of Credit Expiration Date (and after the Maturity
Date), to the extent the Borrowers have agreed to fully Cash
Collateralize the L/C Obligations relating to such Letters of Credit
on the Letter of Credit Expiration Date in accordance with the terms
of Section 2.03(g) (which cash collateral shall be released and
returned to the Borrowers promptly upon the expiration or termination
of such Letters of Credit to the extent there are no outstanding L/C
Obligations, in accordance with the L/C Issuer's customary practices
and procedures). In the event the Borrowers fail to Cash Collateralize
the outstanding L/C Obligations on the Letter of Credit Expiration
Date, each outstanding Letter of Credit shall automatically be deemed
to be drawn in full and the Borrowers shall be deemed to have
requested a Revolving Loan that is a Base Rate Committed Loan to be
funded by the Lenders on the Letter of Credit Expiration Date to
reimburse such drawing (with the proceeds of such Loan being used to
Cash Collateralize outstanding L/C Obligations as set forth in Section
2.03(g)) in accordance with the provisions of Section 2.03(c). If a
Base Rate Committed Loan cannot be made because the conditions set
forth in Section 4.02 cannot be satisfied or for any other reason, the
Borrowers shall be deemed to have incurred an L/C Borrowing from the
L/C Issuer and each Lender shall be obligated to fund its Applicable
Percentage of such L/C Borrowing in the form of an L/C Advance in
accordance with the provisions of Section 2.03(c) (with the proceeds
of such L/C Advance being used to Cash Collateralize outstanding L/C
Obligations as set forth in Section 2.03(g)). The funding by a Lender
of its Applicable Percentage of such Base Rate Committed Loan or such
L/C Advance, as applicable, to Cash Collateralize the outstanding L/C
Obligations on the
38
Letter of Credit Expiration Date shall be deemed payment by such
Lender in respect of its participation interest in such L/C
Obligations.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit
of any notice of a drawing under such Letter of Credit, the L/C Issuer
shall notify the Company and the Administrative Agent thereof. Not
later than 11:00 a.m. on the date of any payment by the L/C Issuer
under a Letter of Credit (each such date, an "Honor Date"), the
Borrowers shall reimburse the L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing. If the
Borrowers fail to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor
Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and the amount of such Lender's Applicable Percentage
thereof. In such event, the Borrowers shall be deemed to have
requested a Committed Borrowing of Revolving Loans that are Base Rate
Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02 for the principal amount of Base Rate Loans,
but subject to the amount of the unutilized portion of the Aggregate
Revolving Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed Loan Notice). Any notice given
by the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer)
shall upon any notice pursuant to Section 2.03(c)(i) make funds
available to the Administrative Agent for the account of the L/C
Issuer at the Administrative Agent's Office in an amount equal to its
Applicable Percentage of the Unreimbursed Amount not later than 1:00
p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Lender that so makes funds available shall be
deemed to have made a Base Rate Committed Loan to the Borrowers in
such amount. The Administrative Agent shall remit the funds so
received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Committed Borrowing of Base Rate Loans because
the conditions set forth in Section 4.02 cannot be satisfied or for
any other reason, the Borrowers shall be deemed to have incurred from
the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at
the Default Rate. In such event, each Lender's payment to the
Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C
Advance from such Lender in satisfaction of its participation
obligation under this Section 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C
Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer
for any amount drawn under any Letter
39
of Credit, interest in respect of such Lender's Applicable Percentage
of such amount shall be solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Revolving Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters
of Credit, as contemplated by this Section 2.03(c), shall be absolute
and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other
right which such Lender may have against the L/C Issuer, the Borrowers
or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default; (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; or (D) with
respect to the obligation of each Lender to fund and satisfy its
participation in an L/C Borrowing in accordance with this Section, the
occurrence of the Letter of Credit Expiration Date or the Maturity
Date or the termination of the Commitments hereunder; provided,
however, that each Lender's obligation to make Revolving Loans
pursuant to this Section 2.03(c) is subject to the conditions set
forth in Section 4.02 (other than delivery by the Borrowers of a
Committed Loan Notice). No such making of an L/C Advance shall relieve
or otherwise impair the obligation of the Borrowers to reimburse the
L/C Issuer for the amount of any payment made by the L/C Issuer under
any Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available
to the L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the L/C Issuer in
accordance with banking industry rules on interbank compensation. A
certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such Lender's
L/C Advance in respect of such payment in accordance with Section
2.03(c), if the Administrative Agent receives for the account of the
L/C Issuer any payment in respect of the related Unreimbursed Amount
or interest thereon (whether directly from the Borrowers or otherwise,
including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to
such Lender its Applicable Percentage thereof (appropriately adjusted,
in the case of interest payments, to reflect the period of time during
which such Lender's L/C Advance was outstanding) in the same funds as
those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the
40
circumstances described in Section 10.06 (including pursuant to any
settlement entered into by the L/C Issuer in its discretion), each
Lender shall pay to the Administrative Agent for the account of the
L/C Issuer its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate
per annum equal to the Federal Funds Rate from time to time in effect.
The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this
Agreement.
(e) Obligations Absolute. The obligation of the Borrowers to reimburse
the L/C Issuer for each drawing under each Letter of Credit and to repay each
L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff,
defense or other right that either Borrower or any Subsidiary may have
at any time against any beneficiary or any transferee of such Letter
of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person, whether
in connection with this Agreement, the transactions contemplated
hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such 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 such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any
payment made by the L/C Issuer under such 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
such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) 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 Borrowers or any Subsidiary.
The Company, on behalf of the Borrowers, shall promptly examine a copy
of each Letter of Credit and each amendment thereto that is delivered to it
and, in the event of any claim of noncompliance with the Company's instructions
or other irregularity, the Company will immediately notify the L/C Issuer. The
Borrowers shall be conclusively deemed to have waived any such claim against
the L/C Issuer and its correspondents unless such notice is given as aforesaid.
41
(f) Role of L/C Issuer. Each Lender and the Borrowers agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents 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. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer 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 or 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 document or instrument related to any Letter of Credit or
Issuer Document. The Borrowers hereby assume 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 Borrowers' pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable or responsible for any of the matters described in clauses (i)
through (v) of Section 2.03(e); provided, however, that anything in such
clauses to the contrary notwithstanding, the Borrowers may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to the Borrowers, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Borrowers which the Borrowers prove were
caused by the L/C Issuer's willful misconduct or gross negligence or the L/C
Issuer'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, the L/C Issuer 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 the L/C Issuer 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.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrowers shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be, which cash collateral shall be released and returned to the Borrowers
promptly upon the expiration or termination of such Letter of Credit to the
extent there are no outstanding L/C Obligations, in accordance with the L/C
Issuer's customary practices and procedures). For purposes hereof, "Cash
Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer 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 Administrative Agent
and the L/C Issuer (which documents are hereby consented to by the Lenders).
The Borrowers hereby grant to the Administrative Agent, for the benefit of the
L/C Issuer and the Lenders, a security interest in all such cash, deposit
accounts and all balances therein and all
42
proceeds of the foregoing. Cash collateral shall be maintained in blocked,
non-interest bearing deposit accounts at Bank of America.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrowers when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), the rules of the ISP
shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrowers shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Applicable Percentage a Letter of Credit fee for each Letter of Credit equal to
the Applicable Rate times the daily maximum amount available to be drawn under
such Letter of Credit (whether or not such maximum amount is then in effect
under such Letter of Credit). Such letter of credit fees shall be computed on a
quarterly basis in arrears. Such letter of credit fees shall be due and payable
on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on demand. If there is any change in the Applicable Rate during any quarter,
the daily maximum amount of each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.
(j) Fronting Fee and Processing Charges Payable to L/C Issuer. The
Borrowers shall pay directly to the L/C Issuer for its own account a fronting
fee for each Letter of Credit equal to 0.125% times the daily maximum amount
available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit). Such letter of credit
fees shall be computed on a quarterly basis in arrears. Such fronting fee for
each Letter of Credit shall be due and payable on the first Business Day after
the end of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter
of Credit Expiration Date and thereafter on demand. In addition, the Borrowers
shall pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect. Such customary fees and standard costs and charges are due
and payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, to make loans (each such loan, a "Swing
Line Loan") to the Borrowers from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Applicable Percentage of
the Outstanding Amount of Revolving Loans, the Term Loan and L/C Obligations of
the Lender acting as Swing Line Lender, may exceed the amount of such Lender's
Commitment; provided, however, that after giving effect to any Swing Line Loan,
(i) the Total Outstandings shall not exceed the Aggregate Commitments, (ii) the
Total Revolving Outstandings shall not exceed the Aggregate
43
Revolving Commitments, and (iii) the aggregate Outstanding Amount of the
Revolving Loans of any Lender, plus such Lender's Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender's Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment. Within the foregoing limits, and subject to the other
terms and conditions hereof, the Borrowers may borrow under this Section 2.04,
prepay under Section 2.05, and reborrow under this Section 2.04. Immediately
upon the making of a Swing Line Loan, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the
product of (x) such Lender's Applicable Percentage and (y) the amount of such
Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
the Borrowers' irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone (provided that such
telephonic notice complies with the informational requirements of the form of
Swing Line Loan Notice attached hereto. Each such notice must be received by
the Swing Line Lender and the Administrative Agent not later than 3:00 p.m. on
the requested borrowing date, and shall specify (i) the amount to be borrowed,
which shall be a minimum of $500,000 (and in integral multiples of $100,000 in
excess thereof), and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Company. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line
Lender will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by
telephone or in writing) from the Administrative Agent (including at the
request of any Lender) prior to 3:00 p.m. on the date of the proposed Swing
Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line
Loan as a result of the limitations set forth in the proviso to the first
sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 4:00
p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the Borrowers.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and
absolute discretion may request, on behalf of the Borrowers (which
hereby irrevocably authorizes the Swing Line Lender to so request on
its behalf), that each Lender make a Base Rate Committed Loan in an
amount equal to such Lender's Applicable Percentage of the amount of
Swing Line Loans then outstanding. Such request shall be made in
writing (which written request shall be deemed to be a Committed Loan
Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified
therein for the principal amount of Base Rate Loans, but subject to
the unutilized portion of the Aggregate Revolving Commitments and the
conditions set forth in Section 4.02. The Swing Line Lender shall
furnish the Company with a copy of the applicable Committed Loan
Notice promptly after delivering such notice to the
44
Administrative Agent. Each Lender shall make an amount equal to its
Applicable Percentage of the amount specified in such Committed Loan
Notice available to the Administrative Agent in immediately available
funds for the account of the Swing Line Lender at the Administrative
Agent's Office not later than 11:00 a.m. on the day specified in such
Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each
Lender that so makes funds available shall be deemed to have made a
Base Rate Committed Loan to the Borrowers in such amount. The
Administrative Agent shall remit the funds so received to the Swing
Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Committed Borrowing in accordance with Section
2.04(c)(i), the request for Base Rate Committed Loans submitted by the
Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender's
payment to the Administrative Agent for the account of the Swing Line
Lender pursuant to Section 2.04(c)(i) shall be deemed payment in
respect of such participation.
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any
amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available
to the Swing Line Lender at a rate per annum equal to the Federal
Funds Rate from time to time in effect. A certificate of the Swing
Line Lender submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.
(iv) Each Lender's obligation to make Revolving Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to
this Section 2.04(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, the Borrowers or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that each
Lender's obligation to make Revolving Loans pursuant to this Section
2.04(c) is subject to the conditions set forth in Section 4.02. No
such funding of risk participations shall relieve or otherwise impair
the obligation of the Borrowers to repay Swing Line Loans, together
with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a
risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Applicable Percentage
of such payment (appropriately adjusted, in the case of interest
payments, to
45
reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the
Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required to
be returned by the Swing Line Lender under any of the circumstances
described in Section 10.06 (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each Lender
shall pay to the Swing Line Lender its Applicable Percentage thereof
on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned, at a rate per
annum equal to the Federal Funds Rate. The Administrative Agent will
make such demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Borrowers for interest on the Swing Line
Loans. Until each Lender funds its Base Rate Committed Loan or risk
participation pursuant to this Section 2.04 to refinance such Lender's
Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrowers shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
2.05 Prepayments.
(a) Voluntary Prepayments. The Borrowers shall have the right to
prepay Loans in whole or in part from time to time; provided, however, that (i)
such notice must be received by the Administrative Agent not later than 9:00
a.m. (A) three (3) Business Days prior to any date of prepayment of Eurodollar
Rate Loans and (B) on the date of prepayment of Base Rate Committed Loans and
(ii) each partial prepayment of (A) Eurodollar Rate Loans shall be in a minimum
principal amount of $5,000,000 and integral multiples of $1,000,000 in excess
thereof (or, the then remaining principal balance of the Committed Loans, if
less) and (B) Base Rate Loans shall be in a minimum principal amount of
$500,000 and integral multiples of $100,000 in excess thereof (or, the then
remaining principal balance of the Committed Loans, if less) or, in the case of
Swing Line Loans, in a minimum principal amount of $500,000 and multiples of
$100,000 in excess thereof. Subject to the foregoing terms, amounts prepaid
under this Section 2.05(a) shall be applied as the Company may elect; provided
that if the Company shall fail to specify its elected application with respect
to any voluntary prepayment, such voluntary prepayment shall be applied first
to the Term Loan, then to Swing Line Loans and then to Revolving Loans, and
with respect to Committed Loans first to Base Rate Loans and then to Eurodollar
Loans in direct order of Interest Period maturities. All prepayments under this
Section 2.05(a) shall be subject to Section 3.05, but otherwise without premium
or penalty and shall be accompanied by interest on the principal amount prepaid
through the date of prepayment.
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(b) Mandatory Prepayments.
(i) Commitments. If for any reason the Total Revolving
Outstandings at any time exceed the Aggregate Revolving Commitments
then in effect, the Borrowers shall immediately prepay Revolving Loans
and/or Cash Collateralize the L/C Obligations in an aggregate amount
equal to such excess; provided, however, that the Borrowers shall not
be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.05(b)(i) unless after the prepayment in full of the
Revolving Loans the Total Revolving Outstandings exceed the Aggregate
Revolving Commitments then in effect. If for any reason the
outstanding principal amount of the Term Loan at any time exceeds the
Aggregate Term Loan Commitments then in effect, the Borrowers shall
immediately prepay the Term Loan in the amount equal to such excess.
(ii) (A) Asset Dispositions. Immediately upon the
occurrence of any Asset Disposition Prepayment Event
the Borrowers shall prepay the Loans in an aggregate
amount equal to 50% of the Net Cash Proceeds of the
related Asset Disposition not applied (or caused to
be applied) by the Borrowers during the related
Application Period to make Eligible Reinvestments as
contemplated by the terms of Section 7.05(g) (such
prepayment to be applied as set forth in clause (v)
below).
(B) Involuntary Dispositions. Immediately upon the
occurrence of an Involuntary Disposition Prepayment
Event, the Borrowers shall prepay the Loans in an
aggregate amount equal to 50% of the Excess Proceeds
not used to make Eligible Reinvestments (such
prepayment to be applied as set forth in clause (v)
below).
(iii) Debt Issuances. Immediately upon the occurrence of a
Debt Issuance Prepayment Event, the Borrowers shall prepay the Loans
in an aggregate amount equal to 100% of the Net Cash Proceeds of the
related Debt Issuance not used to make Eligible Reinvestments within
360 days of such Debt Issuance (such prepayment to be applied as set
forth in clause (v) below).
(iv) Equity Issuances. Immediately upon the occurrence of an
Equity Issuance Prepayment Event, the Borrowers shall prepay the Loans
in an aggregate amount equal to 50% of the Net Cash Proceeds of the
related Equity Issuance not used to make Eligible Reinvestments within
360 days of such Equity Issuance (such prepayment to be applied as set
forth in clause (v) below).
(v) Application of Mandatory Prepayments. Subject to the next
succeeding paragraph, all amounts required to be paid pursuant to this
Section 2.05(b) shall be applied to prepay the Term Loan.
Notwithstanding the foregoing, to the extent that any
mandatory prepayment required under this Section 2.05 would have the
effect of reducing the Aggregate Revolving Commitments below the
amount necessary to support L/C Obligations, such portion of the
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prepayment shall be applied to a cash collateral account in respect of
such L/C Obligations and the Aggregate Revolving Commitments shall not
be reduced thereby.
(vi) Prepayment Account. If the Borrowers are required to
make a mandatory prepayment of Eurodollar Loans under this Section
2.05(b), the Borrowers shall have the right, as long as no Default or
Event of Default then exists, in lieu of making such prepayment in
full, to deposit an amount equal to such mandatory prepayment with the
Administrative Agent in a cash collateral account maintained (pursuant
to documentation reasonably satisfactory to the Administrative Agent)
by and in the sole dominion and control of the Administrative Agent.
Any amounts so deposited shall be held by the Administrative Agent as
collateral for the prepayment of such Eurodollar Loans and shall be
applied to the prepayment of the applicable Eurodollar Loans at the
end of the current Interest Periods applicable thereto. At the request
of the Borrowers, amounts so deposited shall be invested by the
Administrative Agent in cash maturing prior to the date or dates on
which it is anticipated that such amounts will be applied to prepay
such Eurodollar Loans; any interest earned on such cash will be for
the account of the Borrowers and the Borrowers will deposit with the
Administrative Agent the amount of any loss on any such cash to the
extent necessary in order that the amount of the prepayment to be made
with the deposited amounts may not be reduced.
2.06 Termination or Reduction of Commitments.
(a) Voluntary Termination or Reductions of the Aggregate Revolving
Commitment. The Borrowers may, upon notice to the Administrative Agent,
terminate the Aggregate Revolving Commitments, or from time to time permanently
reduce the Aggregate Revolving Commitments; provided that (i) any such notice
shall be received by the Administrative Agent not later than 9:00 a.m. five (5)
Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in an aggregate amount of $5,000,000 or any whole
multiple of $1,000,000 in excess thereof, (iii) the Borrowers shall not
terminate or reduce the Aggregate Revolving Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Revolving
Outstandings would exceed the Aggregate Revolving Commitments, and (iv) if,
after giving effect to any reduction of the Aggregate Revolving Commitments,
the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of
the Aggregate Revolving Commitments, such Sublimit shall be automatically
reduced by the amount of such excess.
(b) Voluntary Termination or Reduction of the Aggregate Term Loan
Commitments. At any time during the Term Loan Commitment Period, the Borrowers
may, upon notice to the Administrative Agent, terminate the Aggregate Term Loan
Commitments, or from time to time permanently reduce the aggregate undrawn Term
Loan Commitments, if any; provided that (i) any such notice shall be received
by the Administrative Agent not later than 11:00 a.m. five (5) Business Days
prior to the date of termination or reduction and (ii) any such partial
reduction shall be in an aggregate amount of $5,000,000 or any whole multiple
of $1,000,000 in excess thereof. The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the aggregate
undrawn Term Loan Commitments. Any reduction of the Aggregate Term Loan
Commitments shall be applied to the Term Loan Commitment of each Lender
according to its Applicable Percentage. Notwithstanding any thing to the
contrary
48
contained herein, the undrawn amount of the Term Loan Commitments, if
any, remaining at the end of the Term Loan Commitment Period shall
automatically be terminated in full.
(c) General. The Administrative Agent will promptly notify the Lenders
of any such notice of termination or reduction of the Aggregate Commitments.
Any reduction of the Commitments shall be applied to the Aggregate Commitment
of each Lender according to its Applicable Percentage. All commitment fees
(including ticking fees) accrued until the effective date of any termination of
the Aggregate Commitments shall be paid on the effective date of such
termination.
2.07 Repayment of Loans.
(a) Revolving Loans. The Borrowers shall repay to the Lenders on the
Maturity Date the aggregate principal amount of Revolving Loans outstanding on
such date.
(b) Swingline Loans. The Borrowers shall repay each Swing Line Loan in
full on demand and in no event later than (i) the date ten (10) Business Days
after such Loan is made and (ii) the Maturity Date.
(d) Term Loan. The Borrowers shall repay to the Lenders on the
Maturity Date the aggregate outstanding principal amount of the Term Loan on
such date.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate
Committed Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at
a rate per annum equal to, at the Borrowers' option, (x) the Base Rate plus the
Applicable Rate or (y) such other rate mutually agreed to by the Borrowers and
the Swing Line Lender at the time of the borrowing of such Swing Line Loan.
(b) If any amount payable by the Borrowers under any Loan Document is
not paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.
Furthermore, unless otherwise agreed to by the Required Lenders while any Event
of Default exists, the Borrowers shall pay interest on the principal amount of
all outstanding Obligations hereunder at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance
with the terms hereof before and after judgment, and before and after
49
the commencement of any proceeding under any Debtor Relief Law.
2.09 Fees.
In addition to certain fees described in subsections (i) and (j) of
Section 2.03:
(a) Commitment Fee. The Borrowers shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage, a commitment fee equal to the Applicable Rate times the actual
daily amount by which the Aggregate Revolving Commitments exceeds the Total
Revolving Outstandings, exclusive of the Outstanding Amount of any Swingline
Loans (the "Commitment Fee"). The Commitment Fee shall accrue at all times
during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September
and December, commencing with the first such date to occur after the Closing
Date, and on the Maturity Date. If there is any change in the Applicable Rate
during any quarter, the actual daily amount shall be computed and multiplied by
the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) Ticking Fee. The Borrowers shall pay to the Administrative Agent
for the account of each Lender in accordance with its Applicable Percentage, a
ticking fee equal to the Applicable Rate times the undrawn amount of the
Aggregate Term Loan Commitments as such amount may be reduced from time to time
in accordance with Section 2.06(b) (the "Term Loan Ticking Fee"). The Term Loan
Ticking Fee shall be payable quarterly in arrears for the period commencing
upon the Closing Date and ending on the Term Loan Funding Date.
(c) Other Fees. The Borrowers shall pay to the Arrangers and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letters. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
2.10 Computation of Interest and Fees.
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day on which
it is made shall, subject to Section 2.12(a), bear interest for one day.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary
50
course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount
of the Credit Extensions made by the Lenders to the Borrowers and the interest
and payments thereon. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Borrowers
hereunder to pay any amount owing with respect to the Obligations. In the event
of any conflict between the accounts and records maintained by any Lender and
the accounts and records of the Administrative Agent in respect of such
matters, the accounts and records of the Administrative Agent shall control in
the absence of manifest error. Upon the request of any Lender made through the
Administrative Agent, the Borrowers shall execute and deliver to such Lender
(through the Administrative Agent) a promissory note, which shall evidence such
Lender's Loans in addition to such accounts or records. Each such promissory
note shall (i) in the case of Revolving Loans, be in the form of Exhibit C-1 (a
"Revolving Note") and (ii) in the case of the Term Loan, be in the form of
Exhibit C-2 (a "Term Note"). Each Lender may attach schedules to its Note and
endorse thereon the date, Type (if applicable), amount and maturity of its
Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error.
2.12 Payments Generally.
(a) All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrowers
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 12:00 noon
on the date specified herein. The Administrative Agent will promptly distribute
to each Lender its Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Lender's Lending Office. All payments received by the Administrative Agent
after 12:00 noon shall be deemed received on the next succeeding Business Day
and any applicable interest or fee shall continue to accrue. If any payment to
be made by the Borrowers shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent.
Unless the Administrative Agent shall have received notice from a Lender not
less than one (1) Business Day prior to the proposed date of any Committed
Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing
of Base Rate Loans, prior to 12:00 noon on the date of such Committed
Borrowing) that such Lender will not make available to the Administrative Agent
such Lender's share of such Committed Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in
51
the case of a Committed Borrowing of Base Rate Loans, that such Lender has made
such share available in accordance with and at the time required by Section
2.02) and may, in reliance upon such assumption, make available to the
Borrowers a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Committed Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrowers severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from
and including the date such amount is made available to the Borrowers to but
excluding the date of payment to the Administrative Agent, at (A) in the case
of a payment to be made by such Lender, the greater of the Federal Funds Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation and (B) in the case of a payment to be
made by the Borrowers, the interest rate applicable to Base Rate Loans. If the
Borrowers and such Lender shall pay such interest to the Administrative Agent
for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrowers the amount of such interest paid by the Borrowers for
such period. If such Lender pays its share of the applicable Committed
Borrowing to the Administrative Agent, then the amount so paid shall constitute
such Lender's Revolving Loan included in such Committed Borrowing. Any payment
by the Borrowers shall be without prejudice to any claim the Borrowers may have
against a Lender that shall have failed to make such payment to the
Administrative Agent.
(ii) Payments by Borrowers; Presumptions by Administrative
Agent. Unless the Administrative Agent shall have received notice from
the Company prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrowers will not make such payment, the
Administrative Agent may assume that the Borrowers have made such
payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the L/C Issuer, as the
case may be, the amount due. In such event, if the Borrowers have not
in fact made such payment, then each of the Lenders or the L/C Issuer,
as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or
the L/C Issuer, in immediately available funds with interest thereon,
for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent,
at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrowers
with respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) If any Lender makes available to the Administrative Agent funds
for any Loan to be made by such Lender as provided in the foregoing provisions
of this Article II, and such funds are not made available to the Borrowers by
the Administrative Agent because the conditions to the applicable Credit
Extension set forth in Article IV are not satisfied or waived in accordance
with the terms hereof, the Administrative Agent shall return such funds (in
like funds as received from such Lender) to such Lender, without interest.
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(d) The obligations of the Lenders hereunder to make Committed Loans,
to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 10.05(c) are several and not joint. The failure of
any Lender to make any Committed Loan, to fund any such participation or to
make any payment under Section 10.05(c) on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender to
so make its Committed Loan, to purchase its participation or to make its
payment under Section 10.05(c).
(e) Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.13 Sharing of Payments.
If, other than as expressly provided elsewhere herein, any Lender
shall obtain on account of the Committed Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it, any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Committed Loans made by them and/or such
subparticipations in the participations in L/C Obligations or Swing Line Loans
held by them, as the case may be, as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such Committed
Loans or such participations, as the case may be, pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender under any of the circumstances
described in Section 10.06 (including pursuant to any settlement entered into
by the purchasing Lender in its discretion), such purchase shall to that extent
be rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) 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, without further
interest thereon. The Borrowers agree that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 10.09) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrowers in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under
this Section and will in each case notify the Lenders following any such
purchases or repayments. Each Lender that purchases a participation pursuant to
this Section shall from and after such purchase have the right to give all
notices, requests, demands, directions and other communications under this
Agreement with respect to the portion of the Obligations purchased to the same
extent as though the purchasing Lender were the original owner of the
Obligations purchased.
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2.14 Joint and Several Liability of Borrowers.
(a) Each of the Borrowers is accepting joint and several
liability hereunder in consideration of the financial accommodation to
be provided by the Lenders under this Agreement, for the mutual
benefit, directly and indirectly, of each of the Borrowers and in
consideration of the undertakings of each of the Borrowers to accept
joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby
irrevocably and unconditionally accepts, not merely as a surety but
also as a co-debtor, joint and several liability with the other
Borrowers with respect to the payment and performance of all of the
Obligations arising under this Agreement and the other Loan Documents,
it being the intention of the parties hereto that all the Obligations
shall be the joint and several obligations of each of the Borrowers
without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall
fail to make any payment with respect to any of the Obligations as and
when due or to perform any of the Obligations in accordance with the
terms thereof, then in each such event, the other Borrowers will make
such payment with respect to, or perform, such Obligation.
(d) The obligations of each Borrower under the provisions of
this Section 2.14 constitute full recourse obligations of such
Borrower, enforceable against it to the full extent of its properties
and assets.
