Exhibit 10.3
EXECUTION COPY
$35,000,000
CREDIT AGREEMENT
AMONG
▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC.,
AS BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
TD SECURITIES (USA) INC.,
AS ARRANGER
AND
TORONTO-DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT
DATED AS OF DECEMBER 1, 1997
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS................................................ 2
1.1 Defined Terms........................................... 2
1.2 Other Definitional Provisions........................... 19
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS............................ 19
2.1 Term Loan Commitments; Revolving Credit
commitments........................................... 19
2.2 Procedure for Borrowing................................. 20
2.3 Repayment of Loans...................................... 20
2.4 Repayment of Loans; Evidence of Debt.................... 21
2.5 Commitment Fees, etc. .................................. 21
2.6 Optional Termination of Revolving Credit Commitments;
Optional Prepayments.................................. 22
2.7 Mandatory Prepayments and Commitment Restrictions....... 22
2.8 Conversion and Continuation Options..................... 24
2.9 Minimum Amounts and Maximum Number of Eurodollar
Tranches.............................................. 24
2.10 Interest Rates and Payment Dates........................ 24
2.11 Computation of Interest and Fees........................ 25
2.12 Inability to Determine Interest Rate.................... 25
2.13 Pro Rata Treatment and Payments......................... 26
2.14 Requirements of Law..................................... 27
2.15 Taxes................................................... 28
2.16 Indemnity............................................... 30
2.17 Illegality.............................................. 30
2.18 Change of Lending Office................................ 30
SECTION 3. REPRESENTATIONS AND WARRANTIES............................. 31
3.1 Financial Condition..................................... 31
3.2 No Change............................................... 32
3.3 Existence; Compliance with Law.......................... 32
3.4 Power; Authorization; Enforceable Obligations........... 32
3.5 No Legal Bar............................................ 32
3.6 No Material Litigation.................................. 33
3.7 No Default.............................................. 33
3.8 Ownership of Property; Liens............................ 33
3.9 Intellectual Property................................... 33
3.10 Taxes................................................... 33
3.11 Federal Regulations..................................... 34
3.12 Labor Matters........................................... 34
3.13 ERISA................................................... 34
3.14 Investment Company Act; Other Regulations............... 34
3.15 Subsidiaries............................................ 34
3.16 Use of Proceeds......................................... 34
3.17 Environmental Matters................................... 35
3.18 Accuracy of Information, etc............................ 36
3.19 Security Documents...................................... 36
3.20 Solvency................................................ 37
SECTION 4. CONDITIONS PRECEDENT....................................... 37
4.1 Conditions to Initial Extension of Credit............... 37
4.2 Conditions to Each Loan................................. 40
SECTION 5. AFFIRMATIVE COVENANTS...................................... 40
5.1 Financial Statements.................................... 40
5.2 Certificates; Other Information......................... 41
5.3 Payment of Obligations.................................. 42
5.4 Conduct of Business and Maintenance of Existence, etc. . 42
5.5 Maintenance of Property; Insurance...................... 42
5.6 Inspection of Property; Books and Records; Discussions.. 43
5.7 Notices................................................. 43
5.8 Environmental Laws...................................... 44
SECTION 6. NEGATIVE COVENANTS......................................... 44
6.1 Asset Coverage Ratio.................................... 44
6.2 Limitation on Indebtedness.............................. 45
6.3 Limitation on Liens..................................... 46
6.4 Limitation on Fundamental Changes....................... 48
6.5 Limitation on Sale of Assets............................ 48
6.6 Limitation on Dividends................................. 49
6.7 [Reserved............................................... 49
6.8 Limitation on Investments, Loans and Advances........... 50
6.9 Limitation on Optional Payments and Modifications
of Debt Instruments, etc. ............................ 50
6.10 Limitation on Transactions with Affiliates.............. 51
6.11 Limitation on Sales and Leasebacks...................... 51
6.12 Limitation on Changes in Fiscal Periods................. 51
6.13 Limitation on Negative Pledge Clauses................... 51
6.14 Limitation on Restrictions on Subsidiary Distributions.. 51
6.15 Limitation on Lines of Business......................... 52
6.16 Limitation on Amendments to Acquisition Documents....... 52
6.17 Limitation on Leases.................................... 52
6.18 Limitation on Amendments to Management Contracts........ 52
SECTION 7. EVENTS OF DEFAULT.......................................... 53
SECTION 8. THE AGENTS................................................. 55
8.1 Appointment............................................. 55
8.2 Delegation of Duties.................................... 55
8.3 Exculpatory Provisions.................................. 55
8.4 Reliance by Agents...................................... 56
8.5 Notice of Default....................................... 56
8.6 Non-Reliance on Agents and Other Lenders................ 57
8.7 Indemnification......................................... 57
8.8 Agent in Its Individual Capacity........................ 57
8.9 Successor Administrative Agent.......................... 58
8.10 Authorization to Execute Intercreditor Agreement
and Security Documents................................ 58
8.11 The Arranger............................................ 58
SCHEDULES:
1.1A Commitments
3.1(b) Dividends and Distributions
3.4 Consents, Authorizations, Filings and Notices
3.15 Subsidiaries
3.19 UCC Filing Jurisdictions
6.2 Existing Indebtedness
6.3 Existing Liens
6.8(f) Existing Investments
X Calculation of Administrative Value
EXHIBITS:
A Form of Timberlands Guarantee
B Form of Timberlands Pledge Agreement
C-1 Form of ▇▇▇▇▇ Pledge Agreement
C-2 Form of Cash Collateral Agreement
D Form of Intercreditor Agreement
E Form of Compliance Certificate
F Form of Closing Certificate
G Form of Assignment and Acceptance
H Form of Legal Opinion of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇
I-1 Form of Term Note
I-2 Form of Revolving Credit Note
J Form of Exemption Certificate
CREDIT AGREEMENT, dated as of December 1, 1997, among
▇▇▇▇▇- ▇▇▇▇▇ INDUSTRIES, INC., a Delaware corporation (the "Borrower" or
"▇▇▇▇▇-▇▇▇▇▇"), the several banks and other financial institutions or
entities from time to time parties to this Agreement (the "Lenders"), TD
SECURITIES (USA) INC., as advisor and arranger (in such capacity, the
"Arranger"), and TORONTO-DOMINION (TEXAS), INC., as administrative agent
(in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower holds partnership interests in
Bear Island Timberlands Company, L.P., a Virginia limited partnership
("Timberlands L.P."), and Dow ▇▇▇▇▇ Virginia Company, Inc. and Newsprint,
Inc. (collectively, the "Retiring Partners") hold the remaining
partnership interests in Timberlands L.P.;
WHEREAS, the Borrower is a party to the Timberlands
Partnership Interest Sale Agreement, dated as of October 15, 1997 (the
"Acquisition Agreement"), with the Retiring Partners, pursuant to which
the Borrower will purchase the Retiring Partners' partnership interests
in Timberlands for cash in an aggregate amount of approximately
$35,000,000 on the Closing Date (the "Transaction");
WHEREAS, simultaneously with or prior to the closing
of the Transaction Timberlands L.P. will be converted into a Virginia
limited liability company known as Bear Island Timberlands Company,
L.L.C. ("Timberlands");
WHEREAS, in connection with the Transaction, the
Borrower has requested the Lenders to establish (i) a Term Loan Facility
in the aggregate amount of $32,000,000 and (ii) a Revolving Credit
Facility in the aggregate amount of $3,000,000;
WHEREAS, the proceeds of such credit facilities will
be used to finance the Transaction and to deposit into the Collateral
Account an amount equal to the interest that shall accrue on the Loans
from the Closing Date to the first anniversary thereof;
WHEREAS, the Lenders are willing to make such credit
facilities available upon and subject to the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
terms listed in this Section 1.1 shall have the respective meanings set
forth in this Section 1.1.
"Acquired Indebtedness": Indebtedness of a Person
(a) existing at the time such Person becomes a
Subsidiary of ▇▇▇▇▇ or any of its Subsidiaries or (b)
assumed in connection with the acquisition by ▇▇▇▇▇ or
any of its Subsidiaries of assets from such Person.
"Acquisition Agreement": as defined in the recitals
hereto.
"Administrative Value": the value calculated in
accordance with Schedule
X.
"Affiliate": as to any Person, any other Person
that, directly or indirectly, is in control of, is
controlled by, or is under common control with, such
Person. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, either
to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or
(b) direct or cause the direction of the management and
policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Arranger
and the Administrative Agent.
"Aggregate Exposure": with respect to any Lender, an
amount equal to (a) until the Closing Date, the
aggregate amount of such Lender's Commitments and (b)
thereafter, the sum of (i) the aggregate unpaid
principal amount of such Lender's Term Loans and (ii)
the amount of such Lender's Revolving Credit Commitment
or, if the Revolving Credit Commitments have been
terminated, the amount of such Lender's Revolving
Credit Loans.
"Aggregate Exposure Percentage" with respect to any
Lender, the ratio (expressed as a percentage) of such
Lender's Aggregate Exposure to the Aggregate Exposure
of all Lenders.
"Agreement": this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable Margin": (i) with respect to a Loan
bearing interest based upon the Base Rate, 1.75%, and
(ii) with respect to a Loan bearing interest based upon
the Eurodollar Rate, 2.75%
"Applicable Subsidiaries": Timberlands and its
Subsidiaries and/or ▇▇▇▇▇
and its Subsidiaries, as the case may be.
"Asset Sale": (a) in respect of Timberlands and its
Subsidiaries, any Disposition of Property or series of
related Dispositions of Property (excluding any such
Disposition permitted by clause (a), (b), (c), (d) or
(h) of Section 6.5) which yields gross proceeds (valued
at the initial principal amount thereof in the case of
non-cash proceeds consisting of notes or other debt
securities and valued at fair market value in the case
of other non-cash proceeds) in excess of $300,000 in
the aggregate in any fiscal year, (b) in respect of
▇▇▇▇▇ and its Subsidiaries, any Disposition of Property
or series of related Dispositions of Property
(excluding any such Disposition permitted by clauses
(a), (b), (c) or (d) of Section 6.5) which yields gross
proceeds to ▇▇▇▇▇ or any of its Subsidiaries (valued at
the initial principal amount thereof in the case of
non-cash proceeds consisting of notes or other debt
securities and valued at fair market value in the case
of other non-cash proceeds) in excess of $1,000,000 in
the aggregate in any fiscal year and (c) in respect of
the Borrower, any sale by the Borrower of Capital Stock
of Timberlands or ▇▇▇▇▇.
"Assignee": as defined in Section 9.6(c).
"Assignor": as defined in Section 9.6(c).
"Available Revolving Credit Commitment": as to any
Revolving Credit Lender at any time, an amount equal to
the excess, if any, of (a) the amount of such Lender's
Revolving Credit Commitment over (b) the aggregate
outstanding principal amount of such Lender's Revolving
Credit Loans.
"Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to
the greatest of (a) the Prime Rate in effect on such
day, and (b) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. For purposes hereof: "Prime
Rate" shall mean the rate of interest per annum
publicly announced from time to time by The
Toronto-Dominion Bank as its prime or base rate in
effect at its principal office in New York City (the
Prime Rate not being intended to be the lowest rate of
interest charged by The Toronto-Dominion Bank in
connection with extensions of credit to debtors). Any
change in the Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the
effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans the rate of interest
applicable to which is based upon the Base Rate.
"Board": the Board of Governors of the Federal
Reserve System of the United States (or any successor).
"Business": as defined in Section 3.17.
"Business Day": (i) for all purposes other than as
covered by clause (ii) below, a day other than a
Saturday, Sunday or other day on which commercial banks
in New York City are authorized or required by law to
close and (ii) with respect to all notices and
determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (i) and
which is also a day for trading by and between banks in
Dollar deposits in the interbank eurodollar market.
"C$": the lawful currency of Canada.
"Capital Expenditures": for any period, with respect
to any Person, the aggregate of all expenditures by
such Person and its Subsidiaries for the acquisition or
leasing (pursuant to a capital lease) of fixed or
capital assets or additions to equipment (including
replacements, capitalized repairs and improvements
during such period) which should be capitalized under
GAAP on a consolidated balance sheet of such Person and
its Subsidiaries.
"Capital Lease Obligations": as to any Person, the
obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the
right to use) real or personal property, or a
combination thereof, which obligations are required to
be classified and accounted for as capital leases on a
balance sheet of such Person under GAAP, and, for the
purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with
GAAP.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however
designated) of capital stock of a corporation, any and
all equivalent ownership interests in a Person (other
than a corporation) and any and all warrants, rights or
options to purchase any of the foregoing.
"Cash Collateral Agreement": the cash collateral
agreement substantially in the form of Exhibit C-2 to
be executed and delivered by the Borrower in favor of
the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time.
"Cash Equivalents": (a) marketable direct
obligations issued by, or unconditionally guaranteed
by, the United States Government or issued by any
agency thereof and backed by the full faith and credit
of the United States, in each case maturing within one
year from the date of acquisition; (b) certificates of
deposit, time deposits, eurodollar time deposits or
overnight bank deposits having maturities of six months
or less from the date of acquisition issued by any
Lender or by any commercial bank organized under the
laws of the United States of America or any state
thereof having combined capital and surplus of not less
than $500,000,000; (c) commercial paper of an issuer
rated at least A-2 by Standard & Poor's Ratings
Services ("S&P") or P-2 by ▇▇▇▇▇'▇ Investors Service,
Inc. ("Moody's"), or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of
commercial paper issuers generally, and maturing within
six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank
satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or
insured by the United States government; (e) securities
with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign
government, the securities of which state,
commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be)
are rated at least A by S&P or A by Moody's; (f)
securities with maturities of six months or less from
the date of acquisition backed by standby letters of
credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this
definition; or (g) shares of money market mutual or
similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f)
of this definition.
"Change of Control": (a) if neither ▇▇▇▇▇ ▇. ▇▇▇▇▇
nor ▇▇▇▇▇▇ ▇▇▇▇▇ shall own at least 50% of the issued
and outstanding voting stock of the Borrower or (b) any
Person other than ▇▇▇▇▇ ▇. ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇ (or
their respective estates, heirs or beneficiaries, or
successive estates, heirs or beneficiaries) shall own
voting stock of the Borrower.
"Closing Date": the date on which the conditions
precedent set forth in Section 4.1 shall have been
satisfied.
"Code": the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral": all Property of the Loan Parties, now
owned or hereafter acquired, upon which a Lien is
purported to be created by any Security Document.
"Collateral Account": the cash collateral account
established pursuant to the Cash Collateral Agreement.
"Commitment": as to any Lender, the sum of the Term
Loan Commitment and the Revolving Credit Commitment of
such Lender.
"Commonly Controlled Entity": an entity, whether or
not incorporated, which is under common control with
the Borrower within the meaning of Section 4001 of
ERISA or is part of a group which includes the Borrower
and which is treated as a single employer under Section
414 of the Code.
"Compliance Certificate": a certificate duly
executed by a Responsible Officer substantially in the
form of Exhibit E.
"Confidential Information Memorandum": the
Confidential Information Memorandum dated October 1997
and furnished to the Lenders in respect of the Term
Loan Facility and the Paper Company Loan.
"Consolidated Lease Expense": with respect to any
Person for any period, the aggregate amount of fixed
and contingent rentals payable by such Person and its
Subsidiaries, determined on a consolidated basis in
accordance with GAAP, for such period with respect to
leases of real and personal property; provided, that
Capital Lease Obligations shall not constitute
Consolidated Lease Expense.
"Consolidated Net Income": with respect to any
Person for any period, the consolidated net income (or
loss) of such Person and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income
(or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of such Person or is merged into
or consolidated with such Person or any of its
Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary of such Person) in which such
Person or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is
actually received by such Person or such Subsidiary in
the form of dividends or similar distributions and (c)
the undistributed earnings of any Subsidiary of such
Person to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any
Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such
Subsidiary.
"Consolidated Net Worth": with respect to any Person
at any date, all amounts which would, in conformity
with GAAP, be included on a consolidated balance sheet
of such Person and its Subsidiaries under stockholders'
equity at such date.
"Consolidated Tangible Net Worth": with respect to
any Person, as of any date, Consolidated Net Worth less
the sum of the net book amount of all assets, after
deducting any reserves applicable thereto, which would
be treated as intangible under GAAP, as presented on
the consolidated financial statements of such Person as
of such date.
"Consolidated Total Liabilities": with respect to
any Person at any date, all amounts which would, in
conformity with GAAP, be set forth opposite the caption
"total liabilities" (or any like caption) on a
consolidated balance sheet of such Person and its
Subsidiaries at such date.
"Contractual Obligation": 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.
"Currency Swap Agreements": with respect to any
Person, any spot or forward foreign exchange agreements
and currency swap, currency option or other similar
financial agreements or arrangements entered into by
such Person or any of its Subsidiaries in the ordinary
course of business and designed to protect against or
manage exposure to fluctuations in foreign currency
exchange rates.
"Default": any of the events specified in Section 7,
whether or not any requirement for the giving of
notice, the lapse of time, or both, has been satisfied.
"Disposition": with respect to any Property, any
sale, lease, sale and leaseback, assignment (other than
the granting of a Lien or other encumbrance permitted
in accordance with the terms of this Agreement),
conveyance, transfer or other disposition thereof; and
the terms "Dispose" and "Disposed of" shall have
correlative meanings.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"Elebash Agreement": the agreement for certain
marketing and consulting services dated as of October
11, 1988 and effective as of July 12, 1988 between the
Borrower and Timberlands, as successors in interest,
and The Elebash Company.
"Environmental Laws": any and all foreign, Federal,
state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees or
other Requirements of Law (including common law)
regulating, relating to or imposing liability or
standards of conduct concerning protection of human
health or the environment, as now or may at any time
hereafter be in effect.
"Environmental Permits": any and all permits,
licenses, registrations, notifications, exemptions and
any other authorizations required under any
Environmental Law.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as
applied to a Eurodollar Loan, the aggregate (without
duplication) of the maximum rates (expressed as a
decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic,
supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the
Board) maintained by a member bank of the Federal
Reserve System.
"Eurodollar Base Rate": with respect to each day
during each Interest Period pertaining to a Eurodollar
Loan, the rate per annum determined on the basis of the
rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such
Interest Period appearing on Page 3750 of the Telerate
screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the
event that such rate does not appear on Page 3750 of
the Telerate Service (or otherwise on such service),
the "Eurodollar Base Rate" for purposes of this
definition shall be determined by reference to such
other comparable publicly available service for
displaying eurodollar rates as may be selected by the
Administrative Agent or, in the absence of such
availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or
about 11:00 A.M., New York City time, two Business Days
prior to the beginning of such Interest Period in the
interbank eurodollar market where its eurodollar and
foreign currency and exchange operations are then being
conducted for delivery on the first day of such
Interest Period for the number of days comprised
therein.
"Eurodollar Loans": Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, a
rate per annum determined for such day in accordance
with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
-------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to
Eurodollar Loans the then current Interest Periods with
respect to all of which begin on the same date and end
on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default": any of the events specified in
Section 7, provided that any requirement for the giving
of notice, the lapse of time, or both, has been
satisfied.