(e) Except as otherwise expressly provided herein, to the
extent permitted by law, each Borrower (in its capacity as a joint and
several obligor in respect of the obligations of the other Borrower)
hereby waives notice of acceptance of its joint and several liability,
notice of occurrence of any Default or Event of Default (except to the
extent notice is expressly required to be given pursuant to the terms
of this Agreement), or of any demand for any payment under this
Agreement, notice of any action at any time taken or omitted by the
Administrative Agent or the Lenders under or in respect of any of the
obligations hereunder, any requirement of diligence and, generally,
all demands, notices and other formalities of every kind in connection
with this Agreement. Each Borrower hereby assents to, and waives
notice of, any extension or postponement of the time for the payment
of any of the Obligations, the acceptance of any partial payment
thereon, any waiver, consent or other action or acquiescence by the
Administrative Agent or the Lenders at any time or times in respect of
any default by the other Borrower in the performance or satisfaction
of any term, covenant, condition or provision of this Agreement, any
and all other indulgences whatsoever by the Administrative Agent or
the Lenders in respect of any of the obligations hereunder, and the
taking, addition, substitution or release, in whole or in part, at any
time or times, of any security for any of such obligations or the
addition, substitution or release, in whole or in part, of the other
Borrower. Without limiting the generality of the foregoing, each
Borrower (in its capacity as a joint and several obligor in respect of
the obligations of the other Borrower) assents to any other action or
delay in acting or any failure to act on the part of the
Administrative Agent or the Lenders, including, without limitation,
any failure strictly or diligently to assert any right or to pursue
any remedy or to comply fully with applicable laws or regulations
thereunder which might, but for the provisions of this Section 2.14,
afford grounds for terminating, discharging or relieving such
Borrower, in whole or in part, from any of its obligations under this
Section
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2.14, it being the intention of each Borrower that, so long as any of
the Obligations hereunder remain unsatisfied, the obligations of such
Borrower under this Section 2.14 shall not be discharged except by
performance and then only to the extent of such performance. The
obligations of each Borrower under this Section 2.14 shall not be
diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar
proceeding with respect to either Borrower or a Lender. The joint and
several liability of the Borrowers hereunder shall continue in full
force and effect notwithstanding any absorption, merger, amalgamation
or any other change whatsoever in the name, membership, constitution
or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.14 are made for the
benefit of the Lenders and their successors and assigns, and may be
enforced by them from time to time against either of the Borrowers as
often as occasion therefor may arise and without requirement on the
part of the Lenders first to marshal any of its claims or to exercise
any of its rights against the other Borrower or to exhaust any
remedies available to it against the other Borrower or to resort to
any other source or means of obtaining payment of any of the
Obligations hereunder or to elect any other remedy. The provisions of
this Section 2.14 shall remain in effect until all the Obligations
shall have been paid in full or otherwise fully satisfied. If at any
time, any payment, or any part thereof, made in respect of any of the
Obligations is rescinded or must otherwise be restored or returned by
the Lenders upon the insolvency, bankruptcy or reorganization of
either of the Borrowers, or otherwise, the provisions of this Section
2.14 will forthwith be reinstated and in effect as though such payment
had not been made.
(g) Notwithstanding any provision to the contrary contained
herein or in any of the other Loan Documents, to the extent the
obligations of either Borrower shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because
of any applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of such Borrower
hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code of the United States).
2.15 Appointment of the Company.
TRS hereby appoints the Company to act as its agent for all purposes
under this Agreement (including, without limitation, with respect to all
matters related to the borrowing and repayment of Loans) and agrees that (a)
the Company may execute such documents on behalf of TRS as the Company deems
appropriate in its sole discretion and TRS shall be obligated by all of the
terms of any such document executed on its behalf, (b) any notice or
communication delivered by the Administrative Agent or the Lender to the
Company shall be deemed delivered to TRS and (c) the Administrative Agent or
the Lenders may accept, and be permitted to rely on, any document, instrument
or agreement executed by the Company on behalf of TRS.
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2.16 Increase in Commitments.
(a) Provided there exists no Default, upon notice from the Company, on
behalf of the Borrowers, to the Administrative Agent (which shall promptly
notify the Lenders), the Company, on behalf of the Borrowers, may from time to
time, request an increase in the Aggregate Commitments by an aggregate amount
(for all such requests) not exceeding $150,000,000 to be applied pro rata as an
increase to the Aggregate Revolving Commitments and as an increase to the
Aggregate Term Loan Commitments, based upon the relative proportions of (x) the
Aggregate Revolving Commitments and (y) the sum of the unfunded portion of the
Aggregate Term Loan Commitments and the outstanding Term Loan (the "Increase
Option"), with the portion allocated under clause (y) to be funded in full on
the Increase Effective Date; provided that (i) the maximum amount of the
Aggregate Commitments after giving effect to any such increase may not exceed
$550,000,000, (ii) any such request for an increase shall be in a minimum
amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof,
(iii) the Borrowers may make a maximum of three (3) such requests and (iv) the
Maximum Senior Credit Facilities to Collateral Value Ratio shall not be greater
than 50.00% after giving effect to any such increase, as evidenced by an
updated pro forma Collateral Value Report delivered by the Company to the
Administrative Agent. To achieve the full amount of a requested increase, the
Administrative Agent, with the consent of the Borrowers (which consent shall
not be unreasonably withheld) may solicit increased commitments from existing
Lenders and also invite additional Eligible Assignees to become Lenders;
provided, however, that no existing Lender shall be obligated and/or required
to accept an increase in its Commitment pursuant to this Section 2.16 unless it
specifically consents to such increase in writing and no additional Eligible
Assignee shall become a Lender unless its Commitment is at least $5,000,000.
Any Lender or Eligible Assignee agreeing to increase its Commitment or provide
a new Commitment pursuant to this Section 2.16 shall, in connection therewith,
deliver to the Administrative Agent a new commitment agreement in form and
substance satisfactory to the Administrative Agent and its counsel.
(b) If the Aggregate Commitments are increased in accordance with this
Section 2.16, the Administrative Agent and the Company, on behalf of the
Borrowers, shall determine the effective date (the "Increase Effective Date")
and the final allocation of such increase. The Administrative Agent shall
promptly notify the Company, on behalf of the Borrowers, and the Lenders of the
final allocation of such increase and the Increase Effective Date and Schedule
2.01 hereto shall be deemed amended to reflect such increase and final
allocation. As a condition precedent to such increase, in addition to any
deliveries pursuant to subsection (a) above, each Borrower shall deliver to the
Administrative Agent each of the following in form and substance satisfactory
to the Administrative Agent: (1) a certificate dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of such Borrower (i) certifying and attaching the resolutions adopted
by such Borrower approving or consenting to such increase, and (ii) certifying
that, before and after giving effect to such increase, (A) the representations
and warranties of the Borrowers and each other Loan Party contained in Article
V or any other Loan Document, or which are contained in any document furnished
at any time under or in connection herewith or therewith, shall be true and
correct in all material respects and if the applicable representation and
warranty is already subject to a materiality standard, shall be true and
correct in all respects, on and as of the date of the Increase Effective Date,
except to the extent that such representations and warranties specifically
refer
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to an earlier date, in which case they shall be true and correct as of such
earlier date and except that for purposes of this Section 2.16, the
representations and warranties contained in Section 5.05 shall be deemed to
refer to the most recent statements furnished pursuant to subsections (a) and
(b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement
of reaffirmation from such Borrower pursuant to which each such Borrower
ratifies this Agreement and the other Loan Documents and acknowledges and
reaffirms that, after giving effect to such increase, it is bound by all terms
of this Agreement and the other Loan Documents; (3) if the increase is being
provided by a new Lender, a Note in favor of such Lender if so requested by
such Lender; and (4) such additional Timberland Mortgages as may be necessary
to comply with Section 6.14 hereof. The Borrowers shall prepay any Committed
Loans outstanding on the Increase Effective Date (and pay any additional
amounts required pursuant to Section 3.05) to the extent necessary to keep the
outstanding Committed Loans ratable with any revised Applicable Percentages
arising from any nonratable increase in the Commitments under this Section
2.16.
(c) This Section shall supersede any provisions in Section 10.01 to
the contrary.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by the Borrowers to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of
the Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and liabilities being hereinafter referred to as "Taxes"). If the
Borrowers shall be required by any Laws to deduct any Taxes from or in respect
of any sum payable under any Loan Document to the Administrative Agent or any
Lender, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section), each of the Administrative Agent and such
Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrowers shall make such deductions, (iii) the
Borrowers shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable Laws, and (iv) within thirty
(30) days after the date of such payment, the Borrowers shall furnish to the
Administrative Agent (which shall forward the same to such Lender) the original
or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrowers agree to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
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(c) If the Borrowers shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to
the Administrative Agent or any Lender, the Borrowers shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time
interest is paid, such additional amount that the Administrative Agent or such
Lender specifies is necessary to preserve the after-tax yield (after factoring
in all taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrowers agree to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability (including additions to
tax, penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly
or legally imposed or asserted by the relevant Governmental Authority. Payment
under this subsection (d) shall be made within thirty (30) days after the date
the Lender or the Administrative Agent makes a demand therefor.
3.02 Illegality.
If any Lender reasonably determines that any Law has made it unlawful,
or that any Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or fund Eurodollar
Rate Loans, or to determine or charge interest rates based upon the Eurodollar
Rate, then, on notice thereof by such Lender to the Borrowers through the
Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Committed Loans to Eurodollar
Rate Loans shall be suspended until such Lender notifies the Administrative
Agent and the Borrowers that the circumstances giving rise to such
determination no longer exist, which such Lender agrees to do promptly after
permitted by applicable Laws. Upon receipt of such notice, the Borrowers shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base
Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrowers
shall also pay accrued interest on the amount so prepaid or converted. Each
Lender agrees to designate a different Lending Office if such designation will
avoid the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
3.03 Inability to Determine Rates.
If the Required Lenders determine that for any reason adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
that the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost
to such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrowers and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of
58
the Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrowers may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Committed Borrowing of Base Rate
Loans in the amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on
Eurodollar Rate Loans.
(a) If any Lender determines that as a result of the introduction of
or any change in or in the interpretation of any Law, or such Lender's
compliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining Eurodollar Rate Loans or (as
the case may be) issuing or participating in Letters of Credit, or a reduction
in the amount received or receivable by such Lender in connection with any of
the foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.01 shall govern), (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, and (iii) reserve
requirements contemplated by Section 3.04(c)), then from time to time upon
demand of such Lender (with a copy of such demand to the Administrative Agent),
the Borrowers shall pay to such Lender such additional amounts as will
compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time
to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrowers shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
(c) The Borrowers shall pay to each Lender, as long as such Lender
shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid principal amount
of each Eurodollar Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as determined by such Lender in good
faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided the Borrowers
shall have received at least fifteen (15) days' prior notice (with a copy to
the Administrative Agent) of such additional interest from such Lender. If a
Lender fails to give notice fifteen (15) days prior to the relevant Interest
Payment Date, such additional interest shall be due and payable fifteen (15)
days from receipt of such notice.
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3.05 Funding Losses.
Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrowers shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrowers (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrowers; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrowers pursuant to Section 10.16;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan
or from fees payable to terminate the deposits from which such funds were
obtained. The Borrowers shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrowers to the Lenders
under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrowers are required to pay any
additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 3.01, or if any Lender gives a notice
pursuant to Section 3.02, then such Lender shall use reasonable efforts to
designate a different Lending Office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
3.01 or 3.04, as the case may be, in the future, or eliminate the need for the
notice pursuant to Section 3.02, as applicable, and (ii) in each case, would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay
all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrowers are required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 3.01, the Borrowers may replace such Lender in accordance with
Section 10.15.
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3.07 Matters Applicable to all Requests for Compensation.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section
3.01 or 3.04, the Borrowers may replace such Lender in accordance with Section
10.15.
3.08 Survival.
All of the Borrowers' obligations under this Article III shall survive
termination of the Commitments and repayment of all other Obligations
hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension.
The occurrence of the Closing Date, the effectiveness of this
Agreement and the obligation of each Lender to make its initial Credit
Extension hereunder is subject to satisfaction of the following conditions
precedent:
(a) Loan Documents, Organization Documents, Etc. The Administrative
Agent's receipt of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the signing Loan Party, each
dated the Closing Date (or, in the case of certificates of governmental
officials, a recent date before the Closing Date) and each in form and
substance reasonably satisfactory to the Administrative Agent, its legal
counsel and each of the Lenders:
(i) executed counterparts of this Agreement, the Collateral
Documents and any other Loan Documents;
(ii) a Note (or Notes, as applicable) executed by the
Borrowers in favor of each Lender requesting a Note;
(iii) copies of the Organization Documents of each Loan Party
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction
of its incorporation or organization, where applicable, and certified
by a secretary or assistant secretary of such Loan Party to be true
and correct as of the Closing Date;
(iv) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may require
evidencing the identity, authority and capacity of each Responsible
61
Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which
such Loan Party is a party; and
(v) such documents and certifications as the Administrative
Agent may reasonably require to evidence that each Loan Party is duly
organized or formed, and is validly existing, in good standing and
qualified to engage in business in (A) the jurisdiction of its
incorporation or organization and (B) each jurisdiction where its
ownership, lease or operation of properties or the conduct of its
business requires such qualification, except to the extent that
failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(b) Opinions of Counsel. The Administrative Agent shall have received,
in each case dated as of the Closing Date and in form and substance reasonably
satisfactory to the Administrative Agent (i) a legal opinion of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special local counsel for the Loan Parties and (ii)
a legal opinion of ▇▇▇▇▇▇▇ Coie LLP, special counsel for the Loan Parties.
(c) Officer's Certificates. The Administrative Agent shall have
received a certificate or certificates executed by a Responsible Officer of the
Company as of the Closing Date, in form and substance satisfactory to the
Administrative Agent, stating that (A) the conditions specified in Sections
4.02(a) and (b) have been satisfied as of the Closing Date, (B) the Borrowers
are in compliance with all existing material financial obligations, (C) all
governmental, shareholder and third party consents and approvals, if any, with
respect to the Loan Documents and the transactions contemplated thereby have
been obtained (and attaching copies thereof), (D) no action, suit,
investigation or proceeding is pending or threatened in any court or before any
arbitrator or governmental instrumentality that purports to affect the
Borrowers or any transaction contemplated by the Loan Documents, if such
action, suit, investigation or proceeding could have a Material Adverse Effect,
and (E) immediately after giving effect to the initial Loans hereunder, (1) no
Default or Event of Default exists and (2) all representations and warranties
contained herein and in the other Loan Documents are true and correct in all
material respects.
(d) Fees. Any fees required to be paid on or before the Closing Date
shall have been paid.
(e) Attorney Costs. The Borrowers shall have paid all Attorney Costs
of the Administrative Agent to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of Attorney Costs as shall constitute its
reasonable estimate of Attorney Costs incurred or to be incurred by it through
the closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrowers and the
Administrative Agent).
(f) Existing Indebtedness. The Administrative Agent shall have
received evidence, in form and substance satisfactory to the Administrative
Agent, that the Existing Credit Agreement has been, or concurrently with the
Closing Date is being, terminated and all obligations of the Borrowers under
the Existing Credit Agreement have been, or concurrently with the Closing Date
are being, paid and fully satisfied.
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(g) Accuracy of Representations and Warranties. The representations
and warranties of the Loan Parties contained in Article V or any other Loan
Document, or which are contained in any document furnished at any time under or
in connection herewith or therewith, shall be true and correct on and as of the
Closing Date.
(h) No Default. No Default shall exist and be continuing as of the
Closing Date.
(i) Collateral. The Administrative Agent shall have received:
(i) any duly executed consents as are necessary, in the
Administrative Agent's sole discretion, to perfect the Administrative
Agent's security interest in the Collateral;
(ii) completed UCC financing statements for each appropriate
jurisdiction deemed necessary by the Administrative Agent to perfect
the Administrative Agent's security interest in the Collateral, naming
the Borrowers as debtors, and the Administrative Agent as secured
party;
(iii) to the extent completed, title searches on the
Collateral, in form, substance and scope reasonably satisfactory to
the Administrative Agent;
(iv) duly executed Timberland Mortgages on those certain
Timberlands constituting Collateral and as required to comply with
Section 6.14 hereof; and
(v) a Timberlands appraisal, in form and substance
satisfactory to the Administrative Agent, containing such information
as is necessary to determine that the Collateral has a fair market
value of at least two (2) times the Maximum Senior Credit Facilities,
it being understood and agreed that the certain "Complete Appraisal of
583,153 Acres of Timberland, Located in the States of Washington and
Oregon" prepared by ▇▇▇▇▇▇▇▇▇ Consultants, Inc. and dated as of
September 16, 2005, satisfies such requirements.
(j) Debt Ratings. The Borrowers shall have received minimum Debt
Ratings of BB or better from S&P and B1 or better from ▇▇▇▇▇'▇.
(k) Senior Subordinated Note Indenture. The Administrative Agent shall
have received evidence, in form and substance satisfactory to the
Administrative Agent, that the amount to be borrowed under this Agreement is
permitted to be incurred under Section 4.09 of the Senior Subordinated Note
Indenture.
(l) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably requested by any Lender,
including, but not limited to, information regarding litigation, tax,
accounting, labor, insurance, pension liabilities (actual or contingent), real
estate leases, material contracts, debt agreements, property ownership and
contingent liabilities of the Consolidated Parties.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this
Section 4.01, each Lender that has
63
signed this Agreement shall be deemed to have consented to, approved or
accepted or is otherwise satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.
4.02 Conditions to all Credit Extensions.
The obligation of each Lender to honor any Request for Credit
Extension (other than a Committed Loan Notice requesting only a conversion of
Committed Loans to the other Type, or a continuation of Eurodollar Rate Loans)
is subject to the following conditions precedent:
(a) The representations and warranties of the Borrowers and each other
Loan Party contained in Article V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct in all material respects and if the
applicable representation and warranty is already subject to a materiality
standard, shall be true and correct in all respects, on and as of the date of
such Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be
true and correct as of such earlier date, and except that for purposes of this
Section 4.02, the representations and warranties contained in subsections (a)
and (b) of Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(b) No Default shall exist, or would result from, such proposed Credit
Extension or from the application of proceeds thereof.
(c) There shall not have been commenced against any Consolidated Party
an involuntary case under any applicable Debtor Relief Law, now or hereafter in
effect, or any case, proceeding or other action for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or for the
winding up or liquidation of its affairs, and such involuntary case or other
case, proceeding or other action shall remain undismissed.
(d) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurodollar Rate Loans) submitted by the Borrowers shall be
deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a), (b) and (c) have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Loan Parties, jointly and severally, represent and warrant to the
Administrative Agent and the Lenders that:
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5.01 Existence, Qualification and Power; Compliance with Laws.
Each Consolidated Party (a) is a duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and
all requisite governmental licenses, authorizations, consents and approvals to
(i) own or lease its assets and carry on its business and (ii) execute, deliver
and perform its obligations under the Loan Documents to which it is a party,
(c) is duly qualified and is licensed and in good standing under the Laws of
each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c)
or (d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.02 Authorization; No Contravention.
The execution, delivery and performance by each Loan Party of each
Loan Document to which such Person is a party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person's Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under (i) any Contractual Obligation to which such Person is a party
or (ii) any order, injunction, writ or decree of any Governmental Authority or
any arbitral award to which such Person or its property is subject; or (c)
violate any Law (including without limitation Regulation U or Regulation X
issued by the FRB.
5.03 Governmental Authorization; Other Consents.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document except for consents, authorizations, notices and filings described on
Schedule 5.03 and all filings and/or other actions to perfect the Liens created
by the Collateral Documents as of the date hereof, all of which have been
obtained or made and which are in full force and effect or are to be made by
the Administrative Agent upon the occurrence of the Closing Date.
5.04 Binding Effect.
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that
is party thereto. This Agreement constitutes, and each other Loan Document when
so delivered will constitute, a legal, valid and binding obligation of such
Loan Party, enforceable against each Loan Party that is party thereto in
accordance with its terms except as enforceability may be limited by applicable
Debtor Relief Laws and by general equitable principles (whether enforcement is
sought by proceedings in equity or at law).
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5.05 Financial Statements; No Material Adverse Effect; No Internal
Control Event.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Consolidated Parties as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Consolidated Parties as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated financial statements of the
Consolidated Parties dated July 31, 2005, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present the financial condition of the
Consolidated Parties as of the date thereof and their results of operations for
the period covered thereby, subject, in the case of clauses (i) and (ii), to
the absence of footnotes and to normal year-end audit adjustments.
(c) Since the date of the Audited Financial Statements, there has been
no event or circumstance, either individually or in the aggregate, that has had
or could reasonably be expected to have a Material Adverse Effect.
(d) Since the date of the Audited Financial Statements, no Internal
Control Event has occurred that has not been (i) promptly disclosed to the
Administrative Agent and the Lenders and (ii) remedied or otherwise diligently
addressed (or is in the process of being diligently addressed) by the Borrowers
and/or the applicable Loan Party.
5.06 Litigation.
There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Loan Parties after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against any Consolidated Party or against any of
their properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
5.07 No Default.
No Consolidated Party is in default under or with respect to any
Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has
occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document.
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5.08 Ownership of Property; Liens.
Each Consolidated Party has good record and marketable title in fee
simple to, or valid leasehold interests in, (a) all real property necessary or
used in the ordinary conduct of its business and (b) the Collateral, in each
case, except for such defects in title as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Consolidated Parties is subject to no Liens, other than
Permitted Liens.
5.09 Environmental Compliance.
Except in each case as where the existence and/or occurrence of any of
the following could not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the real Properties and all operations at the real
Properties are in compliance with all applicable Environmental Laws, there is
no violation of any Environmental Law with respect to the real Properties or
the businesses, and there are no conditions relating to the real Properties or
the businesses that could give rise to liability under any applicable
Environmental Laws.
(b) None of the real Properties contains, or has previously contained,
any Hazardous Materials at, on or under the real Properties in amounts or
concentrations that constitute or constituted a violation of, or could give
rise to liability under, Environmental Laws.
(c) No Consolidated Party has received any written or verbal notice
of, or inquiry from any Governmental Authority regarding, any violation,
alleged violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the real Properties or the businesses, nor does any Responsible Officer of
any Loan Party have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of from
the real Properties, or generated, treated, stored or disposed of at, on or
under any of the real Properties or any other location, in each case by or on
behalf of any Consolidated Party in violation of, or in a manner that could
give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of the Responsible Officers of the Borrowers,
threatened, under any Environmental Law to which any Consolidated Party is or
will be named as a party, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with respect
to the Consolidated Parties, the real Properties or the businesses.
(f) There has been no release, or threat of release, of Hazardous
Materials at or from the real Properties, or arising from or related to the
operations (including, without limitation, disposal) of any Consolidated Party
in connection with the real Properties or otherwise in connection with the
businesses, in violation of or in amounts or in a manner that could give rise
to liability under Environmental Laws.
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5.10 Insurance.
The properties of the Borrowers and their Subsidiaries are insured
with financially sound and reputable insurance companies not Affiliates of the
Borrowers, in such amounts (after giving effect to any self-insurance
compatible with the following standards), with such deductibles and covering
such risks in accordance with normal industry practice, and as required by
applicable Laws.
5.11 Taxes.
The Consolidated Parties have filed all federal and other material tax
returns and reports required to be filed, and have paid all federal and other
material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and
payable, except those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
any Consolidated Party that would, if made, have a Material Adverse Effect.
5.12 ERISA Compliance.
(a) Each Plan is in compliance with the applicable provisions of
ERISA, the Code and other Federal or state Laws, except for such noncompliance
as would not result in a Material Adverse Effect. Each Plan that is intended to
qualify under Section 401(a) of the Code (i) has received a favorable
determination letter from the IRS, (ii) has remaining a period of time under
the Code or applicable Treasury regulations or IRS pronouncements in which to
request, and to make any amendments necessary to obtain, such a letter from the
IRS, or (iii) if reliance is permitted under IRS Announcement 2001-77, relies
on the favorable opinion letter of the master, prototype or volume submitter
plan sponsor of the Plan. To the best knowledge of the Borrowers, nothing has
occurred which would prevent, or cause the loss of, qualification of any such
Plan. The Borrowers and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the knowledge of the Loan Parties,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could be reasonably be expected to
have a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan that
has resulted or could reasonably be expected to result in a Material Adverse
Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
the Borrowers nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Borrowers nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability)
under Sections 4201 or 4243 of ERISA with
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respect to a Multiemployer Plan; and (v) neither the Borrowers nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069
or 4212(c) of ERISA; except, in each case in clauses (i) through (v) above, to
the extent such event or condition, together with all other such events or
conditions, could not reasonably be expected to result in a Material Adverse
Effect.
(d) To the extent they relate to a Multiemployer Plan, the
representations contained in Section 5.12(a), (b) and (c) are made only to the
knowledge of the Borrowers.
5.13 Subsidiaries.
As of the Closing Date, the Borrowers have no Subsidiaries other than
those specifically disclosed in Part (a) of Schedule 5.13 and have no equity
investments in any other corporation or entity other than those specifically
disclosed in Part (b) of Schedule 5.13.
5.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act.
(a) Neither Borrower is engaged nor will either Borrower engage,
principally or as one of its important activities, in the business of
purchasing or carrying margin stock (within the meaning of Regulation U issued
by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.
(b) None of the Borrowers, any Person Controlling the Borrowers, or
any Subsidiary (i) is 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, or (ii) is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
5.15 Disclosure.
Each Loan Party has disclosed to the Administrative Agent and the
Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No report, financial statement,
certificate or other information furnished (whether in writing or orally) by or
on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that, with respect to projected financial information, the Borrowers represent
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.
5.16 Compliance with Laws.
Each Consolidated Party is in compliance in all material respects with
the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties,
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except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
5.17 Intellectual Property; Licenses, Etc.
Each Consolidated Party owns, or possesses the right to use, all of
the trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively, "IP
Rights") that are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person. To the best
knowledge of the Loan Parties, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Borrowers or any Subsidiary infringes upon
any rights held by any other Person. No claim or litigation regarding any of
the foregoing is pending or, to the best knowledge of the Loan Parties,
threatened, which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
5.18 Indebtedness.
Except as otherwise permitted under Section 7.03, the Borrowers'
Subsidiaries have no Indebtedness.
5.19 Purpose of Loans.
The proceeds of the Loans hereunder shall be used solely by the
Borrowers (a) to pay the earnings and profit distribution owing by the Company
in connection with the REIT Conversion, (b) to pay transaction costs and fees
associated with the REIT Conversion, (c) to refinance existing Indebtedness and
(d) to provide for working capital, commercial paper back up and any other
lawful corporate purposes of the Borrowers and their Subsidiaries (including,
without limitation, Permitted Acquisitions).
5.20 Solvency.
The Loan Parties are Solvent on a Consolidated Basis.
5.21 Investments.
All Investments of each Consolidated Party are Permitted Investments.
5.22 No Burdensome Restrictions.
No Consolidated Party is a party to any agreement or instrument or
subject to any other obligation or any charter or corporate restriction or any
provision of any applicable law, rule or regulation which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
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5.23 Brokers' Fees.
No Consolidated Party has any obligation to any Person in respect of
any finder's, broker's, investment banking or other similar fee in connection
with any of the transactions contemplated under the Loan Documents.
5.24 Labor Matters.
None of the Consolidated Parties has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five (5)
years which has had or could reasonably be expected to have a Material Adverse
Effect.
5.25 Collateral Documents.
The provisions of the Collateral Documents are effective to create in
favor of the Administrative Agent for the benefit of the Lenders and any other
secured parties identified therein, a legal, valid and enforceable first
priority (subject to Permitted Liens) security interest in all right, title and
interest of the Borrowers and their Subsidiaries in the Collateral described
therein and all proceeds thereof. Except for filings completed on or prior to
the Closing Date or as otherwise contemplated by this Agreement and the
Collateral Documents, no filing or other action will be necessary to perfect or
protect such security interest.
5.26 REIT Status.
Upon, and at all times after, consummation of the REIT Conversion, the
Company shall be duly organized as a REIT.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, each Loan Party shall, and shall (except in
the case of the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11)
cause each Subsidiary to:
6.01 Financial Statements.
Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent:
(a) as soon as available, but in any event within the earlier of (i)
the 90th day after the end of each fiscal year of the Company and (ii) the day
that is five (5) Business Days after the date the Company's annual report on
Form 10-K is required to be filed with the SEC (including any extensions of
such date granted by the SEC or automatically effective upon the filing of a
notice with the SEC), a consolidated balance sheet of the Consolidated Parties
as at the end of such fiscal year, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for such fiscal year,
setting forth in each case in comparative form the
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figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall
be prepared in accordance with generally accepted auditing standards and shall
not be subject to any "going concern" or like qualification, exception,
assumption or explanatory language or any qualification, exception, assumption
or explanatory language as to the scope of such audit; and
(b) as soon as available, but in any event within the earlier of (i)
the 45th day after the end of each of the first three fiscal quarters of each
fiscal year of the Company and (ii) the day that is five (5) Business Days
after the date the Company's quarterly report on Form 10-Q is required to be
filed with the SEC (including any extensions of such date granted by the SEC or
automatically effective upon the filing of a notice with the SEC), a
consolidated balance sheet of the Consolidated Parties as at the end of such
fiscal quarter, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal quarter and for
the portion of the Company's fiscal year then ended, setting forth in each case
in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail and certified by a Responsible Officer of the Company
as fairly presenting the financial condition, results of operations,
shareholders' equity and cash flows of the Borrowers and their Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.
As to any information contained in materials furnished pursuant to Section
6.02, the Borrowers shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrowers to furnish the information and
materials described in subsections (a) and (b) above at the times specified
therein.