"Facility": each of (a) the Term Loan Commitments
and the Term Loans made thereunder (the "Term Loan
Facility") and (b) the Revolving Credit Commitments and
the Revolving Credit Loans made thereunder (the
"Revolving Credit Facility").
"Federal Funds Effective Rate": for any day, the
weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published
on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the
average of the quotations for the day of such
transactions received by the Administrative Agent from
three federal funds brokers of recognized standing
selected by it.
"Funding Office": the office of the Administrative
Agent set forth in Section 9.2.
"GAAP": generally accepted accounting principles in
the United States of America as in effect from time to
time, except that for purposes of Section 6.1, GAAP
shall be determined on the basis of such principles in
effect on the date hereof and consistent with those
used in the preparation of the most recent audited
financial statements delivered pursuant to Section
3.1(b). In the event that any "Accounting Change" (as
defined below) shall occur and such change results in a
change in the method of calculation of financial
covenants, standards or terms in this Agreement, then
the Borrower and the Administrative Agent agree to
enter into negotiations in order to amend such
provisions of this Agreement so as to equitably reflect
such Accounting Changes with the desired result that
the criteria for evaluating the financial condition of
any Person shall be the same after such Accounting
Changes as if such Accounting Changes had not been
made. Until such time as such an amendment shall have
been executed and delivered by the Borrower, the
Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed
as if such Accounting Changes had not occurred.
"Accounting Changes" refers to changes in accounting
principles required by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the
Securities and Exchange Commission (or successors
thereto or agencies with similar functions).
"Governmental Authority": any nation or government,
any state or other political subdivision thereof and
any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining
to government (including, without limitation, the
National Association of Insurance Commissioners).
"Guarantee Obligation": as to any Person (the
"guaranteeing person"), any obligation of (a) the
guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of
credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counter
indemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations
(the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation
or any Property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1)
for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii)
to purchase Property, securities or services primarily
for the purpose of assuring the owner of any such
primary obligation of the ability of the primary
obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and
(b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless
such primary obligation and the maximum amount for
which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of
such Guarantee Obligation shall be such guaranteeing
person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good
faith.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for
borrowed money, (b) all obligations of such Person for
the deferred purchase price of Property or services
(other than current trade payables incurred in the
ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional
sale or other title retention agreement with respect to
Property acquired by such Person (even though the
rights and remedies of the seller or lender under such
agreement in the event of default are limited to
repossession or sale of such Property), (e) all Capital
Lease Obligations of such Person, (f) all obligations
of such Person, contingent or otherwise, as an account
party under acceptance, letter of credit or similar
facilities, (g) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or
otherwise acquire for value any Capital Stock
(other than common stock) of such Person, (h) all
Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a)
through (g) above; (i) all obligations of the kind
referred to in clauses (a) through (h) above secured by
(or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured
by) any Lien on Property (including, without
limitation, accounts and contract rights) owned by such
Person, whether or not such Person has assumed or
become liable for the payment of such obligation, (j)
for the purposes of Section 7(e) only, all obligations
of such Person in respect of Interest Rate Protection
Agreements and (k) the liquidation value of any
preferred Capital Stock of such Person or its
Subsidiaries held by any Person other than such Person
and its Wholly Owned Subsidiaries.
"Insolvency": with respect to any Multiemployer
Plan, the condition that such Plan is insolvent within
the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to
all rights, priorities and privileges of the Borrower
and the Applicable Subsidiaries relating to
intellectual property, whether arising under United
States, multinational or foreign laws or otherwise,
including, without limitation, copyrights, copyright
licenses, patents, patent licenses, trademarks (and the
goodwill of the business symbolized thereby), trademark
licenses, technology, know-how and processes, and all
rights to ▇▇▇ at law or in equity for any infringement,
dilution or misappropriation thereof, including the
right to receive all proceeds and damages therefrom.
"Intercreditor Agreement": the Intercreditor
Agreement, substantially in the form of Exhibit D, to
be entered into by the Administrative Agent, the
Trustee and Toronto-Dominion (Texas), Inc., as
administrative agent under the Paper Company Loan
Agreement.
"Interest Payment Date": (a) as to any Base Rate
Loan, the last day of each March, June, September and
December to occur while such Loan is outstanding and
the final maturity date of such Loan, (b) as to any
Eurodollar Loan having an Interest Period of three
months or less, the last day of such Interest Period,
(c) as to any Eurodollar Loan having an Interest Period
longer than three months, each day which is three
months, or a whole multiple thereof, after the first
day of such Interest Period and the last day of such
Interest Period and (d) as to any Loan, the date of any
repayment or prepayment made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a)
initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to
such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Borrower in its
notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six, as
selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days
prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business
Day unless the result of such extension would be to
carry such Interest Period into another calendar
month in which event such Interest Period shall end
on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend
beyond the date final payment is due on the Term
Loans shall end on such due date;
(iii) 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 a calendar month; and
(iv) the Borrower shall select Interest Periods so as not
to require a payment or prepayment of any Eurodollar
Loan during an Interest Period for such Loan.
"Interest Rate Protection Agreement": any interest
rate protection agreement, interest rate futures
contract, interest rate option, interest rate cap or
other interest rate hedge arrangement, to or under
which the Borrower or any of its Subsidiaries is a
party or a beneficiary on the date hereof or becomes a
party or a beneficiary after the date hereof.
"▇▇▇▇ ▇▇▇▇▇▇▇ Credit Agreement": the Amended and
Restated Timberlands Loan and Maintenance Agreement,
dated as of November 24, 1997, between Timberlands and
▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company, as in
effect on amended through the Closing Date and as
further amended or otherwise modified in accordance
with the terms of this Agreement.
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien
(statutory or other), charge or other security interest
or any preference, priority or other security agreement
or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any
conditional sale or other title retention agreement and
any capital lease having substantially the same
economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Timberlands
Guarantee, the Security Documents, the Intercreditor
Agreement and the Notes.
"Loan Party": each of the Borrower, Timberlands and
each Subsidiary of the Borrower and Timberlands that is
a party to a Loan Document (other than any such Person
which is only a party to an Acknowledgment and Consent
executed pursuant to a Security Document).
"Management Contracts": the collective reference to
(i) the Paper Company Management Contract and (ii) the
▇▇▇▇▇ Management Contract.
"Material Adverse Effect": a material adverse effect
on (a) the Transaction, (b) the business, assets,
property, condition (financial or otherwise) or
prospects of (i) the Borrower and its Applicable
Subsidiaries taken as a whole or (ii) Timberlands and
▇▇▇▇▇ and their respective Subsidiaries, taken as a
whole or (c) the validity or enforceability of any
material provision of this Agreement or any of the
other Loan Documents or the rights or remedies of the
Agents or the Lenders hereunder or thereunder.
"Material Environmental Amount": an amount or
amounts payable by Timberlands, ▇▇▇▇▇ and/or their
respective Subsidiaries in excess of $1,000,000 in the
aggregate during any fiscal quarter, $3,500,000 in the
aggregate during any four consecutive fiscal quarters
or $7,000,000 in the aggregate after the Closing Date
for remedial costs, compliance costs, compensatory
damages, punitive damages, fines, penalties or any
combination thereof.
"Materials of Environmental Concern": any gasoline
or petroleum (including crude oil or any fraction
thereof) or petroleum products or any hazardous or
toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Law,
including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde
insulation, or that could result in liability under any
Environmental Law.
"Multiemployer Plan": a Plan which is a
multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
"Net Cash Proceeds": (a) in connection with any
Asset Sale or any Recovery Event, the proceeds thereof
in the form of cash and Cash Equivalents (including any
such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable
or purchase price adjustment receivable or otherwise,
but only as and when received) of such Asset Sale or
Recovery Event, net of any amount required to be put
into escrow, or otherwise paid, under the ▇▇▇▇ ▇▇▇▇▇▇▇
Credit Agreement, attorneys' fees, accountants' fees,
investment banking fees, amounts required to be applied
to the repayment of Indebtedness secured by a Lien
expressly permitted hereunder on any asset which is the
subject of such Asset Sale or Recovery Event (other
than any Lien pursuant to a Security Document) and
other customary fees and expenses actually incurred in
connection therewith and net of any taxes of the entity
in respect of the Asset Sale or Recovery Event and any
Partner Taxes paid or reasonably estimated to be
payable as a result thereof and (b) in connection with
any issuance or sale of debt or equity securities in a
primary offering or instruments or the incurrence of
loans, the cash proceeds received from such issuance or
incurrence, net of attorneys' fees, investment banking
fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses
actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 2.15(a).
"Non-U.S. Lender": as defined in Section 2.15(d).
"Notes": the collective reference to any promissory
note evidencing Loans.
"Obligations": the unpaid principal of and interest
on (including, without limitation, interest accruing
after the maturity of the Loans and interest accruing
after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is
allowed in such proceeding) the Loans and all other
obligations and liabilities of the Borrower to the
Administrative Agent or to any Lender (or, in the case
of Interest Rate Protection Agreements and Currency
Swap Agreements, any affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with,
this Agreement, any other Loan Document, any Interest
Rate Protection Agreement or Currency Swap Agreement
entered into with any Lender or any affiliate of any
Lender or any other document made, delivered or given
in connection herewith or therewith, whether on account
of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without
limitation, all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender
that are required to be paid by the Borrower pursuant
hereto) or otherwise.
"Other Taxes": any and all present or future stamp
or documentary taxes or any other excise or property
taxes, charges or similar levies arising from
any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect
to, this Agreement.
"Paper Company": Bear Island Paper Company, LLC, a
Virginia limited liability company.
"Paper Company Loan": the collective reference to
the loans made pursuant to the Paper Company Loan
Agreement.
"Paper Company Loan Agreement": the Credit
Agreement, dated as of December 1, 1997, among the
Paper Company, the lenders from time to time parties
thereto, and Toronto-Dominion (Texas), Inc., as
Administrative Agent, as amended, supplemented or
otherwise modified from time to time.
"Paper Company Loan Documents": the meaning ascribed
to "Loan Documents" in the Paper Company Loan
Agreement.
"Paper Company Management Contract": the Management
Services Agreement, dated as of December 1, 1997,
between the Borrower and the Paper Company, as in
effect on the Closing Date and as it may be amended,
supplemented or otherwise modified from time to time in
accordance with the Paper Company Loan Agreement.
"Paper Company Term Loan": the collective reference
to the Term Loans made pursuant to the Paper Company
Loan Agreement.
"Participant": as defined in Section 9.6(b).
"Partner Taxes": with respect to the Borrower or
Timberlands or any of their Subsidiaries, the amount
(without duplication) sufficient to permit the direct
and indirect owners of equity interests of such entity
to pay the federal, state and local income taxes and
any foreign taxes imposed on them as a result of their
ownership of interests in such entity.
"Payment Office": the office of the Administrative
Agent set forth in Section 9.2.
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA
(or any successor).
"Person": an individual, partnership, corporation,
limited liability company, business trust, joint stock
company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit
plan which is covered by ERISA and in respect of which
the Borrower or a Commonly Controlled Entity is (or, if
such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pro Forma Balance Sheet": as defined in Section 3.1(a).
"Projections": as defined in Section 5.2(c).
"Properties": as defined in Section 3.17.
"Property": any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed
and whether tangible or intangible, including, without
limitation, Capital Stock.
"Recovery Event": any settlement of or payment in
excess of $250,000 in respect of any property or
casualty insurance claim or any condemnation proceeding
relating to any asset of ▇▇▇▇▇ or Timberlands, or any
of their Subsidiaries.
"Register": as defined in Section 9.6(d).
"Regulation G": Regulation G of the Board as in
effect from time to
time.
"Regulation U": Regulation U of the Board as in
effect from time to time.
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds
received in connection therewith which are not applied
to prepay the Term Loans pursuant to Section 2.7(b) or
(d) as a result of the delivery of a Reinvestment
Notice.
"Reinvestment Event": any Recovery Event or
Disposition of land, equipment or obsolete or worn out
property in the ordinary course of business in respect
of which the Borrower has delivered a Reinvestment
Notice.
"Reinvestment Notice": a written notice executed by
a Responsible Officer stating that no Event of Default
has occurred and is continuing and that the Borrower,
Timberlands or ▇▇▇▇▇ or their Subsidiaries, as the case
may be (directly or indirectly through a Subsidiary),
intends and expects to use all or a specified portion
of the Net Cash Proceeds of a Recovery Event or
Disposition of land, equipment or obsolete or worn out
property in the ordinary course of business to acquire
assets, excluding the purchase of farm land.
"Reinvestment Prepayment Amount": with respect to
any Reinvestment Event, the Reinvestment Deferred
Amount relating thereto less any amount expended prior
to the relevant Reinvestment Prepayment Date to acquire
assets useful in the business of Timberlands or ▇▇▇▇▇
or their Subsidiaries, as the case may be, excluding
the purchase of farm land.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date
occurring 90 days after such Reinvestment Event and (b)
the date on which the Borrower shall have determined
not to, or shall have otherwise ceased to, acquire
assets useful in the business of Timberlands or ▇▇▇▇▇
or their Subsidiaries, as the case may be, with all or
any portion of the relevant Reinvestment Deferred
Amount.
"Reorganization": with respect to any Multiemployer
Plan, the condition that such plan is in reorganization
within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in
Section 4043(c) of ERISA, other than those events as to
which the thirty day notice period is waived under
applicable regulations.
"Required Lenders": the holders of more than 66-2/3%
of (a) until the Closing Date, the Commitments and (b)
thereafter, the sum of (i) the aggregate unpaid
principal amount of the Term Loans and (ii) the Total
Revolving Credit Commitments or, if the Revolving
Credit Commitments have been terminated, the Total
Revolving Extensions of Credit.
"Requirement of Law": as to any Person, the
Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person,
and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or
binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Responsible Officer": the chief executive officer,
president, any vice president or chief financial
officer of the Borrower or of any Applicable
Subsidiary, as appropriate, but in any event, with
respect to financial matters, the chief financial
officer of the Borrower or of any Applicable
Subsidiary, as appropriate.
"Retiring Partners": as defined in the recitals hereto.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender, if any, to make Revolving
Credit Loans in an aggregate principal amount not to
exceed the amount set forth under the heading
"Revolving Credit Commitment" opposite such Lender's
name on Schedule 1.1A, as the same may be changed from
time to time pursuant to the terms hereof. The original
amount of the Total Revolving Credit Commitments is
$3,000,000.
"Revolving Credit Commitment Period": the period
from and including the Closing Date to the Revolving
Credit Termination Date.
"Revolving Credit Lender": each Lender which has a
Revolving Credit Commitment or which has made Revolving
Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4.
"Revolving Credit Percentage": as to any Revolving
Credit Lender at any time, the percentage which such
Lender's Revolving Credit Commitment then constitutes
of the Total Revolving Credit Commitments (or, at any
time after the Revolving Credit Commitments shall have
expired or terminated, the percentage which the
aggregate principal amount of such Lender's Revolving
Credit Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Credit
Loans then outstanding).
"Revolving Credit Termination Date": December 31, 1999.
"Second Priority Note Indenture": the meaning
ascribed to such term in the Paper Company Loan
Agreement.
"Second Priority Note Security Documents": the
meaning ascribed to such term in the Paper Company Loan
Agreement.
"Second Priority Notes": the meaning ascribed to
such term in the Paper Company Loan Agreement.
"Security Documents": the collective reference to
the Cash Collateral Agreement, the ▇▇▇▇▇ Pledge
Agreement, the Timberlands Pledge Agreement and all
other security documents hereafter delivered to the
Administrative Agent granting a Lien on any Property of
any Person to secure the obligations and liabilities of
any Loan Party under any Loan Document.
"Single Employer Plan": any Plan which is covered by
Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person,
means that, as of any date of determination, (a) the
amount of the "present fair saleable value" of the
assets of such Person will, as of such date, exceed the
amount of all "liabilities of such Person, contingent
or otherwise", as of such date, as such quoted terms
are determined in accordance with applicable federal
and state laws governing determinations of the
insolvency of debtors, (b) the present fair saleable
value of the assets of such Person will, as of such
date, be greater than the amount that will be required
to pay the liability of such Person on its debts as
such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small
amount of capital with which to conduct its business,
and (d) such Person will be able to pay its debts as
they mature. For purposes of this definition, (i)
"debt" means liability on a "claim", and (ii) "claim"
means any (x) right to payment, whether or not such a
right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or
(y) right to an equitable remedy for breach of
performance if such breach gives rise to a right to
payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent,
matured or unmatured, disputed, undisputed, secured or
unsecured.
"▇▇▇▇▇": F.F. ▇▇▇▇▇, Inc., a Quebec corporation.
"▇▇▇▇▇ Management Contract": the collective
reference to the Management and Administrative Services
Agreement dated January 1, 1990 and the Manufacturer's
Representative Agreement, dated January 1, 1990, in
each case between ▇▇▇▇▇-▇▇▇▇▇ and ▇▇▇▇▇, as in effect
on the Closing Date and as it may be amended,
supplemented or otherwise modified from time to time in
accordance with the terms of this Agreement and the
Paper Company Loan Agreement.
"▇▇▇▇▇ Partners": F.F. ▇▇▇▇▇, Inc. & Partners,
Limited Partnership, a Subsidiary of ▇▇▇▇▇.
"▇▇▇▇▇ Pledge Agreement": collectively, the ▇▇▇▇▇
Pledge Agreement to be executed and delivered by
▇▇▇▇▇-▇▇▇▇▇ under New York law and the ▇▇▇▇▇ Hypothec
Agreement to be executed and delivered by ▇▇▇▇▇-▇▇▇▇▇
under Quebec law, substantially in the form of Exhibit
C-1, as the same may be amended, supplemented or
otherwise modified from time to time.
"Subsidiary": as to any Person, a corporation,
partnership, limited liability company or other entity
of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such
other ownership interests having such power only by
reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of
such corporation, partnership or other entity are at
the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary"
or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Term Loan": as defined in Section 2.1.
"Term Loan Commitment": as to any Lender, the
obligation of such Lender, if any, to make a Term Loan
to the Borrower hereunder in a principal amount not to
exceed the amount set forth under the heading "Term
Loan Commitment" opposite such Lender's name on
Schedule 1.1A. The initial aggregate amount of the Term
Loan Commitments is $32,000,000.
"Term Loan Lender": each Lender which has a Term
Loan Commitment or which has made a Term Loan.
"Term Loan Percentage": as to any Lender at any
time, the percentage which such Lender's Term Loan
Commitment then constitutes of the aggregate Term Loan
Commitments (or, at any time after the Closing Date,
the percentage which the aggregate principal amount of
such Lender's Term Loans then outstanding constitutes
of the aggregate principal amount of the Term Loans
then outstanding).
"Timberlands": as defined in the recitals hereto.
"Timberlands Guarantee": the Timberlands Guarantee
to be executed and delivered by Timberlands,
substantially in the form of Exhibit A, as the same may
be amended, supplemented or otherwise modified from
time to time.
"Timberlands Percentage": on any date, the ratio
(expressed as a percentage) of (i) the Aggregate
Exposure of all Lenders on such date to (ii) the sum of
(A) the Aggregate Exposure of all Lenders on such date
plus (B) the aggregate outstanding principal amount of
the Paper Company Loan on such date and the aggregate
undrawn amounts of the commitments under the Paper
Company Loan Agreement.
"Timberlands Pledge Agreement": the Timberlands
Pledge Agreement to be executed and delivered by the
Borrower, substantially in the form of Exhibit B, as
the same may be amended, supplemented or otherwise
modified from time to time.
"Timberlands Wood Supply Contract": the Wood Supply
Agreement between Timberlands and the Paper Company
dated as of December 1, 1997, as amended prior to the
Closing Date and provided to the Administrative Agent,
as amended or otherwise modified in the ordinary course
of business and on arms' length terms (notice of which
amendments will be given by the Borrower to the
Administrative Agent within 30 days after the execution
thereof).
"Total Revolving Credit Commitments": at any time,
the aggregate amount of the Revolving Credit
Commitments at such time.
"Total Revolving Extensions of Credit": at any time,
the aggregate outstanding principal amount of the
Revolving Credit Loans of the Revolving Credit Lenders
at such time.
"Trade Payables": with respect to any Person,
accounts payable incurred in the ordinary course of
such Person's business.
"Transaction": as defined in the preamble hereto.
"Transferee": as defined in Section 9.15.
"Trustee": Crestar Bank, a Virginia banking
corporation, as trustee under the Second Priority Note
Indenture.
"Type": as to any Loan, its nature as a Base Rate
Loan or a Eurodollar Loan.
"Wholly Owned Subsidiary": as to any Person, any
other Person all of the Capital Stock of which (other
than directors' qualifying shares required by law) is
owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in the other Loan Documents or any
certificate or other document made or delivered pursuant hereto or
thereto.
(b) As used herein and in the other Loan Documents,
and any certificate or other document made or delivered pursuant hereto
or thereto, accounting terms not defined in Section 1.1 and accounting
terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of such
terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments; Revolving Credit
commitments. (a) Subject to the terms and conditions hereof, each Term
Loan Lender severally agrees to make a term loan (a "Term Loan") to the
Borrower on the Closing Date in an amount not to exceed the amount of the
Term Loan Commitment of such Lender. The Term Loans may from time to time
be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.2 and
2.8.
(b) Subject to the terms and conditions hereof, each
Revolving Credit Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") to the Borrower from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at
any one time outstanding which does not exceed the amount of such
Lender's Revolving Credit Commitment. During the Revolving Credit
Commitment Period the Borrower may use the Revolving Credit Commitments
by borrowing, prepaying the Revolving Credit Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
The Revolving Credit Loans may from time to time be Eurodollar Loans or
Base Rate Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.5 and 2.8, provided
that no Revolving Credit Loan shall be made as a Eurodollar Loan after
the day that is one month prior to the Revolving Credit Termination Date.
2.2 Procedure for Borrowing. (a) The Borrower shall
give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 10:00 A.M., New York City
time, one Business Day prior to the anticipated Closing Date) requesting
that the Lenders make the Term Loans on the Closing Date and specifying
the amount to be borrowed. The Term Loans made on the Closing Date shall
initially be Base Rate Loans and may thereafter be converted into
Eurodollar Loans in accordance with Section 2.8. Upon receipt of such
notice the Administrative Agent shall promptly notify each Lender
thereof. Not later than 12:00 Noon, New York City time, on the Closing
Date each Lender shall make available to the Administrative Agent at the
Funding Office an amount in immediately available funds equal to the Term
Loan or Term Loans to be made by such Lender. The Administrative Agent
shall make available to the Borrower the aggregate of the amounts made
available to the Administrative Agent by the Lenders in immediately
available funds.
(b) The Borrower may borrow under the Revolving
Credit Commitments during the Revolving Credit Commitment Period on any
Business Day, provided that the Borrower shall give the Administrative
Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, (a) three
Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) one Business Day prior to the requested
Borrowing Date, in the case of Base Rate Loans), specifying (i) the
amount and Type of Revolving Credit Loans to be borrowed, (ii) the
requested Borrowing Date and (iii) in the case of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths
of the initial Interest Period therefor. Any Revolving Credit Loans made
on the Closing Date shall initially be Base Rate Loans but thereafter may
be converted in accordance with Section 2.8. Each borrowing under the
Revolving Credit Commitments shall be in an amount equal to (x) in the
case of Base Rate Loans, $100,000 or a whole multiple of $100,000 in
excess thereof (or, if the then aggregate Available Revolving Credit
Commitments are less than $100,000, such lesser amount) and (y) in the
case of Eurodollar Loans, $100,000 or a whole multiple of $100,000 in
excess thereof. Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Revolving Credit Lender
thereof. Each Revolving Credit Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for
the account of the Borrower at the Funding Office prior to 12:00 Noon,
New York City time, on the Borrowing Date requested by the Borrower in
funds immediately available to the Administrative Agent. Such borrowing
will then be made available to the Borrower by the Administrative Agent
in like funds as received by the Administrative Agent.
2.3 Repayment of Loans. (a) The entire outstanding
principal amount of each Term Loan shall mature on December 31, 1999.
(b) The Borrower shall repay all outstanding
Revolving Credit Loans on the Revolving Credit Termination Date.
2.4 Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Administrative
Agent for the account of the appropriate Lender (i) the then unpaid
principal amount of each Revolving Credit Loan of such Revolving Credit
Lender on the Revolving Credit Termination Date, or on such earlier date
on which the Loans become due and payable pursuant to Section 7, and (ii)
the principal amount of each Term Loan on December 31, 1999, or on such
earlier date on which the Term Loans become due and payable pursuant to
Section 7. The Borrower hereby further agrees to pay interest on the
unpaid principal amount of the Loans from time to time outstanding from
the date hereof until payment in full thereof at the rates per annum, and
on the dates, set forth in Section 2.10.
(b) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing indebtedness of the
Borrower to such Lender resulting from each Loan of such Lender from time
to time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Agreement.
(c) The Administrative Agent, on behalf of the
Borrower, shall maintain the Register pursuant to Section 9.6(e), and a
subaccount therein for each Lender, in which shall be recorded (i) the
amount of each Loan made hereunder and any Note evidencing such Loan, the
Type thereof and each Interest Period applicable thereto, (ii) the amount
of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) both the amount of
any sum received by the Administrative Agent hereunder from the Borrower
and each Lender's share thereof.
(d) The entries made in the Register and the
accounts of each Lender maintained pursuant to Section 2.4(b) shall, to
the extent permitted by applicable law and absent manifest error, be
prima facie evidence of the existence and amounts of the obligations of
the Borrower therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain the Register or any such
account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans
made to such Borrower by such Lender in accordance with the terms of this
Agreement.
(e) The Borrower agrees that, upon the request to
the Administrative Agent by any Lender, the Borrower will execute and
deliver to such Lender a promissory note of the Borrower evidencing any
Term Loans or Revolving Credit Loans, as the case may be, of such Lender,
substantially in the form of Exhibit I-1 or I-2, respectively, with
appropriate insertions as to date and principal amount.
2.5 Commitment Fees, etc. (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Revolving Credit
Lender a commitment fee for the period from and including the Closing
Date to the last day of the Revolving Credit Commitment Period, computed
at the rate of .50% per annum on the average daily amount of the
Available Revolving Credit Commitment of such Lender during the period
for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Revolving Credit
Termination Date, commencing on the first of such dates to occur after
the date hereof.
(b) The Borrower agrees to pay to the Administrative
Agent the fees in the amounts and on the dates from time to time agreed
to in writing by the Borrower and the Administrative Agent.
2.6 Optional Termination of Revolving Credit
Commitments; Optional Prepayments. (a) The Borrower shall have the right,
upon not less than three Business Days' notice to the Administrative
Agent, to terminate the Revolving Credit Commitments or, from time to
time, to reduce the amount of the Revolving Credit Commitments; provided
that no such termination or reduction of Revolving Credit Commitments
shall be permitted if, after giving effect thereto and to any prepayments
of the Revolving Credit Loans made on the effective date thereof, the
Total Revolving Extensions of Credit would exceed the Total Revolving
Credit Commitments. Any such reduction shall be in an amount equal to
$1,000,000, or in increments of $500,000 in excess thereof, and shall
reduce permanently the Revolving Credit Commitments then in effect.
(b) The Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty,
upon irrevocable written or telephonic (promptly confirmed in writing)
notice delivered to the Administrative Agent at least three Business Days
prior thereto in the case of Eurodollar Loans and at least one Business
Day prior thereto in the case of Base Rate Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is
of Eurodollar Loans or Base Rate Loans; provided, that if a Eurodollar
Loan is prepaid on any day other than the last day of the Interest Period
applicable thereto, the Borrower shall also pay any amounts owing
pursuant to Section 2.16. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
If any such notice is given, the amount specified in such notice shall be
due and payable on the date specified therein, together with accrued
interest to such date on the amount prepaid. Partial prepayments of Term
Loans shall be in an aggregate principal amount of $500,000 or a whole
multiple thereof, and partial prepayments of Revolving Credit Loans shall
be in an aggregate amount of $100,000 or whole multiple thereof.
2.7 Mandatory Prepayments and Commitment
Restrictions. (a) If on any date any Capital Stock shall be issued (other
than to the Borrower or Timberlands or any of its Subsidiaries), or
Indebtedness shall be incurred, by Timberlands or any of its Subsidiaries
(excluding any Indebtedness incurred in accordance with Section 6.2(a)
through (f) and (h) through (m) as in effect on the date of this
Agreement), an amount equal to 100% of the Net Cash Proceeds thereof
shall be applied on the date of such issuance or incurrence toward the
prepayment of the Term Loans.
(b) If on any date the Borrower or any of its
Applicable Subsidiaries (other than ▇▇▇▇▇ and its Subsidiaries) shall
receive Net Cash Proceeds from any Asset Sale or Recovery Event then,
unless a Reinvestment Notice shall have been delivered in respect
thereof, such Net Cash Proceeds shall be applied within 30 days after
such date toward the prepayment of the Term Loans net of any federal,
state, local and foreign taxes required to be paid by the Borrower or any
direct or indirect owner of the Borrower as a result of any actual or
deemed distributions made by an Applicable Subsidiary in order to enable
the Borrower to make such application. In addition, on each Reinvestment
Prepayment Date, an amount equal to the Reinvestment Prepayment Amount
with respect to the relevant Reinvestment Event shall be applied toward
the prepayment of the Term Loans net of any federal, state, local and
foreign taxes required to be paid by the Borrower or any direct or
indirect owner of the Borrower as a result of any actual or deemed
distributions made by an Applicable Subsidiary in order to enable the
Borrower to make such application.
(c) If any dividends or distributions shall be made
by Timberlands to the Borrower, excluding distributions in an amount
equal to Partner Taxes in respect of the income of Timberlands, an amount
equal to 100% of such dividends or distributions net of any federal,
state, local and foreign taxes required to be paid by the Borrower or any
direct or indirect owner of the Borrower as a result of such dividend or
distribution shall be applied by the Borrower on the date of such
distribution toward the prepayment of the Term Loans.
(d) If on any date prior to the date on which the
▇▇▇▇▇ Pledge Agreement shall have terminated in accordance with the terms
thereof any Capital Stock of ▇▇▇▇▇ shall be issued other than to
▇▇▇▇▇-▇▇▇▇▇, an amount shall be applied on the date of such issuance
toward the prepayment of the Term Loans equal to the Timberlands
Percentage of the Net Cash Proceeds thereof net of any federal, state,
local and foreign taxes required to be paid by the Borrower or any direct
or indirect owner of the Borrower as a result of any actual or deemed
distributions made by ▇▇▇▇▇ in order to enable the Borrower to make such
application. If on any date prior to the date on which the ▇▇▇▇▇ Pledge
Agreement shall have terminated in accordance with the terms thereof
▇▇▇▇▇ or any of its Subsidiaries shall receive Net Cash Proceeds from any
Asset Sale or Recovery Event then, unless a Reinvestment Notice shall
have been delivered in respect thereof, an amount shall be applied within
30 days after such date toward the prepayment of the Term Loans equal to
the Timberlands Percentage of the Net Cash Proceeds thereof net of any
federal, state, local and foreign taxes required to be paid by the
Borrower or any direct or indirect owner of the Borrower as a result of
any actual or deemed distributions made by ▇▇▇▇▇ in order to enable the
Borrower to make such application; provided, that with respect to any
Asset Sale by ▇▇▇▇▇ Partners, the Net Cash Proceeds required to be
applied toward prepayment pursuant to this paragraph (d) shall also be
net of any portion thereof attributable to equity interests in ▇▇▇▇▇
Partners held by Persons other than ▇▇▇▇▇. In addition, on each
Reinvestment Prepayment Date with respect to ▇▇▇▇▇, an amount shall be
applied toward the prepayment of the Term Loans equal to the Timberlands
Percentage of the Reinvestment Prepayment Amount with respect to the
relevant Reinvestment Event net of any federal, state, local and foreign
taxes required to be paid by the Borrower or any direct or indirect owner
of the Borrower as a result of any actual or deemed distributions made by
▇▇▇▇▇ in order to enable the Borrower to make such application; provided,
that with respect to any Asset Sale by ▇▇▇▇▇ Partners, the Net Cash
Proceeds required to be applied toward prepayment pursuant to this
paragraph (d) shall also be net of any portion thereof attributable to
equity interests in ▇▇▇▇▇ Partners held by Persons other than ▇▇▇▇▇.
(e) The application of any prepayment pursuant to
Section 2.7 shall be made first to Base Rate Loans and second to
Eurodollar Loans. Each prepayment of the Loans under Section 2.7 shall be
accompanied by accrued interest to the date of such prepayment on the
amount prepaid.
(f) After the Term Loans have been repaid in full,
all amounts required by this Section to be applied toward prepayment of
the Term Loans shall, instead, be applied to the automatic permanent
reduction of the Revolving Credit Commitments, accompanied by prepayment
of the Revolving Credit Loans by the amount, if any, by which the
outstanding principal amount thereof exceeds the Revolving Credit
Commitments as so reduced.
2.8 Conversion and Continuation Options. (a) The
Borrower may elect from time to time to convert Eurodollar Loans to Base
Rate Loans by giving the Administrative Agent at least one Business Day's
prior irrevocable telephonic notice (promptly confirmed in writing) of
such election, provided that any such conversion of Eurodollar Loans may
only be made on the last day of an Interest Period with respect thereto.
The Borrower may elect from time to time to convert Base Rate Loans to
Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election (which notice
shall specify the length of the initial Interest Period therefor),
provided that no Base Rate Loan may be converted into a Eurodollar Loan
(i) when any Event of Default has occurred and is continuing or (ii)
after the date that is one month prior to the maturity date of the Term
Loan Facility. Upon receipt of any such notice the Administrative Agent
shall promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such
upon the expiration of the then current Interest Period with respect
thereto by the Borrower giving irrevocable notice to the Administrative
Agent, in accordance with the applicable provisions of the term "Interest
Period" set forth in Section 1.1, of the length of the next Interest
Period to be applicable to such Loans, provided that no Eurodollar Loan
may be continued as such (i) when any Event of Default has occurred and
is continuing and the Administrative Agent has or the Required Lenders
have determined in its or their sole discretion not to permit such
continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of the Term Loan Facility, and
provided, further, that if the Borrower shall fail to give any required
notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso such Loans shall be
automatically converted to Base Rate Loans on the last day of such then
expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
2.9 Minimum Amounts and Maximum Number of Eurodollar
Tranches. Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of
Eurodollar Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections
so that, (a) after giving effect thereto, the aggregate principal amount
of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to (i) with respect to Term Loans, $1,000,000 or a whole multiple of
$250,000 in excess thereof and (ii) with respect to Revolving Credit
Loans, $100,000 or whole multiples thereof and (b) no more than seven
Eurodollar Tranches shall be outstanding at any one time.
2.10 Interest Rates and Payment Dates. (a) Each
Eurodollar Loan shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to the Eurodollar
Rate determined for such day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a
rate per annum equal to the Base Rate plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount
of any Loan shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), all outstanding Loans (whether or not
overdue) shall bear interest at a rate per annum which is equal to the
rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2%, and (ii) if all or a portion of any
interest payable on any Loan or any commitment fee or other amount
payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate applicable to Base Rate
Loans plus 2% (or, in the case of any such other amounts, the Base Rate
plus 2%), in each case, with respect to clauses (i) and (ii) above, from
the date of such non-payment until such amount is paid in full (as well
after as before judgment).
(d) Interest shall be payable in arrears on each
Interest Payment Date, provided that interest accruing pursuant to
paragraph (c) of this Section shall be payable from time to time on
demand.
2.11 Computation of Interest and Fees. (a) Interest,
fees and commissions payable pursuant hereto shall be calculated on the
basis of a 360-day year for the actual days elapsed, except that, with
respect to Base Rate Loans the rate of interest on which is calculated on
the basis of the Prime Rate, the interest thereon shall be calculated on
the basis of a 365- (or 366-, as the case may be) day year for the actual
days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the relevant Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from
a change in the Base Rate or the Eurocurrency Reserve Requirements shall
become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of the effective
date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the quotations used
by the Administrative Agent in determining any interest rate pursuant to
Section 2.10(a).
2.12 Inability to Determine Interest Rate. If prior
to the first day of any Interest Period:
(a) the Administrative Agent shall have determined
(which determination shall be conclusive and binding
upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, or
(b) the Administrative Agent shall have received
notice from the Required Lenders that the Eurodollar
Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost
to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans
during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof
to the Borrower and the relevant Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans requested to
be made on the first day of such Interest Period shall be made as Base
Rate Loans, (y) any Loans that were to have been converted on the first
day of such Interest Period to Eurodollar Loans shall be continued as
Base Rate Loans and (z) any outstanding Eurodollar Loans shall be
converted, on the first day of such Interest Period, to Base Rate Loans.
Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans shall be continued as such, nor shall the
Borrower have the right to convert Loans to Eurodollar Loans.
2.13 Pro Rata Treatment and Payments. (a) Each
borrowing by the Borrower from the Lenders hereunder, each payment by the
Borrower on account of any commitment fee and any reduction of the
Commitments of the Lenders shall be made pro rata according to the
respective Term Loan Percentages or Revolving Credit Percentages, as the
case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Term Loans or
Revolving Credit Loans shall be made pro rata according to the respective
outstanding principal amounts of the Term Loans or Revolving Credit
Loans, as the case may be, then held by the Lenders. Amounts prepaid on
account of the Term Loans may not be reborrowed.
(c) All payments (including prepayments) to be made
by the Borrower hereunder, whether on account of principal, interest,
fees or otherwise, shall be made without setoff or counterclaim and shall
be made prior to 12:00 Noon, New York City time, on the due date thereof
to the Administrative Agent, for the account of the Lenders, at the
Payment Office, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received. If any payment hereunder
(other than payments on the Eurodollar Loans) becomes due and payable on
a day other than a Business Day, such payment shall be extended to the
next succeeding Business Day. If any payment on a Eurodollar Loan becomes
due and payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day unless the result
of such extension would be to extend such payment into another calendar
month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of
principal pursuant to the preceding two sentences, interest thereon shall
be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such Lender
will not make the amount that would constitute its share of the borrowing
available to the Administrative Agent, the Administrative Agent may
assume that such Lender is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount.