6.02 Certificates; Other Information.
Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified
public accountants certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or, if any such Default shall exist, stating the nature and status of
such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b) (commencing with the fiscal quarter
ending December 31, 2005), a duly completed Compliance Certificate signed by a
Responsible Officer of the Company (A) demonstrating compliance with the
financial covenants contained in Section 7.11 by calculation thereof as of the
end of each such fiscal period, (B) stating that no Default or Event of Default
exists, or if any Default or Event of Default does exist, specifying the nature
and extent thereof and what action the Borrowers propose to take with respect
thereto, and (C) in the case of the certificate delivered with the financial
statements provided for in Section 6.01(a) only, setting forth
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information regarding the amount of all Asset Dispositions, Equity Issuances
and Debt Issuances that were made during the applicable fiscal year;
(c) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the stockholders of the Borrowers, and copies of all annual, regular, periodic
and special reports and registration statements which the Borrowers may file or
be required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(d) concurrently with the delivery of the financial statements
referred to in Section 6.01(a) and (b) (commencing with the fiscal quarter
ending December 31, 2005), a Collateral Value Report substantially in the form
of Exhibit G, in form and substance satisfactory to the Administrative Agent;
and
(e) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrowers or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative Agent or
any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b)
or Section 6.02(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Company posts such documents, or provides a link thereto on the Company's
website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrowers' behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each
Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrowers shall deliver paper copies of such documents to the
Administrative Agent until a written request to cease delivering paper copies
is given by the Administrative Agent and (ii) the Borrowers shall notify (which
may be by facsimile or electronic mail) the Administrative Agent and each
Lender of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance the
Borrowers shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(b) to the Administrative Agent. Except
for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrowers with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.
The Borrowers hereby acknowledge that (a) the Administrative Agent
and/or the Arrangers will make available to the Lenders and the L/C Issuer
materials and/or information provided by or on behalf of the Borrowers
hereunder (collectively, "Borrower Materials") by posting the Borrower
Materials on IntraLinks or another similar electronic system (the "Platform")
and (b) certain of the Lenders may be "public-side" Lenders (i.e., Lenders that
do not wish to receive material non-public information with respect to the
Borrowers or its
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securities) (each, a "Public Lender"). The Borrowers hereby agree that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (x) by
marking Borrower Materials "PUBLIC," the Borrowers shall be deemed to have
authorized the Administrative Agent, the Arrangers, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrowers or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall
be treated as set forth in Section 10.07); (y) all Borrower Materials marked
"PUBLIC" are permitted to be made available through a portion of the Platform
designated "Public Investor;" and (z) the Administrative Agent and the
Arrangers shall be entitled to treat any Borrower Materials that are not marked
"PUBLIC" as being suitable only for posting on a portion of the Platform not
designated "Public Investor."
6.03 Notices.
(a) Promptly notify the Administrative Agent and each Lender of the
occurrence of any Default and the nature thereof;
(b) Promptly notify the Administrative Agent and each Lender of any
matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any
default under, a Contractual Obligation of a Borrower or any Subsidiary; (ii)
any dispute, litigation, investigation, proceeding or suspension between the
Borrowers or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrowers or any Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) Promptly notify the Administrative Agent and each Lender of the
occurrence of any ERISA Event;
(d) Promptly notify the Administrative Agent and each Lender of (i)
any material change in accounting policies or financial reporting practices by
the Borrowers or any Subsidiary or (ii) the occurrence of any Internal Control
Event;
(e) Promptly and in any event within fifteen (15) Business Days after
any Responsible Officer obtains knowledge of any change or possible change in a
Debt Rating;
(f) Upon the reasonable written request of the Administrative Agent
following the occurrence of any event or the discovery of any condition which
the Administrative Agent or the Required Lenders reasonably believe has caused
(or could be reasonably expected to cause) the representations and warranties
set forth in Section 5.09 to be untrue in any material respect, the Borrowers
will furnish or cause to be furnished to the Administrative Agent, at the
Borrowers' expense, a report of an environmental assessment of reasonable
scope, form and depth, (including, where appropriate, invasive soil or
groundwater sampling) by a consultant reasonably acceptable to the
Administrative Agent as to the nature and extent of the presence of any
Hazardous Materials on any Property and as to the compliance by any
Consolidated Party with Environmental Laws at such Property. If the Loan
Parties fail to deliver such an environmental report within seventy-five (75)
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days after receipt of such written request then the Administrative Agent may
arrange for same, and the Consolidated Parties hereby grant to the
Administrative Agent and its representatives access to the Property to
reasonably undertake such an assessment (including, where appropriate, invasive
soil or groundwater sampling). The reasonable cost of any assessment arranged
for by the Administrative Agent pursuant to this provision will be payable by
the Borrowers on demand.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the Company setting forth details of the
occurrence referred to therein and stating what action the Borrowers have taken
and proposes to take with respect thereto. Each notice pursuant to Section
6.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
6.04 Payment of Obligations.
Unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrowers or such Subsidiary, unless the failure to
make any such payment (i) could give rise to an immediate right for completion
of a foreclosure sale on a Lien securing such amounts or (ii) could reasonably
be expected to have a Material Adverse Effect, pay and discharge as the same
shall become due and payable, all its obligations and liabilities, including
(a) all tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets; (b) all lawful claims which, if unpaid, would by
law become a Lien upon its property; and (c) all Indebtedness in excess of the
Threshold Amount, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.
6.05 Preservation of Existence, REIT Status, Etc.
(a) Preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or 7.05; (b) in
the case of the Company, upon and following consummation of the REIT
Conversion, maintain its REIT status, (c) take all reasonable action to
maintain all rights, privileges, permits, licenses and franchises necessary or
desirable in the normal conduct of its business, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (d) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could reasonably
be expected to have a Material Adverse Effect.
6.06 Maintenance of Properties; Management of Timberlands.
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear and Involuntary Dispositions excepted; (b)
make all necessary repairs thereto and renewals and replacements thereof except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect; (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities; and (d) manage its Timberlands in
accordance with the guidelines
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established by the American Forest & Paper Association's Sustainable Forestry
Initiative effective as of the Closing Date.
6.07 Maintenance of Insurance.
(a) The Borrowers will, and will cause each of their respective
Subsidiaries to, at all times maintain in full force and effect insurance
(including worker's compensation insurance, liability insurance, casualty
insurance and business interruption insurance) in such amounts, covering such
risks and liabilities and with such deductibles or self-insurance retentions as
are in accordance with normal industry practice, and as required by Applicable
Law.
(b) In the event that the Consolidated Parties receive Net Cash
Proceeds in excess of $5,000,000 in aggregate amount during any fiscal year of
the Consolidated Parties ("Excess Proceeds") on account of Involuntary
Dispositions, the Borrowers shall, within the period of 360 days following the
date of receipt of such Excess Proceeds, apply (or cause to be applied) an
amount equal to such Excess Proceeds to (i) make Eligible Reinvestments
(including but not limited to the repair or replacement of the related
Property) or (ii) prepay the Loans (and Cash Collateralize L/C Obligations) in
accordance with the terms of Section 2.05(b)(ii)(B); provided, however, that
such Person shall not undertake replacement or restoration of such Property
unless, after giving pro forma effect to any Funded Indebtedness to be incurred
in connection with such replacement or restoration, the Borrowers would be in
compliance with the financial covenants set forth in Section 7.11(a)-(d) as of
the most recent fiscal quarter end preceding the date of determination with
respect to which the Agent has received the Audited Financial Statements
(assuming, for purposes hereof, that such Funded Indebtedness was incurred as
of the first day of the four (4) fiscal-quarter period ending as of such fiscal
quarter end). Pending final application of any Excess Proceeds, the Borrowers
may apply such Excess Proceeds to temporarily reduce the Committed Loans or to
make Permitted Investments.
6.08 Compliance with Laws.
Comply in all material respects with the requirements of all Laws
(including applicable provisions of ERISA, Environmental Laws and Laws
applicable to REITs) and all orders, writs, injunctions and decrees applicable
to it or to its business or property, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith could not reasonably be expected to have a Material
Adverse Effect.
6.09 Books and Records.
(a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be made
of all financial transactions and matters involving the assets and business of
a Borrower or such Subsidiary, as the case may be; and (b) maintain such books
of record and account in material conformity with all applicable requirements
of any Governmental Authority having regulatory jurisdiction over a Borrower or
such Subsidiary, as the case may be.
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6.10 Inspection Rights.
Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Company; provided,
however, that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at the expense of the Borrowers at any time during
normal business hours and without advance notice.
6.11 Use of Proceeds.
Use the proceeds of the Credit Extensions solely for the purposes set
forth in Section 5.19.
6.12 Performance of Obligations.
The Borrowers will, and will cause each of their respective
Subsidiaries to, perform in all material respects in accordance with customary
trade practices all of its obligations under the terms of all material
agreements, indentures, mortgages, security agreements or other debt
instruments to which it is a party or by which it is bound; provided, however,
that the Borrowers or such Subsidiary may contest any such obligation in good
faith and by proper proceedings so long as adequate reserves are maintained
with respect thereto to the extent required by GAAP.
6.13 Guarantors.
Notify the Administrative Agent at the time that any Person becomes a
Material Domestic Subsidiary and promptly thereafter (and in any event within
thirty (30) days), cause such Person to (a) become a Guarantor by executing and
delivering to the Administrative Agent a Joinder Agreement and such other
documents as the Administrative Agent shall deem appropriate for such purpose,
and (b) deliver to the Administrative Agent documents of the types referred to
in clauses (iii), (iv) and (v) of Section 4.01(a) and favorable opinions of
counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in
clause (a)), all in form, content and scope reasonably satisfactory to the
Administrative Agent.
6.14 Pledged Collateral.
(a) From the Closing Date until the Maturity Date, cause Timberlands
with a Collateral Value at least equal to 200% of all of the Maximum Senior
Credit Facilities to be, at all times, subject to a valid, first priority
perfected Lien granted by the Company and, to the extent applicable, one or
more of its Subsidiaries in favor of the Administrative Agent for the benefit
of the Lenders to secure the Obligations pursuant to the terms of the
Collateral Documents. If at any time the Aggregate Commitments are increased
pursuant to Section 2.16 or after delivery of the Collateral Value Report
pursuant to Section 6.02(d) there exists a deficiency in the amount of the
Collateral or the required Maximum Senior Credit Facilities to
77
Collateral Value Ratio, the Borrowers shall within fifteen (15) Business Days
of the earlier of (i) a Responsible Officer of a Loan Party becoming aware
thereof or (ii) notice thereof from the Administrative Agent, deliver
additional Timberlands as additional Collateral to secure the Obligations in an
aggregate amount sufficient to eliminate such deficiency. The Borrowers and
their Subsidiaries will deliver the Collateral Documents together with
certified resolutions and other organizational and authorizing documents of the
Company and any applicable Subsidiaries certifying that the Borrowers are
authorized to deliver the additional Timberland Mortgages and other applicable
Collateral Documents, favorable opinions of counsel to the Company and such
Subsidiaries (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to above and
the perfection of the Administrative Agent's Liens thereunder, which opinions
shall be substantially in the form delivered as of the Closing Date), all in
form, content and scope reasonably satisfactory to the Administrative Agent.
(b) Notwithstanding the foregoing, so long as no Default or Event of
Default exists or would otherwise result therefrom, the Company shall be
permitted from time to time to (i) substitute additional Timberlands reasonably
satisfactory to the Administrative Agent as Collateral for Timberlands
previously pledged as Collateral and/or (ii) request that certain Collateral be
released, in each case, so long as, prior to any release of Collateral, the
Company shall deliver to the Administrative Agent an updated pro forma
Collateral Value Report demonstrating, to the satisfaction of the
Administrative Agent, that after giving effect to such release (and any new
Collateral pledged in substitution therefor) the Maximum Senior Credit
Facilities to Collateral Value Ratio shall not be greater than 50.00%. In
connection with the delivery of additional Collateral, the Company and any
applicable Subsidiaries shall comply with the requirements and make the
deliveries set forth in clause (a) hereof. To the extent the Company requests
the release of certain Collateral in accordance with the terms hereof, the
Company shall identify to the Administrative Agent which Timberlands are to be
released, and the Administrative Agent shall release such Collateral at the
expense of the Company in accordance with its customary practices.
6.15 Further Assurances.
(a) Further Assurances Generally. Upon the reasonable request of the
Administrative Agent, promptly perform or cause to be performed any and all
acts and execute or cause to be executed any and all documents for filing under
the provisions of the Uniform Commercial Code or any other Law which are
necessary or advisable to maintain in favor of the Administrative Agent, for
the benefit of the Lenders, Liens on the Collateral that are duly perfected in
accordance with the requirements of, or the obligations of the Loan Parties
under, the Loan Documents and all applicable Laws.
(b) Title Searches. Following the Closing Date, the Company shall
diligently pursue, and use commercially reasonable efforts to obtain, completed
title searches on all of the Timberlands that constitute Collateral, such title
searches to be in form, substance and scope reasonably satisfactory to the
Administrative Agent. To the extent any material defects in title are
identified (as reasonably determined by the Administrative Agent) in such title
searches, the Company shall either (i) promptly cure such title defects to the
reasonable satisfaction of the
78
Administrative Agent or (ii) promptly substitute new Collateral reasonably
satisfactory to the Administrative Agent for such affected Collateral in
accordance with the terms of Section 6.14.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding (to the extent such Letter of Credit is not
fully Cash Collateralized in accordance with Section 2.03(g)), no Loan Party
shall, nor shall it permit any Subsidiary to, directly or indirectly:
7.01 Liens.
-----
Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, other
than the following (each a "Permitted Lien"):
(a) Liens pursuant to any Loan Document;
(b) Liens (other than Liens created or imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or Liens for taxes
being contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established (and as to
which the Property subject to any such Lien is not yet subject to foreclosure,
sale or loss on account thereof);
(c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or pursuant
to customary reservations or retentions of title arising in the ordinary course
of business, provided that such Liens secure only amounts not yet due and
payable or, if due and payable, are unfiled and no other action has been taken
to enforce the same or are being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with GAAP have
been established (and as to which the Property subject to any such Lien is not
yet subject to foreclosure, sale or loss on account thereof);
(d) Liens (other than Liens created or imposed under ERISA) incurred
or deposits made by any Consolidated Party in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
types of social security, or to secure the performance of tenders, statutory
obligations, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);
(e) Liens in connection with attachments or judgments (including
judgment or appeal bonds) to the extent such attachments or judgments do not
constitute an Event of Default under Sections 8.01(g) or (h), provided that the
judgments secured shall, within thirty (30) days after the entry thereof, have
been discharged or execution thereof stayed pending appeal, or shall have been
discharged within thirty (30) days after the expiration of any such stay;
79
(f) easements, rights-of-way, restrictions (including zoning
restrictions), encumbrances in the nature of leases or subleases granted to
others, minor defects or irregularities in title, reservations of mineral, oil
and gas (including natural gas reservoirs) and water or other similar rights
existing on the date of acquisitions of any property by a Borrower or any
Subsidiary, encroachments or questions of locations, boundary and area which an
accurate survey may disclose, exceptions and reservations in United States
patents or state deeds, any prohibition or limitation on the use, occupancy or
improvement of land resulting from the rights of the public or riparian owners
to use any waters which may cover the land and other similar charges or
encumbrances, in each case incidental to, and not interfering with, the
ordinary conduct of the business of a Borrower or any Subsidiary;
(g) Liens on Property of any Person securing purchase money
Indebtedness (including Capital Leases and Synthetic Leases) of such Person
permitted under Section 7.03(c), provided that any such Lien attaches to such
Property concurrently with or within ninety (90) days after the acquisition
thereof;
(h) leases or subleases granted to others not interfering in any
material respect with the business of any Consolidated Party;
(i) any interest of title of a lessor under, and Liens arising from
UCC financing statements (or equivalent filings, registrations or agreements in
foreign jurisdictions) relating to, leases permitted by this Agreement;
(j) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(k) Liens deemed to exist in connection with Investments in repurchase
agreements permitted under Section 7.02;
(l) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(m) Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection;
(n) Liens of sellers of goods to the Borrowers and any of their
respective Subsidiaries arising under Article 2 of the Uniform Commercial Code
or similar provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase price for
such goods and related expenses;
(o) any interest of title of a buyer in connection with, and Liens
arising from UCC financing statements relating to, a sale of receivables
permitted by this Agreement;
(p) Liens existing as of the Closing Date and set forth on Schedule
7.01;
(q) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with a Borrower or any Subsidiary; provided
that such Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any
80
assets other than those of the Person merged into or consolidated with such
Borrower or the Subsidiary;
(r) Liens on property existing at the time of acquisition of the
property by a Borrower or any Subsidiary, provided that such Liens were in
existence prior to the contemplation of such acquisition;
(s) Liens created or assumed in the ordinary course of business of
exploring for, developing or producing oil, gas (including natural gas
reservoirs) or other minerals (including borrowings in connection therewith)
on, or any interest in, or on any proceeds from the sale of, property acquired
for such purposes, production therefrom (including the proceeds thereof), or
material or equipment located thereon;
(t) Liens arising from the pledge of any bonds, debentures, notes or
similar instruments which are purchased and held by any remarketing agent for
the account of, or as agent for, a Borrower;
(u) any extension, renewal or replacement, in whole or in part, of any
Lien described in the foregoing clauses (a) through (u); provided that any such
extension, renewal or replacement shall be no more restrictive in any material
respect than the Lien extended, renewed or replaced and shall not extend to any
other Property of the Consolidated Parties other than such item of Property
originally covered by such Lien or by improvement thereof or additions or
accessions thereto;
(v) loggers' Liens and stumpage Liens arising in the ordinary course
of business of the Borrowers and their Subsidiaries;
(w) Liens which are permitted under the Senior Unsecured Note
Indenture and which secure Indebtedness incurred after the Closing Date in
compliance with this Agreement, provided the aggregate principal amount
outstanding of such Indebtedness does not at any time exceed five percent (5%)
of the book value of the Property of the Consolidated Parties, measured as of
the most recently ended fiscal quarter for which the Compliance Certificate
required under Section 6.02(b) has been delivered; and
(x) Liens on up to 90% of unencumbered Timberlands that do not
constitute Collateral, so long as the Borrowers remain in compliance with
Section 7.11(d) after giving effect to any such Liens.
7.02 Investments.
Make any Investments, except:
(a) Investments consisting of cash and Cash Equivalents;
(b) Investments consisting of accounts receivable created, acquired or
made by any Consolidated Party in the ordinary course of business and payable
or dischargeable in accordance with customary trade terms;
81
(c) Investments consisting of Capital Stock, obligations, securities
or other property received by any Consolidated Party in settlement of accounts
receivable (created in the ordinary course of business) from bankrupt obligors;
(d) Investments existing as of the Closing Date and set forth in
Schedule 7.02;
(e) Investments consisting of advances or loans to labor or material
suppliers or customers in the ordinary course of business that do not exceed
$15,000,000 in the aggregate at any one time outstanding;
(f) Investments consisting of advances or loans to directors,
officers, employees or agents in the ordinary course of business that do not
exceed $3,000,000 in the aggregate at any one time outstanding; provided that
all such advances must be in compliance with applicable Laws, including, but
not limited to ▇▇▇▇▇▇▇▇-▇▇▇▇▇;
(g) Investments (i) in a Loan Party, (ii) by a Subsidiary of the
Company that is not a Loan Party in a wholly owned Domestic Subsidiary of the
Company and (iii) so long as the Borrowers are in compliance with Section 7.17,
by the Loan Parties in Subsidiaries that are not Loan Parties and/or by the
Borrowers or any of their Subsidiaries in any Person to the extent required for
the Borrowers or any Subsidiary to conduct business with such Person, provided
such Investments pursuant to this clause (iii) do not exceed $7,500,000 in the
aggregate at any one time outstanding;
(h) any Eligible Reinvestment of the proceeds of any Involuntary
Disposition as contemplated by Section 6.07(b) or of any Asset Disposition as
contemplated by Section 7.05(g); or
(i) So long as the Borrowers are in compliance with Section 7.17,
Investments consisting of an Acquisition by a Borrower or any Subsidiary,
provided that:
(i) the Property acquired (or the Property of the Person
acquired) in such Acquisition is used or useful in the same or a
similar line of business as the Borrowers and their Subsidiaries were
engaged in on the Closing Date (or any reasonable extensions or
expansions thereof),
(ii) in the case of an Acquisition of the Capital Stock of
another Person, the board of directors (or other comparable governing
body) of such other Person shall have duly approved such Acquisition,
(iii) the Company shall have delivered to the Administrative
Agent, with respect to each such Acquisition for an Investment
involving consideration (cash and non-cash) in excess of $30,000,000,
a Pro Forma Compliance Certificate demonstrating that, upon giving
effect to such Acquisition on a Pro Forma Basis, the Consolidated
Parties would be in compliance with the financial covenants set forth
in Section 7.11(a)-(d),
(iv) the representations and warranties made by the Borrowers
in any Loan Document shall be true and correct in all material
respects at and as if made as of the date of such Acquisition (before
and after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date,
82
(v) if such transaction involves the purchase of an interest
in a partnership between the Company (or a Subsidiary) as a general
partner and entities unaffiliated with the Company or such Subsidiary
as the other partners, such transaction shall be effected by having
such equity interest acquired by a corporate holding company directly
or indirectly wholly-owned by the Borrowers newly formed for the sole
purpose of effecting such transaction and
(vi) the aggregate consideration (including cash and non-cash
consideration and any assumption of Indebtedness, but excluding
consideration consisting of any Capital Stock of the Company issued to
the seller of the Capital Stock or Property acquired in such
Acquisition and consideration consisting of the proceeds of any Equity
Issuance by the Company consummated subsequent to the Closing Date and
the proceeds of any Asset Disposition, or Involuntary Disposition
consummated subsequent to the Closing Date) paid by the Consolidated
Parties for all such Acquisitions occurring after the Closing Date
shall not exceed $250,000,000; or
(j) Investments in Joint Ventures that do not exceed $75,000,000 in
the aggregate during the term of this Agreement.
7.03 Subsidiary Indebtedness.
Permit any of the Borrowers' Subsidiaries to create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness arising under this Agreement and the other Loan
Documents;
(b) Indebtedness of the Subsidiaries set forth in Schedule 7.03 (and
renewals, refinancings and extensions thereof on terms and conditions no less
favorable to such Person than such existing Indebtedness and in amounts no
greater than such existing Indebtedness at the time of such renewal,
refinancing or extension);
(c) purchase money Indebtedness (including obligations in respect of
Capital Leases and Synthetic Lease Obligations) hereafter incurred by the
Subsidiaries to finance fixed assets provided that (i) the total of all such
Indebtedness (other than Indebtedness set forth on Schedule 7.03) for all such
Persons taken together shall not exceed an aggregate principal amount of
$10,000,000 at any one time outstanding; (ii) such Indebtedness when incurred
shall not exceed the value of the asset(s) financed; and (iii) no such
Indebtedness shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing;
(d) obligations of the Subsidiaries in respect of Swap Contracts
entered into in order to manage existing or anticipated interest rate or
exchange rate risks and not for speculative purposes;
(e) intercompany Indebtedness and Guarantees permitted under Section
7.02;
(f) in addition to the Indebtedness otherwise permitted by this
Section 7.03, other Indebtedness hereafter incurred by the Subsidiaries,
provided that (i) the loan documentation with respect to such Indebtedness
shall not contain covenants or default provisions relating to any Consolidated
Party that are more restrictive than the covenants and default provisions
contained in
83
the Loan Documents, (ii) no Default or Event of Default shall exist before or
after giving effect on a Pro Forma Basis to the incurrence thereof, (iii) the
aggregate principal amount of such Indebtedness shall not exceed $2,000,000 at
any time and (iv) such Indebtedness is permitted under the Senior Unsecured
Note Indenture.
7.04 Fundamental Changes.
Except in connection with a Permitted Asset Disposition or the REIT
Conversion permit any Consolidated Party to enter into any transaction of
merger or consolidation or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); provided that, notwithstanding the foregoing
provisions of this Section 7.04, (a) the Borrowers may merge or consolidate
with any of their respective Subsidiaries, provided that the applicable
Borrower shall be the continuing or surviving corporation, (b) any Subsidiary
of the Borrowers may be merged or consolidated with or into any other
Subsidiary of the Borrowers, provided that if any such Subsidiary is a
Guarantor, such Guarantor shall be the continuing or surviving entity, (c) any
Subsidiary of the Borrowers may merge with any Person that is not a Borrower in
connection with an Asset Disposition permitted under Section 7.05, (d) the
Borrowers or any Subsidiary of the Borrowers may merge with any Person other
than a Consolidated Party in connection with a Permitted Acquisition, provided
that, if such transaction involves a Borrower or a Guarantor, such Borrower or
such Guarantor shall be the continuing or surviving corporation and (e) any
wholly owned Subsidiary of the Borrowers may dissolve, liquidate or wind up its
affairs at any time provided that such dissolution, liquidation or winding up,
as applicable, could not have a Material Adverse Effect.
7.05 Dispositions.
Except in connection with the REIT Conversion (including the transfer
of non-timberlands and non-real estate assets by the Company to TRS on or about
December 31, 2005), permit any Consolidated Party to make any Asset Disposition
unless (a) such Asset Disposition constitutes an exchange of Property in the
ordinary course of such Consolidated Party's business or the consideration paid
in connection therewith is in cash or Cash Equivalents and in an amount not
less than the fair market value of the Property disposed of, (b) if such
transaction is a Sale and Leaseback Transaction, such transaction is not
prohibited by the terms of Section 7.14, (c) such transaction does not involve
the sale or other disposition of a minority equity interest in any Consolidated
Party, (d) such transaction does not involve a sale or other disposition of
receivables other than receivables owned by or attributable to other Property
concurrently being disposed of in a transaction otherwise permitted under this
Section 7.05, (e) the aggregate proceeds received in cash or Cash Equivalents
by the Consolidated Parties from all of the assets sold or otherwise disposed
of by the Consolidated Parties in any fiscal year shall not exceed
$100,000,000, (f) if such Asset Disposition is for consideration (cash and
non-cash) in excess of $15,000,000, no later than five (5) Business Days prior
to such Asset Disposition, the Company shall have delivered to the
Administrative Agent (i) a Pro Forma Compliance Certificate demonstrating that,
upon giving effect on a Pro Forma Basis to such transaction, the Borrowers
would be in compliance with the financial covenants set forth in Section
7.11(a)-(d) and (ii) notification from the Company in form and substance
satisfactory to the Administrative Agent and specifying the anticipated date of
such Asset Disposition, briefly describing the assets to be sold or otherwise
disposed of and setting forth the net book value of such assets, the aggregate
consideration and the Net Cash Proceeds to be received for such assets in
connection with such
84
Asset Disposition, (g) the Borrowers shall, to the extent required under this
Agreement, apply (or cause to be applied) an amount equal to the Net Cash
Proceeds of such Asset Disposition to, as applicable, (i) prepay or retire debt
in accordance with clause (c) of the definition of Net Cash Proceeds, (ii) make
Eligible Reinvestments or (iii) prepay the Loans (and cash collateralize L/C
Obligations) in accordance with the terms of Section 2.05(b)(ii)(A), (h) such
Asset Disposition is permitted under the Senior Unsecured Note Indenture and
(i) no Default or Event of Default shall exist before or after giving effect to
such Asset Disposition. Pending final application of the Net Cash Proceeds of
any Asset Disposition, the Consolidated Parties may apply such Net Cash
Proceeds to temporarily reduce the Committed Loans or to make Investments in
Cash Equivalents.
7.06 Restricted Payments.
Permit any Consolidated Party to directly or indirectly, declare,
order, make or set apart any sum for or pay any Restricted Payment, except (a)
to make dividends or other distributions payable to the Company(directly or
indirectly through Subsidiaries), (b) as expressly permitted by Section 7.02
and (c) to pay dividends or capital gains distributions to the Company's
shareholders and/or repurchase shares of the Company's Capital Stock, provided
(i) such payments are permitted under the Senior Unsecured Note Indenture, (ii)
no Default or Event of Default shall exist on the date of, or shall result
from, the making of any such payments, and (iii) upon giving effect on a Pro
Forma Basis to such transaction, the Borrowers would be in compliance with the
financial covenants set forth in Section 7.11(a)-(d), (d) to make distributions
necessary solely for the purposes of the Company qualifying for or maintaining
its REIT status, and (iii) such distributions are permitted under the Senior
Unsecured Note Indenture, (e) to make purchases, repurchases or redemptions of
Senior Unsecured Notes on the open market or pursuant to the Senior Unsecured
Note Indenture, provided (i) no Default or Event of Default shall exist on the
date of, or shall result from, the making of any such distributions and (ii)
upon giving effect on a Pro Forma Basis to such transaction, the Borrowers
would be in compliance with the financial covenants set forth in Section
7.11(a)-(d) and (f) to make purchases, repurchases or redemptions of the Senior
Subordinated Notes on the open market or pursuant to the Senior Subordinated
Indenture, provided (i) no Default or Event of Default shall exist on the date
of, or shall result from, the making of any such distributions and (ii) upon
giving effect on a Pro Forma Basis to such transaction, the Borrowers would be
in compliance with the financial covenants set forth in Section 7.11(a)-(d).