If such amount is not made available to the Administrative Agent by the
required time on the borrowing date, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the
period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted
to any Lender with respect to any amounts owing under this Section
2.13(d) shall be conclusive in the absence of manifest error. If the
Administrative Agent makes the amount of such Lender's share of such
borrowing available to the Borrower and such Lender fails to make such
amount available to the Administrative Agent within three Business Days
of the Closing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum
applicable to Base Rate Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been
notified in writing by the Borrower prior to the date of any payment
being made hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the
Borrower is making such payment, and the Administrative Agent may, but
shall not be required to, in reliance upon such assumption, make
available to the Lenders their respective pro rata shares of a
corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date,
the Administrative Agent shall be entitled to recover, on demand, from
each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing
herein shall be deemed to limit the rights of the Administrative Agent or
any Lender against the Borrower.
2.14 Requirements of Law. (a) If the adoption of or
any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank
or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement or any
Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof
(except for Non- Excluded Taxes and Other Taxes covered
by Section 2.15 and changes in the rate of tax on the
overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender
which is not otherwise included in the determination of
the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans or to reduce
any amount receivable hereunder in respect thereof, then, in any such
case, upon receipt of a request certifying in reasonable detail the basis
therefor the Borrower shall promptly pay such Lender, upon its demand,
any additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable. If any Lender becomes
entitled to claim any additional amounts pursuant to this Section 2.14,
it shall promptly notify the Borrower (with a copy to the Administrative
Agent) of the event by reason of which it has become so entitled. The
Lender shall deliver a copy of any such certificate to the Administrative
Agent.
(b) If any Lender shall have determined that the
adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or compliance by
such Lender or any corporation controlling such Lender with any request
or directive regarding capital adequacy (whether or not having the force
of law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its
obligations hereunder or under to a level below that which such Lender or
such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a
written request certifying in reasonable detail the basis therefor, the
Borrower shall pay to such Lender such additional amount or amounts as
will compensate such Lender for such reduction.
(c) A certificate as to any additional amounts
payable pursuant to this Section 2.14 submitted by any Lender to the
Borrower (with a copy to the Administrative Agent) shall be conclusive in
the absence of manifest error. The obligations of the Borrower pursuant
to this Section 2.14 shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
2.15 Taxes. (a) All payments made by the Borrower
under this Agreement shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income
taxes, branch profit taxes and franchise taxes (imposed in lieu of net
income taxes) imposed on any Agent or any Lender as a result of a present
or former connection between such Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from such Agent or such Lender having
executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any
such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") or Other Taxes are
required to be withheld from any amounts payable to any Agent or any
Lender hereunder, the amounts so payable to such Agent or such Lender
shall be increased to the extent necessary to yield to such Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest
or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement, provided, however, that the Borrower
shall not be required to increase any such amounts payable to any Lender
with respect to any Non-Excluded Taxes (i) that are attributable to such
Lender's failure to comply with the requirements of paragraph (d) or (e)
of this Section or (ii) that are United States withholding taxes imposed
with respect to amounts payable to such Lender at the time the Lender
becomes a party to this Agreement (except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the Borrower with respect to such
Non-Excluded Taxes pursuant to this Section) or are imposed as a result
of action taken by the Lender.
(b) In addition, the Borrower shall pay any Other
Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes
are payable by the Borrower, as promptly as possible thereafter the
Borrower shall send to the Administrative Agent for the account of the
relevant Agent or Lender, as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes or Other
Taxes when due to the appropriate taxing authority or fails to remit to
the Agents the required receipts or other required documentary evidence,
the Borrower shall indemnify the Administrative Agent and the Lenders for
any incremental taxes, interest or penalties that may become payable by
any Agent or any Lender as a result of any such failure. The agreements
in this Section 2.15 shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
(d) Each Lender (or Participant) that is not a
"United States person" as defined in Section 7701(a)(3) of the Code or
any successor provision thereto (a "Non-U.S. Lender") shall deliver to
the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall
have been purchased or to the Borrower as required by law or regulation
in order to be eligible for an exemption from, or a reduced rate of,
withholding) two copies of either U.S. Internal Revenue Service Form 1001
or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of the
Code with respect to payments of "portfolio interest" a statement
substantially in the form of Exhibit J and a Form W-8, or any subsequent
versions thereof or successors thereto properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such forms
shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on
or before the date such Participant purchases the related participation).
In addition, each Non-U.S. Lender shall deliver such forms promptly upon
the obsolescence or invalidity of any form previously delivered by such
Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower
at any time it determines that it is no longer in a position to provide
any previously delivered certificate to the Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this Section 2.15(d), a
Non-U.S. Lender shall not be required to deliver any form pursuant to
this Section 2.15(d) that such Non-U.S. Lender is not legally able to
deliver.
(e) A Lender that is entitled to an exemption from
or reduction of non-U.S. withholding tax under the law of the
jurisdiction in which the Borrower is located, or any treaty to which
such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law
or reasonably requested by the Borrower, such properly completed and
executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided
that such Lender is legally entitled to complete, execute and deliver
such documentation and in such Lender's reasonable judgment such
completion, execution or submission would not materially prejudice the
legal position of such Lender.
2.16 Indemnity. The Borrower agrees to indemnify
each Lender and to hold each Lender harmless from any loss or expense
which such Lender may sustain or incur as a consequence of (a) default by
the Borrower in making a borrowing of, conversion into or continuation of
Eurodollar Loans after the Borrower has given a notice requesting the
same in accordance with the provisions of this Agreement, (b) default by
the Borrower in making any prepayment after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c)
the making of a prepayment of Eurodollar Loans on a day which is not the
last day of an Interest Period with respect thereto. Such indemnification
may include an amount equal to the excess, if any, of (i) the amount of
interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last
day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the
date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period
with leading banks in the interbank eurodollar market. A certificate as
to any amounts payable pursuant to this Section submitted to the Borrower
by any Lender shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment
of the Loans and all other amounts payable hereunder.
2.17 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this
Agreement, (a) the commitment of such Lender hereunder to make Eurodollar
Loans, continue Eurodollar Loans as such and convert Base Rate Loans to
Eurodollar Loans shall forthwith be cancelled and (b) such Lender's Loans
then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Base Rate Loans on the respective last days of the then
current Interest Periods with respect to such Loans or within such
earlier period as required by law. If any such conversion of a Eurodollar
Loan occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section 2.16.
2.18 Change of Lending Office. Each Lender agrees
that, upon the occurrence of any event giving rise to the operation of
Section 2.14, 2.15(a) or 2.17 with respect to such Lender, such Lender
will, if requested by the Borrower, use reasonable efforts (subject to
overall policy considerations of such Lender) to designate another
lending office for any Loans affected by such event with the object of
avoiding the consequences of such event; provided, that such designation
is made on terms that, in the sole judgment of such Lender, cause such
Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage. Each Lender further agrees that (i) after the
occurrence of any such event or if such Lender defaults in its obligation
to make a Loan hereunder and (ii) upon the request of the Borrower such
Lender will, at the expense of the Borrower, assign its Commitments and
Loans hereunder to a new financial institution designated by the Borrower
and if not already a Lender, consented to by the Administrative Agent
(which consent shall not be unreasonably withheld) upon receipt by such
Lender of all amounts owing to it hereunder, including all amounts
payable pursuant to Section 2.16 if such assignment were deemed to be a
prepayment. Nothing in this Section shall in any event affect or postpone
any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.14, 2.15(a) or 2.17.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into
this Agreement and to make the Loans, the Borrower hereby represents and
warrants to each Agent and each Lender that:
3.1 Financial Condition. (a) The unaudited pro forma
consolidated balance sheet of Timberlands and its consolidated
Subsidiaries as at September 30, 1997 (including the notes thereto) (the
"Pro Forma Balance Sheet"), copies of which have heretofore been
furnished to each Lender, has been prepared giving effect (as if such
events had occurred on such date) to (i) the consummation of the
Transaction, (ii) the Loans to be made on the Closing Date and the use of
proceeds thereof and (iii) the payment of fees and expenses in connection
with the foregoing. The Pro Forma Balance Sheet has been prepared based
on the best information available to Timberlands as of the date of
delivery thereof, and presents fairly in all material respects on a pro
forma basis the estimated financial position of Timberlands and its
consolidated Subsidiaries as at September 30, 1997, assuming that the
events specified in the preceding sentence had actually occurred at such
date.
(b) The audited consolidated balance sheets of (i)
the Borrower and its Subsidiaries existing at the time, (ii) ▇▇▇▇▇ and
its Subsidiaries and (iii) Timberlands, in each case as at December 31,
1995 and December 31, 1996 and the related consolidated statements of
income and of cash flows for the fiscal years ended on such dates,
reported on by and accompanied by an unqualified report from Coopers &
▇▇▇▇▇▇▇ L.L.P., present fairly in all material respects the consolidated
financial condition of the Borrower, ▇▇▇▇▇, Timberlands and their
respective Subsidiaries as at such date, and the consolidated results of
their operations and their consolidated cash flows for the respective
fiscal years then ended. Each of the unaudited consolidated balance sheet
of (i) the Borrower and its Subsidiaries, and (ii) Timberlands, and the
unaudited balance sheet of ▇▇▇▇▇ and F.F. ▇▇▇▇▇, Inc. Partners, Limited
Partnership, in each case as at September 30, 1997, and the related
unaudited consolidated statements of income and cash flows for the
nine-month period ended on such date, certified by a Responsible Officer,
present fairly in all material respects and present fairly the
consolidated financial condition of the Borrower, ▇▇▇▇▇, Timberlands and
their respective Subsidiaries as at such date, and the consolidated
results of their operations and their consolidated cash flows for the
nine-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved
by the aforementioned firm of accountants and disclosed therein). Except
for the Paper Company Loan, the Loan Documents and the Second Priority
Note Security Documents, neither the Borrower, ▇▇▇▇▇, Timberlands nor any
of their Subsidiaries, individually or collectively, has any material
Guarantee Obligation, contingent liability, liability for taxes,
long-term lease or unusual forward or long-term commitments, including,
without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that
is not reflected in the most recent financial statements referred to in
this paragraph (b). Except as set forth on Schedule 3.1(b), during the
period from December 31, 1996 to and including the date hereof there has
been no Disposition by the Borrower, ▇▇▇▇▇, Timberlands or any of their
Subsidiaries, individually or in the aggregate, of any material part of
their business or Property other than with respect to the payment of
dividends by ▇▇▇▇▇ and Timberlands prior to the Closing Date previously
disclosed to the Administrative Agent.
3.2 No Change. Except as set forth on Schedule
3.1(b), since December 31, 1996 there has been no development,
circumstance or event which has had or could reasonably be expected to
have a Material Adverse Effect.
3.3 Existence; Compliance with Law. Each of the
Borrower and its Applicable Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate or other power and authority, and the
legal right, to own and operate its Property, to lease the Property it
operates as lessee and to conduct the business in which it is currently
engaged, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where the failure so to
qualify, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate or other power and authority, and the
legal right, to make, deliver and perform the Loan Documents to which it
is a party and, in the case of the Borrower, to borrow hereunder. Each
Loan Party has taken all necessary corporate or other action to authorize
the execution, delivery and performance of the Loan Documents to which it
is a party and, in the case of the Borrower, to authorize the borrowings
on the terms and conditions of this Agreement. No consent or
authorization of, filing with, notice to or other act by or in respect
of, any Governmental Authority or any other Person is required in
connection with the Transaction and the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this
Agreement or any of the Loan Documents, except (i) consents,
authorizations, filings and notices which have been obtained or made and
are in full force and effect unless otherwise noted on Schedule 3.4 and
(ii) the filings referred to in Section 3.19. Each Loan Document has been
duly executed and delivered on behalf of each Loan Party party thereto.
This Agreement constitutes, and each other Loan Document upon execution
will constitute, a legal, valid and binding obligation of each Loan Party
party thereto, enforceable against each such Loan Party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or at law).
3.5 No Legal Bar. The execution, delivery and
performance of this Agreement and the other Loan Documents, the
borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any material Contractual Obligation of the
Borrower or any of its Applicable Subsidiaries and will not result in, or
require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or
any such Contractual Obligation (other than the Liens created by the
Security Documents). No Requirement of Law or Contractual Obligation
applicable to the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
3.6 No Material Litigation. No litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Borrower, threatened by
or against the Borrower or any of its Subsidiaries or against any of
their respective properties or revenues (a) with respect to any of the
Loan Documents or any of the transactions contemplated hereby or thereby,
or (b) which could reasonably be expected to have a Material Adverse
Effect.
3.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be expected
to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the
Borrower and its Applicable Subsidiaries has title in fee simple to, or a
valid leasehold interest in, all its real property, and good title to, or
a valid leasehold interest in, all its other Property, and none of such
Property is subject to any Lien except as permitted by Section 6.3.
3.9 Intellectual Property. The Borrower and each of
its Applicable Subsidiaries owns, or is licensed to use, all Intellectual
Property used in the conduct of its business as currently conducted. No
material claim has been asserted and is pending by any Person against the
Borrower or any Applicable Subsidiary challenging or questioning the use
of any such Intellectual Property of the Borrower or any of its
Applicable Subsidiaries or the validity or effectiveness of any such
Intellectual Property, nor does the Borrower know of any valid basis for
any such claim. The use of Intellectual Property, to the best of
Borrower's knowledge, by the Borrower and its Applicable Subsidiaries
does not infringe on the rights of any Person in any material respect.
3.10 Taxes. Each of the Borrower and each of its
Applicable Subsidiaries has filed or caused to be filed all Federal,
state and other material tax returns which are required to be filed and
has paid all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its Property and all other taxes,
fees or other charges imposed on it or any of its Property by any
Governmental Authority (other than, in each case, any the amount or
validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity
with GAAP have been provided on the books of the Borrower or its
Subsidiaries, as the case may be). Except to the extent permitted by
Section 6.3(a), no tax Lien has been filed. To the knowledge of the
Borrower, no claim is being asserted with respect to any such tax, fee or
other charge (other than in each case, any the amount or validity of
which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP
have been provided on the books of the Borrower or its Subsidiaries, as
the case may be).
3.11 Federal Regulations. No part of the proceeds of
any Loans will be used for "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under
Regulation G or Regulation U as now and from time to time hereafter in
effect or for any purpose which violates the provisions of the
Regulations of the Board. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative
Agent and each Lender a statement to the foregoing effect in conformity
with the requirements of FR Form G-3 or FR Form U-1 referred to in
Regulation G or Regulation U, as the case may be. Neither the Borrower
nor any of its Subsidiaries owns any "margin stock" as of the date
hereof.
3.12 Labor Matters. There are no strikes or other
labor disputes against the Borrower or any of Applicable its Subsidiaries
pending or, to the knowledge of the Borrower, threatened that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect.
3.13 ERISA. Neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section 412 of
the Code or Section 302 of ERISA) has occurred during the five-year
period prior to the date on which this representation is made or deemed
made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No
termination of a Single Employer Plan has occurred other than pursuant to
the provision for standard terminations under ERISA ss. 404(b), and no
Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single
Employer Plan (based on those assumptions used to fund such Plans) did
not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits by a material amount.
Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan which has
resulted or could reasonably be expected to result in a material
liability under ERISA, and neither the Borrower nor any Commonly
Controlled Entity would become subject to any material liability under
ERISA if the Borrower or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the valuation date
most closely preceding the date on which this representation is made or
deemed made. To the best of the Borrower's knowledge as of the Closing
Date no such Multiemployer Plan is in Reorganization or Insolvent.
3.14 Investment Company Act; Other Regulations. No
Loan Party is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of
1940, as amended. No Loan Party is subject to regulation under any
Requirement of Law (other than Regulation X of the Board) which limits
its ability to incur Indebtedness.
3.15 Subsidiaries. The Subsidiaries listed on
Schedule 3.15 constitute all the Subsidiaries of the Borrower as of the
Closing Date.
3.16 Use of Proceeds. The proceeds of the Term Loans
shall be used to finance the Transaction and the proceeds of the
Revolving Credit Loans shall be used to finance the Transaction, and for
working capital and general corporate purposes.
3.17 Environmental Matters. Other than exceptions to
any of the following that could not, individually or in the aggregate,
reasonably be expected to give rise to a Material Adverse Effect:
(a) The Borrower and its Applicable Subsidiaries:
(i) are, and within the period of all applicable statutes of limitation
have been, in compliance with all applicable Environmental Laws; (ii)
hold all Environmental Permits (each of which is in full force and
effect) required for any of their current operations or for any property
owned, leased, or otherwise operated by any of them (the "Properties");
(iii) are, and within the period of all applicable statutes of limitation
have been, in compliance with all of their Environmental Permits; and
(iv) reasonably believe that: each of their Environmental Permits will be
timely renewed and complied with, without material expense; any
additional Environmental Permits that may be required of any of them will
be timely obtained and complied with, without material expense; and
compliance with any Environmental Law that is or is expected to become
applicable to any of them will be timely attained and maintained, without
material expense.
(b) Materials of Environmental Concern are not
present at, on, under, in, or about any real property now or formerly
owned, leased or operated by the Borrower or any of its Applicable
Subsidiaries or at any other location (including, without limitation, any
location to which Materials of Environmental Concern have been sent for
re-use or recycling or for treatment, storage, or disposal) in
concentrations or conditions which could reasonably be expected to (i)
give rise to liability of the Borrower or any of its Applicable
Subsidiaries under any applicable Environmental Law or otherwise result
in any of them having to incur costs, or (ii) interfere with the
Borrower's or any of its Applicable Subsidiaries' continued operations,
or (iii) impair the fair saleable value of any real property owned or
leased by the Borrower or any of its Applicable Subsidiaries.
(c) There is no judicial, administrative, or
arbitral proceeding (including any notice of violation or alleged
violation) under or relating to any Environmental Law to which the
Borrower or any of its Applicable Subsidiaries is, or to the knowledge of
the Borrower will be, named as a party that is pending or, to the
knowledge of the Borrower, threatened.
(d) Neither the Borrower nor any of its Applicable
Subsidiaries has received any written request for information, or been
notified that it is a potentially responsible party under or relating to
the federal Comprehensive Environmental Response, Compensation, and
Liability Act or any similar Environmental Law, or with respect to any
Materials of Environmental Concern.
(e) Neither the Borrower nor any of its Applicable
Subsidiaries has entered into or agreed to any consent decree, order, or
settlement or other agreement, nor is subject to any judgment, decree, or
order or other agreement, in any judicial, administrative, arbitral, or
other forum, relating to compliance with or liability under any
Environmental Law.
(f) Neither the Borrower nor any of its Applicable
Subsidiaries has assumed or retained, by contract, any liabilities of any
kind, fixed or contingent, known or unknown, of any other person under
any Environmental Law or with respect to any Material of Environmental
Concern.
3.18 Accuracy of Information, etc. No statement or
information contained in this Agreement, any other Loan Document, the
Confidential Information Memorandum and the other documents, certificates
or statements furnished in writing to the Administrative Agent or the
Lenders or any of them, by or on behalf of any Loan Party for use in
connection with the transactions contemplated by this Agreement or the
other Loan Documents taken as a whole as of the date such statement,
information, document or certificate was so furnished (or, in the case of
the Confidential Information Memorandum, as of the Closing Date),
contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein
or therein not misleading. The projections and pro forma financial
information contained in the materials referenced above are based upon
good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is
not to be viewed as fact and that actual results during the period or
periods covered by such financial information may differ from the
projected results set forth therein by a material amount and such results
are not warranted to be obtained and no representation is made as to
disclosure of matters of a general economic nature or matters of public
knowledge that generally affect the industry in which ▇▇▇▇▇-▇▇▇▇▇ or any
of its Subsidiaries is involved. As of the Closing Date, the
representations and warranties of the Borrower, and to the best of the
Borrower's knowledge, the other parties to the Acquisition Agreement,
contained in the Acquisition Agreement are true and correct in all
material respects. There is no fact known to any Loan Party that could
reasonably be expected to have a Material Adverse Effect that has not
been expressly disclosed herein, in the other Loan Documents, in the
Confidential Information Memorandum or in any other documents,
certificates and statements furnished to the Administrative Agent and the
Lenders for use in connection with the transactions contemplated hereby
and by the other Loan Documents.
3.19 Security Documents. (a) The Cash Collateral
Agreement is effective to create in favor of the Administrative Agent,
for the benefit of the Lenders, a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. When
such Collateral is deposited in the Cash Collateral Account, the Cash
Collateral Agreement shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties
in such Collateral and the proceeds thereof, as security for the
Obligations (as defined in the Cash Collateral Agreement), in each case
prior and superior in right to any other Person.
(b) Each of the ▇▇▇▇▇ Pledge Agreement and the
Timberlands Pledge Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral described therein and
proceeds thereof. In the case of the Pledged Stock described in such
Pledge Agreements which constitutes certificated securities, when stock
certificates representing such Pledged Stock are delivered to the
Administrative Agent, and in the case of the other Collateral described
in such Pledge Agreements, when financing statements in appropriate form
are filed in the offices specified on Schedule 3.19, such Pledge
Agreements shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Collateral and the proceeds thereof, as security for the Secured
Obligations (as defined in such Pledge Agreements), in each case in favor
of the Agent (as defined in such Pledge Agreements) prior and superior in
right to any other Person.
3.20 Solvency. Each Loan Party is, and after giving
effect to the Transaction and the incurrence of all Indebtedness and
obligations being incurred in connection herewith and therewith will be
and will continue to be, Solvent as of the Closing Date.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Extension of Credit. The
agreement of each Lender to make the Loans requested to be made by it on
the Closing Date is subject to the satisfaction, prior to or concurrently
with the making of such Loan on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The Administrative Agent shall
have received (i) this Agreement, executed and
delivered by a duly authorized officer of the Borrower,
(ii) the Timberlands Guarantee, executed and delivered
by a duly authorized officer of Timberlands, (iii) the
Cash Collateral Agreement, executed and delivered by a
duly authorized officer of the Borrower, (iv) the ▇▇▇▇▇
Pledge Agreement and the Timberlands Pledge Agreement,
in each case executed and delivered by a duly
authorized officer of the Borrower and (vi) for the
account of any Lender requesting Notes in accordance
with Section 2.6(e), Notes conforming to the
requirements hereof and executed and delivered by a
duly authorized officer of the Borrower.
(b) Intercreditor Agreement. The Administrative
Agent shall have received the Intercreditor Agreement,
executed and delivered by the Trustee, the
Administrative Agent and Toronto-Dominion (Texas),
Inc., as administrative agent under the Paper Company
Loan Agreement.
(c) Acquisition, etc. The following transactions
shall have been consummated, in each case on terms and
conditions reasonably satisfactory to the Lenders:
(i) the Transaction shall have been consummated, and
no material provision of the Acquisition Agreement
or any related document shall have been waived,
amended, supplemented or otherwise modified without
the consent of the Administrative Agent;
(ii) the Borrower shall have paid the Retiring
Partners on the Closing Date cash in an amount not
exceeding an aggregate total of $35,000,000; and
(iii) the Borrower shall have deposited an amount no
less than the amount designated in the Cash
Collateral Agreement into the Cash Collateral
Account.
(d) Pro Forma Balance Sheet; Financial Statements.
The Lenders shall have received (i) the Pro Forma
Balance Sheet, (ii) audited consolidated financial
statements of the Borrower and its Subsidiaries
existing at the time for the 1995 and 1996 fiscal
years, (iii) unaudited interim consolidated financial
statements of the Borrower and its Subsidiaries
existing at the time, certified by a Responsible
Officer for the month of October 1997 and for the
ten-month period ended October 31, 1997, and such
financial statements shall not, in the reasonable
judgment of the Lenders, reflect any material adverse
change in the consolidated financial condition of the
Borrower and its Subsidiaries, as reflected in the
financial statements or projections contained in the
Confidential Information Memorandum except for items
described on Schedule 3.1(b), (iv) audited consolidated
financial statements of ▇▇▇▇▇ and its Subsidiaries and
Timberlands, in each case for the 1995 and 1996 fiscal
years and (v) unaudited interim financial statements of
▇▇▇▇▇ and F.F. ▇▇▇▇▇, Inc. & Partners, Limited
Partnership, and Timberlands, in each case certified by
a Responsible Officer, for the month of October 1997
and for the ten month period ended October 31, 1997,
and such financial statements shall not, in the
reasonable judgment of the Lenders, reflect any
material adverse change in the financial condition of
▇▇▇▇▇, F.F. ▇▇▇▇▇, Inc. & Partners, Limited
Partnership, or Timberlands, as reflected in the
financial statements or projections contained in the
Confidential Information Memorandum except as set forth
on Schedule 3.1(b).
(e) Approvals. Except as disclosed on Schedule 3.4
all governmental and third party approvals (including
consents) necessary in connection with the Transaction,
the continuing operations of the Borrower, its
Applicable Subsidiaries and the transactions
contemplated hereby shall have been obtained and be in
full force and effect, and all applicable waiting
periods shall have expired without any action being
taken or threatened by any competent authority which
would restrain, prevent or otherwise impose adverse
conditions on the Transaction or the financing
contemplated hereby.
(f) Related Agreements. The Administrative Agent
shall have received (in a form reasonably satisfactory
to the Administrative Agent), with a copy for each
Lender, true and correct copies, certified as to
authenticity by the Borrower, of the Acquisition
Agreement, the Second Priority Note Indenture, the ▇▇▇▇
▇▇▇▇▇▇▇ Credit Agreement, the Paper Company Loan
Agreement and such other documents or instruments as
may be reasonably requested by the Administrative
Agent, including, without limitation, a copy
of any material debt instrument, security agreement or
other material contract to which any Loan Party may be
a party.
(g) Paper Company Loan. All conditions precedent to
the making of the Paper Company Loan under the Paper
Company Loan Agreement shall have been satisfied, and
the Paper Company Term Loans shall be made concurrently
with the Term Loans on the Closing Date.
(h) Fees. The Lenders, the Administrative Agent
shall have received all fees required to be paid, and
all expenses for which invoices have been presented, on
or before the Closing Date.
(i) Business Plan. The Lenders shall have received a
satisfactory business plan for fiscal year 1997 and
satisfactory projections for ▇▇▇▇▇, Timberlands and
their Subsidiaries for the period from the Closing Date
through December 31, 1999.
(j) Lien Searches. The Administrative Agent shall
have received the results of a recent lien search in
each jurisdiction where any asset of any Loan Party is
located, and such search shall reveal no Liens on any
Collateral, including Liens granted to any other Loan
Party, except Liens permitted by Section 6.3 or Liens
to be discharged on or prior to the Closing Date.
(k) Closing Certificate. The Administrative Agent
shall have received, with a counterpart for each
Lender, a certificate of each Loan Party, dated the
Closing Date, substantially in the form of Exhibit F,
with appropriate insertions and attachments.
(l) Corporate and Other Proceedings and Corporate
and Other Documents. The Administrative Agent shall
have received, with a counterpart for each Lender, (i)
true and complete copies of the certificate of
incorporation and by-laws (or equivalents thereof) of
each Loan Party, together with a good standing
certificate from the Secretary of State (or similar
official) of its jurisdictions of incorporation
(provided that the good standing certificate for
Timberlands shall be received promptly after the
Closing Date), (ii) a certificate of each Loan Party,
dated the Closing Date, as to the incumbency and
signature of the officers of each Loan Party executing
any Loan Document, satisfactory in form and substance
to the Administrative Agent, (iii) a copy of the
resolutions, in form and substance reasonably
satisfactory to the Administrative Agent, of the Board
of Directors (or an equivalent thereof) of each Loan
Party authorizing the execution, delivery and
performance of the Loan Documents to which it is a
party (including, but not limited to, the granting of
any liens provided for therein) and in the case of the
Borrower, the borrowings contemplated hereunder,
certified by the Secretary of such Loan Party as of the
Closing Date, which certificate shall be in form and
substance reasonably satisfactory to the Administrative
Agent, and shall state that the resolutions thereby
certified have not been amended, modified, revoked or
rescinded.
(m) Legal Opinions. The Lenders shall have received
the following executed legal opinions:
(i) the legal opinion of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ L.L.P. counsel to the Loan Parties,
substantially in the form of Exhibit H; and
(ii) the legal opinion of local counsel in each
of the State of Virginia, Connecticut and Canada
and of such other special and local counsel as may be
required by the Administrative Agent.
Each such legal opinion shall cover such other matters
incident to the transactions contemplated by this
Agreement as the Administrative Agent may reasonably
require.
(n) Pledged Stock; Stock Power. The Administrative
Agent shall have received the certificates representing
the shares of Capital Stock of ▇▇▇▇▇ pledged pursuant
to the Security Documents, together with an undated
stock power for each such certificate executed in blank
by a duly authorized officer of the pledgor thereof.
(o) Filings, Registrations and Recordings. Each
document (including, without limitation, any Uniform
Commercial Code financing statement) required by the
Security Documents or under law or reasonably requested
by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the
Administrative Agent, for the benefit of the Lenders, a
perfected Lien on the Collateral described therein,
prior and superior in right to any other Person (other
than with respect to Liens expressly permitted by
Section 6.3) shall be in proper form for filing,
registration or recordation.
(p) Appraisal. The Administrative Agent shall have
received a satisfactory appraisal from F&W Forestry
Services, Inc. of the assets of Timberlands.
(q) Management Contracts. The Lenders shall have
received copies of the Paper Company Management
Contract, which shall be in form and substance
satisfactory to the Lenders and the ▇▇▇▇▇ Management
Contract (which shall be in the form reviewed by the
Administrative Agent prior to October 1, 1997).
(r) Timberlands Wood Supply Contract. The
Administrative Agent shall have received copies of the
Timberlands Wood Supply Contract which shall be in form
and substance satisfactory to the Administrative Agent.
4.2 Conditions to Each Loan. The agreement of each
Lender to make any Loan requested to be made by it on any date
(including, without limitation, its initial Loan) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party
in or pursuant to the Loan Documents shall be true and
correct in all material respects on and as of such date
as if made on and as of such date.
(b) No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after
giving effect to the Loans requested to be made on such
date.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date of such Loan
that the conditions contained in this Section 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any Loan
or other amount is owing to any Lender or any Agent hereunder, the
Borrower shall and shall cause Timberlands, ▇▇▇▇▇ and each of the
Subsidiaries of Timberlands and ▇▇▇▇▇, as applicable, to:
5.1 Financial Statements. Furnish to the
Administrative Agent, with sufficient copies for each Lender:
(a) as soon as available, but in any event within 90
days after the end of each fiscal year of the Borrower,
Timberlands and ▇▇▇▇▇, a copy of the audited
consolidated balance sheet of (i) the Borrower and its
consolidated Subsidiaries, (ii) ▇▇▇▇▇ and its
consolidated Subsidiaries and (iii) Timberlands, in
each case as at the end of such year and the related
audited consolidated statements of income and of cash
flows for such year, setting forth in each case in
comparative form the figures for the previous year,
reported on without a "going concern" or like
qualification or exception, or qualification arising
out of the scope of the audit, by Coopers & ▇▇▇▇▇▇▇
L.L.P. or other independent certified public
accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later
than 45 days after the end of each month occurring
during each fiscal year of the Borrower, Timberlands
and ▇▇▇▇▇, the unaudited balance sheets of (i) the
Borrower and its Subsidiaries, (ii) ▇▇▇▇▇ and its
Subsidiaries and (iii) Timberlands, in each
case as at the end of such month and the related
unaudited statements of income and of cash flows for
such month and the portion of the fiscal year through
the end of such month, presented with or without
footnotes, setting forth in each case in comparative
form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit
adjustments);
all such financial statements shall present fairly in all material
respects the financial condition of such parties and shall be prepared in
reasonable detail and in accordance with GAAP applied consistently
throughout the periods reflected therein and with prior periods (except
as approved by such accountants or officer, as the case may be, and
disclosed therein).
5.2 Certificates; Other Information. Furnish to the
Administrative Agent, with sufficient copies for each Lender, or, in the
case of clause (g), to the relevant Lender:
(a) concurrently with the delivery of the financial
statements referred to in Section 5.1(a), a certificate
of the independent certified public accountants
reporting on such financial statements stating that in
making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except
as specified in such certificate;
(b) concurrently with the delivery of any financial
statements pursuant to Section 5.1, (i) a certificate
of a Responsible Officer stating that, to the best of
each such Responsible Officer's knowledge, such
Responsible Officer has obtained no knowledge of any
Default or Event of Default except as specified in such
certificate and (ii) in the case of quarterly or annual
financial statements, a Compliance Certificate
containing all information necessary for determining
compliance by the Borrower and its Subsidiaries with
the provisions of this Agreement referred to therein as
of the last day of the fiscal quarter or fiscal year of
the Borrower, as the case may be;
(c) as soon as available, and in any event no later
than 45 days after the end of each fiscal year of the
Borrower and Timberlands, a detailed consolidated
budget for each of the Borrower and Timberlands for the
following fiscal year (including consolidated
statements of projected cash flow, projected changes in
financial position, projected income and a capital
spending plan setting forth in detail projected
maintenance expenditures and projected related
expenditures), and, as soon as available, significant
revisions, if any, of such budget and projections with
respect to such fiscal year (collectively, the
"Projections"), which Projections shall in each case be
accompanied by a certificate of a Responsible Officer
stating that such Projections are based on reasonable
estimates, information and assumptions and that such
Responsible Officer has no reason to believe that such
Projections are incorrect or misleading in any material
respect;
(d) (i) concurrently with the delivery thereof to
▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company, copies of
all reports and notices required to be delivered by
Timberlands under the ▇▇▇▇ ▇▇▇▇▇▇▇ Credit Agreement
(other than collateral release requests and similar
information), (ii) within 45 days after the end of each
month, a mill manager's report in respect of ▇▇▇▇▇
substantially in the form customary prior to the date
of this Agreement and (iii) on or before January 31 and
July 31 in each calendar year, a report containing
information necessary to calculate the Administrative
Value of Timberlands;
(e) no later than 10 Business Days prior to the
effectiveness thereof, copies of substantially final
drafts of any proposed amendment, supplement, waiver or
other modification with respect to the Second Priority
Note Indenture or the Acquisition Agreement;
(f) within five days after the same are sent, copies
of all financial statements and reports that the
Borrower, Timberlands or ▇▇▇▇▇ sends to the holders of
any class of its debt securities or public equity
securities and within five days after the same are
filed, copies of all financial statements and reports
which the Borrower, Timberlands or ▇▇▇▇▇ may make to,
or file with, the Securities and Exchange Commission or
any successor or analogous Governmental Authority; and
(g) promptly, such additional financial and other
information as any Lender may from time to time
reasonably request.
5.3 Payment of Obligations. Pay, discharge or
otherwise satisfy, at or before maturity or before they become
delinquent, as the case may be, all its material obligations of whatever
nature, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in
conformity with GAAP with respect thereto have been provided on the books
of the Borrower or any of its Applicable Subsidiaries, as the case may
be.
5.4 Conduct of Business and Maintenance of
Existence, etc. (a) (i) Preserve, renew and keep in full force and effect
its corporate existence and (ii) take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the
normal conduct of its business, except, in each case, as otherwise
permitted by Section 6.4 and except, in the case of clause (ii) above, to
the extent that failure to do so could not reasonably be expected to have
a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to
comply therewith could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. (a) Keep all
Property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with
financially sound and reputable insurance companies insurance on all its
Property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business.
5.6 Inspection of Property; Books and Records;
Discussions. (a) Keep proper books of records and account in which full,
true and correct entries in conformity with GAAP and all Requirements of
Law shall be made of all dealings and transactions in relation to its
business and activities and (b) permit representatives of any Lender to
visit and inspect any of its properties and examine and make abstracts
from any of its books and records at any reasonable time upon reasonable
notice and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Borrower and its Applicable Subsidiaries with officers and employees of
the Borrower and its Applicable Subsidiaries and with its independent
certified public accountants.
5.7 Notices. Promptly give notice to the
Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
material Contractual Obligation of the Borrower,
Timberlands, ▇▇▇▇▇ or any of their Applicable
Subsidiaries or (ii) litigation, investigation or
proceeding which may exist at any time between the
Borrower, Timberlands, ▇▇▇▇▇ or any of their Applicable
Subsidiaries and any Governmental Authority, which in
either case, if not cured or if adversely determined,
as the case may be, could reasonably be expected to
have a Material Adverse Effect;
(c) any litigation or proceeding affecting the
Borrower, Timberlands, ▇▇▇▇▇ or any of their Applicable
Subsidiaries in which the amount involved is $2,000,000
or more and not covered by insurance or in which
injunctive or similar relief is sought;
(d) the following events, as soon as possible and in
any event within 30 days after the Borrower or
Timberlands knows or has reason to know thereof: (i)
the occurrence of any Reportable Event with respect to
any Single Employer Plan, a failure to make any
required contribution to a Single Employer Plan, the
creation of any Lien in favor of the PBGC or a Single
Employer Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the
PBGC or the Borrower or any Commonly Controlled Entity
or any Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan;
(e) any development, event, or condition relating to
any Environmental Law that, individually or in the
aggregate with other developments, events or conditions
relating to any Environmental Law, could reasonably be
expected to result in the payment by Borrower and its
Applicable Subsidiaries, in the aggregate, of a Material
Environmental Amount; and provided that, with respect
to costs required to maintain operations of the
Borrower and its Applicable Subsidiaries in compliance
with Environmental Laws, this Section 5.7(e) refers
only to the increases in such costs over the levels the
Borrower and its Applicable Subsidiaries incurred, in
the aggregate, during fiscal year 1997; and
(f) any development or event which has had or could
reasonably be expected to have a Material Adverse
Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the Borrower or
the relevant Subsidiary proposes to take with respect thereto.