7.07 Change in Nature of Business.
Engage in any material line of business substantially different from
those lines of business conducted by the Borrowers and their Subsidiaries on
the date hereof or any business substantially related or incidental thereto.
7.08 Transactions with Affiliates.
Except for transactions between the Borrowers in connection with the
REIT Conversion, permit any Consolidated Party to enter into or permit to exist
any transaction or series of transactions with any officer, director,
shareholder, Subsidiary or other Affiliate of such Person other than (a)
advances of working capital to the Loan Parties, (b) transfers of cash and
assets to the
85
Borrowers, (c) intercompany transactions expressly permitted by Section 7.02,
Section 7.03, Section 7.04, Section 7.05 or Section 7.06, (d) normal
compensation and reimbursement of expenses of officers and directors, (e)
agreements and arrangements entered into with employees of the Borrowers in
connection with termination of their employment therewith (i) existing as of
the Closing Date and set forth on Schedule 7.08 and (ii) from and after the
Closing Date in an aggregate amount not to exceed $15,000,000 over the term of
this Agreement, and (f) except as otherwise specifically limited in this
Agreement, other transactions which are entered into in the ordinary course of
such Person's business on terms and conditions substantially as favorable to
such Person as would be obtainable by it in a comparable arms-length
transaction with a Person other than an officer, director, shareholder,
Subsidiary or Affiliate.
7.09 Burdensome Agreements.
Permit any Consolidated Party to directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Person to (a) pay dividends or make any
other distributions to the Company on its Capital Stock or with respect to any
other interest or participation in, or measured by, its profits, (b) pay any
Indebtedness or other obligation owed to a Borrower, (c) make loans or advances
to a Borrower, (d) sell, lease or transfer any of its Property to a Borrower,
or (e) act as a Loan Party and pledge its assets pursuant to the Loan Documents
or any renewals, refinancings, exchanges, refundings or extension thereof,
except (in respect of any of the matters referred to in clauses (a)-(d) above)
for such encumbrances or restrictions existing under or by reason of (i) this
Agreement and the other Loan Documents, (ii) the Senior Unsecured Note
Indenture and the Senior Unsecured Notes in each case as in effect as of the
Closing Date, (iii) applicable Law, (iv) any document or instrument governing
Indebtedness incurred pursuant to Section 7.03(c), provided that any such
restriction contained therein relates only to the asset or assets constructed
or acquired in connection therewith, (v) any Permitted Lien or any document or
instrument governing any Permitted Lien, provided that any such restriction
contained therein relates only to the asset or assets subject to such Permitted
Lien or (vi) customary restrictions and conditions contained in any agreement
relating to the sale of any Property permitted under Section 7.05 pending the
consummation of such sale.
7.10 Use of Proceeds.
Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or
carry margin stock (within the meaning of Regulation U of the FRB) or to extend
credit to others for the purpose of purchasing or carrying margin stock or to
refund indebtedness originally incurred for such purpose.
86
7.11 Financial Covenants.
(a) Funded Indebtedness to Capitalization Ratio. Permit the
Funded Indebtedness to Capitalization Ratio, at any time, to be
greater than:
----------------------------------------------------------------------
Period Ratio
----------------------------------------------------------------------
Closing Date through and including
December 30, 2006 65.00%
----------------------------------------------------------------------
December 31, 2006 and thereafter 60.00%
----------------------------------------------------------------------
(b) Consolidated Net Worth. Permit the Consolidated Net Worth
at any time to be less than the applicable amount set forth in the
grid below, increased on a cumulative basis as of the end of each
fiscal quarter of the Consolidated Parties, commencing with the fiscal
quarter ending October 31, 2005, by an amount equal to 100% of the Net
Cash Proceeds of any Equity Issuances consummated during such fiscal
quarter.
---------------------------------------------------------- ----------------------------------------
Period Minimum Net Worth
---------------------------------------------------------- ----------------------------------------
Closing Date to but not including the E&P $343,363,500 (which represents 75%
Declaration Date of Consolidated Net Worth as of July 31,
2005)
---------------------------------------------------------- ----------------------------------------
E&P Declaration Date to but not including the (i) 75% of Consolidated Net Worth
first Business Day after the date on which the Company as of July 31, 2005, less (ii) the
delivers the Required Financial Information for the amount by which Consolidated Net
fiscal quarter during which the E&P Declaration Date Worth is reduced as a direct result of
occurred the E&P Declaration
---------------------------------------------------------- ----------------------------------------
The first Business Day after the date on 75% of Consolidated Net Worth
which the Company delivers the Required Financial as of the last day of the fiscal
Information for the fiscal quarter during which quarter during which the E&P
the E&P Declaration Date occurred and thereafter Declaration Date occurred
---------------------------------------------------------- ----------------------------------------
(c) Interest Coverage Ratio. Permit the Interest Coverage
Ratio, as of the last day of each fiscal quarter of the Consolidated
Parties, to be less than 2.50:1.0.
(d) Maximum Senior Credit Facilities to Collateral Value
Ratio. Permit the Maximum Senior Credit Facilities to Collateral Value
Ratio, at any time, to be greater than 50.00%.
87
7.12 Fiscal Year; Organizational Documents.
Except in connection with the REIT Conversion, permit any Consolidated
Party to (a) change its fiscal year or (b) amend, modify or change its articles
of incorporation (or corporate charter or other similar organizational
document) or bylaws (or other similar document) to the extent such change,
amendment or modification could reasonably be expected to have a Material
Adverse Effect.
7.13 Ownership of Subsidiaries.
Notwithstanding any other provisions of this Agreement to the
contrary, permit any Consolidated Party to (i) permit any Person (other than a
Borrower or any wholly owned Subsidiary) to own any Capital Stock of any
Subsidiary of the Company, except (A) to qualify directors where required by
applicable law or to satisfy other requirements of applicable law with respect
to the ownership of Capital Stock of Foreign Subsidiaries or (B) as a result of
or in connection with a dissolution, merger, consolidation or disposition of a
Subsidiary not prohibited by Section 7.04 or Section 7.05, (ii) permit any
Subsidiary of the Company to issue or have outstanding any shares of preferred
Capital Stock or (iii) permit, create, incur, assume or suffer to exist any
Lien on any Capital Stock of any Subsidiary of the Company, except for
Permitted Liens.
7.14 Sale Leasebacks.
Permit any Consolidated Party to enter into any Sale and Leaseback
Transaction, except for such transactions that do not involve lease obligations
which in the aggregate would exceed $15,000,000 in any fiscal year and which
are otherwise permitted under this Agreement.
7.15 No Further Negative Pledges.
Permit any Consolidated Party to enter into, assume or become subject
to any agreement prohibiting or otherwise restricting the existence of any Lien
upon any of its Property in favor of the Administrative Agent (for the benefit
of the Lenders) for the purpose of securing the Obligations, whether now owned
or hereafter acquired, or requiring the grant of any security for any
obligation if such Property is given as security for the Obligations, except
(a) in connection with any document or instrument governing Indebtedness
incurred pursuant to Section 7.03(c), provided that any such restriction
contained therein relates only to the asset or assets constructed or acquired
(or proceeds thereof) in connection therewith, (b) in connection with any
Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset
or assets subject to such Permitted Lien (or proceeds thereof), (c) pursuant to
customary restrictions and conditions contained in any agreement relating to
the sale of any Property permitted under Section 7.05, pending the consummation
of such sale, (d) in connection with any document or instrument governing other
"Significant Indebtedness" the issuance of which would not cause a Default or
Event of Default hereunder (for the purposes hereof, "Significant Indebtedness"
means Indebtedness where each class of such Indebtedness having separate voting
rights is in excess of $20,000,000), (e) customary non-assignment provisions in
contracts and (f) pursuant to the terms and conditions contained in the Senior
Unsecured Note Indenture.
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7.16 Operating Lease Obligations.
Permit any Consolidated Party to enter into, assume or permit to exist
any obligations for the payment of rental under Operating Leases which in the
aggregate for all such Persons would exceed $15,000,000 in any fiscal year.
7.17 Subsidiaries.
Create, acquire or permit to exist any Subsidiaries other than
Non-Material Subsidiaries, unless such Subsidiary shall immediately become a
Guarantor hereunder pursuant to Section 6.13 hereof.
7.18 Limitation on Actions with Respect to Other Indebtedness.
The Borrowers will not, nor will it permit any of their respective
Subsidiaries to:
(a) (i) amend or modify any of the terms of any Indebtedness of such
Person (other than Indebtedness arising under the Loan Documents) if such
amendment or modification would add or change any terms in a manner materially
adverse to the Lenders, or (ii) materially shorten the final maturity or
average life to maturity of any such Indebtedness or require any payment
thereon to be made sooner than originally scheduled or increase the interest
rate or fees applicable thereto above applicable market rates, or (iii) make
(or give any notice with respect thereto) any voluntary or optional payment or
prepayment of any such Indebtedness that, as of the Closing Date, has a
maturity date after the Maturity Date, or make (or give any notice with respect
thereto) any redemption or acquisition for value or defeasance (including
without limitation, by way of depositing money or securities with the trustee
with respect thereto before due for the purpose of paying when due), refund,
refinance or exchange with respect thereto, other than (A) prepayments made by
the Borrowers in connection with any Asset Disposition permitted under Section
7.05, in the amount necessary to prepay or retire any Indebtedness either
secured by a Permitted Lien (ranking senior to any Lien of the Administrative
Agent) on the related Property or incurred in connection with the acquisition
of any Property that is disposed of in connection with such Asset Disposition,
(B) redemptions and/or prepayments in connection with a refinancing of such
Indebtedness permitted under this Agreement, (C) redemptions and/or prepayments
that do not exceed $30,000,000 in the aggregate after the Closing Date and that
are reasonably deemed necessary by the Borrowers to consummate amendments
(which are permitted hereunder) to the Borrowers' senior note Indebtedness
generally, (D) purchases, repurchases and redemptions of Senior Unsecured Notes
to the extent permitted under Section 7.06 and (E) purchases, repurchases and
redemptions of Senior Subordinated Notes;
(b) after the issuance thereof, amend or modify any of the terms of
any Subordinated Indebtedness of such Person if such amendment or modification
would (i) add or change any terms in a manner materially adverse to such Person
or to the Lenders, (ii) materially shorten the final maturity or average life
to maturity thereof, (iii) require any payment thereon to be made sooner than
originally scheduled, (iv) increase the interest rate or fees applicable
thereto or (v) change any subordination provision thereof in a manner adverse
to the Lenders; provided, however that the terms of the Senior Subordinated
Note Indenture may be amended or modified in connection with the purchase,
repurchase and redemption of Senior Subordinated Notes;
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(c) make interest payments in respect of any Subordinated Indebtedness
in violation of the applicable subordination provisions;
(d) except as permitted under clause (e) below, make (or give any
notice with respect thereto) any voluntary or optional payment or prepayment in
respect of any Subordinated Indebtedness; or
(e) make (or give any notice with respect thereto) any redemption,
acquisition for value or defeasance (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due), refund, refinance or exchange of any
Subordinated Indebtedness.
7.19 Certain Timberland Agreements.
Permit any Consolidated Party to directly or indirectly, enter into,
make or assume any agreement for the sale or harvesting of timber from
Timberlands whereby, pursuant to the purchaser's upfront payment of
consideration, such purchaser is granted an unlimited right to harvest such
timber during a period of time in excess of 180 days.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Borrowers or any other Loan Party fails to pay
(i) when and as required to be paid herein, any amount of principal of any Loan
or any L/C Obligation, or (ii) within five (5) Business Days after the same
becomes due, any interest on any Loan or on any L/C Obligation, or any
commitment or other fee due hereunder, or (iii) within five (5) Business Days
after the same becomes due, any other amount payable hereunder or under any
other Loan Document; or
(b) Specific Covenants. Either Borrower shall
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 6.05, 6.11 or Article VII;
(ii) default in the due performance or observance of any
term, covenant or agreement contained in Sections 6.01 and 6.02(a),
(b), (d) or (e) and such default shall continue unremedied for a
period of at least five (5) Business Days after the earlier of a
Responsible Officer of a Borrower becoming aware of such default or
written notice thereof by the Administrative Agent or any Lender; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for thirty (30) days after the earlier
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of a Responsible Officer of a Borrower becoming aware of such default or
written notice thereof by the Administrative Agent or any Lender or, if such
failure cannot reasonably be cured within such 30-day period, 60 days (but only
to the extent such failure can reasonably be cured within such 60-day period)
so long as the Borrowers have diligently commenced such cure and is diligently
prosecuting the completion thereof; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrowers or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall prove untrue in
any material respect on the date as of which it was deemed to have been made;
or
(e) Cross-Default. (i) A Borrower or any Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts)
having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount, or (B) fails
to observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or
a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which a Borrower or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
any Termination Event (as so defined) under such Swap Contract as to which the
Borrowers or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by such Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
respective Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the benefit
of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
is appointed without the application or consent of such Person and the
appointment continues undischarged or unstayed for sixty (60) calendar days; or
any proceeding under any Debtor Relief Law relating to any such Person or to
all or any material part of its property is instituted without the consent of
such Person and continues undismissed or unstayed for sixty (60) calendar days,
or an order for relief is entered in any such proceeding; or
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(g) Inability to Pay Debts; Attachment. (i) A Borrower or any
Subsidiary becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of attachment
or execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully
bonded within thirty (30) days after its issue or levy; or
(h) Judgments. There is entered against a Borrower or any Subsidiary
(i) a final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect and, in either case, (A) enforcement proceedings are commenced
by any creditor upon such judgment or order, or (B) there is a period of thirty
(30) consecutive days during which a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of a Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the
Threshold Amount, or (ii) a Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of the Threshold
Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party contests in any manner the validity or
enforceability of any Loan Document; or any Loan Party denies that it has any
or further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind any Loan Document;
(k) Change of Control. There occurs any Change of Control with respect
to the Company;
(l) Senior Subordinated Debt Documentation. (i) There shall occur and
be continuing any "Event of Default" (or any comparable term) under, and as
defined in the documents evidencing or governing any Subordinated Indebtedness,
(ii) any of the Obligations for any reason shall cease to be "Designated Senior
Debt" (or any comparable term) under, and as defined in the documents
evidencing or governing any Subordinated Indebtedness, (iii) any Indebtedness
other than the Obligations shall constitute "Designated Senior Indebtedness"
(or any comparable term) under, and as defined in any other documents
evidencing or governing any Subordinated Indebtedness or (iv) the subordination
provisions of the documents evidencing or governing any Subordinated
Indebtedness shall, in whole or in part, terminate, cease to be effective or
cease to be legally valid, binding and enforceable against any holder of the
applicable Subordinated Indebtedness; or
(m) Senior Unsecured Debt Documentation. There shall occur and be
continuing any "Event of Default" (or any comparable term) under, and as
defined in the Senior Unsecured Notes, or the Senior Unsecured Note Indenture.
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8.02 Remedies Upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrowers;
(c) require that the Borrowers Cash Collateralize the L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrowers under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions shall automatically terminate,
the unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrowers to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further
act of the Administrative Agent or any Lender.
8.03 Application of Funds.
After the exercise of remedies provided for in Section 8.02 (or after the Loans
have automatically become immediately due and payable and the L/C Obligations
have automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the Obligations
shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under Article III) payable to the Administrative Agent in its
capacity as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest) payable
to the Lenders (including Attorney Costs and amounts payable under Article
III), ratably among them in proportion to the amounts described in this clause
Second payable to them;
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Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings, ratably among the
Lenders in proportion to the respective amounts described in this clause Third
payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans, L/C Borrowings and Swap Contracts between any
Loan Party and any Lender or Affiliate of any Lender and to Cash Collateralize
the undrawn amounts of Letters of Credit, ratably among the Lenders in
proportion to the respective amounts described in this clause Fourth held by
them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrowers or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fourth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as cash collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authority.
Each of the Lenders and the L/C Issuer hereby irrevocably appoints
Bank of America to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuer, and neither the Borrowers nor any other Loan Party shall have rights as
a third party beneficiary of any of such provisions.
9.02 Rights as a Lender.
The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent and the
term "Lender" or "Lenders" shall, unless otherwise expressly indicated or
unless the context otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with the Borrowers or any Subsidiary or other Affiliate thereof as
if such Person were not the Administrative Agent hereunder and without any duty
to account therefor to the Lenders.
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9.03 Exculpatory Provisions.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents.
Without limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is
continuing;
(b) shall not have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents
that the Administrative Agent is required to exercise as directed in
writing by the Required Lenders (or such other number or percentage of
the Lenders as shall be expressly provided for herein or in the other
Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its
counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in
the other Loan Documents, have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the
Borrowers or any of its Affiliates that is communicated to or obtained
by the Person serving as the Administrative Agent or any of its
Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
notice describing such Default is given to the Administrative Agent by the
Borrowers, a Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or
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other writing (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any
condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
the L/C Issuer, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuer unless the Administrative Agent
shall have received notice to the contrary from such Lender or the L/C Issuer
prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrowers), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
9.05 Delegation of Duties.
The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective
Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.
9.06 Resignation of Administrative Agent.
The Administrative Agent may at any time give notice of its
resignation to the Lenders, the L/C Issuer and the Borrowers. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrowers, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting
the qualifications set forth above; provided that if the Administrative Agent
shall notify the Borrowers and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents (except that in the case of any collateral security
held by the Administrative Agent on behalf of the Lenders or the L/C Issuer
under any of the Loan Documents, the retiring Administrative Agent shall
continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until
such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor's
appointment as Administrative Agent hereunder,
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such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of
its duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Section). The fees
payable by the Borrowers to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the
Borrowers and such successor. After the retiring Administrative Agent's
resignation hereunder and under the other Loan Documents, the provisions of
this Article and Section 10.04 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
9.07 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender and the L/C Issuer acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender or any
of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.
9.08 No Other Duties, Etc.
Anything herein to the contrary notwithstanding, none of the
Bookrunners, Arrangers or listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity, as applicable, as the Administrative
Agent, a Lender or the L/C Issuer hereunder.
9.09 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrowers) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and
the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and
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the Administrative Agent under Sections 2.03(i) and (j), 2.09 and
10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Lender and the L/C Issuer to make such payments to
the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the L/C
Issuer, to pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent
and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or the L/C Issuer any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender
or to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
9.10 Collateral and Guaranty Matters.
The Lenders and the L/C Issuer irrevocably authorize the
Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by
the Administrative Agent under any Loan Document (i) upon termination
of the Aggregate Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration
or termination of all Letters of Credit, (ii) that is sold, exchanged
or released, or to be sold, exchanged or released, as part of or in
connection with any sale, exchange or release permitted hereunder or
under any other Loan Document, or (iii) subject to Section 10.01, if
approved, authorized or ratified in writing by the Required Lenders;
(b) to subordinate any Lien on any property granted to or
held by the Administrative Agent under any Loan Document to the holder
of any Lien on such property that is permitted by Section 7.01(g); and
(c) to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority release
any Guarantor from its obligations under the Guaranty pursuant to this Section
9.10.
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9.11 Fiduciary Duty.
In connection with all aspects of each transaction contemplated by
this Agreement: (a) this Agreement and any related arranging or other services
described in this Agreement is an arm's-length commercial transaction between
the Borrowers and their Subsidiaries, on the one hand, and the Lenders and any
affiliate through which any such institution may be acting, on the other hand,
and the Borrowers and their Subsidiaries are capable of evaluating and
understanding and understand and accept the terms, risks and conditions of the
transactions contemplated by this Agreement; (b) in connection with the process
leading to such transaction, each Lender is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for Borrowers'
and their Subsidiaries', stockholders, creditors or employees or any other
party; (c) no Lender has assumed or will assume an advisory, agency or
fiduciary responsibility in the Borrowers or their Subsidiaries favor with
respect to any of the transactions contemplated hereby (irrespective of whether
any Lender has advised or is currently advising you or your affiliates on other
matters) and no Lender has any obligation to the Borrowers or their
Subsidiaries with respect to the transactions contemplated hereby except those
obligations expressly set forth in this Agreement; (d) the Lenders and their
respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from the Borrowers and their Subsidiaries and the
Lenders have no obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (e) the Lenders have not
provided any legal, accounting, regulatory or tax advice with respect to any of
the transactions contemplated hereby and the Borrowers and their Subsidiaries
have consulted their own legal, accounting, regulatory and tax advisors to the
extent they have deemed appropriate. The Borrowers and their Subsidiaries
hereby waive and release, to the fullest extent permitted by law, any claims
that you may have against the Lenders with respect to any breach or alleged
breach of agency or fiduciary duty.
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrowers or any other
Loan Party therefrom, shall be effective unless in writing signed by the
Required Lenders and the Borrowers or the applicable Loan Party, as the case
may be, and acknowledged by the Administrative Agent, and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:
(a) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(b) postpone any date fixed by this Agreement or any other Loan
Document for any payment (excluding mandatory prepayments) of principal,
interest, fees or other amounts due to the Lenders (or any of them) hereunder
or under any other Loan Document without the written consent of each Lender
directly affected thereby;
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(c) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (v) of the second proviso
to this Section 10.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly
affected thereby; provided, however, that only the consent of the Required
Lenders shall be necessary (i) to amend the definition of "Default Rate" or to
waive any obligation of the Borrowers to pay interest at the Default Rate or
(ii) to amend any financial covenant hereunder (or any defined term used
therein) even if the effect of such amendment would be to reduce the rate of
interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(d) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent
of each Lender;
(e) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender; or
(f) release all or substantially all of (i) the value of the
Collateral or (ii) the value of the Guarantees given by the Guarantors without
the written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the L/C Issuer in addition to the Lenders required
above, affect the rights or duties of the L/C Issuer under this Agreement or
any Letter of Credit Application relating to any Letter of Credit issued or to
be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above,
affect the rights or duties of the Swing Line Lender under this Agreement;
(iii) no amendment, waiver or consent shall, unless in writing and signed by
the Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; (iv) Section 10.07(h) may not be amended, waived or otherwise
modified without the consent of each Granting Lender all or any part of whose
Loans are being funded by an SPC at the time of such amendment, waiver or other
modification; and (v) the Fee Letters may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.
10.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
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(i) if to a Borrower, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, telecopier number,
electronic mail address or telephone number specified for such Person
on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier
number, electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices sent by telecopier shall be deemed to have been given when sent and
receipt has been confirmed by telephone (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given at
the opening of business on the next Business Day for the recipient) and receipt
has been confirmed by telephone. Notices delivered through electronic
communications to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant
to Article II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or either
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon
the sender's receipt of an acknowledgement from the intended recipient (such as
by the "return receipt requested" function, as available, return e-mail or
other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next Business Day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE."
THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER
MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS
OR THE PLATFORM. In no event shall the Administrative
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Agent or any of its Related Parties (collectively, the "Agent Parties") have
any liability to the Borrowers, any Lender, the L/C Issuer or any other Person
for losses, claims, damages, liabilities or expenses of any kind (whether in
tort, contract or otherwise) arising out of the Borrowers' or the
Administrative Agent's transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses
are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to the Borrowers, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrowers, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. Each other Lender may change its
address, telecopier or telephone number for notices and other communications
hereunder by notice to the Borrowers, the Administrative Agent, the L/C Issuer
and the Swing Line Lender. In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of the Borrowers even if
(i) such notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrowers shall indemnify the Administrative Agent,
the L/C Issuer, each Lender and the Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of the Borrowers. All
telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
10.03 No Waiver; Cumulative Remedies.
No failure by any Lender or the Administrative Agent to exercise, and
no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
10.04 Attorney Costs, Expenses and Taxes.
The Borrowers agree (a) to pay or reimburse the Administrative Agent
for all costs and expenses incurred in connection with the development,
preparation, negotiation and execution of
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this Agreement and the other Loan Documents and any amendment, waiver, consent
or other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all reasonable Attorney Costs, and (b) to pay or reimburse
the Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by the Administrative Agent and the cost of
independent public accountants and other outside experts retained by the
Administrative Agent or any Lender. All amounts due under this Section 10.04
shall be payable within ten (10) Business Days after demand therefor. The
agreements in this Section shall survive the termination of the Aggregate
Revolving Commitments and repayment of all other Obligations.
10.05 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrowers shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the reasonable fees, charges and disbursements of any
counsel for the Administrative Agent, any Lender or the L/C Issuer), and shall
pay all reasonable fees and time charges for attorneys who may be employees of
the Administrative Agent, any Lender or the L/C Issuer, in connection with the
enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B)
in connection with the Loans made or Letters of Credit issued hereunder,
including all such reasonable out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) Indemnification by the Borrowers. The Borrowers shall indemnify
the Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses
(including the documented fees, charges and disbursements of any counsel for
any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all
reasonable fees and time charges and disbursements for attorneys who may be
employees of any Indemnitee, incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Borrowers or any other Loan Party
arising out of, in connection with, or as a result of
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(i) the execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder, the
consummation of the transactions contemplated hereby or thereby, or, in the
case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Borrowers or any of their
Subsidiaries, or any Environmental Liability related in any way to the
Borrowers or any of their Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought
by a third party or by the Borrowers or any other Loan Party, and regardless of
whether any Indemnitee is a party thereto, in all cases, whether or not caused
by or arising, in whole or in part, out of the comparative, contributory or
sole negligence of the Indemnitee; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim
brought by the Borrowers or any other Loan Party against an Indemnitee for
breach in bad faith of such Indemnitee's obligations hereunder or under any
other Loan Document, if the Borrowers or such Loan Party has obtained a final
judgment in its favor on such claim as determined by a court of competent
jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrowers for any
reason fails to indefeasibly pay any amount required under subsection (a) or
(b) of this Section to be paid by it to the Administrative Agent (or any
sub-agent thereof), the L/C Issuer or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Related Party, as the case may be,
such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent (or any such sub-agent) or the L/C
Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or L/C
Issuer in connection with such capacity. The obligations of the Lenders under
this subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable law, the Borrowers shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or
the use of the proceeds thereof. No Indemnitee referred to in subsection (b)
above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission
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systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby, except to the extent determined in
a final judgment by a court of competent jurisdiction to have resulted from
such Indemnified Party's bad faith, gross negligence or willful misconduct.
(e) Payments. All amounts due under this Section shall be payable not
later than ten (10) Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the
resignation of the Administrative Agent and the L/C Issuer, the replacement of
any Lender, the termination of the Aggregate Revolving Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
10.06 Payments Set Aside.
To the extent that any payment by or on behalf of the Borrowers is
made to the Administrative Agent or any Lender, or the Administrative Agent or
any Lender exercises its right of set-off, and such payment or the proceeds of
such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had not occurred,
and (b) each Lender severally agrees to pay to the Administrative Agent upon
demand its applicable share of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to the
date such payment is made at a rate per annum equal to the Federal Funds Rate
from time to time in effect.
10.07 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither a
Borrower nor any other Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection
(d) of this Section, (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section, or (iv)
to an SPC in accordance with the provisions of subsection (h) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
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(b) Assignments by Lenders. Any Lender may at any time assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that
(i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender,
the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the Commitment is not
then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified
in the Assignment and Assumption, as of the Trade Date, shall not be
less than () in the case of Revolving Loans, $5,000,000 and (ii) in
the case of Term Loan, $1,000,000, unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is
continuing, the Borrowers otherwise consents (each such consent not to
be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met;
(ii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the
Commitment assigned, except that this clause (ii) shall not apply to
rights in respect of Swing Line Loans;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent and, in the case of a Revolving Commitment, the
L/C Issuer and the Swing Line Lender unless the Person that is the
proposed assignee is itself a Lender (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee in the amount, if any, required
as set forth in Schedule 10.07, and the Eligible Assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative
Agent pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering
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all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Upon
request, the Borrowers (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d)
of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose
as an agent of the Borrowers, shall maintain at the Administrative Agent's
Office a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of, and interest payable on, the Loans
and L/C Obligations owing to, each Lender pursuant to the terms hereof from
time to time (the "Register"). The entries in the Register shall be conclusive,
and the Borrowers, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by each of the
Borrowers and the L/C Issuer at any reasonable time and from time to time upon
reasonable prior notice. In addition, at any time that a request for a consent
for a material or substantive change to the Loan Documents is pending, any
Lender may request and receive from the Administrative Agent a copy of the
Register.
(d) Participations. Any Lender may at any time, without the consent
of, or notice to, the Borrowers or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrowers or
any of the Borrowers' Affiliates or Subsidiaries) (each, a "Participant") in
all or a portion of such Lender's rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender's participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative Agent, the Lenders and the L/C
Issuer shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in the first
proviso to Section 10.01 that affects such Participant. Subject to subsection
(e) of this Section, the Borrowers agree that each Participant shall be
entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.08 as though
it were a Lender, provided such Participant agrees to be subject to Section
2.13 as though it were a Lender.
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(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrowers' prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrowers are notified of
the participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 10.14 as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank or a bank in the farm credit banking system; provided that no such pledge
or assignment shall release such Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
(h) Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrowers (an "SPC")
the option to provide all or any part of any Committed Loan that such Granting
Lender would otherwise be obligated to make pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to
fund any Committed Loan, and (ii) if an SPC elects not to exercise such option
or otherwise fails to make all or any part of such Committed Loan, the Granting
Lender shall be obligated to make such Committed Loan pursuant to the terms
hereof or, if it fails to do so, to make such payment to the Administrative
Agent as is required under Section 2.12(b)(ii). Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrowers under this Agreement (including its obligations
under Section 3.04), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable, and
(iii) the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Committed Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Committed Loan were made by such Granting Lender. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that
is one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join
any other Person in instituting
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against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State
thereof. Notwithstanding anything to the contrary contained herein, any SPC may
(i) with notice to, but without prior consent of the Borrowers and the
Administrative Agent and with the payment of a processing fee in the amount of
$2,500, assign all or any portion of its right to receive payment with respect
to any Committed Loan to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of
Committed Loans to any rating agency, commercial paper dealer or provider of
any surety or Guarantee or credit or liquidity enhancement to such SPC.
(i) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon thirty (30) days' notice to the Borrowers
and the Lenders, resign as L/C Issuer and/or (ii) upon thirty (30) days' notice
to the Borrowers, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrowers shall be entitled
to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by the Borrowers to appoint any
such successor shall affect the resignation of Bank of America as L/C Issuer or
Swing Line Lender, as the case may be. If Bank of America resigns as L/C
Issuer, it shall retain all the rights, powers, privileges and duties of the
L/C Issuer hereunder with respect to all Letters of Credit outstanding as of
the effective date of its resignation as L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make Base
Rate Committed Loans or fund risk participations in Unreimbursed Amounts
pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line Lender,
it shall retain all the rights of the Swing Line Lender provided for hereunder
with respect to Swing Line Loans made by it and outstanding as of the effective
date of such resignation, including the right to require the Lenders to make
Base Rate Committed Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C
Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C
Issuer shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank
of America with respect to such Letters of Credit.
10.08 Confidentiality.
Each of the Administrative Agent, the Lenders and the L/C Issuer
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and
its Affiliates' respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the
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enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrowers and its obligations, (g) with
the consent of the Borrowers or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent, any Lender, the L/C Issuer or
any of their respective Affiliates on a nonconfidential basis from a source
other than the Borrowers.
For purposes of this Section, "Information" means all information
received from the Borrowers or any Subsidiary relating to the Borrowers or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the
L/C Issuer on a nonconfidential basis prior to disclosure by the Borrowers or
any Subsidiary, provided that, in the case of information received from the
Borrowers or any Subsidiary after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrowers or a Subsidiary, as the case may be, (b)
it has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
10.09 Set-off.
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each
Lender is authorized at any time and from time to time, without prior notice to
the Borrowers or any other Loan Party, any such notice being waived by the
Borrowers (on its own behalf and on behalf of each Loan Party) to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties, and each Loan Party hereby grants a
security interest in all such deposits and indebtedness to the Administrative
Agent for the benefit of the Administrative Agent and the Lenders, against any
and all Obligations owing to such Lender hereunder or under any other Loan
Document, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable
deposit or indebtedness. Each Lender agrees promptly to notify the Borrowers
and the Administrative Agent 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.
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10.10 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall
not exceed the maximum rate of non-usurious interest permitted by applicable
Law (the "Maximum Rate"). If the Administrative Agent or any Lender shall
receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrowers. In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
10.11 Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This Agreement and the other Loan Documents constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating
to the subject matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
10.12 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other
Loan Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be
relied upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or on their behalf
and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
10.13 Severability.
If any provision of this Agreement or the other Loan Documents is held
to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as
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possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
10.14 Tax Forms.
(a) (i) Each Lender that is a Foreign Lender shall deliver to the
Administrative Agent, prior to receipt of any payment under this Agreement (or
upon accepting an assignment of an interest herein), two (2) duly signed
completed copies of (A) IRS Form W-8BEN or any successor thereto (relating to
such Foreign Lender and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Foreign Lender by the
Borrowers pursuant to this Agreement), (B) IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Foreign Lender by the
Borrowers pursuant to this Agreement) or (C) such other evidence satisfactory
to the Borrowers and the Administrative Agent that such Foreign Lender is
entitled to an exemption from, or reduction of, U.S. withholding tax, including
any exemption pursuant to Section 881(c) of the Code. Thereafter and from time
to time, each such Foreign Lender shall (x) promptly submit to the
Administrative Agent such additional duly completed and signed copies of one of
such forms (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may then be available under
then current United States laws and regulations to avoid, or such evidence as
is satisfactory to the Borrowers and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect of
all payments to be made to such Foreign Lender by the Borrowers pursuant to
this Agreement, (y) promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction, and (z) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Borrowers make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases to
act for its own account with respect to any portion of any sums paid or payable
to such Lender under any of the Loan Documents (for example, in the case of a
typical participation by such Lender), shall deliver to the Administrative
Agent on the date when such Foreign Lender ceases to act for its own account
with respect to any portion of any such sums paid or payable, and at such other
times as may be necessary in the determination of the Administrative Agent (in
the reasonable exercise of its discretion), (A) two (2) duly signed completed
copies of the forms or statements required to be provided by such Lender as set
forth above, to establish the portion of any such sums paid or payable with
respect to which such Lender acts for its own account that is not subject to
U.S. withholding tax, and (B) two (2) duly signed completed copies of IRS Form
W-8IMY (or any successor thereto), together with any information such Lender
chooses to transmit with such form, and any other certificate or statement of
exemption required under the Code, to establish that such Lender is not acting
for its own account with respect to a portion of any such sums payable to such
Lender.
(iii) The Borrowers shall not be required to pay any additional amount
to any Foreign Lender under Section 3.01 (A) with respect to any Taxes required
to be deducted or withheld on
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the basis of the information, certificates or statements of exemption such
Lender transmits with an IRS Form W-8IMY pursuant to this Section 10.15(a) or
(B) if such Lender shall have failed to satisfy the foregoing provisions of
this Section 10.15(a); provided that if such Lender shall have satisfied the
requirement of this Section 10.15(a) on the date such Lender became a Lender or
ceased to act for its own account with respect to any payment under any of the
Loan Documents, nothing in this Section 10.15(a) shall relieve the Borrowers of
its obligation to pay any amounts pursuant to Section 3.01 in the event that,
as a result of any change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date establishing the
fact that such Lender or other Person for the account of which such Lender
receives any sums payable under any of the Loan Documents is not subject to
withholding or is subject to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold any
Taxes required to be deducted and withheld from any payment under any of the
Loan Documents with respect to which the Borrowers are not required to pay
additional amounts under this Section 10.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is
a "United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two (2) duly signed completed copies
of IRS Form W-9 (or any successor thereto). If such Lender fails to deliver
such forms, then the Administrative Agent may withhold from any interest
payment to such Lender an amount equivalent to the applicable back-up
withholding tax imposed by the Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the termination of the Aggregate
Revolving Commitments, repayment of all other Obligations hereunder and the
resignation of the Administrative Agent.
10.15 Replacement of Lenders.If any Lender requests compensation under
Section 3.04, or if the Borrowers are required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 3.01, or if any Lender is a Defaulting Lender, then the Borrowers
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 10.07), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:
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(a) the Borrowers shall have paid to the Administrative Agent
the assignment fee specified in Section 10.07;
(b) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and L/C Advances,
accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrowers
(in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim
for compensation under Section 3.04 or payments required to be made
pursuant to Section 3.01, such assignment will result in a reduction
in such compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrowers to require such assignment
and delegation cease to apply.
10.16 Governing Law; Jurisdiction; Etc..
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT
AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR
OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH
LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
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10.17 Waiver of Right to Trial by Jury.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.18 USA Patriot Act Notice.
Each Lender and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies the Borrowers, which information includes the name
and address of the Borrowers and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify the Borrowers in
accordance with the Act.
ARTICLE XI.
GUARANTY
11.01 The Guaranty.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract, and the
Administrative Agent as hereinafter provided, as primary obligor and not as
surety, the prompt payment of the Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) strictly in accordance with the terms
thereof. The Guarantors hereby further agree that if any of the Obligations are
not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Obligations, the same will be
promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Loan Documents or Swap Contracts, the obligations of each
Guarantor under this Agreement and the other Loan Documents shall be limited to
an aggregate amount equal to the largest amount that
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would not render such obligations subject to avoidance under the Debtor Relief
Laws or any comparable provisions of any applicable state law.
11.02 Obligations Unconditional.
The obligations of the Guarantors under Section 11.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Loan Documents or Swap
Contracts, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 11.02 that the obligations of
the Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrowers or
any other Guarantor for amounts paid under this Article XI until such time as
the Obligations have been Fully Satisfied. Without limiting the generality of
the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to any Guarantor,
the time for any performance of or compliance with any of the Obligations shall
be extended, or such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any of the
Loan Documents, any Swap Contract between any Consolidated Party and any
Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents or such Swap Contracts shall be done or
omitted;
(c) the maturity of any of the Obligations shall be accelerated, or
any of the Obligations shall be modified, supplemented or amended in any
respect, or any right under any of the Loan Documents, any Swap Contract
between any Consolidated Party and any Lender, or any Affiliate of a Lender, or
any other agreement or instrument referred to in the Loan Documents or such
Swap Contracts shall be waived or any other guarantee of any of the Obligations
or any security therefor shall be released, impaired or exchanged in whole or
in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Agent or any Lender or
Lenders as security for any of the Obligations shall fail to attach or be
perfected; or
(e) any of the Obligations shall be determined to be void or voidable
(including, without limitation, for the benefit of any creditor of any
Guarantor) or shall be subordinated to the claims of any Person (including,
without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Agent or any Lender exhaust
any right, power or remedy or proceed against any Person under any of the Loan
Documents, any Swap Contract between any Consolidated Party and any Lender, or
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any Affiliate of a Lender, or any other agreement or instrument referred to in
the Loan Documents or such Swap Contracts, or against any other Person under
any other guarantee of, or security for, any of the Obligations.
11.03 Reinstatement.
The obligations of the Guarantors under this Article XI shall be
automatically reinstated if and to the extent that for any reason any payment
by or on behalf of any Person in respect of the Obligations is rescinded or
must be otherwise restored by any holder of any of the Obligations, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise, and
each Guarantor agrees that it will indemnify the Agent and each Lender on
demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Agent or such Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
11.04 Certain Additional Waivers.
Each Guarantor agrees that such Guarantor shall have no right of
recourse to security for the Obligations, except through the exercise of rights
of subrogation pursuant to Section 11.02 and through the exercise of rights of
contribution pursuant to Section 11.06.
11.05 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agent and the Lenders, on the
other hand, the Obligations may be declared to be forthwith due and payable as
provided in Section 8.02 (and shall be deemed to have become automatically due
and payable in the circumstances provided in said Section 8.02) for purposes of
Section 11.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Obligations from becoming
automatically due and payable) as against any other Person and that, in the
event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 11.01. The Guarantors acknowledge and agree that to the
extent their obligations hereunder become secured, the Lenders may exercise
their remedies thereunder in accordance with the terms of the applicable
security documents.
11.06 Rights of Contribution.
The Guarantors hereby agree as among themselves that, in connection
with payments made hereunder, each Guarantor shall have a right of contribution
from each other Guarantor in accordance with applicable Law. Such contribution
rights shall be subordinate and subject in right of payment to the Obligations
until such time as the Obligations have been Fully Satisfied, and none of the
Guarantors shall exercise any such contribution rights until the Obligations
have been Fully Satisfied.
117
11.07 Guarantee of Payment; Continuing Guarantee.
The guarantee in this Article XI is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
118
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
BORROWERS: LONGVIEW FIBRE COMPANY,
a Washington corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
Title: Sr. V.P. - Finance
-----------------------
LONGVIEW FIBRE PAPER AND
PACKAGING, INC.,
a Washington corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
Title: Sr. V.P. - Finance
-----------------------
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
ADMINISTRATIVE AGENT
AND LENDERS: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ ▇▇▇▇ ▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇
-------------------------
Title: Assistant Vice President
-------------------------
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
BANK OF AMERICA, N.A.,
as a Lender, an L/C Issuer and Swing Line Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------------
Title: Vice President
------------------------------------------
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
▇▇▇▇▇ FARGO BANK, N.A.,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Title: SVP
-------------------------
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Managing Director
-----------------------------
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page to Credit Agreement
Longview Fibre Company
December ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
SCOTIABANC INC.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
Title: Managing Director
-----------------
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
AMERICAN AGCREDIT, PCA,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: Vice President
-------------------------
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
THE BANK OF TOKYO-MITSUBISHI, LTD.,
SEATTLE BRANCH, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Manager
Signature Page to Credit Agreement
Longview Fibre Company
December ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Title: Senior Vice President
-------------------------
Signature Page to Credit Agreement
Longview Fibre Company
December ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ CREDIT SERVICES, PCA,
as a Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
------------
Title: Senior Vice President
---------------------
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
INTERNATIONAL" NEW YORK BRANCH, as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Executive Director
---------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Executive Director
----------------------------------
Longview Fibre
GREENSTONE FARM CREDIT SERVICES,
ACA/FLCA, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------
Title: VP/Sr. Lending Officer
--------------------------
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
STERLING SAVINGS BANK,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ BANK,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Title: Vice President
--------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: Vice President
-------------------------
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
CAPITAL FARM CREDIT BANK,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: VP Commercial Credit
-------------------------
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
AGFIRST FARM CREDIT BANK,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Signature Page to Credit Agreement
Longview Fibre Company
December ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ D/B/A FCS
COMMERCIAL FINANCE, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Commercial Loan Officer
Signature Page to Credit Agreement
Longview Fibre Company
December ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: Vice President
------------------------------
Signature Page to Credit Agreement
Longview Fibre Company
December 2005
SCHEDULE 1.01
-------------
Existing Letters of Credit
Issued Under
Credit Agreement
Dated Beneficiary Date Expiry Date Amount
------ ---------------------------------------- ------ -------------- ----------
12/15/05 Yakima IRB 6/24/05 6/24/06 $5,200,000
L/C number ▇▇▇▇▇▇▇, Bank of America
12/15/05 Twin Falls IRB 6/24/05 6/24/06 $4,500,000
L/C number ▇▇▇▇▇▇▇, Bank of America
SCHEDULE 2.01
-------------
COMMITMENTS AND APPLICABLE PERCENTAGES
Revolving Applicable Term Applicable
Lender Commitment Percentage Commitment Percentage
------------------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. $20,000,000 10.000000000% $20,000,000 10.000000000%
▇▇▇▇▇ Fargo Bank, N.A. $20,000,000 10.000000000% $20,000,000 10.000000000%
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. $10,000,000 5.000000000% $10,000,000 5.000000000%
U.S. Bank National Association $15,000,000 7.500000000% $15,000,000 7.▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $15,000,000 7.▇▇▇▇▇▇▇▇▇% $0 0.000000000%
Scotiabanc Inc. $0 0.000000000% $15,000,000 7.500000000%
American AgCredit, PCA(1) $20,000,000 10.000000000% $20,000,000 10.000000000%
The Bank of Tokyo Mitsubishi, Ltd., Seattle Branch $9,000,000 4.500000000% $9,000,000 4.500000000%
Union Bank of California, N.A. $6,000,000 3.000000000% $6,000,000 3.000000000%
Northwest Farm Credit Services, PCA(2) $20,000,000 10.000000000% $20,000,000 10.000000000%
Cooperatieve Centrale Raiffeisin - Boerenleenbank B.A., $15,000,000 7.500000000% $15,000,000 7.500000000%
"Rabobank International" New York Branch
Greenstone Farm Credit Services, ACA/FLCA $10,000,000 5.000000000% $10,000,000 5.000000000%
Sterling Savings Bank $5,000,000 2.500000000% $5,000,000 2.500000000%
M&I ▇▇▇▇▇▇▇▇ & Ilsley Bank $7,500,000 3.750000000% $7,500,000 3.750000000%
Capital Farm Credit Bank(3) $10,000,000 5.000000000% $10,000,000 5.000000000%
AgFirst Farm Credit Bank(4) $7,500,000 3.750000000% $7,500,000 3.750000000%
Farm Credit Services of Minnesota Valley,
FLCA d/b/a FCS $5,000,000 2.500000000% $5,000,000 2.500000000%
Commercial Finance Group
Farm Credit Services of America, PCA $5,000,000 2.500000000% $5,000,000 2.500000000%
Total $200,000,000 100.000000000% $200,000,000 100.000000000%
(1) Pursuant to a participation agreement, a participation of $10MM has been
sold by American AgCredit, PCA to U.S. AgBank, FCB as of the Closing Date.
(2) Pursuant to a participation agreement, a participation of $10MM has been
sold by Northwest Farm Credit Services, PCA to CoBank ACB as of the
Closing Date.
(3) Pursuant to a participation agreement, a participation of $$10MM has been
sold by Capital Farm Credit Bank to Farm Credit Bank of Texas as of the
Closing Date.
(4) Pursuant to a participation agreement, a participation of $4MM has been
sold by AgFirst Farm Credit Bank to Pee Dee Farm Credit as of the Closing
Date.
SCHEDULE 5.03
-------------
Required Consents, Authorizations, Notices and Filings
None
SCHEDULE 5.13
-------------
SUBSIDIARIES & EQUITY INVESTMENTS
Part (a)
--------
Percentage of
Voting Stock
Jurisdiction Owned by the
Of Company or Other
Name Incorporation Subsidiary
---- ------------- ----------
Longtimber of Oregon Oregon 100%
Longview Fibre Paper and
Packaging, Inc. Washington 100%
Part (b)
--------
Name Description Value at 10/31/05
---- ----------- -----------------
American AgCredit C Stock $ 1,000.00
IFA Nurseries, Inc. Stock $283,299.00
AG Supply Company Stock (issued for
Patronage) $ 56,635.04
SCHEDULE 7.01
-------------
Liens
Industrial Revenue Bond Financing Agreements:
1. Port of Longview Industrial Development Corporation Bond Financing
Agreements, including Loan Agreement, Security Agreement, Reimbursement
Agreement, Remarketing Agreement and Tender Agent Agreement dated December
1, 1984.
Secured by one (1) barge unloading crane, conveyors, stackers and related
equipment in Longview, Washington.
Principal Amount Outstanding:
-----------------------------
$5,000,000
2. City of Twin Falls Industrial Development Bond Financing Agreements,
including Loan Agreement, Security Agreement, Letter of Credit Agreement,
Remarketing Agreement and Tender Agent Agreement dated December 1, 1985.
Secured by one (1) 98" width BHS Heavy Duty Corrugator and associated
equipment in Twin Falls, Idaho.
Principal Amount Outstanding:
-----------------------------
$4,500,000
3. Yakima County Industrial Development Revenue Bond Financing Agreements,
including Bond Purchase Agreement, Security Agreement, Reimbursement
Agreement, Remarketing Agreement and Trust Agreement dated May 1, 1988.
Secured by equipment to update the wet end and dry end of a corrugator and
includes acquisition and installation of a Paser 60G B flute, double glue
machine, auto slitter scorer, double downstacker and allied equipment, one
(1) ▇.▇. ▇▇▇▇▇▇ FFG Supermini 718 with four (4) colors and die cut unit,
and one (1) ▇.▇. ▇▇▇▇▇▇ FFG Supermini 718 with two (2) colors and die cut
unit, together with related equipment.
Principal amount outstanding:
-----------------------------
$5,000,000
SCHEDULE 7.02
-------------
INVESTMENTS
As of 10/31/05
Investments in Country Clubs $ 76,560.00
Stock - AG supply Company 56,635.04
Stock - American AgCredit 1,000.00
Stock - I F Nursery 283,299.00
------------
Total $417,494.04
SCHEDULE 7.03
Indebtedness as of December 15, 2003
A. Short-Term Borrowing
1. Line of credit between Longview Fibre Company and ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
Bank which cannot exceed $15,000,000.
Principal Amount Outstanding:
-----------------------------
Balance as of December 15, 2005 $0.00
B. Long-Term Borrowing
Industrial Revenue Bond Financing Agreements:
1. Port of Longview Industrial Development Corporation Bond Financing
Agreements, including Loan Agreement, Security Agreement,
Reimbursement Agreement, Remarketing Agreement and Tender Agent
Agreement dated December 1, 1984.
Secured by one (1) barge unloading crane, conveyors, stackers and
related equipment in Longview, Washington.
Principal Amount Outstanding:
-----------------------------
$5,000,000
2. City of Twin Falls Industrial Development Bond Financing Agreements,
including Loan Agreement, Security Agreement, Letter of Credit
Agreement, Remarketing Agreement and Tender Agent Agreement dated
December 1, 1985.
Secured by one (1) 98" width BHS Heavy Duty Corrugator and associated
equipment in Twin Falls, Idaho.
Principal Amount Outstanding:
-----------------------------
$4,500,000
3. Yakima County Industrial Development Revenue Bond Financing
Agreements, including Bond Purchase Agreement, Security Agreement,
Reimbursement Agreement, Remarketing Agreement and Trust Agreement
dated May 1, 1988.
Secured by equipment to update the wet end and dry end of a
corrugator and includes acquisition and installation of a Paser 60G B
flute, double glue machine, auto slitter scorer, double downstackers
and allied equipment, one (1) ▇. ▇. ▇▇▇▇▇▇ FFG Supermini 718 with
four (4) colors and die cut unit, and one (1) ▇. ▇. ▇▇▇▇▇▇ FFG
Supermini 718 with two (2) colors and die cut unit, together with
related equipment.
Principal Amount Outstanding:
-----------------------------
$5,000,000
Senior Notes:
4. Note Purchase Agreement dated March 31, 1998 between Longview Fibre
Company and the purchasers of the Company's 6.77% Senior Notes due
March 31, 2006.
Principal Amount Outstanding:
-----------------------------
$13,000,000
5. Note Purchase Agreement dated March 31, 1998 between Longview Fibre
Company and the purchasers of the Company's 6.92% Senior Notes due
March 31, 2008.
Principal Amount Outstanding:
-----------------------------
$24,000,000
6. Note Purchase Agreement dated March 31, 1998 between Longview Fibre
Company and the purchasers of the Company's 7.00% Senior Notes due
March 31, 2010.
Principal Amount Outstanding:
-----------------------------
$15,000,000
7. Note Purchase Agreement dated June 28, 2001 between Longview Fibre
Company and the purchasers of the Company's 8.83% Senior Notes due
June 28, 2006.
Principal Amount Outstanding:
-----------------------------
$67,500,000
8. Note Purchase Agreement dated June 28, 2001 between Longview Fibre
Company and the purchasers of the Company's Floating Rate Senior
Notes due June 28, 2006.
Principal Amount Outstanding:
-----------------------------
$5,000,000
9. $215 million aggregate principal amount of 10% Senior Subordinated
Notes due 2009 issued pursuant to an Indenture, dated as of January
25, 2002, between Longview Fibre Company and U.S. Bank National
Association, as Trustee.
Principal Amount Outstanding:
-----------------------------
$215,000,000
TOTAL: $354,000,000
Subsidiary Indebtedness
-----------------------
None
SCHEDULE 7.08
-------------
Employee Termination Agreements
Since January 1, 1989, the Company has entered into termination protection
agreements with certain executive officers and other employees. Those officers
with such agreements, as of December 15, 2005 are:
Name Date Signed
---- -----------
1. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. April 9, 1990
2. ▇▇▇▇▇▇▇▇, ▇. ▇. February 5, 1992 (now ▇▇▇▇▇▇▇▇▇▇)
3. ▇▇▇▇▇▇▇▇▇, ▇. ▇. April 9, 1990
4. ▇▇▇▇▇, I. A. April 9, 1990
5. ▇▇▇▇▇▇, ▇. ▇. February 2, 1994
6. ▇▇▇▇▇▇▇▇▇▇, ▇. ▇. February 1, 1995
SCHEDULE 10.02
--------------
ADMINISTRATIVE AGENTS OFFICE,
CERTAIN ADDRESSES FOR NOTICES
BORROWERS:
Longview Fibre Company
Address for Courier:
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Mail:
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President Finance
Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
Website Address: ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
ADMINISTRATIVE AGENT:
Administrative Agent's Office
(for Payments and Requests for Credit Extensions):
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
Electronic Mail: ▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
ABA#: ▇▇▇▇▇▇▇▇▇
Account #: 3750836479
Reference: Longview Fibre
Other Notices to Administrative Agent:
Bank of America, N.A.
Agency Management
▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Anthea Del ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇.▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
L/C ISSUER:
Bank of America, N.A.
Trade Operations - Los Angeles #22621
Mail Code: CA9-703-19-23
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 1466
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇.▇▇▇▇▇▇,▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
SWING LINE LENDER
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
Electronic Mail: ▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
ABA#: ▇▇▇▇▇▇▇▇▇
Account #: 3750836479
Reference: Longview Fibre
SCHEDULE 10.07
--------------
PROCESSING AND RECORDATION FEES
The Administrative Agent will charge a processing and recordation fee (an
"Assignment Fee") in the amount of $2,500 for each assignment; provided,
however, that in the event of two or more concurrent assignments to members of
the same Assignee Group (which may be effected by a suballocation of an
assigned amount among members of such Assignee Group) or two or more concurrent
assignments by members of the same Assignee Group to a single Eligible Assignee
(or to an Eligible Assignee and members of its Assignee Group), the Assignment
Fee will be $2,500 plus the amount set forth below:
Transaction: Assignment Fee:
First four concurrent assignments -0-
or suballocations to members of an
Assignee Group (or from members
of an Assignee Group, as applicable)
Each additional concurrent $500
assignment or suballocation to a
member of such Assignee Group (or
from a member of such Assignee
Group, as applicable)
For purposes hereof, "Assignee Group" means two or more Eligible Assignees that
are Affiliates of one another or two or more Approved Funds managed by the same
investment advisor. The terms "Affiliate," "Approved Fund" and "Eligible
Assignee" shall be defined in the definitive loan documentation.
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of
December 23, 2005 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Longview Fibre Company, a
Washington corporation (the "Company"), Longview Fibre Paper and Packaging,
Inc., a Washington corporation ("TRS" and together with the Company, the
"Borrowers"), the Lenders from time to time party thereto, the Guarantors from
time to time party thereto and Bank of America, N.A., as Administrative Agent,
L/C Issuer and Swing Line Lender.
The undersigned hereby requests (select one):
|_| A Borrowing of Revolving Loans |_| A Borrowing of the Term Loan
|_| A conversion or continuation of Loans
1. On _______________________ (a Business Day).
2. In the amount of $______________________.
3. Comprised of ____________________.
[Type of Committed Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of _____ months.
[only Interest Periods of one month shall be available during the ninety (90)
day period following the Closing Date]
The Committed Borrowing, if any, requested herein complies with the
proviso to the first sentence of Section 2.01(a) or Section 2.01(b), as
applicable, of the Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
LONGVIEW FIBRE COMPANY
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
LONGVIEW FIBRE PAPER AND PACKAGING, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of
December 23, 2005 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Longview Fibre Company, a
Washington corporation (the "Company"), Longview Fibre Paper and Packaging,
Inc., a Washington corporation ("TRS" and together with the Company, the
"Borrowers"), the Lenders from time to time party thereto, the Guarantors from
time to time party thereto and Bank of America, N.A., as Administrative Agent,
L/C Issuer and Swing Line Lender.
The undersigned hereby requests a Swing Line Loan:
1. On ________________________ (a Business Day).
2. In the amount of $_____________________.
The Swing Line Borrowing requested herein complies with the
requirements of the proviso to the first sentence of Section 2.04(a) of the
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
LONGVIEW FIBRE COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LONGVIEW FIBRE PAPER AND PACKAGING, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT C-1
FORM OF REVOLVING NOTE
Date: ___________, _____
FOR VALUE RECEIVED, the undersigned (the "Borrowers"), hereby promise
to pay to _____________________ or registered assigns (the "Lender"), in
accordance with the provisions of the Agreement (as hereinafter defined), the
principal amount of each Revolving Loan from time to time made by the Lender to
the Borrowers under that certain Credit Agreement, dated as of December 23,
2005 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being
used herein as therein defined), among the Borrowers, the Lenders from time to
time party thereto, the Guarantors from time to time party thereto, and Bank of
America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The Borrowers promise to pay interest on the unpaid principal amount
of each Revolving Loan from the date of such Revolving Loan until such
principal amount is paid in full, at such interest rates and at such times as
provided in the Agreement. Except as otherwise provided in Section 2.04(f) of
the Agreement with respect to Swing Line Loans, all payments of principal and
interest shall be made to the Administrative Agent for the account of the
Lender in Dollars in immediately available funds at the Administrative Agent's
Office. If any amount is not paid in full when due hereunder, such unpaid
amount shall bear interest, to be paid upon demand, from the due date thereof
until the date of actual payment (and before as well as after judgment)
computed at the per annum rate set forth in the Agreement.