5.8 Environmental Laws. (a) (i) Comply with all
Environmental Laws applicable to it, and obtain, comply with and maintain
any and all Environmental Permits necessary for its operations as
conducted and as planned; and (ii) take all reasonable efforts to ensure
that all of its tenants, subtenants, contractors, subcontractors, and
invitees comply with all Environmental Laws, and obtain, comply with and
maintain any and all Environmental Permits, applicable to any of them
insofar as any failure to so comply, obtain or maintain reasonably could
be expected to adversely affect the Borrower. For purposes of this
5.8(a), noncompliance by the Borrower or any of its Subsidiaries with any
applicable Environmental Law or Environmental Permit shall be deemed not
to constitute a breach of this covenant provided that, upon learning of
any actual or suspected noncompliance, the Borrower or Subsidiary, as the
case may be, shall promptly undertake all reasonable efforts to achieve
compliance, and provided further that, in any case, such non-compliance,
and any other noncompliance with Environmental Law, individually or in
the aggregate, could not reasonably be expected to give rise to a
Material Adverse Effect or materially and adversely affect the value of
any Mortgaged Property.
(b) Conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other
actions required under Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws.
(c) With respect to any development, event, or
condition that is (or should have been) the subject of a notice pursuant
to Section 5.7(e), provide such information as may be necessary to give
the Administrative Agent reasonable assurance that such development,
event, or condition could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any Loan
or other amount is owing to any Lender or any Agent hereunder, the
Borrower shall not, and shall not permit Timberlands, ▇▇▇▇▇ or any of the
Subsidiaries of Timberlands or ▇▇▇▇▇, as applicable, to directly or
indirectly:
6.1 Asset Coverage Ratio. Permit the ratio, at any
time, of the Administrative Value (as determined in accordance with
Schedule X) of Timberlands to the sum of the outstanding principal
balance of the Term Loans and the outstanding principal balance under the
▇▇▇▇ ▇▇▇▇▇▇▇ Credit Agreement at such time to be less than 1.30 to 1.00.
6.2 Limitation on Indebtedness. Create, incur,
assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any
Loan Document;
(b) Indebtedness of the Borrower to any Subsidiary
of the Borrower arising out of the Borrower's
activities as collection agent for such Subsidiary;
provided, that the amount of collected funds received
by the Borrower and owing to any Subsidiary at the end
of any Business Day shall not exceed the sum of (i) the
collected funds received by the Borrower for the
account of such Subsidiary during such Business Day and
the immediately preceding Business Day plus (ii) an
additional amount not exceeding $100,000;
(c) Indebtedness of ▇▇▇▇▇ and its Subsidiaries in an
amount such that the sum of Consolidated Total
Liabilities (other than deferred tax liabilities) of
▇▇▇▇▇ and its Subsidiaries shall not exceed
C$85,000,000 in the aggregate at any time;
(d) Indebtedness of ▇▇▇▇▇ and its Subsidiaries,
including Capital Lease Obligations, secured by Liens
permitted by Section 6.3(g) in an aggregate principal
amount not to exceed $5,000,000 at any one time
outstanding, and of Timberlands and its Subsidiaries
including Capital Lease Obligations, secured by Liens
permitted by Section 6.3(g) in an aggregate principal
amount not to exceed $750,000 of any one time
outstanding;
(e) Indebtedness outstanding on the date hereof and
listed on Schedule 6.2 and any refinancings,
refundings, renewals or extensions thereof (without any
increase in the principal amount thereof);
(f) guarantees made in the ordinary course of
business by the Borrower or any of its Subsidiaries of
obligations of ▇▇▇▇▇ or Timberlands or their
Subsidiaries;
(g) unsecured Indebtedness of the Borrower or any of
its Applicable Subsidiaries on terms and conditions
acceptable to the Required Lenders; provided that (i)
the proceeds of such Indebtedness are used to repay the
Term Loans hereunder pursuant to Section 2.7(a) and
(ii) the weighted average life to maturity of such
Indebtedness is greater than the remaining life of the
Term Loans being prepaid;
(h) Indebtedness of ▇▇▇▇▇ in respect of deferred
commissions and management fees owing under the ▇▇▇▇▇
Management Contract;
(i) Indebtedness of (A) Timberlands not to exceed
$1,000,000 and (B) of the Borrower not to exceed,
individually or in the aggregate, $3,000,000 (all of
which Indebtedness referred to in this clause (i),
except in the case of Indebtedness secured pursuant to
Section 6.3(j), shall be unsecured);
(j) the incurrence of Indebtedness by ▇▇▇▇▇ Partners
owed to ▇▇▇▇▇ and to the other partners of ▇▇▇▇▇
Partners for cash borrowed from such entities; provided
that such Indebtedness (A) shall bear no interest, (B)
shall not require principal payments of any kind on
such Indebtedness to be repaid prior to the final
maturity date of the Term Loans, and (C) shall contain
no provision for remedies (including, without
limitation, any defaults or any other provisions that
would result in the acceleration of the maturity of
such Indebtedness); provided, that such Indebtedness
may contain provisions for an acceleration of the
maturity of such Indebtedness upon the acceleration of
the Term Loans;
(k) Indebtedness, in an aggregate principal amount
not exceeding $2,000,000, in the form of purchase price
adjustments owing to the Retiring Partners in respect
of the Acquisition Agreement;
(l) Indebtedness of Timberlands and its Subsidiaries
(i) for the purpose of financing all or any part of the
purchase price of timber deeds or (ii) in respect of
performance bonds of Timberlands and its Subsidiaries
or surety bonds provided by Timberlands and its
Subsidiaries received in the ordinary course of
business in connection with the operation of its
business (which Indebtedness shall be measured as the
exposure of Timberlands and such Subsidiaries under
such bonds); provided that the aggregate amount of
Indebtedness incurred pursuant to this sub-clause (l)
shall not exceed $1,500,000 outstanding at any time
outstanding; and
(m) Indebtedness of Timberlands for the purchase by
it of timberlands acreage not to exceed $2,000,000 in
the aggregate at any time outstanding.
6.3 Limitation on Liens. Create, incur, assume or
suffer to exist any Lien upon any Capital Stock of Timberlands, ▇▇▇▇▇ or
their Subsidiaries directly or indirectly owned by it or on any of the
Property or revenues of Timberlands, ▇▇▇▇▇ or any such Subsidiary,
whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto
are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising
in the ordinary course of business which are not
overdue for a period of more than 30 days or which are
being contested in good faith by appropriate
proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social
security legislation;
(d) deposits to secure the performance of bids,
trade contracts (other than for borrowed money),
leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial
in amount and which do not in any case materially
detract from the value of the Property subject thereto
or materially interfere with the ordinary conduct of
the business of the Borrower or any of its
Subsidiaries;
(f) Liens in existence on the date hereof listed on
Schedule 6.3 securing Indebtedness permitted by Section
6.2(e) (including refinancings, refundings, renewals or
extensions of Indebtedness permitted by Section
6.2(e)), provided that no such Lien is spread to cover
any additional Property after the Closing Date and that
the amount of Indebtedness secured thereby is not
increased;
(g) Liens securing Indebtedness of ▇▇▇▇▇ and its
Subsidiaries or Timberlands and its Subsidiaries
incurred pursuant to Section 6.2(d) to finance the
acquisition of fixed or capital assets, provided that
(i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or
capital assets, (ii) such Liens do not at any time
encumber any Property other than the Property financed
by such Indebtedness and (iii) the amount of
Indebtedness secured thereby is not increased;
(h) Liens created pursuant to the Security Documents,
the Paper Company Loan Documents, the Second Priority
Note Security Documents and the ▇▇▇▇ ▇▇▇▇▇▇▇ Credit Agreement;
(i) any interest or title of a lessor under any
lease entered into by the Borrower or any other
Subsidiary in the ordinary course of its business and
covering only the assets so leased;
(j) Liens not otherwise permitted by this Section
6.3 so long as neither (i) the aggregate outstanding
principal amount of the obligations secured thereby nor
(ii) the aggregate fair market value (determined as of
the date such Lien is incurred) of the assets subject
thereto exceeds (as to the Borrower and all
Subsidiaries) $1,500,000 at any one time;
(k) Liens arising under or in connection with
Environmental Laws which are being contested in good
faith by appropriate proceedings provided that adequate
reserves with respect thereto are maintained on the
books of the Borrower and its Subsidiaries, as the case
may be, in conformity with GAAP and that such Liens
relate to potential liabilities that are not reasonably
expected to exceed, individually or in the aggregate,
$3,000,000;
(l) Liens securing reimbursement obligations of the
Borrower or any Applicable Subsidiary with respect to
letters of credit that encumber documents and other
property relating to such letters of credit and the
products and proceeds thereof;
(m) Liens arising by reason of any judgment, decree
or order of any court so long as such Lien is
adequately bonded and any appropriate legal proceedings
that may have been duly initiated for the review of
such judgment, decree or order shall not have been
finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(n) Liens securing Indebtedness of Timberlands
incurred pursuant to Section 6.2(m) to finance the
purchase of timberlands acreage; and
(o) Liens securing Indebtedness permitted under
Section 6.2(c).
6.4 Limitation on Fundamental Changes. Enter into
any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or Dispose of
all or substantially all of its Property or business except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that
the Borrower shall be the continuing or surviving
corporation) or with or into any Wholly Owned
Subsidiary (provided that if such transaction involves
▇▇▇▇▇ or Timberlands, ▇▇▇▇▇ or Timberlands, as the case
may be, shall be the continuing or surviving
corporation);
(b) any Subsidiary of the Borrower other than ▇▇▇▇▇
or Timberlands may Dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to the
Borrower or any Wholly Owned Subsidiary;
(c) the Transactions may be consummated; and
(d) the Borrower may dissolve or wind up immaterial
Subsidiaries;
6.5 Limitation on Sale of Assets. Dispose of any of
its Property or business (including, without limitation, receivables and
leasehold interests), whether now owned or hereafter acquired, or, in the
case of any Applicable Subsidiary, issue or sell any shares of such
Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property
in the ordinary course of business;
(b) the sale of inventory in the ordinary course of
business;
(c) Dispositions permitted by Section 6.4(b);
(d) the sale or issuance of any Subsidiary's Capital
Stock to the Borrower or (except for Capital Stock of
▇▇▇▇▇ or Timberlands) any Wholly Owned Subsidiary;
(e) the transfer of the Borrower's interest in the
Management Contracts to an Affiliate;
(f) the Disposition by the Borrower of any of its
Property other than Capital Stock of Timberlands, ▇▇▇▇▇
and the Paper Company owned by the Borrower;
(g) Dispositions of land, equipment and timberlands
by Timberlands, provided that Net Proceeds of such
Dispositions shall be used to repay the Loans hereunder
pursuant to Section 2.7; and
(h) Disposition by Timberlands of up to 10 acres of
unimproved real estate, sold in order to settle highway
or borderline disputes.
6.6 Limitation on Dividends. Declare or pay any
dividend (other than dividends payable solely in common stock of the
Person making such dividend) on, or make any payment on account of, or
set apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any shares of
any class of Capital Stock of any Applicable Subsidiary or any warrants
or options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of
any such Applicable Subsidiary (collectively, "Restricted Payments"),
except that:
(a) Timberlands may make Restricted Payments in
respect of the Partner Taxes in respect of Timberlands
and its Subsidiaries;
(b) the payment by Timberlands or ▇▇▇▇▇ of any
dividend or distribution to ▇▇▇▇▇-▇▇▇▇▇ (A) to enable
▇▇▇▇▇-▇▇▇▇▇ to repay or prepay all or a portion of the
Term Loan or (B) from the proceeds of any Asset Sale by
Timberlands or ▇▇▇▇▇ to enable ▇▇▇▇▇-▇▇▇▇▇ to repay or
prepay all or a portion of the Term Loan;
(c) ▇▇▇▇▇ may make Restricted Payments if,
immediately after giving effect to such Restricted
Payment, the Consolidated Tangible Net Worth of ▇▇▇▇▇
will be equal to or greater than C$28.0 million plus
50% of Consolidated Net Income of ▇▇▇▇▇ from January 1,
1998 to the date of such Restricted Payment; provided
that this restriction shall not apply to any actual or
deemed dividends or distributions by ▇▇▇▇▇ to
▇▇▇▇▇-▇▇▇▇▇ in order to repay Term Loans or to fund
equity contributions by ▇▇▇▇▇-▇▇▇▇▇ in the Paper
Company;
(d) ▇▇▇▇▇-▇▇▇▇▇ may make Restricted Payments;
(e) Subsidiaries of ▇▇▇▇▇ may make Restricted
Payments to ▇▇▇▇▇, and Subsidiaries of Timberlands may
make Restricted Payments to Timberlands;
(f) the payment of a distribution by Timberlands on
or after the Closing Date to ▇▇▇▇▇-▇▇▇▇▇ (A) to recover
expenses incurred on behalf of the Borrower and its
Affiliates in connection with the Transactions (as
defined in this Agreement and the Paper Company Credit
Agreement) and the related financings and (B) in an
amount equal to the total federal, state, local and
foreign tax liabilities of ▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇ arising as a result of their direct and
indirect ownership of equity interests in Timberlands
L.P. during the first eleven months of 1997, as
calculated by Timberlands' Vice President of Finance
and recalculated by Timberlands' independent
accountants; provided that such distribution shall not
exceed an aggregate of $5,300,000; and
(g) ▇▇▇▇▇ may pay a dividend on or after the Closing
Date in an amount not to exceed C $6,000,000.
6.7 [Reserved].
6.8 Limitation on Investments, Loans and Advances.
Other than with respect to the Borrower, make any advance, loan,
extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting all or a material part of a
business unit of, or make any other investment in, any Person
("Investments"), except:
(a) extensions of trade credit in the ordinary
course of business;
(b) Investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 6.2;
(d) any Applicable Subsidiary may make Investments
in any Wholly Owned Subsidiary of such Applicable
Subsidiary;
(e) Investments in the form of promissory notes
(having a tenor not exceeding 5 years), in an aggregate
principal amount not exceeding $5,000,000 at any time
outstanding, constituting up to 70% of the sale price
of land Disposed of by Timberlands;
(f) Investments existing as of the Closing Date,
listed on Schedule 6.8(f);
(g) loans and advances to employees in the ordinary
course of business in respect of travel, business and
relocation expenses up to an aggregate of $50,000 at
any time outstanding, provided, however, that the
Borrower shall not be deemed to have defaulted in
respect of this provision as of the last day of any
fiscal quarter as long as (i) the addition of the
amount in excess of the $50,000 permitted above to the
amount outstanding under Section 6.2(i) would not
result in a violation of such Section and (ii) the
Borrower was in compliance with this Section 6.8(g) as
of the end of the immediately preceding fiscal quarter;
(h) Investments in ▇▇▇▇▇-▇▇▇▇▇ arising from
Indebtedness permitted by Section 6.2(b); and
(i) advances to loggers by Timberlands in an amount
not to exceed $300,000 in the aggregate at any time
outstanding.
6.9 Limitation on Optional Payments and
Modifications of Debt Instruments, etc. (a) With respect to Timberlands
and its Subsidiaries only, make or offer to make any optional payment,
prepayment, repurchase or redemption of or otherwise defease or segregate
funds with respect to any Indebtedness, (b) with respect to Timberlands
and its Subsidiaries only, amend, modify, waive or otherwise change, or
consent or agree to any amendment, modification, waiver or other change
to, any of the terms any Indebtedness, other than any such amendment,
modification, waiver or other change which (i) would extend the maturity
or reduce the amount of any payment of principal thereof or which would
reduce the rate or extend the date for payment of interest thereon or
which would provide for payment in kind in lieu of cash for any interest,
provide more flexibility in financial covenants or waive any defaults and
(ii) does not involve the payment of a consent fee), or (c) amend its
certificate of incorporation, operating agreement or other organizational
documents in any manner determined by the Administrative Agent to be
materially adverse to the Lenders without the prior written consent of
the Required Lenders.
6.10 Limitation on Transactions with Affiliates.
Enter into any transaction, including, without limitation, any purchase,
sale, lease or exchange of Property, the rendering of any service or the
payment of any management, advisory or similar fees, with any Affiliate
(other than any Wholly Owned Subsidiary) unless such transaction is (a)
otherwise permitted under this Agreement, (b) in the ordinary course of
business of the Borrower or such Subsidiary, as the case may be, and (c)
upon fair and reasonable terms no less favorable to the Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable
arm's length transaction with a Person which is not an Affiliate.
Notwithstanding the foregoing, this Section 6.10 shall not apply to (i)
the Borrower's or ▇▇▇▇▇'▇ obligations under the Management Contracts and
the consummation of the transactions contemplated thereby, (ii)
obligations of the Borrower and Timberlands under the Timberlands Wood
Supply Contract or the Elebash Agreement, (iii) the payment of fees to
▇▇▇▇▇ by ▇▇▇▇▇ Partners in an amount per annum not in excess of 3% of
total annual net sales of ▇▇▇▇▇ Partners and (iv) dividends permitted by
Section 6.6.
6.11 Limitation on Sales and Leasebacks. Enter into
any arrangement with any Person providing for the leasing by Timberlands,
▇▇▇▇▇ or any of their Subsidiaries of real or personal property which has
been or is to be sold or transferred by Timberlands, ▇▇▇▇▇ or any of
their Subsidiaries or such party to such Person or to any other Person to
whom funds have been or are to be advanced by such Person on the security
of such property or rental obligations of Timberlands, ▇▇▇▇▇ or any of
their Subsidiaries.
6.12 Limitation on Changes in Fiscal Periods. Permit
the fiscal year of the Borrower to end on a day other than December 31 or
change the Borrower's method of determining fiscal quarters.
6.13 Limitation on Negative Pledge Clauses. Enter
into or suffer to exist or become effective any agreement which prohibits
or limits the ability of Timberlands to create, incur, assume or suffer
to exist any Lien upon any of its assets, whether now owned or hereafter
acquired, to secure the Obligations or its obligations under the
Timberlands Guarantee, other than (a) this Agreement, the other Loan
Documents, and Second Priority Note Indenture, the Second Priority Note
Security Documents and the ▇▇▇▇ ▇▇▇▇▇▇▇ Credit Agreement, (b) any
agreements governing any purchase money Liens or Capital Lease
Obligations otherwise permitted hereby (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby)
and (c) any prohibition on assignment of any general intangible contract
in the instrument under which such general intangible arises.
6.14 Limitation on Restrictions on Subsidiary
Distributions. Enter into or suffer to exist or become effective any
consensual encumbrance or restriction on the ability of Timberlands,
▇▇▇▇▇ or any of their Subsidiaries to (a) pay dividends or make any other
distributions in respect of any Capital Stock of such Subsidiary held by,
or pay any Indebtedness owed to, the Borrower, (b) make loans or advances
to the Borrower or (c) transfer any of its assets to the Borrower, except
for such encumbrances or restrictions existing under or by reason of (i)
any restrictions existing under the Loan Documents, (ii) any restrictions
with respect to Timberlands, ▇▇▇▇▇ or any of their Subsidiaries imposed
pursuant to an agreement which has been entered into in connection with
the Disposition of all or substantially all of the Capital Stock or
assets of such party, (iii) customary non-assignment or net worth
provisions in any lease governing a leasehold interest, license or other
contract, (iv) any agreement or other instrument of a Person existing at
the time it becomes a Subsidiary of the Borrower; provided that such
encumbrance or restriction is not applicable to any other Person, or any
property of any other Person, other than such person becoming a
Subsidiary of the Borrower and was not entered into in contemplation of
such Person becoming a Subsidiary of the Borrower, (v) any agreement of a
Loan Party or any of its Subsidiaries in effect as of the Closing Date
governing Indebtedness of a Loan Party or any of its Subsidiaries
outstanding as of the Closing Date (including, without limitation, the
Second Priority Note Documents) and, if such Indebtedness is renewed,
extended or refinanced in accordance with the terms of this Agreement,
such other restrictions in the agreements governing the renewed, extended
or refinanced Indebtedness (and successive renewals, extensions and
refinancing thereof in accordance with the terms of this Agreement)
provided such restrictions are no more restrictive in any material
respect than those contained in the agreements governing such outstanding
Indebtedness being renewed, extended or refinanced, (vi) any agreement
governing Indebtedness permitted by Section 6.2(c), (d), (e), (f), (g),
(i), (k) and (l), provided such restrictions are no more restrictive in
any material respect than those contained in the Loan Documents or (vii)
restrictions required by applicable law.