This Revolving Note is one of the Revolving Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole or
in part subject to the terms and conditions provided therein. This Revolving
Note is also entitled to the benefits of the Guaranty and is secured by the
Collateral. Upon the occurrence and continuation of one or more of the Events
of Default specified in the Agreement, all amounts then remaining unpaid on
this Revolving Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Revolving Loans made by the Lender
shall be evidenced by one or more loan accounts or records maintained by the
Lender in the ordinary course of business. The Lender may also attach schedules
to this Revolving Note and endorse thereon the date, amount and maturity of its
Revolving Loans and payments with respect thereto.
The Borrowers, for themselves, their successors and assigns, hereby
waive diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Revolving Note.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
LONGVIEW FIBRE COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LONGVIEW FIBRE PAPER AND PACKAGING, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of Outstanding
End of Principal or Principal
Type of Amount of Interest Interest Paid Balance This Notation
Date Loan Made Loan Made Period This Date Date Made By
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EXHIBIT C-2
FORM OF TERM NOTE
Date: ___________, _____
FOR VALUE RECEIVED, the undersigned (the "Borrowers"), hereby promise
to pay to _____________________ or registered assigns (the "Lender"), in
accordance with the provisions of the Agreement (as hereinafter defined), the
principal amount of the Term Loan from time to time made by the Lender to the
Borrowers under that certain Credit Agreement, dated as of December 23, 2005
(as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the "Agreement;" the terms defined therein being used herein
as therein defined), among the Borrowers, the Lenders from time to time party
thereto, the Guarantors from time to time party thereto, and Bank of America,
N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The Borrowers promise to pay interest on the unpaid principal amount
of the Term Loan from the date the Term Loan is made until such principal
amount is paid in full, at such interest rates and at such times as provided in
the Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars in immediately
available funds at the Administrative Agent's Office. If any amount is not paid
in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Agreement.
This Term Note is one of the Term Notes referred to in the Agreement,
is entitled to the benefits thereof and may be prepaid in whole or in part
subject to the terms and conditions provided therein. This Term Note is also
entitled to the benefits of the Guaranty and is secured by the Collateral. Upon
the occurrence and continuation of one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this Term Note
shall become, or may be declared to be, immediately due and payable all as
provided in the Agreement. The Term Loan made by the Lender shall be evidenced
by one or more loan accounts or records maintained by the Lender in the
ordinary course of business. The Lender may also attach schedules to this Term
Note and endorse thereon the date, amount and maturity of its Term Loan and
payments with respect thereto.
The Borrowers, for themselves, their successors and assigns, hereby
waive diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Term Note.
THIS TERM NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
LONGVIEW FIBRE COMPANY
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
LONGVIEW FIBRE PAPER AND PACKAGING, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Amount of Outstanding
End of Principal or Principal
Type of Amount of Interest Interest Paid Balance This Notation
Date Loan Made Loan Made Period This Date Date Made By
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EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: __________, _____________
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of
December 23, 2005 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Longview Fibre Company, a
Washington corporation (the "Company"), Longview Fibre Paper and Packaging,
Inc., a Washington corporation ("TRS" and together with the Company, the
"Borrowers"), the Lenders from time to time party thereto, the Guarantors from
time to time party thereto and Bank of America, N.A., as Administrative Agent,
L/C Issuer and Swing Line Lender.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the ________________________ of the Company, and that, as
such, he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Borrowers, and that:
[Use the following paragraph 1 for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
the Company ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use the following paragraph 1 for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial
statements required by Section 6.01(b) of the Agreement for the fiscal quarter
of the Company ended as of the above date. Such financial statements fairly
present the financial condition, results of operations and cash flows of the
Borrowers and their Subsidiaries in accordance with GAAP as at such date and
for such period, subject only to normal year-end audit adjustments and the
absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrowers during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrowers during such fiscal
period has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrowers performed and
observed all their Obligations under the Loan Documents, and
[select one:]
[to the best knowledge of the undersigned during such fiscal period,
the Borrowers performed and observed each covenant and condition of the Loan
Documents applicable to them, and no Default or Event of Default exists.]
--or--
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default and its nature and
status:]
4. The representations and warranties of the Borrowers contained in
Article V of the Agreement, and any representations of any Loan Party that are
contained in any document furnished at any time under or in connection with the
Loan Documents, are true and correct on and as of the date hereof, except to
the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this Compliance Certificate, the
representations and warranties contained in subsections (a) and (b) of Section
5.05 of the Agreement shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the
Agreement, including the statements in connection with which this Compliance
Certificate is delivered.
5. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
[Use the following paragraph 6 in the case of a certificate delivered with
the fiscal year-end financial statements]
6. Schedule 3 attached hereto sets forth the amount of each Asset
Disposition, Equity Issuance and Debt Issuance made during the fiscal year of
the Company ended as of the above date.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of _______________, ___________.
LONGVIEW FIBRE COMPANY
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 1
to the Compliance Certificate
See Attached.
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. Section 7.11(a) - Funded Indebtedness to Capitalization Ratio.
II. Section 7.11 (b) - Consolidated Net Worth.
III. Section 7.11 (c) - Interest Coverage Ratio.
IV. Section 7.11 (d) - Maximum Senior Credit Facilities to Collateral
Value Ratio.
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 3
to the Compliance Certificate
See Attached.
EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of
Assignee] (the "Assignee"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Credit Agreement identified below (the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, Letters of Credit, Guarantees and the Swing
Line Loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any
other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of
the foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i) and
(ii) above being referred to herein collectively as, the "Assigned Interest").
Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or
warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________
[and is an Affiliate/Approved Fund of [identify Lender]]
3. Borrowers: Longview Fibre Company and Longview Fibre Paper and
Packaging, Inc.
4. Administrative Agent: Bank of America, N.A., as the administrative
agent under the Credit Agreement
5. Credit Agreement: The Credit Agreement, dated as of December 23, 2005,
among Longview Fibre Company, Longview Fibre Paper and Packaging,
Inc., the Lenders from time to time parties thereto, the Guarantors
from time to time parties thereto and Bank of America, N.A., as
Administrative Agent
6. Assigned Interest:
------------------------------ ------------------------------- ----------------------------- ------------------
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
Facility Assigned for all Lenders* Assigned* Commitment/Loans
----------------- --------------- -------- -----------------
------------------------------ ------------------------------- ----------------------------- -----------------
------------- $---------------- $---------------- --------------%
------------------------------ ------------------------------- ----------------------------- -----------------
------------- $---------------- $---------------- --------------%
------------------------------ ------------------------------- ----------------------------- -----------------
------------- $---------------- $---------------- --------------%
------------------------------ ------------------------------- ----------------------------- -----------------
[7. Trade Date: __________________](1)
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE
REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby
agreed to:
ASSIGNOR
--------
[NAME OF ASSIGNOR]
By: _________________________
Title:
ASSIGNEE
--------
[NAME OF ASSIGNEE]
By: _________________________
Title:
---------------------
(1) To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
[Consented to and] Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By: _________________________________
Title:
[Consented to and] Accepted:
LONGVIEW FIBRE COMPANY., as
Borrower
By: _________________________________
Title:
[Consented to and] Accepted:
LONGVIEW FIBRE PAPER AND PACKAGING, INC., as
Borrower
By: _________________________________
Title:
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with
respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrowers, any of their Subsidiaries or Affiliates or any
other Person obligated in respect of any Loan Document or (iv) the performance
or observance by the Borrowers, any of their Subsidiaries or Affiliates or any
other Person of any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 6.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor 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 decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignor for
amounts which have accrued to but excluding the Effective Date and to the
Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument.
Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption
shall be governed by, and construed in accordance with, the law of the State of
New York.
EXHIBIT F
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement"), dated as of _____________,
20__, is by and between _____________________, a ___________________ (the
"Subsidiary"), and BANK OF AMERICA, N.A., in its capacity as Administrative
Agent under that certain Credit Agreement (as it may be amended, modified,
restated or supplemented from time to time, the "Credit Agreement"), dated as
of December 23, 2005, by and among LONGVIEW FIBRE COMPANY, a Washington
corporation (the "Company"), LONGVIEW FIBRE PAPER AND PACKAGING, INC., a
Washington corporation ("TRS" and together with the Company, the "Borrowers"),
the Guarantors from time to time party thereto, the Lenders from time to time
party thereto and Bank of America, N.A., as Administrative Agent. All of the
defined terms in the Credit Agreement are incorporated herein by reference.
The Loan Parties are required by Section 6.13 of the Credit Agreement
to cause the Subsidiary to become a "Guarantor".
Accordingly, the Subsidiary hereby agrees as follows with the
Administrative Agent, for the benefit of the Lenders, that the Subsidiary
hereby acknowledges, agrees and confirms that, by its execution of this
Agreement, the Subsidiary will be deemed to be a party to the Credit Agreement
and a "Guarantor" for all purposes of the Credit Agreement, and shall have all
of the obligations of a Guarantor thereunder as if it had executed the Credit
Agreement. The Subsidiary hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions applicable to the
Guarantors contained in the Credit Agreement. Without limiting the generality
of the foregoing terms of this paragraph 1, the Subsidiary hereby jointly and
severally together with the other Guarantors, guarantees to each Lender and the
Administrative Agent, as provided in Article XI of the Credit Agreement, the
prompt payment and performance of the Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration or otherwise)
strictly in accordance with the terms thereof.
2. The address of the Subsidiary for purposes of all notices and other
communications is ____________________, ____________________________, Attention
of ______________ (Facsimile No. ____________).
[3. The Subsidiary hereby waives acceptance by the Administrative
Agent and the Lenders of the guaranty by the Subsidiary under Section 4 of the
Credit Agreement upon the execution of this Agreement by the Subsidiary.]
4. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
5. This Agreement shall be governed by and construed and interpreted
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the Subsidiary has caused this Joinder Agreement
to be duly executed by its authorized officers, and the Administrative Agent,
for the benefit of the Lenders, has caused the same to be accepted by its
authorized officer, as of the day and year first above written.
[SUBSIDIARY]
By:
Name:
Title:
Acknowledged and accepted:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
Name:
Title:
EXHIBIT G
FORM OF COLLATERAL VALUE REPORT
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of
December 23, 2005 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined, unless specific definitions are
given herein or on a schedule hereto), among Longview Fibre Company, a
Washington corporation (the "Company"), Longview Fibre Paper and Packaging,
Inc., a Washington corporation ("TRS" and together with the Company, the
"Borrowers"), the Lenders from time to time party thereto, the Guarantors from
time to time party thereto and Bank of America, N.A., as Administrative Agent,
L/C Issuer and Swing Line Lender.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the _________________ of the Company, and that, as such,
he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Borrowers, and that:
1. The Collateral Value, as demonstrated by the calculations attached
hereto as Schedule 1, is true and accurate on and as of the date of this
Certificate.
[Use the following paragraphs 2 and 3 for (a) substituting additional
Timberlands as Collateral for Timberlands previously pledged as Collateral or
(b) releasing certain Collateral, in each case pursuant to Section 6.14(b)]
2. No Default or Event of Default exists and is continuing on the date
of this Certificate, or after giving effect to the [substitution of
Collateral][release of Collateral] described on Schedule 2.
3. After giving effect to the [replaced][released] Collateral [(and
any new Collateral pledged in substitution therefor)] the Collateral Value will
be equal to at least 200% of the Maximum Senior Credit Facilities, as
demonstrated by the calculations attached hereto as Schedule 3.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of the day and year first above written.
LONGVIEW FIBRE COMPANY
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Schedule 1
See attached sample calculation sheet.
For purposes of completing the calculation sheet at the end of each
quarterly period, the following guidelines and definitions of capitalized terms
shall apply. Capitalized terms used but not defined in this Schedule 1 shall
have the meanings provided in the Credit Agreement.
A. General Definitions
* "Appraisal" means that certain "Complete Appraisal of 583,153 Acres
of Timberland, Located in the States of Washington and Oregon" prepared by
▇▇▇▇▇▇▇▇▇ Consultants, Inc. and dated as of September 16, 2005.
* "MBF" means thousands of board feet.
* "Merchantable Timber" means timber stands that are 25 or more years
old.
* "Oregon Tree Farms" means the approximately 332,254 acres of
Timberlands located in northwest Oregon and identified as the Clackamas, Coast,
Deer Island, Mid-Columbia, Nehalem and Silver Falls properties, which are owned
by the Company, pledged as Collateral as of the Closing Date and referred to in
the Appraisal as the "Oregon tree farms".
B. Guidelines and Other Definitions
Timber Inventory Summary (MBF)
* Will summarize changes in the total Merchantable Timber (expressed
in MBF) on Timberlands pledged as Collateral during the relevant quarterly
period (or, in the case of the initial Collateral Value Report for the quarter
ending December 31, 2005, the period from the date of the Appraisal to such
quarter end date).
* "Beginning Inventory" means, for a given period, the total
Merchantable Timber (expressed in MBF) on Timberlands pledged as Collateral as
of the beginning of the relevant period, which value shall equal the Ending
Inventory shown on the Collateral Value Report for the immediately preceding
fiscal quarter (or, in the case of the initial Collateral Value Report for the
quarter ending December 31, 2005, the Merchantable Timber inventory for the
Oregon Tree Farms reflected in the Appraisal, as adjusted for the portion of
the Oregon Trees Farms that were excluded from the Collateral pledged on the
Closing Date).
* "Ending Inventory" means, for a given period, the Beginning
Inventory, as adjusted for the following during such period: (i) a growth
factor of 1.25% per quarter, (ii) Merchantable Timber on Timberlands pledged as
Collateral harvested during such period, (iii) Merchantable Timber on
Timberlands pledged as Collateral acquired during such period, (iv)
Merchantable Timber on Timberlands pledged as Collateral sold, exchanged or
otherwise disposed of during such period and (v) any true-ups resulting from
adjustments to Merchantable Timber inventory on Timberlands pledged as
Collateral based on re-cruises and refinements to GIS data that are performed
by the Company on an annual basis in the ordinary course of business.
Retail Market Value of Stumpage ($/MBF)
* Will reflect the average net log value of the Borrowers'
Merchantable Timber. Log prices and log and haul costs are updated quarterly as
per the Company. Specie mix is, initially, per the Appraisal and, thereafter,
per the Borrowers' inventory as updated on an ongoing basis.
* "Retail Market Value of Stumpage" means, as of the last day of any
period and with respect to the Borrowers' Timberlands taken as a whole, the
remainder of (i) the average value of log prices based on the actual realized
prices for logs received by the Borrowers in the preceding twelve (12) calendar
months, weighted per species, and (ii) the average actual cash cost incurred to
prepare logs for sale, in each case measured in dollars per MBF.
Bare Land Value ($)
* Will reflect the approximate value of the total acres of
Timberlands, pledged as collateral, without Merchantable Timber.
* The value per acre for "Bare Land" is per the Appraisal and is fixed
at $200/acre for the life of the facility.
* "Beginning Acres" means, for a given period, the total acres of
Timberlands pledged as Collateral as of the beginning of the relevant period,
which value shall equal the Beginning Acres shown on the Collateral Value
Report for the immediately preceding fiscal quarter (or, in the case of the
initial Collateral Value Report for the quarter ending December 31, 2005, the
acreage for the Oregon Tree Farms reflected in the Appraisal, as adjusted for
the portion of the Oregon Trees Farms that were excluded from the Collateral
pledged on the Closing Date).
* "Ending Inventory" means, for a given period, the Beginning Acres,
as adjusted for the following during such period: (i) Timberlands pledged as
Collateral acquired during such period and (ii) Timberlands pledged as
Collateral sold, exchanged or otherwise disposed of during such period.
Collateral Valuation
* "Retail Value of Inventory" means, as of the last day of any period,
the product of (i) the Ending Inventory as of such date and (ii) the Retail
Market Value of Stumpage as of such date.
* The "Discount Factor" is per the Appraisal and is fixed at 87.19%
for the life of the facility. It represents the percentage that, if applied to
the Retail Market Value of Stumpage for the Oregon Tree Farms as of the date of
the Appraisal, would yield an amount that, when added to "Bare Land Value" of
the Oregon Tree Farms as of the date of the Appraisal, is equal to the total
value of the Oregon Tree Farms as listed in the Appraisal.
* The Wholesale Valuation of Inventory is obtained by multiplying the
Retail Value of Inventory by the Discount Factor.
SAMPLE
------
Collateral Valuation Form
Valuation Formula Based on 2005 Summary Timber Appraisal
Timber Inventory Summary (MBF)
------------------------------
Beginning Inventory 2,504,943
less harvest 0
plus growth 0
less dispositions 0
plus additions 0
annual adjustments 0
Ending Inventory 2,504,943
Retail Market Value of Stumpage ($/MBF)
---------------------------------------
Average "retail market" log prices ($/MBF)
▇▇▇▇ Fir 67% 663.00
Hemlock 17% 468.00
Other Conifer 5% 486.00
Red Cedar 2% 741.00
Hardwoods 9% 495.00
------
weighted average 607.44
less avg cash cost of timber harvested ($/MBF) (242.15)
--------
Retail Market Value of Stumpage ($/MBF) 365.29
Bare Land Value ($)
-------------------
Beginning Acres 329,298
less dispositions 0
plus additions 0
-
Ending Acres 329,298
Fixed bare value per acre ($) 200.00
Total Bare Land Value 65,859,600
Collateral Valuation
--------------------
"Retail" Value of Inventory 915,030,628
(Ending inventory x Retail market value of stumpage)
times "discount" factor (fixed at closing) 87.19%
Wholesale Valuation of Inventory ($) 797,816,124
plus Bare Land Value 65,859,600
TOTAL COLLATERAL VALUE ($) 863,675,724
TOTAL COMMITMENTS ($) 400,000,000
COLLATERAL VALUE TO MAXIMUM SENIOR CREDIT FACILITIES RATIC 215.9%
Schedule 2
----------
Description of Replaced/Released Collateral and any New Collateral
Schedule 3
----------
Updated Collateral Value Calculation
(to be at least equal to 200% of the Maximum Senior Credit Facilities)
I. Updated Collateral Value (See Schedule 1 calculations)(2) _____
II. Maximum Senior Credit Facilities _____
III. I. equals at least 200% of II. yes/no
------------------
(2) Updated Collateral Value should take into account any
[replaced][released] Collateral and any Collateral pledged in
substitution therefore.
EXHIBIT H
FORM OF TIMBERLAND MORTGAGE
[See Attached]
PREPARED BY,
RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
CM#: 017625.003141
------------------------------------------------------------------------------
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE
LINE OF CREDIT INSTRUMENT
DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT OF RENTS AND LEASES, FIXTURE FILING
AND FINANCING STATEMENT
(_________________ COUNTY, OREGON)
by and from
LONGVIEW FIBRE COMPANY, a Washington corporation, "Grantor"
to
TICOR TITLE INSURANCE COMPANY, a California corporation "Trustee"
for the benefit of
BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent,
"Beneficiary"
Dated as of December 23, 2005
County: _____________________
State: Oregon
The maximum principal amount to be advanced pursuant to the Credit Agreement
and promissory note(s) secured by this Deed of Trust is $550,000,000, which
amount may be exceeded by advances to complete construction pursuant to ORS
86.155(2)(c). The maturity date of the Secured Obligations (as defined herein)
is December 23, 2010.
THIS DOCUMENT CONSTITUTES A FIXTURE FILING IN ACCORDANCE WITH ORS 79.0502(3).
ATTENTION: COUNTY RECORDER -- This instrument covers goods that are or are to
become fixtures on the real property described herein and is to be filed for
record in the records where deeds of trust on real estate are recorded.
Additionally, this instrument should be appropriately indexed, not only as a
deed of trust, but also as a financing statement covering goods that are or are
to become fixtures on the real property described herein. The mailing addresses
of Grantor (Debtor) and Beneficiary (Secured Party) are set forth in the first
paragraph of this Trust Deed.
THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND
LEASES, FIXTURE FILING AND FINANCING STATEMENT (__________________ COUNTY,
OREGON) (this "Trust Deed") is dated as of December 23, 2005 by and from
LONGVIEW FIBRE COMPANY, a Washington corporation ("Grantor"), whose address is
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to TICOR TITLE INSURANCE COMPANY, a
California corporation ("Trustee"), whose address is ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, for the benefit of BANK OF AMERICA, N.A., in its
capacity as administrative agent ("Administrative Agent") for and
representative of the Secured Creditors (as hereinafter defined)
(Administrative Agent, together with its successors and assigns,
"Beneficiary"), having an address at Agency Management - Mail CA5-701-05-19,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement (as hereinafter
defined).
R E C I T A L S
WHEREAS, the Lenders party to the Credit Agreement referred to below
have made and have agreed to make loans and make certain other credit
facilities available to, or for the benefit of, Grantor pursuant to that
certain Credit Agreement, of even date herewith (as it may hereafter be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Grantor, Longview Fibre Paper and Packaging, Inc., a
Washington corporation, certain subsidiaries of the Grantor from time to time
party thereto, the Lenders and the Administrative Agent.
WHEREAS, pursuant to the Credit Agreement, the Lenders have appointed,
and Beneficiary has agreed to act, as administrative agent for the Lenders
(collectively, together with any Affiliate of a Lender holding Obligations
relating to Swap Contracts, the "Secured Creditors") with respect to the
Obligations.
FOR THE PURPOSE OF SECURING payment and performance of the Secured
Obligations (as such term is hereinafter defined), Grantor GRANTS, BARGAINS,
ASSIGNS, SELLS and CONVEYS, to Trustee the Mortgaged Property, IN TRUST, WITH
POWER OF SALE, for the benefit of Beneficiary and grants to Beneficiary a
security interest in all of Grantor's right, title and interest in and to the
following (the "Mortgaged Property") and Grantor does hereby bind itself, its
successors and assigns to WARRANT AND FOREVER DEFEND the title to the Mortgaged
Property unto Beneficiary:
A. All the tracts or parcels of land particularly described
in Exhibit A attached hereto and made a part hereof (the "Land");
B. All Improvements (as hereinafter defined) and all
appurtenances, easements, rights and privileges thereof, including all thermal
energy and other geothermal resources, all of Grantor's right, title and
interest in Minerals (as such term is hereinafter defined), located in, on,
under or pertaining to the Land, and any and all surface access and mining or
drilling rights and any and all royalty, leasehold and other contractual rights
of Grantor pertaining to any of the foregoing, and all air rights, water rights
and development rights;
C. All crops and all trees, of any size, any age and any
species, whether now located in or on or hereafter planted or growing in or on
the Land, and all timber of any size, any age and any species (whether or not
merchantable), whether severed or unsevered, including standing and downed
timber, and stumps and cut timber remaining on the Land and all Forest Products
(as such term is hereinafter defined) arising out of, generated by or from the
Land, and any and all products or proceeds of any of the foregoing and wherever
located (collectively the "Timber"), subject to rights of Persons other than
Grantor pursuant to any Cutting Rights Agreement or Timber Sales Agreement;
D. All of Grantor's right, title and interest under all
Cutting Rights Agreements (as such term is hereinafter defined), whether now
existing or hereinafter entered into by Grantor or any predecessor or successor
in interest;
E. All Fixtures (as hereinafter defined), whether now or
hereafter installed, being hereby declared to be for all purposes of this Trust
Deed a part of the Land;
F. The rents, issues and profits (including royalties,
revenues and other income and including all accounts (as that term is defined
in the UCC referred to in Section 1.01 below)) of, from and arising out of the
sale or lease of the Land, the Timber, the Minerals, the Improvements, the
Forest Products and the Fixtures (the "Rents");
G. All accounts (as defined in the UCC) arising from the sale
of any of the Mortgaged Property (the "Accounts");
H. All easements, permits, licenses, rights of way, road use
agreements, Permits (as hereinafter defined), gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water rights and powers,
mineral and mining rights above and below the surface, and all estates, rights,
titles, interests, privileges, liberties, tenements, hereditaments, and
appurtenances whatsoever, in any way belonging, relating or appertaining to any
of the property hereinabove described, or which hereafter shall in any way
belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Grantor, and the reversion and reversions, remainder and
remainders, rents, issues, and profits thereof, and all the estate, right,
title, interest, property, possession, claim, and demand whatsoever at law, as
well as in equity, of Grantor of, in and to the same; and
I. All proceeds of the foregoing, including all judgments,
awards of damages and settlements hereafter made resulting from condemnation or
the taking of the Mortgaged Property or any portion thereof under the power of
eminent domain, any proceeds of any policies of insurance maintained with
respect to the Mortgaged Property, or the proceeds of any sale, option or
contract to sell the Mortgaged Property or any portion thereof.
All of the foregoing shall be conveyed by this Trust Deed.
TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto
Trustee, its successors and assigns forever subject, however, to the terms and
conditions herein:
2
Grantor covenants and agrees with Beneficiary as follows:
ARTICLE I
1.01 Certain Defined Terms. As used in this Trust Deed the following
terms shall have the following meanings:
Accounts: As defined in Granting Paragraph G. of this Trust Deed.
Administrative Agent: As defined in the introductory paragraph of this
Trust Deed.
Appurtenant Easement: Such agreements, licenses, permits, easements,
rights of way and other arrangements whereby Grantor, its successors, assigns,
subsidiaries and affiliates, was granted access to portions of the Land over
the land of other entities and/or persons.
Authorizations: Any and all permits, entitlements, licenses, orders,
approvals, exemptions, authorizations, certifications, franchises,
environmental approvals (including any environmental impact statement or report
required under applicable law for Grantor's acquisition or disposition of the
Land or harvesting of the Timber or for any other operations of Grantor) on the
Land, water appropriative rights and permits, zoning and land use entitlements
and other authorizations, whether now existing or hereafter issued to or
obtained by or on behalf of Grantor relating to the development, occupancy,
ownership, management and use of, and/or the Timber harvesting, cutting and
sales operations conducted on or from, the Mortgaged Property.
Credit Agreement: As defined in the Recitals of this Trust Deed.
Cutting Rights Agreements: Any and all agreements, contracts,
arrangements or other contractual obligations, whereby Grantor or its
predecessors in interest have granted, grant or will grant to another Person
the right to cut, harvest or otherwise remove Timber from any of the Land for
the use and benefit of Persons other than Grantor, including but not limited to
stumpage agreements and severance agreements.
Event of Default: As defined in Section 3.01 hereof.
Fixtures: All fixtures located upon or within the Improvements or now
or hereafter installed in, or used in connection with any of the Improvements,
whether or not permanently affixed to the Land or the Improvements, and all
additions, substitutions and replacements thereof.
Forest Products: Any and all logs, timber, lumber, finished or milled
lumber, bark, sawdust, logging and milling waste, hog fuel, wood chips, all
timber and lumber subject to any manufacturing process, all raw material and
work in progress, and all goods, inventory and other timber products, now or
hereafter owned or acquired by Grantor or in which Grantor has an interest, in
each case as derived from the Land.
3
Impositions: All real estate and personal property and other taxes and
assessments, water and sewer rates and charges levied or assessed upon or with
respect to the Mortgaged Property, all severance, Forest Products, harvesting,
ad-valorem and any other additional or special taxes and assessments imposed or
levied upon the Timber and/or Grantor's timber sales, severance and harvesting
operations, and all other governmental charges and any interest or costs or
penalties with respect thereto, ground rent and charges for any easement or
agreement maintained for the benefit of the Mortgaged Property, general and
special, ordinary and extraordinary, foreseen or unforeseen, of any kind and
nature whatsoever that at any time prior to or after the execution of the Loan
Documents may be assessed, levied, imposed, or become a lien upon the Mortgaged
Property or the rent or income received therefrom, or any use or occupancy
thereof; and any and all other charges, expenses, payments, claims, mechanics',
material suppliers', loggers, lumberman's, woodworkers' or timberland owners'
liens or assessments of any nature, if any, which are or may become a lien upon
the Mortgaged Property or the rent or income received therefrom.
Improvements: All buildings, structures and other improvements and
appurtenances, located on the Land, and all improvements, additions,
substitutions and replacements thereof, and other buildings and improvements,
at any time hereafter constructed or placed upon the Land.
Land: As defined in Granting Paragraph A. of this Trust Deed.
Laws and Restrictions: All federal, state, regional, county, local and
other laws, regulations, orders, codes, ordinances, rules, statutes and
policies, restrictive covenants and other title encumbrances, and
Authorizations.
Leases: Any and all present or future leasehold interests of Grantor,
as lessor, including subleases and tenancies following attornment, and other
agreements providing for the use or occupancy of any portion of the Land (other
than Cutting Rights Agreements and for access to, through or across the Land)
and/or the Improvements, together with any amendments, modifications, renewals
and extensions thereof, and all guaranties of the obligations of the party or
parties thereof (other than Grantor).