6.15 Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary, except for those
businesses in which the Borrower and its Subsidiaries are engaged on the
date of this Agreement or which are reasonably related thereto.
6.16 Limitation on Amendments to Acquisition
Documents. (a) Amend, supplement or otherwise modify (pursuant to a
waiver or otherwise) the terms and conditions of the indemnities and
licenses furnished to the Borrower or any of its Subsidiaries pursuant to
the Acquisition Agreement or any other document delivered by the Retiring
Partners or any of their affiliates in connection therewith such that
after giving effect thereto such indemnities or licenses shall be
materially less favorable to the interests of the Loan Parties or the
Lenders with respect thereto or (b) otherwise amend, supplement or
otherwise modify the terms and conditions of the Acquisition Agreement or
any such other documents except to the extent that any such amendment,
supplement or modification could not reasonably be expected to have a
Material Adverse Effect.
6.17 Limitation on Leases. Permit Consolidated Lease
Expense of ▇▇▇▇▇ and its Subsidiaries for any fiscal year to exceed
$500,000.
6.18 Limitation on Amendments to Management
Contracts. Amend, supplement or otherwise modify (pursuant to a waiver or
otherwise) the terms and conditions of the Management Contracts if the
effect of such modification would be to change any provision of such
Management Contract relating to the payment or method of calculation of
fees thereunder or to materially reduce the functions required to be
performed by ▇▇▇▇▇-▇▇▇▇▇ thereunder; provided, that this Section 6.18
shall cease to apply to the ▇▇▇▇▇ Management Contract upon termination of
the ▇▇▇▇▇ Pledge Agreement in accordance with the terms thereof.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of
any Term Loan when due in accordance with the terms
hereof; or the Borrower shall fail to pay any interest
on any Loan or any other amount payable hereunder or
under any other Loan Document, within five days after
any such interest or other amount becomes due in
accordance with the terms hereof; or
(b) Any representation or warranty made or deemed
made by any Loan Party herein or in any other Loan
Document or which is contained in any certificate,
document or financial or other statement furnished by
it at any time under or in connection with this
Agreement or any such other Loan Document shall prove
to have been inaccurate in any material respect on or
as of the date made or deemed made; or
(c) Any Loan Party shall default in the observance
or performance of any agreement contained in clause (i)
or (ii) of Section 5.4(a), Section 5.7(a) or Section 6;
or
(d) Any Loan Party shall default in the observance
or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as
provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied
for a period of 30 days; or
(e) Any Loan Party or any of its Applicable
Subsidiaries shall (i) default in making any payment of
any principal of any Indebtedness (including, without
limitation, any Guarantee Obligation, but excluding the
Term Loans) beyond the applicable grace period, if any,
with respect thereto; or (ii) default in making any
payment of any interest on any such Indebtedness beyond
the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created;
or (iii) default in the observance or performance of
any other agreement or condition relating to any such
Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the
effect of which default or other event or condition is
to cause, or to permit the holder or beneficiary of
such Indebtedness (or a trustee or agent on behalf of
such holder or beneficiary) to cause, with the giving
of notice if required, such Indebtedness to become due
prior to its stated maturity or (in the case of any
such Indebtedness constituting a Guarantee Obligation)
to become payable; provided, that a default, event or
condition described in clause (i), (ii) or (iii) of
this paragraph (e) shall not at any time constitute an
Event of Default unless, at such time, one or more
defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (e) shall
have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which
exceeds in the aggregate $5,000,000; or
(f) (i) Any Loan Party or any of its Applicable
Subsidiaries shall commence any case, proceeding or
other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial
part of its assets, or any Loan Party or any of its
Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be
commenced against any Loan Party or any of its
Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or
(iii) there shall be commenced against any Loan Party
or any of its Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of
attachment, execution, distraint or similar process
against all or any substantial part of its assets which
results in the entry of an order for any such relief
which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) any Loan Party or any of its
Subsidiaries shall take any action in furtherance of,
or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) any Loan Party or any
of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to,
pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan, (ii) any
"accumulated funding deficiency" (as defined in Section
302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or
a Plan shall arise on the assets of the Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee
is, likely to result in the termination of such Plan
for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV
of ERISA, (v) the Borrower or any Commonly Controlled
Entity shall incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization
of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such
events or conditions, if any, could, in the reasonable
judgment of the Required Lenders, reasonably be
expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be
entered against any Loan Party involving in the
aggregate a liability (not paid or fully covered by
insurance as to which the relevant insurance company
has acknowledged coverage) of $5,000,000 or more, and
all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal
within 30 days from the entry thereof; or
(i) Any of the Security Documents shall cease, for
any reason, to be in full force and effect, or any Loan
Party or any Affiliate of any Loan Party shall so
assert, or any Lien created by any of the Security
Documents shall cease to be enforceable and of the same
effect and priority purported to be created thereby
except as provided in such Security Document; or
(j) The Timberlands Guarantee or any guarantee made
in favor of the Administrative Agent in respect of the
Term Loans shall cease, for any reason, to be in full
force and effect or any Loan Party or any Affiliate of
any Loan Party shall so assert; or
(k) A Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to
the Borrower, automatically the Commitments shall immediately terminate
and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents shall
immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken:
with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents to be due and payable forthwith,
whereupon the same shall immediately become due and payable.
SECTION 8. THE AGENTS
8.1 Appointment. Each Lender hereby irrevocably
designates and appoints the Agents as the agents of such Lender under
this Agreement and the other Loan Documents including acting as agent and
fonde de pouvoir for the Lenders under the ▇▇▇▇▇ Pledge Agreement, and
each such Lender irrevocably authorizes each Agent, in such capacity, to
take such action on its behalf under the provisions of this Agreement and
the other Loan Documents and to exercise such powers and perform such
duties as are expressly delegated to the such Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, no Agent shall have any duties
or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or any other Loan Document or otherwise exist
against any Agent.
8.2 Delegation of Duties. Each Agent may execute any
of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. No Agent shall
be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither any Agent nor
any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except to the
extent that any of the foregoing are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from its
or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any
officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or
provided for in, or received by the Agents under or in connection with,
this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of any Loan Party
a party thereto to perform its obligations hereunder or thereunder. The
Agents shall not be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan
Party.
8.4 Reliance by Agents. Each Agent shall be entitled
to rely, and shall be fully protected in relying, upon any instrument,
writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to
the Loan Parties), independent accountants and other experts selected by
an Agent. The Agents may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the
Administrative Agent. Each Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as
it deems appropriate or it shall first be indemnified to its satisfaction
by the Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents
in accordance with a request of the Required Lenders (or, if so specified
by this Agreement, all Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Loans.
8.5 Notice of Default. No Agent shall be deemed to
have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless such Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default".
In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default
or Event of Default as shall be reasonably directed by the Required
Lenders (or, if so specified by this Agreement, all Lenders); provided
that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to
such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
8.6 Non-Reliance on Agents and Other Lenders. Each
Lender expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no
act by any Agent hereinafter taken, including any review of the affairs
of a Loan Party or any affiliate of a Loan Party, shall be deemed to
constitute any representation or warranty by any Agent to any Lender.
Each Lender represents to the Agents that it has, independently and
without reliance upon any Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties
and their affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that
it will, independently and without reliance upon any Agent or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the Loan
Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any
affiliate of a Loan Party which may come into the possession of such
Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
8.7 Indemnification. The Lenders agree to indemnify
each Agent in its capacity as such (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Aggregate Exposure Percentages in
effect on the date on which indemnification is sought under this Section
8.7 (or, if indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been paid in
full, ratably in accordance with such Percentages immediately prior to
such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including,
without limitation, at any time following the payment of the Loans) be
imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of
the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or
any action taken or omitted by such Agent under or in connection with any
of the foregoing; provided that no Lender shall be liable for the payment
of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
which are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross
negligence or willful misconduct. The agreements in this Section 8.7
shall survive the payment of the Loans and all other amounts payable
hereunder.
8.8 Agent in Its Individual Capacity. Each Agent and
its affiliates may make loans to, accept deposits from and generally
engage in any kind of business with any Loan Party as though such Agent
was not an Agent. With respect to its Loans made or renewed by it, each
Agent shall have the same rights and powers under this Agreement and the
other Loan Documents as any Lender and may exercise the same as though it
were not an Agent, and the terms "Lender" and "Lenders" shall include
each Agent in its individual capacity.
8.9 Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent upon 10 days'
notice to the Lenders and the Borrower. If the Administrative Agent shall
resign as Administrative Agent under this Agreement and the other Loan
Documents, then the Required Lenders shall appoint from among the Lenders
a successor agent for the Lenders, which successor agent shall (unless an
Event of Default under Section 7(a) or Section 7(f) with respect to the
Borrower shall have occurred and be continuing) be subject to approval by
the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon
such appointment and approval, and the former Administrative Agent's
rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective, and
the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above. After any
retiring Agent's resignation as Agent, the provisions of this Section 8
shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement and the other Loan
Documents.
8.10 Authorization to Execute Intercreditor
Agreement and Security Documents and Release Liens. The Administrative
Agent is hereby irrevocably authorized by each of the Lenders to execute
and deliver the Intercreditor Agreement and each of the Security
Documents, to release any Lien covering any Property of any Loan Party
(a) which is the subject of a Disposition which is permitted by this
Agreement, (b) which has been consented to in accordance with Section 9.1
or (c) which is required to be released pursuant to the terms of any
Security Document. Each Lender confirms the appointments and agreements
contained in Section 7 of the Intercreditor Agreement and agrees that in
acting as secured party under the ▇▇▇▇▇ Pledge Agreement and the
Timberlands Pledge Agreement Toronto-Dominion (Texas), Inc. shall have
the benefit of the provisions of this Section 8 to the same extent as it
does in its capacity as Administrative Agent.
8.11 The Arranger. The Arranger, in its capacity as
such, shall have no duties or responsibilities, and shall incur no
liability, under this Agreement and the other Loan Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement,
any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 9.1. The Required Lenders and each Loan Party party to the
relevant Loan Document may, or (with the written consent of the Required
Lenders) the Administrative Agent and each Loan Party party to the
relevant Loan Document may, from time to time, (a) enter into written
amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or
the other Loan Documents or changing in any manner the rights of the
Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders, or the Administrative
Agent, as the case may be, may specify in such instrument, any of the
requirements of this Agreement or the other Loan Documents or any Default
or Event of Default and its consequences; provided, however, that no such
waiver and no such amendment, supplement or modification shall (i)
forgive the principal amount or extend the final scheduled date of
maturity of any Loan, extend the scheduled date of any amortization
payment in respect of any Loan, reduce the stated rate of any interest or
fee payable hereunder or extend the scheduled date of any payment
thereof, in each case without the consent of each Lender directly
affected thereby; (ii) amend, modify or waive any provision of this
Section 9.1 or reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement and the other
Loan Documents, release all or substantially all of the Collateral,
release Timberlands or any additional Subsidiary Guarantor from its
obligations under the Timberlands Guarantee or other guarantee of the
Loans, in each case without the written consent of all Lenders; (iv)
reduce the percentage specified in the definition of Required Lenders
without the written consent of all Lenders; (v) amend, modify or waive
any provision of Section 9 without the written consent of the Agents; or
(vi) modify the provisions of Section 2.13(a), (b), (c) or (d) without
the consent of each Lender affected thereby. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of
any waiver, the Loan Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair
any right consequent thereon.
9.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing
(including by telecopy), and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered, or three
Business Days after being deposited in the mail, postage prepaid, or, in
the case of telecopy notice, when received, addressed as follows in the
case of the Borrower and the Administrative Agent, and as set forth in an
administrative questionnaire delivered to the Administrative Agent in the
case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:
The Borrower: ▇▇▇▇▇-▇▇▇▇▇ Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The Arranger: TD SECURITIES (USA) INC.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative
Agent: TORONTO-DOMINION (TEXAS), INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: THE TORONTO-DOMINION BANK
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the either Agent
or the Lenders shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the either Agent or
any Lender, any right, remedy, power or privilege hereunder or under the
other Loan Documents 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.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan
Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution and
delivery of this Agreement and the making of the Loans hereunder.
9.5 Payment of Expenses. The Borrower agrees (a) to
pay or reimburse the Agents for all their reasonable out-of-pocket costs
and expenses incurred in connection with the initial syndication,
development, preparation and execution of, and any amendment, supplement
or modification to, this Agreement and the other Loan Documents and any
other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent, (b) to pay or
reimburse each Lender and the Agents for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights
under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable fees and
disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to each Lender and of counsel to the Agents, (c) to
pay, indemnify, and hold each Lender and the Agents harmless from, any
and all recording and filing fees or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and the Agents and their
respective officers, directors, employees, affiliates, agents and
controlling persons (each, an "indemnitee") harmless from and against any
and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever with respect to any pending or threatened litigation
or proceeding arising in respect of the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan
Documents and any such other documents, including, without limitation,
any of the foregoing relating to the use of proceeds of the Loans or the
violation of, noncompliance with or liability under, any Environmental
Law applicable to the operations of ▇▇▇▇▇-▇▇▇▇▇, the Borrower any of its
Subsidiaries or any of the Properties (all the foregoing in this clause
(d), collectively, the "indemnified liabilities"), provided, that the
Borrower shall have no obligation hereunder to any indemnitee with
respect to indemnified liabilities to the extent such indemnified
liabilities result from the gross negligence or willful misconduct of
such indemnitee. Without limiting the foregoing, and to the extent
permitted by applicable law, the Borrowers agree not to assert and to
cause its Subsidiaries not to assert, and hereby waive and agree to cause
their Subsidiaries to so waive, all rights for contribution or any other
rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, under or related to Environmental Laws applicable to the Borrower
or any of its Subsidiaries or any of the Properties, that any of them
might have by statute or otherwise against any indemnitee, except to the
extent arising from the gross negligence or willful misconduct of such
indemnitee. The agreements in this Section shall survive repayment of the
Loans and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Agents, all future holders of
the Loans and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the Agents and
each Lender.
(b) Any Lender may, without the consent of the
Borrower, in accordance with applicable law, at any time sell to one or
more banks, financial institutions or other entities (each, a
"Participant") participating interests in any Loan owing to such Lender,
any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents. In the event of any such
sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the
other Loan Documents, and the Borrower and the Agents shall continue to
deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other Loan
Documents. In no event shall any Participant under any such participation
have any right to approve any amendment or waiver of any provision of any
Loan Document, or any consent to any departure by any Loan Party
therefrom, except to the extent that such amendment, waiver or consent
would affect the Participant as described in (i) of the proviso in
Section 9.1, in each case to the extent subject to such participation.
The Borrower agrees that at any time that an Event of Default has
occurred and is occurring, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement,
provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 9.7(a) as fully as if it were a
Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.14, 2.15 and 2.16 with respect to
its participation in the Commitments and the Loans outstanding from time
to time as if it was a Lender; provided that, in the case of Section
2.15, such Participant shall have complied with the requirements of said
Section and provided, further, that no Participant shall be entitled to
receive any greater amount pursuant to any such Section than the
transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance
with applicable law, at any time and from time to time upon three
Business Days notice to the Administrative Agent assign to any Lender or
any affiliate thereof or, with the consent of the Borrower, and the
Agents (which, in each case, shall not be unreasonably withheld or
delayed) (provided the consent of the Borrower need not be obtained with
respect to any assignment to a Lender), to an additional bank, financial
institution or other entity (an "Assignee") all or any part of its rights
and obligations under this Agreement pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit G, executed by such
Assignee, such Assignor and the Administrative Agent (and, where the
consent of the Borrower is required pursuant to the foregoing provisions,
by the Borrower) and delivered to the Administrative Agent for its
acceptance and recording in the Register; provided that no such
assignment to an Assignee (other than any Lender or any affiliate
thereof) shall be in an aggregate principal amount of less than
$5,000,000 (other than in the case of an assignment of all of a Lender's
interests under this Agreement), and that after giving effect to any
partial assignment, the Assignor shall remain the Lender in respect of
Loans in an aggregate principal amount of no less than $5,000,000, unless
otherwise agreed by the Borrower and the Administrative Agent and that no
such assignment shall be effective until executed by the Administrative
Agent. Any such assignment need not be ratable as among the Facilities.
Upon such execution, delivery, acceptance and recording, from and after
the effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment and/or Loans as set
forth therein, and (y) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of an Assignor's rights and obligations under
this Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding any provision of this Section 9.6, the consent of the
Borrower shall not be required for any assignment which occurs at any
time when any Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall maintain at its
address referred to in Section 9.2 a copy of each Assignment and
Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Loans owing to, each Lender from time to
time and any Notes evidencing such Loans. The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrower,
the Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the Register as the owner of the Loan and any Note
evidencing such Loan recorded therein for all purposes of this Agreement.
Any assignment of any Loan whether or not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made
in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall
be registered on the Register only upon surrender for registration of
assignment or transfer of the Note evidencing such Loan, accompanied by a
duly executed Assignment and Acceptance, and thereupon one or more new
Notes in the same aggregate principal amount shall be issued to the
designated Assignee and the old Notes shall be returned by the
Administrative Agent to the Borrower marked "cancelled". The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case of an
Assignee that is not then a Lender or an affiliate thereof or a Person
under common management with such Lender, by the Borrower or the
Administrative Agent) together with payment to the Administrative Agent
of a registration and processing fee of $3,500 (except that no such
registration and processing fee shall be payable (y) in connection with
an assignment by The Toronto-Dominion Bank or (z) in the case of an
Assignee which is already a Lender or is an affiliate of a Lender or a
Person under common management with a Lender), the Administrative Agent
shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information
contained therein in the Register and give notice of such acceptance and
recordation to the Lenders and the Borrower. On or prior to such
effective date, the Borrower, at its own expense, upon request, shall
execute and deliver to the Administrative Agent (in exchange for the
Notes of the assigning Lender, a new Note, to the order of such Assignee
in an amount equal to the amount assumed or acquired by it pursuant to
such Assignment and Acceptance and, if the assigning Lender has retained
Term Loans, upon request, a new Term Note, to the order of the assigning
Lender in an amount equal to the applicable Term Loans, retained by it
hereunder. Such new Notes shall be dated the Closing Date and shall
otherwise be in the form of the Note replaced thereby.
(f) For avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this Section concerning
assignments of Loans and Notes relate only to absolute assignments and
that such provisions do not prohibit assignments creating security
interests, including, without limitation, any pledge or assignment by a
Lender of any Loan or Note to any Federal Reserve Bank in accordance with
applicable law.