Minerals: All oil, gas, hydrocarbons, gravel, sand, dirt, rock,
phosphate, limerock, coal and other mineral resources and subterranean
substances.
Permits: All permits, licenses, rights of way or easements and road
use agreements, whereby Grantor, its successors, assigns, subsidiaries, or
affiliates was (or were) granted access to certain portions of the Land by the
United States and its various agencies and departments, the State of Oregon and
its various agencies and departments (including its counties and
municipalities, incorporated or unincorporated) or any third party.
Receiver: Any Beneficiary, receiver, custodian, fiscal agent,
liquidator or similar officer.
Rents: As defined in Granting Paragraph F. of this Trust Deed.
4
Secured Creditors: As defined in the Recitals of this Trust Deed.
Secured Obligations: All Obligations (as defined in the Credit
Agreement) of any Credit Party (as defined in the Credit Agreement).
Timber: As defined in Granting Paragraph C. of this Trust Deed.
Timber Sales Agreements: All agreements and contracted obligations
whereby a landowner, as seller, may become obligated to cut, harvest or
otherwise remove Timber harvested from the Land of such landowner and to sell,
exchange or deliver such Timber to Persons other than such landowner.
UCC: The Uniform Commercial Code of Oregon or, if the creation,
perfection and enforcement of any security interest herein granted is governed
by the laws of a state other than Oregon, then, as to the matter in question,
the Uniform Commercial Code in effect in that state.
1.01 Terms Defined in the Credit Agreement. As set forth in the
introductory paragraph of this Trust Deed, all capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Credit Agreement.
ARTICLE II
2.01 Performance of Loan Documents and Trust Deed. Grantor will
perform, observe and comply or will cause the performance, observation, or
compliance with all provisions of this Trust Deed and of the Loan Documents and
duly and punctually will pay, or will cause payment to be made to Beneficiary
of the sum of money expressed in the Loan Documents, with interest thereon and
all other sums required to be paid by Grantor pursuant to the provisions of
this Trust Deed or the Loan Documents, all without any deductions or credit for
taxes or other similar charges paid by Grantor.
2.02 Other Taxes and Utilities.
(a) Grantor will pay when before delinquent all taxes, assessments,
water rates, dues, charges, fines and Impositions of every nature whatsoever
imposed, levied or assessed or to be imposed, levied or assessed upon or
against the Mortgaged Property or any part thereof, or upon the interest of
Beneficiary in the Mortgaged Property, this Trust Deed, or the Loan Documents,
as well as all income taxes, assessments and other governmental charges
lawfully levied and imposed by the United States of America or any state,
county, municipality, borough or other taxing authority upon Grantor or in
respect of the Mortgaged Property or any part thereof, or any other charge
which, if unpaid, would become a lien or charge upon the Mortgaged Property, in
each case, except for those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP. Upon reasonable request by
Beneficiary and upon sufficient notice, Grantor shall promptly provide proof of
payment of such Impositions.
5
(b) Grantor will pay promptly all charges by utility companies,
whether public or private, for electricity, gas, water, sewer, or other
utilities furnished to the Land.
2.03 Insurance.
(a) Grantor shall, at its sole cost and expense, maintain for the
benefit of Beneficiary, Comprehensive General Liability in amounts and covering
such risks and liabilities and with such deductibles as approved by Beneficiary
as of the date hereof.
(b) All policies of insurance required by this Trust Deed (i) shall be
in form reasonably satisfactory to Beneficiary and written with insurance
companies reasonably satisfactory to Beneficiary, (ii) with respect to general
liability insurance, shall name Beneficiary as an additional insured, (iii)
with respect to property insurance, if any, maintained pursuant to this Trust
Deed, shall name Beneficiary as a "Lender Loss Payee" and shall contain a
Standard Beneficiary's Loss Payable endorsement and other non-contributory
standard beneficiary protection clauses reasonably acceptable to Beneficiary,
and, at Beneficiary's option, a waiver of subrogation rights by the insurer,
(iv) shall contain an agreement by the insurer that such policy shall not be
cancelled without at least thirty (30) days' prior written notice to
Beneficiary, and (v) shall contain such other provisions as Beneficiary
reasonably deems necessary to protect its interests. Grantor shall obtain such
endorsements and increases in coverages, as requested by Beneficiary (provided
the same are available at commercially reasonable rates) to prevent the
application of any coinsurance contributions on a loss.
(c) In the event a blanket policy is used to satisfy Grantor's
responsibilities under this Section 2.03, in addition to such other
requirements set forth herein, Grantor shall deliver to Beneficiary a
certificate of insurance from an authorized representative of such insurer
indicating that Beneficiary is Additional Insured and/or Lender Loss Payee
under such policies and designating the amount of such insurance applicable to
the Mortgaged Property.
(d) Self-insurance (other than the applicable deductibles and/or
self-insurance retentions, to the extent applicable, approved by Beneficiary)
shall not be employed to satisfy the requirements of this Section 2.03.
2.04 Condemnation; Immaterial Transfers and Partial Releases.
(a) If all or any part of the Mortgaged Property shall be damaged or
taken through condemnation (which term when used in this Trust Deed shall
include any damage or taking by any Governmental Authority, and any transfer by
private sale in lieu thereof), either temporarily or permanently, such action
shall be treated as a sale of such Mortgaged Property for purposes of the Loan
Documents. All compensation, awards, and other payments or relief therefor
shall be applied in accordance with the applicable provisions of the Credit
Agreement. If an Event of Default shall have occurred, Beneficiary shall be
authorized, at its option, to commence, appear in and prosecute, in its own or
Grantor's name, any action or proceedings relating to any condemnation, and to
settle or compromise any claim in connection therewith.
6
(b) In addition to the foregoing, Grantor may, without the consent of
Beneficiary, (i) make immaterial Transfers of portions of the Mortgaged
Property to Governmental Authorities for dedication or public use or portions
of the Mortgaged Property to third parties for private use of the Mortgaged
Property for roadways and other easements, and (ii) grant easements,
restrictions, covenants, reservations and rights of way in the ordinary course
of business for access, water and sewer lines, telephone and telegraph lines,
electric lines, telecommunications leases and other utilities or for other
similar purposes, provided that no such transfer, conveyance or encumbrance set
forth in the foregoing clauses (i) and (ii) shall materially impair the utility
and operation of the Mortgaged Property or have a Material Adverse Effect on
the value of the Mortgaged Property taken as a whole. In connection with any
Transfer permitted pursuant to this Section 2.04 and subject to Grantor's
compliance with Section 6.14 of the Credit Agreement, Beneficiary shall execute
and deliver any instrument necessary or reasonably appropriate and in the form
reasonably acceptable to the Beneficiary, in the case of the Transfers referred
to in clause (i) above, to release the portion of the Mortgaged Property
affected by such taking or such Transfer from the Lien of this Trust Deed or,
in the case of clause (ii) above, to subordinate the Lien of the Trust Deed to
such easements, restrictions, covenants, reservations and rights of way or
other similar grants upon receipt by Beneficiary of: (a)ten (10) days prior
written notice thereof; (b)a copy of the instrument or instruments of Transfer;
and (c) a certificate of a Responsible Officer stating (x) with respect to any
Transfer, the consideration, if any, being paid for the Transfer and (y) that
such Transfer does not materially impair the utility and operation of the
Property, materially reduce the value of the Mortgaged Property or have a
Material Adverse Effect.
As used herein, Transfer shall mean directly or indirectly sell,
assign, convey, transfer, pledge, hypothecate, encumber, grant a security
interest in, exchange or otherwise dispose of any beneficial interest or grant
any option or warrant with respect to, or where used as a noun, a direct or
indirect sale, assignment, conveyance, transfer, pledge or other disposition of
any beneficial interest by any means whatsoever whether voluntary, involuntary,
by operation of law or otherwise.
(c) The Grantor may, at any time and from time to time, without
liability therefore and without prior notice to or consent of the Beneficiary,
in the ordinary course of its business, subordinate this Trust Deed, or release
the lien of this Trust Deed, or make a Transfer free from this Trust Deed of
that portion of the Mortgaged Property relating to mineral, rock, gravel, coal,
gas or gas storage rights as may be necessary solely for the express purpose of
granting, amending, supplementing or releasing such mineral, rock, gravel,
coal, gas or gas storage rights, in each case so long as such actions do not
result in a material impairment of the value or marketability of the Mortgaged
Property. In all cases the Trustee shall confirm to third parties the right and
power of the Grantor to do the foregoing.
2.05 Care of the Mortgaged Property.
(a) Except for the harvesting of timber and the building of road and
Improvements consistent with such harvesting activity in the ordinary course of
the Grantor's business, Grantor will preserve and maintain the Mortgaged
Property in a manner consistent with its current
7
condition, normal wear and tear excepted, and will not commit or suffer any
waste (which term does not include timber harvest or other timber operations in
the ordinary course of business or forest fires, landslides, floods, or any
other casualty losses or acts of God). Grantor will manage, and will cause
Persons other than Grantor with rights in the Timber to manage, all Timber on
the Land in a manner consistent with sound forestry practices. Grantor will
conduct, and will cause Persons other than Grantor with rights in the Timber to
conduct, all harvesting operations on the Land in accordance with generally
accepted sound forestry practices and procedures and shall use reasonable care
to avoid unnecessary damage to remaining Timber on the Land. Grantor shall not
conduct any harvesting operations on the Land except as may be permissible
under its status as a REIT.
(b) If the Mortgaged Property or any part thereof is damaged by fire
or any other cause which is apparent after its occurrence and quantifiable
which results in a loss in excess of $250,000 per occurrence (or which results
in aggregate losses in excess of $5,000,000 over the term of the Secured
Obligations), Grantor will give prompt written notice of the same to
Beneficiary.
(c) Grantor will comply promptly in all material respects with all
present and future laws, ordinances, rules and regulations of any Governmental
Authority affecting the Mortgaged Property or any part thereof, including,
without limitation, all laws, ordinances, rules (other than safe harbor
guidelines under the Endangered Species Act or similar rules pertaining to
natural resources, so long as such failure to comply with such rules could not
reasonably be expected to have a material adverse effect on the value or
marketability of the Mortgaged Property or otherwise cause a Material Adverse
Effect) and regulations relating to timber harvesting, zoning, building codes,
set back requirements and environmental matters, and with all present and
future restrictive covenants affecting the Mortgaged Property.
(d) If a part of the Mortgaged Property shall be physically damaged
through condemnation, Grantor will restore promptly, repair or alter the
remaining property in a manner reasonably satisfactory to continue Grantor's
operations on the Mortgaged Property or to protect the value of the Mortgaged
Property in accordance with prudent business practices in the timber industry.
(e) Grantor covenants that it will not commit any acts, and will take
no action, that would release or materially impair either the Permits or
Appurtenant Easements and will take all actions reasonably necessary to keep
the Permits and Appurtenant Easements in full force and effect, except to the
extent such Permit or Appurtenant Easement serves Land that is disposed of in a
transaction permitted by the Credit Agreement or as otherwise necessary or
desirable in the ordinary course of the Grantor's business.
2.06 Further Assurances; After Acquired Property. At any time, and
from time to time, upon request by Beneficiary, Grantor will make, execute and
deliver or cause to be made, executed and delivered, to Beneficiary and, where
appropriate, to cause to be recorded and/or filed and from time to time
thereafter to be rerecorded and/or refiled at such time and in such offices and
places as shall reasonably be deemed desirable by Beneficiary any and all such
8
other and further Mortgages, instruments of further assurance, certificates and
other documents as may, in the reasonable opinion of Beneficiary, be necessary
or desirable in order to effectuate, complete, enlarge, or perfect, or to
continue and preserve the obligation of Grantor under the Loan Documents and
this Trust Deed, and the lien of this Trust Deed as a first and prior lien upon
all of the Mortgaged Property, whether now owned or hereafter acquired by
Grantor. Upon any failure by Grantor so to do within a reasonable time after
Beneficiary's request, Beneficiary may make, execute, and record any and all
such mortgages, instruments, certificates, and documents for and in the name of
Grantor and Grantor hereby irrevocably appoints Beneficiary the agent and
attorney-in-fact of Grantor so to do. The lien hereof will automatically
attach, without further act, to all after acquired property attached to and/or
used in the operation of the Mortgaged Property or any part thereof.
2.07 Timber Contracts Affecting Mortgaged Property. Grantor will
comply with and observe its obligations as landlord under all Leases and its
obligations, if any, under all contracts for sale and harvesting of timber
affecting the Mortgaged Property or any part thereof. If requested by
Beneficiary, Grantor will furnish Beneficiary with executed copies of all
Cutting Rights Agreements and other timber contracts entered into by Grantor
and its Affiliates now or hereafter created with respect to all or any part of
the Mortgaged Property. If requested by Beneficiary, Grantor will separately
assign to Beneficiary as additional security any and all such Cutting Rights
Agreements and other timber contracts whether now existing or hereafter
created, including, without limitation, all Rents, royalties, issues, and
profits of the Mortgaged Property from time to time accruing. The Grantor shall
not enter into or otherwise become a party to any Timber Sales Agreement.
2.08 Performance by Beneficiary of Defaults by Grantor. If Grantor
shall default in the payment of any tax, lien, assessment, charge or other
Imposition levied or assessed against the Mortgaged Property; in the payment of
any utility charge, whether public or private; in the payment of insurance
premium; in the procurement of insurance coverage and the delivery of evidence
of the insurance policies required hereunder; or in the performance or
observance of any covenant, condition, or term of this Trust Deed, then subject
to Grantor's right to contest and cure set forth in the applicable Loan
Documents, Beneficiary, at its option, may perform or observe the same, and all
payments made for costs or reasonably incurred by Beneficiary in connection
therewith, shall be secured hereby and shall be immediately repaid, upon
demand, by Grantor to Beneficiary with interest thereon at a rate equal to the
Default Rate. Beneficiary, acting in a commercially reasonable manner, shall
determine the legality, validity and priority of any such tax, lien,
assessment, charge, claim and premium; of the necessity for any such actions;
and of the amount necessary to be paid in satisfaction thereof. Beneficiary is
hereby empowered to enter and to authorize others, on its behalf, to enter upon
the Mortgaged Property or any part thereof for the purpose of performing or
observing any such defaulted covenant, condition or term, without thereby
becoming liable to Grantor or any person in possession holding under Grantor
except to the extent of the gross negligence or willful misconduct of
Beneficiary or any person claiming through Beneficiary.
2.09 Indemnity and Attorneys' Fees. Grantor will indemnify, defend,
protect and hold Beneficiary harmless from any and all liability, loss, claims,
damage, cost or expense
9
(including reasonable attorneys' fees whether incurred at the trial or
appellate level, in an arbitration proceeding, in bankruptcy (including,
without limitation, any adversary proceeding, contested matter or motion) or
otherwise) that Beneficiary may or might incur hereunder, or in connection with
the making or administering of the Secured Obligations, the enforcement of any
of Beneficiary's rights or remedies hereunder or the other Loan Documents, any
action taken by Beneficiary hereunder or thereunder, whether or not suit is
filed, or by reason or in defense of any and all claims and demands whatsoever
that may be asserted against Beneficiary arising out of the Mortgaged Property,
or any part thereof or interest therein, or as to which it becomes necessary to
defend or uphold the lien of this Trust Deed or other Loan Documents, except to
the extent that such claim is the result of the bad faith, gross negligence or
willful misconduct of Beneficiary or any person claiming through Beneficiary.
Should Beneficiary incur any such liability, loss, claim, damage, cost or
expense, Beneficiary shall give Grantor notice thereof and the amount thereof
with interest thereon at the Default Rate shall be payable by Grantor
immediately without demand, shall be secured by this Trust Deed, and shall be
part of the obligations secured hereby.
In the event suit or action is instituted to enforce any of the terms
of this Deed of Trust, the prevailing party shall be entitled to recover its
reasonable attorneys' fees at trial, on any appeal, on any petition for review,
in an arbitration proceeding, and in any bankruptcy proceeding in addition to
all other sums provided by law. Whether or not any court action is involved,
all reasonable expenses incurred by Beneficiary that are necessary at any time
in Beneficiary's reasonable opinion for the protection of its interest or the
enforcement of its rights shall become a part of the obligations payable on
demand and shall bear interest from the date of expenditure until repaid at the
applicable rate of interest provided in the Credit Agreement. Expenses covered
by this section include (without limitation) the cost of searching records,
obtaining title reports, surveyors' reports, attorneys' opinions, title
insurance, and fees for the Trustee.
2.10 Inspection of Mortgaged Property. Grantor hereby grants to
Beneficiary, its agents, employees, consultants and contractors, the right to
inspect Grantor's books, accounts, records and reports upon reasonable prior
notice during regular business hours, and the right to enter upon the Mortgaged
Property for the purpose of making any and all inspections, reports, tests,
inquiries and reviews as Beneficiary may deem necessary to assess the
then-current condition of the Mortgaged Property and Beneficiary agrees that
the Mortgaged Property will not be disturbed as a result of such tests.
Beneficiary shall exercise commercially reasonable business practices in
coordinating inspections with Grantor's corporate office in a manner that does
not unduly interfere with the conduct of Grantor's ordinary business
operations.
2.11 Tax Receipts. Grantor will deliver to Beneficiary, upon
sufficient notice after reasonable demand made therefor, bills showing the
payment to the extent then due of all taxes, assessments (including those
payable in periodic installments), or any Imposition that may have become a
lien upon the Mortgaged Property or any part thereof.
2.12 Reimbursement. Any amount paid by Beneficiary for any tax, stamp
tax, assessment, water rate, sewer rate, insurance premium, repair, rent
charge, debt, claim,
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inspection or lien having priority over this Trust Deed, shall (a) bear
interest at the Default Rate from the date of payment by Beneficiary, (b)
constitute additional indebtedness secured by this Trust Deed, prior to any
right, title or interest in or claim upon the Mortgaged Property attaching or
accruing subsequent to the lien of this Trust Deed, (c) be secured by this
Trust Deed, and (d) be payable by Grantor to Beneficiary upon demand.
2.13 Authorizations. Grantor hereby agrees not to amend, supplement,
cancel, surrender, allow to expire (other than expiration of the term thereof),
terminate, release or waive any material Authorization or any material
provision thereof, issued to it and required for the use, occupancy, operation,
management, repair or maintenance of the Mortgaged Property or for the
management, cutting, harvesting, or other disposition of the Timber, or permit
any of the foregoing without the prior written consent of Beneficiary if such
action is reasonably likely to have a Material Adverse Effect. Consent to one
amendment, supplement, cancellation, surrender, expiration, termination,
release or waiver shall not be deemed to be a waiver of the right to require
consent to other, further or successive amendments, supplements, cancellations,
surrenders, expirations, terminations, releases or waivers. Any such amendment,
supplement, cancellation, surrender, expiration, termination, release or
waiver, whether oral or in writing, made without the prior written consent of
Beneficiary shall, to the extent permitted by law, not be valid or effective
against Beneficiary. Grantor shall not take any action or omit to take any
action which would adversely affect, or permit the suspension, expiration,
termination, non-renewal or revocation, of any Authorizations which would
reasonably be expected to have a Material Adverse Effect. Grantor agrees
promptly to notify Beneficiary in writing with respect to any default or
alleged default by Grantor under any such Authorization or the commencement of
any investigations, hearings or proceedings that specifically involve any such
Authorization and could reasonably be likely to lead to modification,
suspension, termination, nonrenewal or revocation of any such Authorization if
such action would reasonably be expected to have a Material Adverse Effect.
Grantor shall also promptly deliver to Beneficiary copies of all notices,
demands, complaints or other communications received or given by it with
respect to any such default or alleged default or such investigation, hearing
or proceeding.
2.14 Leasing. Grantor will not further assign the Leases or pledge,
transfer, mortgage or otherwise encumber or assign future payments of Rents
except in connection with a disposition of the Mortgaged Property encumbered by
such Lease which is permitted under the Loan Documents. Except for Leases for
communications equipment and facilities, mineral leases, gas reservoir leases,
energy transmission agreements and access agreements (public and private) and
agreement with municipalities for water lines, recreational leases, hunting
leases and such other leases made in the ordinary course of business by Grantor
consistent with prior practice which do not have a Material Adverse Effect or
other material adverse effect on the use of the Mortgaged Property for
commercial timber management, a material adverse effect upon the value or
marketability of the Mortgaged Property or a material adverse effect on legal
or physical access to the Mortgaged Property, or as otherwise permitted under
the Loan Documents, Grantor shall not, without the prior written consent of
Beneficiary, which will not be unreasonably withheld, (a) enter into any Leases
of or relating to all or any part of the Mortgaged Property or renew or extend
any such agreements or (b) amend, modify or alter in any material manner any
Leases.
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ARTICLE III
3.01 Event of Default. The term "Event of Default", wherever used in
this Trust Deed, shall mean (a) an Event of Default as defined in the Credit
Agreement, or (b) Grantor defaults in the performance of or compliance with any
term contained herein and such default is not remedied within thirty (30) days
after the earlier of (i) a Responsible Officer (as defined in the Credit
Agreement) of Grantor becoming aware of the existence of a default; and (ii)
Grantor having received written notice of the same from Beneficiary; provided,
however, with respect to defaults of Sections 2.05(a), 2.05(c), 2.05(d) or 2.06
of this Trust Deed, if such default is of such a nature that it cannot with
reasonable effort be completely cured within such 30-day period, then such
30-day cure period may be extended for such additional period of time as may be
reasonably necessary to cure such default, so long as Grantor commences such
cure within such 30-day period and diligently prosecutes same until a complete
cure, but in no event shall such cure period exceed a total of ninety (90) days
(including the initial 30-day period).
3.02 Acceleration of Maturity. If an Event of Default shall have
occurred, then the entire principal amount of the Secured Obligations secured
hereby with interest accrued thereon shall, at the option of Beneficiary and
subject to the provisions of the applicable Loan Documents, become due and
payable without notice or demand, time being of the essence; and any omission
on the part of Beneficiary to exercise such option when entitled to do so shall
not be considered as a waiver of such right.
3.03 Right of Beneficiary to Enter and Take Possession.
(a) If an Event of Default shall have occurred and be continuing,
Grantor, upon demand of Beneficiary, shall forthwith surrender to Beneficiary
the actual possession, and if and to the extent permitted by law, Beneficiary
may enter and take possession, of all the Mortgaged Property, and may exclude
Grantor and its agents and employees wholly therefrom.
(b) Upon every such entering upon or taking of possession, Beneficiary
may hold, store, use, operate, manage, and control the Mortgaged Property and
conduct the business thereof, and, from time to time (i) make all necessary and
proper maintenance, repairs, renewals, replacements, additions, betterments,
and improvements thereto and thereon and purchase or otherwise acquire
additional fixtures, personalty, and other property to the extent any of the
aforementioned are applicable to Timber properties; (ii) insure or keep the
Mortgaged Property insured; (iii) manage and operate the Mortgaged Property and
exercise all the rights and powers of Grantor in Grantor's name (in the event a
receiver is appointed) or otherwise (including, without limitation, selling and
harvesting timber), with respect to the same; (iv) enter into any and all
agreements with respect to the exercise by others of any of the powers herein
granted Beneficiary, all as Beneficiary from time to time may determine to be
to its best advantage; and Beneficiary may collect and receive all the income,
revenues, rents, issues and profits of the same including those past due as
well as those accruing thereafter, and, after deducting (A) all reasonable
expenses of taking, holding, managing, and operating the Mortgaged Property
(including compensation for the services of all persons employed for such
purposes); (B) the
12
reasonable cost of all such maintenance, repairs, renewals, replacements,
additions, betterments, improvements, purchases, and acquisitions; (C) the cost
of such insurance; (D) such taxes, assessments, and other charges prior to the
lien of this Trust Deed as Beneficiary may determine to pay; (E) other proper
charges upon the Mortgaged Property or any part thereof; and (F) the reasonable
compensation, expenses, and disbursements of the attorneys and agents of
Beneficiary; shall apply the remainder of the moneys so received by Beneficiary
to the payment of accrued interest, and to the payment of overdue installments
of principal, all in such order and priority as Beneficiary may determine in
accordance with the terms of the Loan Documents.
(c) Whenever all such Events of Default have been cured and satisfied,
Beneficiary may, at its option, surrender possession of the Mortgaged Property
to Grantor, its successors or assigns. The same right of taking possession,
however, shall exist if any subsequent Event of Default shall occur and be
continuing.
3.04 Receiver.
(a) If an Event of Default shall have occurred and be continuing,
Beneficiary, upon application to a court of competent jurisdiction, shall be
entitled, without notice and without regard to the adequacy of any security for
the indebtedness hereby secured or the solvency of any party bound for its
payment, to appoint a receiver to take possession of and to operate the
Mortgaged Property and to collect the rents, profits, issues, and revenues
thereof.
(b) Grantor will pay to Beneficiary upon demand all reasonable
expenses, including receiver's fees, attorney's fees and costs, and agent's
compensation, incurred pursuant to the provisions contained in this Section
3.04; and all such expenses shall be secured by this Trust Deed.
3.05 Beneficiary's Power of Enforcement. If an Event of Default shall
have occurred and be continuing, Beneficiary may, either with or without entry
or taking possession as hereinabove provided or otherwise, proceed by suit or
suits at law or in equity or any other appropriate proceeding or remedy (a) to
enforce payment of the Loan Documents or the performance of any term thereof or
any other right, (b) to foreclose this Trust Deed and to sell the Mortgaged
Property, in accordance with applicable law, and (c) to pursue any other remedy
available to it, all as Beneficiary shall deem most effectual for such
purposes. Beneficiary shall take action either by such proceedings or by the
exercise of its powers with respect to entry or taking possession, as
Beneficiary may determine.
3.06 Power of Sale.
(a) If an Event of Default shall have occurred and be continuing,
Beneficiary may institute proceedings for the foreclosure of this Trust Deed,
either by judicial action or by power of sale, in which case the Mortgaged
Property may be sold for cash or credit in one or more parcels as Beneficiary
may determine. With respect to any notices required or permitted under the UCC,
Grantor agrees that ten (10) days' prior written notice shall be deemed
commercially reasonable. At any such sale by virtue of any judicial
proceedings, power of sale, or any other
13
legal right, remedy or recourse, the title to and right of possession of any
such property shall pass to the purchaser thereof, and to the fullest extent
permitted by law, Grantor shall be completely and irrevocably divested of all
of its right, title, interest, claim, equity, equity of redemption, and demand
whatsoever, either at law or in equity, in and to the property sold and such
sale shall be a perpetual bar both at law and in equity against Grantor, and
against all other Persons claiming or to claim the property sold or any part
thereof, by, through or under Grantor. Beneficiary or any holder of the Secured
Obligations may be a purchaser at such sale and if Beneficiary is the highest
bidder, Beneficiary may credit the portion of the purchase price that would be
distributed to Beneficiary against the Secured Obligations in lieu of paying
cash. Following the completion of a judicial foreclosure or a trustee's sale of
all or a portion of the security for the obligations secured hereby, to the
fullest extent permitted by law, Beneficiary may seek and obtain a deficiency
judgment.
(b) If any Event of Default shall have occurred and be continuing,
Beneficiary may exercise in respect of the Mortgaged Property, in addition to
all other rights and remedies provided for herein or otherwise available to it,
all the rights and remedies of a secured party on default under the UCC, and
also may (i) enter onto the property where any Mortgaged Property is located
and take possession thereof with or without judicial process, (ii) prior to the
disposition of the Mortgaged Property, store, process, repair or recondition
the Mortgaged Property or otherwise prepare the Mortgaged Property for
disposition in any manner to the extent Beneficiary reasonably deems
appropriate to the extent any of the aforementioned are applicable to Timber
properties, (iii) take possession of any Beneficiary's premises or place
custodians in exclusive control thereof, remain on such premises and use the
same and any of Grantor's equipment for the purpose of completing any work in
process, taking any actions described in the preceding clause (iv) and
collecting any Secured Obligation, (v) without notice except as specified
below, sell the Mortgaged Property or any part thereof in one or more parcels
at public or private sale, at any of Beneficiary's offices or elsewhere, for
cash, on credit or for future delivery, at such time or times and at such price
or prices and upon such other terms as Beneficiary may deem commercially
reasonable. Each purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of Grantor, and Grantor
hereby waives (to the extent permitted by applicable law) all rights of
redemption, stay and/or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted.
Beneficiary shall not be obligated to make any sale of Mortgaged Property
regardless of notice of sale having been given. Beneficiary may adjourn any
public or private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned. Grantor hereby waives any claims
against Beneficiary arising by reason of the fact that the price at which any
Mortgaged Property may have been sold at such a private sale was less than the
price which might have been obtained at a public sale, even if Beneficiary
accepts the first offer received and does not offer such Mortgaged Property to
more than one offeree. If the proceeds of any sale or other disposition of the
Mortgaged Property, together with all other Collateral (as defined in the
Credit Agreement) are insufficient to pay all the Secured Obligations, Grantor
shall be liable for the deficiency and the reasonable fees of any attorneys
employed by Beneficiary to collect such deficiency. Grantor further agrees that
a breach of any of the covenants contained in this Section will cause
irreparable injury to Beneficiary, that Beneficiary
14
has no adequate remedy at law in respect of such breach and, as a consequence,
that each and every covenant contained in this Section shall be specifically
enforceable against Grantor, and Grantor hereby waives and agrees not to assert
any defenses against an action for specific performance of such covenants
except for a defense that no default has occurred giving rise to the Secured
Obligations becoming due and payable prior to their stated maturities.
3.07 Postponement of Sale. Trustee or the attorney for Trustee, or any
agent designated by Trustee or the attorney conducting the sale, may postpone
sale of all or any portion of the Mortgaged Property by public announcement at
such time and place of sale, and from time to time thereafter may postpone such
sale by public announcement at such subsequently noticed sale, and without
further notice make such sale at the time fixed by the last postponement, or
may, in its discretion, give a new notice of sale; provided, however, that such
postponement shall not exceed the time periods set forth in ORS 86.755(2).
3.08 Application of Foreclosure Proceeds. The proceeds of any
foreclosure sale pursuant to Section 3.06 shall be applied as follows:
(a) First, to the expenses of making the sale, including a reasonable
attorneys' fee for such services as may be necessary in the collection of said
indebtedness or the foreclosure of this Trust Deed;
(b) Second, to the repayment of any money, with interest thereon at a
rate equal to the Default Rate which Beneficiary may have paid, or become
liable to pay, or which it may then be necessary to pay for taxes, insurance,
assessments or other charges, liens, or debts as hereinabove provided;
(c) Third, to the payment and satisfaction of the Secured Obligations
in the manner set forth in the Credit Agreement; and
(d) Fourth, the balance, if any, shall be paid to the party or parties
appearing of record to be the owner of the Mortgaged Property at the time of
the sale entitled to such surplus after deducting any reasonable expense of
ascertaining who is such owner.
3.09 Beneficiary's Option on Foreclosure. At the option of
Beneficiary, this Trust Deed may be foreclosed as provided by law or in equity,
in which event a reasonable attorney's fee shall, among other costs and
expense, be allowed and paid out of the proceeds of the sale. In the event
Beneficiary exercises its option to foreclose the Trust Deed in equity,
Beneficiary may, at its option, foreclose this Trust Deed subject to the rights
of any tenants of the Mortgaged Property, and the failure to make any such
tenants party defendants to any such foreclosure proceeding and to foreclose
its rights will not be, nor be asserted to be by Grantor, a defense to any
proceedings instituted by Beneficiary to collect the sum secured hereby, or any
deficiency remaining unpaid after the foreclosure sale of the Mortgaged
Property.
3.10 Waiver of Exemption. Grantor waives, to the extent permitted by
law, all rights of exemption pertaining to real or personal property as to any
indebtedness secured by or that
15
may be secured by this Trust Deed, and Grantor waives the benefit of any
statute regulating the obtaining of a deficiency judgment.
3.11 Suits to Protect the Mortgaged Property. Beneficiary shall have
power (a) to institute and maintain such suits and proceedings as it may deem
expedient to prevent any material impairment of the Mortgaged Property by any
acts which may be unlawful or any violation of this Trust Deed, (b) to preserve
or protect its interest in the Mortgaged Property and in the income, revenues,
rents, and profits arising therefrom, and (c) to restrain the enforcement of or
compliance with any legislation or other governmental enactment, rule, or order
that may be unconstitutional or otherwise invalid, if the enforcement of or
compliance with such enactment, rule or order would materially impair the
security hereunder or be materially prejudicial to the interest of Beneficiary.
3.12 Delay or Omission No Waiver. No delay or omission of Beneficiary
to exercise any right, power, or remedy accruing upon any default shall exhaust
or impair any such right, power, or remedy or shall be construed to be a waiver
of any such default, or acquiescence therein; and every right, power, and
remedy given by this Trust Deed to Beneficiary may be exercised from time to
time and as often as may be deemed expedient by Beneficiary.
3.13 No Waiver of One Default to Affect Another, etc. No waiver of any
default hereunder shall extend to or shall affect any subsequent or any other
then existing default or shall impair any rights, powers, or remedies
consequent thereon. If Beneficiary (a) grants forbearance on or an extension of
time for the payment of any sums secured hereby; (b) takes other or additional
security for the payment thereof; (c) waives or does not exercise any right
granted herein or in the Loan Documents; (d) releases any part of the Mortgaged
Property from the lien of this Trust Deed or otherwise changes any of the terms
of the Loan Documents or this Trust Deed; (e) consents to the filing of any
map, plat, or replat thereof; (f) consents to the granting of any easement
thereon; or (g) makes or consents to any agreement subordinating the lien or
charge hereof, any such act or omission shall not release, discharge, modify,
change, or affect the original liability under the Loan Documents, this Trust
Deed or otherwise of Grantor or any subsequent purchaser of the Mortgaged
Property or any part thereof, or any maker, co-signer, endorser, surety, or
guarantor; nor shall any such act or omission preclude Beneficiary from
exercising any right, power, or privilege herein granted or intended to be
granted in the event of any other default then made or of any subsequent
default, nor, except as otherwise expressly provided in an instrument or
instruments executed by Beneficiary, shall the lien of this Trust Deed, be
altered thereby. In the event of the sale or transfer by operation of law or
otherwise of all or any part of the Mortgaged Property without the release
thereof from this Trust Deed, Beneficiary, at its option, without notice to any
person or corporation hereby is authorized and empowered to deal with any such
vendee or transferee with reference to the Mortgaged Property or the
indebtedness secured hereby, or with reference to any of the terms or
conditions hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any of
the liabilities or undertakings hereunder.
3.14 Discontinuance of Proceedings - Position of Parties, Restored. In
case Beneficiary shall have proceeded to enforce any right or remedy under this
Trust Deed by
16
foreclosure, entry, or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to Beneficiary, then and in every such case Grantor and Beneficiary
shall be restored to their former positions and rights hereunder, and all
rights, powers, and remedies of Beneficiary shall continue as if no such
proceeding has been taken. Beneficiary shall have all rights, remedies and
recourses granted in the Loan Documents and available at law or equity
(including the UCC), which rights (a) shall be cumulated and concurrent, (b)
may be pursued separately, successively or concurrently against Grantor or
others obligated under the Loan Documents, or against the Mortgaged Property,
or against any one or more of them, at the sole discretion of Beneficiary, (c)
may be exercised as often as occasion therefor shall arise, and the exercise or
failure to exercise any of them shall not be construed as a waiver or release
thereof or of any other right, remedy or recourse, and (d) are intended to be,
and shall be, nonexclusive. No action by Beneficiary in the enforcement of any
rights, remedies or recourses under the Loan Documents or otherwise at law or
equity shall be deemed to cure any Event of Default.
3.15 Remedies Cumulative. No right, power, or remedy conferred upon or
reserved to Beneficiary by this Trust Deed is intended to be exclusive of any
right, power, or remedy, but each and every such right, power, and remedy shall
be cumulative and concurrent and shall be in addition to any other right,
power, and remedy given hereunder or now or hereafter existing at law or in
equity or by statute.
3.16 Waivers. Grantor waives (a) any right to require Beneficiary to
(i) proceed against any Person, (ii) proceed against or exhaust the Mortgaged
Property or (iii) pursue any other remedy in its power; and (b) any defense
arising by reason of any disability or other defense of Grantor or any other
Person, or by reason of the cessation from any cause whatsoever (other than
payment in full of the Secured Obligations secured hereby) of the liability of
Grantor or any other Person. Until the Secured Obligations shall have been paid
in full, Grantor shall not have any right to subrogation, and Grantor waives
any right to enforce any remedy which Beneficiary now has or may hereafter have
against Grantor or against any other Person and waives any benefit of and any
right to participate in the Mortgaged Property or security whatsoever now or
hereafter held by Beneficiary.
3.17 General Powers and Duties of Trustee. At any time or from time to
time, without liability therefor and without notice and without affecting the
liability of any person for the payment of the Secured Obligations secured
hereby, upon written request of Beneficiary, payment of its own fees and
presentation of this Trust Deed for endorsement (in case of full reconveyance,
for cancellation or retention), Trustee shall:
(a) Consent to the making of any map or plat of the Land;
(b) Join in granting any easement or creating any restriction thereon;
(c) Join in any subordination or other agreement affecting this Trust
Deed or the lien or charge thereof;
17
(d) Reconvey, without warranty, all or any part of the Mortgaged
Property; or
(e) Confirm Grantor's rights under Section 2.04.
3.18 Acceptance of Trust. Trustee accepts this trust when this Trust
Deed, duly executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto except Beneficiary of
pending sale under any other deed of trust or of any action or proceeding in
which Grantor, Beneficiary, or Trustee shall be a party unless brought by
Trustee.
3.19 Reliance. Trustee, upon presentation to it of an affidavit signed
by Beneficiary setting forth facts showing a default by Grantor under this
Trust Deed, is authorized to accept as true and conclusive all facts and
statements therein, and to act thereon hereunder.
3.20 Replacement of Trustee. Beneficiary may, from time to time, as
provided by statute, appoint another trustee in place and stead of trustee
herein named, and thereupon Trustee herein named shall be discharged and the
trustee so appointed shall be substituted as trustee hereunder, with the same
effect as if originally named trustee herein.
3.21 Choice of Law. Grantor agrees that (a) whether or not deficiency
judgments are available under the laws of the State of Oregon after a
foreclosure (judicial or nonjudicial) of the Mortgaged Property, or any portion
thereof, or any other realization thereon by Beneficiary or Trustee,
Beneficiary and Trustee shall have the right to seek such a deficiency judgment
against Grantor in other states or foreign jurisdictions; (b) to the extent
Beneficiary or Trustee obtain a deficiency judgment in any other state or
foreign jurisdiction then such party shall have the right to enforce such
judgment in the State of Oregon, as well as in other states or foreign
jurisdictions; (c) Grantor and Beneficiary will submit to non-exclusive
jurisdiction and the laying of venue for any suit on this Trust Deed in such
state; (d) without limiting the generality of the foregoing, Grantor hereby
waives, to the maximum extent permitted by law, any rights it may have under
Oregon law with respect to the Mortgaged Property and the enforcement or
realization by Beneficiary or Trustee of their respective rights and remedies
under this Trust Deed or with respect to the Mortgaged Property, without
limitation, including, any laws limiting the availability of deficiency
judgments, limiting remedies or the order of exercising remedies or requiring
that Beneficiary or Trustee foreclose prior to bringing suit on the
Indebtedness; and (e) no action, proceeding or judgment initiated, pursued or
obtained by Beneficiary or Trustee in the State of Oregon with respect to the
Mortgaged Property or this Trust Deed shall be considered a "judgment" or an
"action" for the purposes of any "one-action rule."
3.22 Waiver of Rights. Grantor waives, to the full extent permitted by
law, (a) all rights of redemption, stay of execution, notice of election to
mature or declare due the Indebtedness and the right to require marshaling in
the event of foreclosure of the liens hereby created; and (b) all rights and
remedies that Grantor may have or be able to assert by reason of the laws of
the State of Oregon pertaining to the rights and remedies of sureties.
18
ARTICLE IV
4.01 Warranty of Title. Grantor is lawfully seized of an indefeasible
estate in fee simple in the land and real property hereby mortgaged and has
good and absolute title to (a) the Timber, subject to the rights of Persons
other than Grantor under Cutting Rights Agreements and (b) to all existing
personal property hereby mortgaged, in each case subject to the Mineral rights
reserved by the Unites States government to the extent specified in the
original land patent for such Mortgaged Property and has good right, full power
and lawful authority to sell, convey and mortgage the same in the manner and
form aforesaid; that, except for Permitted Liens, the same is free and clear of
all liens, charges, and encumbrances relating to or affecting the Timber
whatsoever, including, as to the personal property and fixtures, conditional
sales contracts, chattel mortgages, security agreements, financing statements,
and anything of a similar nature, and that Grantor shall and will warrant and
forever defend such title thereto unto Beneficiary, its successors and assigns,
against the lawful claims of all persons whomsoever, other than holders of the
Permitted Liens. This Trust Deed creates a valid, enforceable first priority
lien and security interest against the Mortgaged Property, subject to the lien
of taxes not yet due and payable and other Permitted Liens. Grantor has and
will continue to have full power and lawful authority to grant, release,
convey, assign, transfer, mortgage, pledge, hypothecate and otherwise create
the liens on the Mortgaged Property as provided herein.
4.02 Other Property Rights. All easements (including without
limitation, the Appurtenant Easements), leasehold, and other property
interests, all utility and other services, means of transportation, facilities,
other materials and other rights that are reasonably necessary for the
operation of the Mortgaged Property in accordance with applicable requirements
of law have been procured or are commercially available to the Mortgaged
Property at commercially reasonable rates and, to the extent appropriate,
arrangements have been made on commercially reasonable terms for such
easements, interests, services, means of transportation, facilities, materials,
and rights. The Land is taxed separately without regard to any other property
and has been subdivided from all other property in compliance with applicable
laws. No subdivision or other approval is necessary with respect to the Land in
order for Grantor to mortgage, convey, or otherwise deal with the Land as a
separate lot or parcel.
4.03 First Lien Status. Grantor shall preserve and protect the first
lien and security interest status of this Trust Deed. If any lien or security
interest other than the Permitted Liens is asserted against the Mortgaged
Property, Grantor shall promptly, and at its expense, (a) give Beneficiary a
detailed written notice of such lien or security interest (including origin,
amount and other terms), and (b) pay the underlying claim in full or take such
other action so as to cause it to be released or contest the same in compliance
with the requirements of the Loan Documents (including the requirement of
providing a bond or other security satisfactory to Beneficiary).
4.04 Peaceable Possession. Grantor's possession of the Mortgaged
Property has been peaceable and undisturbed and, to Grantor's actual knowledge,
the title thereto is not disputed or questioned (except for disputes or
questions related to a de minimus portion of the Mortgaged Property that could
not reasonably be expected to result in an impairment of the value or
marketability of the Mortgaged Property), and Grantor does not know of any
facts by reason of
19
which any material adverse claim to any part of the Mortgaged Property or to
any undivided interest therein might be set up or made.
ARTICLE V
5.01 Successors and Assigns Included in Parties. Whenever in this
Trust Deed one of the parties hereto is named or referred to, the successors
and assigns of such party shall be included, and all covenants and agreements
contained in this Trust Deed by or on behalf of Grantor or by or on behalf of
Beneficiary shall bind and inure to the benefit of its respective successors
and assigns, whether so expressed or not.
5.02 Headings, etc. The headings of the articles, sections,
paragraphs, and subdivisions of this Trust Deed are for convenience of
reference only, are not to be considered a part hereof, and shall not limit or
otherwise affect any of the terms hereof.
5.03 Invalid Provisions to Affect No Others. In case any one or more
of the covenants, agreements, terms, or provisions contained in this Trust Deed
or in the Loan Documents shall be invalid, illegal, or unenforceable in any
respect, the validity of the remaining covenants, agreements, terms, and
provisions contained herein and in the Loan Documents shall in no way be
affected, prejudiced, or disturbed thereby.
5.04 Notices. All notices, demands, requests, consents, statements,
satisfactions, waivers, designations, refusals, confirmation or denials that
may be required or otherwise provided for or contemplated under the terms of
this Trust Deed shall be in writing, and shall be deemed to have been properly
given (a) upon delivery, if delivered in person or by facsimile transmission
with receipt acknowledged, or (b) one (1) business day after having been
deposited for overnight delivery with Federal Express or another comparable
overnight courier service, addressed as follows:
If to Grantor:
Longview Fibre Company
▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President - Finance
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Longview Fibre Company
▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President - Industrial Relations
and General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
20
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Beneficiary:
Bank of America, N.A.
Agency Management - Mail CA5-701-05-19
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Anthea Del ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC
Suite 4700
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or addressed to each respective party at such other address as such party may
from time to time designate by written notice to the other parties.
5.05 Interpretation. Terms defined in the Credit Agreement shall have
the same meanings when used in this Trust Deed, unless the context otherwise
requires or unless otherwise defined in this Trust Deed.
5.06 Subordination. At the option of Beneficiary, this Trust Deed
shall become subject and subordinate in whole or in part (but not with respect
to priority of entitlement to any insurance proceeds, damages, awards, or
compensation resulting from damage to the Mortgaged Property or condemnation or
exercise of power of eminent domain), to any and all contracts of sale and/or
any and all Leases upon the execution by Beneficiary and recording thereof in
the records of mortgages of the county where the Land is situated of a
unilateral declaration to that effect.
5.07 WAIVER OF RIGHTS TO TRIAL BY JURY. THE RIGHT TO A JURY TRIAL IN
ANY ACTION UNDER OR RELATING TO THE LOAN DOCUMENTS IS HEREBY WAIVED, TO THE
FULLEST EXTENT ALLOWED BY LAW.
21
5.08 CHOICE OF LAW. WITH RESPECT TO MATTERS RELATING TO THE CREATION,
PERFECTION AND PROCEDURES RELATING TO THE ENFORCEMENT OF THE LIENS AND SECURITY
INTERESTS CREATED PURSUANT TO THIS TRUST DEED, THIS TRUST DEED SHALL BE
GOVERNED BY, AND BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
OREGON.
5.09 Partial Release. Beneficiary shall, upon any transfer or
disposition of portions of the Land or Timber as permitted herein or in the
Credit Agreement and upon Grantor's request and at Grantor's expense, promptly
execute and deliver, and cause the Trustee to execute and deliver, such deeds
of reconveyance, UCC partial releases and other documents necessary to fully
release such Land and Timber and the Mortgaged Property relating thereto, from
the liens and security interests created hereby.
5.10 Full Reconveyance. Upon the payment or satisfaction of all
obligations secured hereby and upon Grantor's request and at Grantor's expense,
or upon substitution of a Mortgaged Property for the collateral set forth
herein as permitted and subject to compliance by the Loan Parties with Section
6.14(b) of the Credit Agreement, Beneficiary shall request Trustee to reconvey
the Mortgaged Property and shall surrender this Deed of Trust and other
evidences of Secured Obligations to the Trustee, and shall promptly execute and
deliver, or cause Trustee to execute and deliver, such deeds of reconveyance,
UCC releases, and other documents necessary to fully release the Mortgaged
Property from the liens and security interests created hereby.
ARTICLE VI
6.01 Security Interest. This Trust Deed constitutes a "security
agreement" with respect to personal property within the meaning of the UCC and
other applicable law and with respect to the Mortgaged Property. To this end,
Grantor grants to Beneficiary a first and prior security interest in the
Mortgaged Property which is personal property or fixtures to secure the payment
of the Secured Obligations and performance of the Secured Obligations, and
agrees that Beneficiary shall have all the rights and remedies of a secured
party under the UCC with respect to such property. Any notice of sale,
disposition or other intended action by Beneficiary with respect to the
Mortgaged Property which is personal property or fixtures sent to Grantor at
least ten (10) days prior to any action under the UCC shall constitute
reasonable notice to Grantor.
6.02 Financing Statements. Grantor shall deliver to Beneficiary, in
form and substance satisfactory to Beneficiary, such financing statements and
such further assurances as Beneficiary may, from time to time, reasonably
consider necessary to create, perfect and preserve Beneficiary's security
interest hereunder and Beneficiary may cause such statements and assurances to
be recorded and filed, at such times and places as may be required or permitted
by law to so create, perfect and preserve such security interest. Grantor's
exact name and its state of organization set forth in the first paragraph of
this Trust Deed.
22
6.03 Fixture Filing. This Trust Deed shall also constitute a "fixture
filing" for the purposes of the UCC against all of the Mortgaged Property which
is or is to become fixtures. Information concerning the security interest
herein granted may be obtained at the addresses of Debtor (Grantor) and Secured
Party (Beneficiary) as set forth in the first paragraph of this Trust Deed.
6.04 Perfection. Grantor represents and warrants that (a) upon the
filing of a UCC financing statement (i) with respect to all personal property
(other than timber to be cut and goods that are or are to become fixtures), in
the office of the Secretary of State of the State of Washington and (ii) with
respect to timber to be cut and goods that are or are to become fixtures, in
the office designated for the filing or recording of a record of a mortgage on
the related real property, in each case naming Grantor as "debtor," naming
Beneficiary as "secured party" and describing the Mortgaged Property, the
security interests in the Mortgaged Property constituting personal property
granted to Beneficiary will constitute perfected security interests therein
prior to all other liens (except for liens expressly permitted under the Loan
Documents), and (b) all filings and other actions necessary or desirable to
perfect and protect such security interest have been or substantially
contemporaneously herewith will be duly made or taken. Grantor will notify
Beneficiary of any change in Grantor's name or jurisdiction of organization
within fifteen (15) days of such change.
6.05 Further Assurances. Grantor agrees that from time to time, at the
expense of Grantor, Grantor will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary
or desirable, or that Beneficiary may reasonably request, in order to perfect
and protect any security interest granted or purported to be granted hereby or
to enable Beneficiary to exercise and enforce its rights and remedies hereunder
with respect to any Mortgaged Property. Without limiting the generality of the
foregoing, Grantor will: (a) if an Event of Default shall have occurred,
furnish to Beneficiary from time to time statements and schedules further
identifying and describing the Mortgaged Property and such other reports in
connection with the Mortgaged Property as Beneficiary may reasonably request,
all in reasonable detail, (b) at any reasonable time, upon request by
Beneficiary, exhibit the Mortgaged Property to and allow inspection of the
Mortgaged Property by Beneficiary, or persons designated by Beneficiary, (c) at
Beneficiary's request, appear in and defend any action or proceeding that may
affect Grantor's title to or Beneficiary's security interest in all or any part
of the Mortgaged Property, and (d) use commercially reasonable efforts to
obtain any necessary consents of third parties to the assignment and perfection
of a security interest to Beneficiary with respect to any Mortgaged Property.
Grantor hereby authorizes Beneficiary to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Mortgaged Property without the signature of Grantor. Grantor agrees that a
carbon, photographic or other reproduction of this Trust Deed shall be
sufficient as a financing statement and may be filed as a financing statement
in any and all applicable jurisdictions accepting same.
6.06 Accounts. Except as otherwise provided in this Section 6.06,
Grantor shall continue to collect, at its own expense, all amounts due or to
become due to Grantor as Accounts. In connection with such collections, Grantor
may take (and, at Beneficiary's direction, shall take) such action as Grantor
or Beneficiary may deem necessary or advisable to enforce collection of
23
amounts due or to become due under the Accounts; provided, however, that
Beneficiary shall have the right at any time, upon the occurrence and during
the continuation of an Event of Default and upon written notice to Grantor of
its intention to do so, to notify the parties owing funds to Grantor of the
assignment of such claims to Beneficiary and to direct such account debtors or
obligors to make payment of all amounts due or to become due to Grantor
thereunder directly to Beneficiary, and, upon such notification and at the
expense of Grantor, to enforce collection of any amounts due and owing under
such Accounts and to adjust, settle or compromise the amount or payment
thereof, in the same manner and to the same extent as Grantor might have done.
After receipt by Grantor of the notice from Beneficiary referred to in the
proviso to the preceding sentence, (a) all amounts and proceeds received by
Grantor in respect of the Accounts shall be received in trust for the benefit
of Beneficiary hereunder, shall be segregated from other funds of Grantor and
shall be forthwith paid over or delivered to Beneficiary in the same form as so
received (with any necessary endorsement) to be held as cash collateral, and
(b) Grantor shall not adjust, settle or compromise the amount or payment of any
Accounts, or release wholly or partly any account debtor or obligor thereof, or
allow any credit or discount thereon.
6.07 Standard of Care. The powers conferred on Beneficiary hereunder
are solely to protect its interest in the Mortgaged Property and shall not
impose any duty upon it to exercise any such powers. Except for the exercise of
reasonable care in the custody of any Mortgaged Property in its possession and
the accounting for moneys actually received by it hereunder, Beneficiary shall
have no duty as to any Mortgaged Property or as to the taking of any necessary
steps to preserve rights against prior parties or any other rights pertaining
to any Mortgaged Property. Beneficiary shall be deemed to have exercised
reasonable care in the custody and preservation of Mortgaged Property in its
possession if such Mortgaged Property is accorded treatment substantially equal
to that which Beneficiary accords its own property.
ARTICLE VII
7.01 Assignment of Rents. Grantor absolutely and unconditionally
assigns and transfers the Rents to Beneficiary, whether now due, past due or to
become due, and gives to and confers upon Beneficiary the right, power and
authority to collect, after the occurrence and during the continuance of an
Event of Default, such Rents, and apply the same in accordance with the Credit
Agreement. Grantor irrevocably appoints Beneficiary its agent to, at any time,
demand, receive and enforce payment, to give receipts, releases and
satisfactions, and to ▇▇▇, either in the name of Grantor or in the name of
Beneficiary, for all such Rents. Neither the foregoing Assignment of Rents to
Beneficiary or the exercise by Beneficiary of any of its rights or remedies
under this Trust Deed shall be deemed to make Beneficiary a
"Mortgagee-in-possession" or otherwise responsible or liable in any manner with
respect to the Mortgaged Property or the use, occupancy, enjoyment or operation
of all or any part thereof, unless and until Beneficiary, in person or by its
own agent, assumes actual possession thereof, nor shall appointment of a
Receiver for the Mortgaged Property by any court at the request of Beneficiary
or by agreement with Grantor or the entering into possession of the Mortgaged
Property or any part thereof by such Receiver be deemed to make Beneficiary a
"Mortgagee-in-possession" or
24
otherwise responsible or liable in any manner with respect to the Mortgaged
Property or the use, occupancy, enjoyment or operation of all or any part
thereof.
7.02 Collection of Rents. Notwithstanding anything to the contrary
contained herein or in any of the Loan Documents, so long as no Event of
Default shall have occurred and be continuing, Grantor shall have a license,
revocable upon the occurrence and during the continuance of an Event of Default
to collect all Rents, and to first apply the same to the Secured Obligations as
and when due and thereafter to retain, use and enjoy the same and to otherwise
exercise all rights with respect thereto, subject to the terms hereof. Upon the
occurrence of an Event of Default, Beneficiary shall have the right, on written
notice to Grantor, to terminate and revoke the license hereinafter granted to
Grantor and shall have the complete right and authority then or thereafter to
exercise and enforce any and all of its rights and remedies provided herein.
ARTICLE VIII
8.01 Statutory Warning.
WARNING
(a) Unless Grantor provides Beneficiary with evidence of insurance
coverage as required by this Trust Deed, Beneficiary may purchase insurance at
Grantor's expense to protect Beneficiary's interest. This insurance may, but
need not, also protect Grantor's interest. If the Mortgaged Property becomes
damaged, the coverage Beneficiary purchases may not pay any claim Grantor makes
or any claim made against Grantor. Grantor may later cancel this coverage by
providing evidence that Grantor has obtained coverage elsewhere.
(b) Grantor is responsible for the cost of any insurance purchased by
Beneficiary. The cost of this insurance may be added to the Secured
Obligations. If the cost is added to the Secured Obligations, the interest rate
on the Secured Obligations will apply to this added amount. The effective date
of coverage may be the date Grantor's prior coverage lapsed or the date Grantor
failed to provide proof of coverage. The coverage Beneficiary purchases may be
considerably more expensive than insurance Grantor can obtain on its own and
may not satisfy any need for property damage coverage or any mandatory
liability insurance requirements imposed by applicable law.
8.02 Warranty of Business Purpose. Grantor warrants that this Deed of
Trust is not and will at all times continue not to be a residential trust deed
(as that term is defined in ORS 86.705(3))
8.03 Notice Pursuant to ORS 41.580.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY
THE LENDER CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
FOR PERSONAL, FAMILY
25
OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S RESIDENCE
MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY THE LENDER
TO BE ENFORCEABLE.
[Remainder of this Page Intentionally Left Blank; Signatures on Next Page]
26
IN WITNESS WHEREOF, Grantor has caused this Trust Deed to be executed
under seal, on the day and year first above written.
GRANTOR:
LONGVIEW FIBRE COMPANY,
a Washington corporation
By:
---------------------------------------
Name:
Title:
S-1
STATE OF _________________ )
)
COUNTY OF _______________ )
I, the undersigned Notary Public in and for said County, in said
State, hereby certify that ______________, whose name as _________________ of
Longview Fibre Company, a Washington corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day, that
being informed of the contents of the instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal, this ___ day of December, 2005.
-------------------------------------
NOTARY PUBLIC
My Commission Expires:
___________________________
[SEAL]
N-1
EXHIBIT A
---------
Legal Description of Property
-----------------------------
("Land")
(__________________ County, Oregon)
B-1