9.7 Adjustments; Set-off. (a) If any Lender (a
"Benefitted Lender") shall at any time receive any payment of all or part
of its Loans owing to it, or interest thereon, or receive any collateral
in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section
7(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to such other Lender, or interest thereon, such
Benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Loan
owing to each such other Lender, or shall provide such other Lenders with
the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right, without prior
notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, at any time when an
Event of Default has occurred and is continuing, to set off and
appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured,
at any time held or owing by such Lender or any branch or agency thereof
to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such setoff
and application.
9.8 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be lodged
with the Borrower and the Administrative Agent.
9.9 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
9.10 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrower, the Administrative
Agent and the Lenders with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
9.12 Submission To Jurisdiction; Waivers. The
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal
action or proceeding relating to this Agreement and the
other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of
the Courts of the State of New York, the courts of the
United States of America for the Southern District of
New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may
be brought in such courts and waives any objection that
it may now or hereafter have to the venue of any such
action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(c) agrees that service of process in any such
action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid,
the Borrower, its address set forth in Section 9.2 or
at such other address of which the Administrative Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the
right to effect service of process in any other manner
permitted by law or shall limit the right to ▇▇▇ in any
other jurisdiction; and
(e) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any
legal action or proceeding referred to in this Section
9.12 any special, exemplary, punitive or consequential
damages.
9.13 Acknowledgements. The Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the
negotiation, execution and delivery of this Agreement
and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender
has any fiduciary relationship with or duty to the
Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders,
on one hand, and the Borrower, on the other hand, in
connection herewith or therewith is solely that of
debtor and creditor; and
(c) no joint venture is created hereby or by the
other Loan Documents or otherwise exists by virtue of
the transactions contemplated hereby among the Lenders
or among the Borrower and the Lenders.
9.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE
AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.15 Confidentiality. Each of the Agents and each
Lender agrees to keep confidential all non-public information provided to
it by any Loan Party pursuant to this Agreement that is designated by
such Loan Party as confidential; provided that nothing herein shall
prevent any Agent or any Lender from disclosing any such information (a)
to the Administrative Agent, any other Lender or any affiliate of any
Lender, (b) to any Participant or Assignee (each, a "Transferee") or
prospective Transferee which agrees to comply with the provisions of this
Section, (c) to the employees, directors, agents, attorneys, accountants
and other professional advisors of such Lender or its affiliates provided
they agree to comply with the provisions of this Section, (d) upon the
request or demand of any Governmental Authority having jurisdiction over
the such Agent or such Lender, (e) in response to any order of any court
or other Governmental Authority or as may otherwise be required pursuant
to any Requirement of Law, (f) if requested or required to do so in
connection with any litigation or similar proceeding, (g) which has been
publicly disclosed other than in breach of this Section 9.15, (h) to the
National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires
access to information about a Lender's investment portfolio in connection
with ratings issued with respect to such Lender, or (i) in connection
with the exercise of any remedy hereunder or under any other Loan
Document.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC., as
Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
TD SECURITIES (USA) INC.,
as Arranger
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Director
TORONTO-DOMINION (TEXAS), INC., as
Administrative Agent
By: /s/ ▇▇▇▇ ▇▇▇▇
Title: Vice President
TORONTO-DOMINION (TEXAS), INC.,
By: /s/ ▇▇▇▇ ▇▇▇▇
Title: Vice-President
Exhibit 10.3(A)
EXECUTION COPY
TIMBERLANDS GUARANTEE
TIMBERLANDS GUARANTEE, dated as of December 1, 1997, made by
BEAR ISLAND TIMBERLAND COMPANY, L.L.C., a Virginia limited liability
company (the "Guarantor"), in favor of TORONTO-DOMINION (TEXAS), INC., as
Administrative Agent (in such capacity, the "Administrative Agent") for
the lenders (the "Lenders") parties to the Credit Agreement, dated as of
December 1, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among ▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES,
INC., (the "Borrower"), the Lenders, the Arranger named therein and the
Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Loans to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower owns directly or indirectly all of the issued
and outstanding equity interests of the Guarantor;
WHEREAS, the Borrower and the Guarantor are engaged in
related businesses, and the Guarantor will derive substantial direct and
indirect benefit from the making of the Loans; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective Loans to the Borrower under the Credit
Agreement that the Guarantor shall have executed and delivered this
Guarantee to the Administrative Agent for the ratable benefit of the
Lenders.
NOW, THEREFORE, in consideration of the premises and to
induce the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective Loans to the
Borrower under the Credit Agreement, the Guarantor hereby agrees with the
Administrative Agent, for the ratable benefit of the Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee
as a whole and not to any particular provision of this Guarantee, and
section and paragraph references are to this Guarantee unless otherwise
specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guarantee. (a) Subject to the provisions of paragraph 2(b), the
Guarantor hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the Administrative Agent, for the ratable benefit of the
Lenders and their respective permitted successors, indorsees, transferees
and assigns, the prompt and complete payment and performance by the
Borrower when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations.
(b) Anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of the Guarantor
hereunder and under the other Loan Documents shall in no event exceed the
amount which can be guaranteed by the Guarantor under applicable federal
and state laws relating to the insolvency of debtors.
(c) The Guarantor further agrees to pay any and all reasonable
out-of-pocket expenses (including, without limitation, all reasonable
fees and disbursements of counsel) which may be paid or incurred by the
Administrative Agent or any Lender in enforcing, or obtaining advice of
counsel in respect of, any rights with respect to, or collecting, any or
all of the Obligations and/or enforcing any rights with respect to, or
collecting against, the Guarantor under this Guarantee. This Guarantee
shall remain in full force and effect until the Obligations are paid in
full and the Commitments are terminated, notwithstanding that from time
to time prior thereto the Borrower may be free from any Obligations.
(d) The Guarantor agrees that the Obligations may at any time
and from time to time exceed the amount of the liability of the Guarantor
hereunder without impairing this Guarantee or affecting the rights and
remedies of the Administrative Agent or any Lender hereunder.
(e) No payment or payments made by the Borrower, the Guarantor,
any other guarantor or any other Person or received or collected by the
Administrative Agent or any Lender from the Borrower, the Guarantor, any
other guarantor or any other Person by virtue of any action or proceeding
or any set-off or appropriation or application at any time or from time
to time in reduction of or in payment of the Obligations other than
payments made by the Guarantor in respect of the Obligations or payments
received or collected from the Guarantor in respect of the Obligations
shall be deemed to modify, reduce, release or otherwise affect the
liability of the Guarantor hereunder which shall, notwithstanding any
such payment or payments remain liable for the Obligations up to the
maximum liability of the Guarantor hereunder until the Obligations are
paid in full and the Commitments are terminated.
(f) The Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent or
any Lender on account of its liability hereunder, it will notify the
Administrative Agent in writing that such payment is made under this
Guarantee for such purpose.
3. Right of Set-off. The Guarantor hereby irrevocably authorizes
each Lender at any time and from time to time when an Event of Default
has occurred and is continuing, without notice to the Guarantor, any such
notice being expressly waived by the Guarantor, to set-off and
appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held
or owing by such Lender to or for the credit or the account of the
Guarantor, or any part thereof in such amounts as such Lender may elect,
against and on account of the obligations and liabilities of the
Guarantor to such Lender hereunder and claims of every nature and
description of such Lender against the Guarantor, in any currency,
whether arising hereunder, under the Credit Agreement, any Note, any
other Loan Documents or otherwise, as such Lender may elect, whether or
not the Administrative Agent or any Lender has made any demand for
payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Administrative Agent and each Lender shall
notify the Guarantor promptly of any such set-off and the application
made by the Administrative Agent or such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off
and application. The rights of the Administrative Agent and each Lender
under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the
Administrative Agent or such Lender may have.
4. No Subrogation. Notwithstanding any payment or payments made
by the Guarantor hereunder or any set-off or application of funds of the
Guarantor by any Lender, the Guarantor shall not be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or any collateral security or guarantee or right of
offset held by any Lender for the payment of the Obligations, nor shall
the Guarantor seek or be entitled to seek any contribution or
reimbursement from the Borrower in respect of payments made by the
Guarantor hereunder, until all amounts owing to the Administrative Agent
and the Lenders by the Borrower on account of the Obligations are paid in
full and the Commitments are terminated. If any amount shall be paid to
the Guarantor on account of such subrogation rights at any time when all
of the Obligations shall not have been paid in full, such amount shall be
held by the Guarantor in trust for the Administrative Agent and the
Lenders, segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the
Administrative Agent in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Administrative Agent, if required), to
be applied against the Obligations, whether matured or unmatured, in such
order as the Credit Agreement shall provide.
5. Amendments, etc. with respect to the Obligations; Waiver of
Rights. The Guarantor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against the Guarantor and without
notice to or further assent by the Guarantor, any demand for payment of
any of the Obligations made by the Administrative Agent or any Lender may
be rescinded by such party and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part,
be renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by the Administrative Agent or any
Lender, and the Credit Agreement, the Notes and the other Loan Documents
and any other documents executed and delivered in connection therewith
may be amended, modified, supplemented or terminated, in whole or in
part, as the Administrative Agent (or the Required Lenders, as the case
may be) may deem advisable from time to time, and any collateral
security, guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the Obligations may
be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for
the Obligations or for this Guarantee or any property subject thereto.
When making any demand hereunder against the Guarantor, the
Administrative Agent or any Lender may, but shall be under no obligation
to, make a similar demand on the Borrower or any other guarantor, and any
failure by the Administrative Agent or any Lender to make any such demand
or to collect any payments from the Borrower or any such other guarantor
or any release of the Borrower or such other guarantor shall not relieve
the Guarantor in respect of which a demand or collection is not made or
the Guarantor not so released of its several obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Administrative Agent or
any Lender against the Guarantor. For the purposes hereof "demand" shall
include the commencement and continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. The Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any
of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon this Guarantee or acceptance of
this Guarantee, the Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon this Guarantee; and all
dealings between the Borrower and the Guarantor, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, likewise shall
be conclusively presumed to have been had or consummated in reliance upon
this Guarantee. The Guarantor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon the
Borrower with respect to the Obligations. The Guarantor understands and
agrees that this Guarantee shall be construed as a continuing, absolute
and unconditional guarantee of payment without regard to (a) the
validity, regularity or enforceability of the Credit Agreement, any Note
or any other Loan Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent
or any Lender (b) any defense, set-off or counterclaim (other than a
defense of payment or performance) which may at any time be available to
or be asserted by the Borrower against the Administrative Agent or any
Lender, or (c) any other circumstance whatsoever (with or without notice
to or knowledge of the Borrower or the Guarantor) which constitutes, or
might be construed to constitute, an equitable or legal discharge of the
Borrower for the Obligations, or of the Guarantor under this Guarantee,
in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against the Guarantor, the Administrative Agent and
any Lender may, but shall be under no obligation to, pursue such rights
and remedies as it may have against the Borrower or any other Person or
against any collateral security or guarantee for the Obligations or any
right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to pursue such other rights or
remedies or to collect any payments from the Borrower or any such other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Borrower or any
such other Person or any such collateral security, guarantee or right of
offset, shall not relieve the Guarantor of any liability hereunder, and
shall not impair or affect the rights and remedies, whether express,
implied or available as a matter of law, of the Administrative Agent and
the Lenders against the Guarantor. This Guarantee shall remain in full
force and effect and be binding in accordance with and to the extent of
its terms upon the Guarantor and the successors and assigns thereof, and
shall inure to the benefit of the Administrative Agent and the Lenders,
and their respective successors, indorsees, transferees and assigns,
until all the Obligations and the obligations of the Guarantor under this
Guarantee shall have been satisfied by payment in full and the
Commitments shall be terminated, notwithstanding that from time to time
during the term of the Credit Agreement the Borrower may be free from any
Obligations.
7. Reinstatement. This Guarantee shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or the Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer
for, the Borrower or the Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been made.
8. Payments. The Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in U.S. Dollars at the office of the Administrative Agent
located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
9. Representations and Warranties. The Guarantor hereby
represents and warrants that:
(a) it is a limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has the power and authority and the legal right to own
and operate its property, to lease the property it operates and to
conduct the business in which it is currently engaged;
(b) it has the corporate or other power and authority and the
legal right to execute and deliver, and to perform its obligations under,
this Guarantee, and has taken all necessary action to authorize its
execution, delivery and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting the enforcement of creditors' rights generally, general
equitable principles and an implied covenant of good faith and fair
dealing;
(d) the execution, delivery and performance of this Guarantee
will not violate any provision of any material Requirement of Law or
material Contractual Obligation of the Guarantor and will not result in
or require the creation or imposition of any Lien on any of the
properties or revenues of the Guarantor pursuant to any such Requirement
of Law or Contractual Obligation of the Guarantor;
(e) no consent or authorization of, filing with, or other act by
or in respect of, any arbitrator or Governmental Authority and no consent
of any other Person (including, without limitation, any stockholder or
creditor of the Guarantor) is required in connection with the execution,
delivery, performance, validity or enforceability of this Guarantee
except as described in Section 3.4 of the Credit Agreement; and
(f) no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of
the Guarantor, threatened by or against the Guarantor or against any of
its properties or revenues (1) with respect to this Guarantee or any of the
transactions contemplated hereby, or (2) which could reasonably be expected
to have a material adverse effect on the business, operations, property
or financial or other condition of the Guarantor.
The Guarantor agrees that the foregoing representations and
warranties shall be deemed to have been made by the Guarantor on the date
of each borrowing by the Borrower under the Credit Agreement on and as of
such date of borrowing as though made hereunder on and as of such date.
10. Authority of Administrative Agent. The Guarantor
acknowledges that the rights and responsibilities of the Administrative
Agent under this Guarantee with respect to any action taken by the
Administrative Agent or the exercise or non-exercise by the
Administrative Agent of any option, right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Guarantee shall, as between the Administrative Agent and the Lenders, be
governed by the Credit Agreement, but, as between the Administrative
Agent and the Guarantor, the Administrative Agent shall be conclusively
presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and the Guarantor shall not
be under any obligation, or entitlement, to make any inquiry respecting
such authority.
11. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Lender or the Guarantor to be effective shall
be in writing (including by telecopy) and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when
delivered or deposited in the mails, postage prepaid or in the case of
telecopy notice, when received, addressed as follows:
(a) if to the Administrative Agent, at its address or
transmission number for notices provided in subsection 9.2 of the Credit
Agreement; and
(b) if to the Guarantor, at its address or transmission number
for notices set forth under its signature below.
Each of the Administrative Agent and the Guarantor may change its
address and transmission numbers for notices by notice in the manner
provided in this Section.
12. Counterparts. This Guarantee may be executed by the
Guarantor on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the counterparts of this Guarantee signed by
the Guarantor shall be lodged with the Administrative Agent.
13. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
14. Integration. This Guarantee represents the agreement of the
Guarantor with respect to the subject matter hereof and there are no
promises or representations by the Administrative Agent or any Lender
relative to the subject matter hereof not reflected herein.
15. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None
of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument
executed by the Guarantor and the Administrative Agent, provided that any
provision of this Guarantee may be waived by the Administrative Agent and
the Lenders in a letter or agreement executed by the Administrative Agent
or by telex or facsimile transmission from the Administrative Agent.
(b) Neither the Administrative Agent nor any Lender shall by
any act (except by a written instrument pursuant to paragraph hereof),
delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any Default or Event
of Default or in any breach of any of the terms and conditions hereof. No
failure to exercise, nor any delay in exercising, on the part of the
Administrative Agent or any Lender, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right,
power or privilege. A waiver by the Administrative Agent or any Lender of
any right or remedy hereunder on any one occasion shall not be construed
as a bar to any right or remedy which the Administrative Agent or such
Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
16. Section Headings. The section headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
17. Successors and Assigns. This Guarantee shall be binding upon
the successors and assigns of the Guarantor and shall inure to the
benefit of the Administrative Agent and the Lenders and their respective
permitted successors and assigns.
18. Governing Law. This Guarantee shall be governed by, and
construed and interpreted in accordance with, the law of the State of New
York.
19. Submission To Jurisdiction; Waivers. The Guarantor hereby
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Guarantee and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, the Guarantor, its address set forth under its signature below
or at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 19 any special, exemplary, punitive or
consequential damages.
20. Acknowledgements. The Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents to which it
is a party;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or fiduciary duty to the Guarantor arising
out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between Administrative Agent and Lenders,
on the one hand, and the Guarantor, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Guarantor and the Lenders.
21. WAIVERS OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT TO WHICH IT IS A
PARTY AND FOR ANY COUNTERCLAIM THEREIN.
22. Term of this Guarantee. This Guarantee shall continue in
full force and effect until the Obligations and the obligations of the
Guarantor hereunder shall be paid in full and the Commitments shall have
been terminated. Upon such payment and termination, this Guarantee shall
automatically terminate and the guarantee hereunder released and the
Administrative Agent and the Lenders shall, upon the request of the
Guarantor and at the expense of the Guarantor, execute such documents and
instruments evidencing such termination and release.
23. No Liability of Retiring Partners. Notwithstanding anything
herein to the contrary, the Retiring Partners shall have no liability
under this Guarantee.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of
the day and year first above written.
BEAR ISLAND TIMBERLAND COMPANY, L.L.C.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
Address for Notices:
Bear Island Timberland Company, L.L.C
c/o ▇▇▇▇▇-▇▇▇▇▇ Industries, Inc.
Post Office Box 3443
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT 10.3 (B)
EXECUTION COPY
TIMBERLANDS PLEDGE AGREEMENT
TIMBERLANDS PLEDGE AGREEMENT, dated as of December 1,
1997, made by ▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC., a Delaware corporation
(the "Pledgor") in favor of TORONTO-DOMINION (TEXAS), INC., as agent
(in such capacity, the "Agent") for (i) the Timberlands Agent for the
benefit of the Timberlands Lenders and (ii) the Paper Company Agent
for the benefit of the Paper Company Lenders (as such terms are
hereinafter defined).
W I T N E S S E T H :
WHEREAS, pursuant to the Paper Company Credit Agreement, the
Paper Company Lenders have severally agreed to make loans to the Paper
Company (the "Paper Company Loans") upon the terms and subject to the
conditions set forth therein and as a condition precedent thereof, the
Pledgor has guaranteed payment and performance of the obligations of
the Paper Company thereunder pursuant to a Guarantee of even date
herewith (as amended modified and otherwise supplemented from time to
time (the "▇▇▇▇▇-▇▇▇▇▇ Guarantee");
WHEREAS pursuant to the Timberlands Credit Agreement, the
Timberlands Lenders have severally agreed to make loans to the Pledgor
(the "Timberlands Loans") upon the terms and subject to the conditions
set forth therein; and
WHEREAS, it is a condition precedent to the obligation of the
Paper Company Lenders to make the Paper Company Loans under the Paper
Company Credit Agreement and the Timberlands Lenders to make the
Timberlands Loans under the Timberlands Credit Agreement that the
Pledgor shall have executed and delivered this Agreement to (i) secure
payment and performance of the obligations of the Paper Company under
the Paper Company Credit Agreement and the Pledgor under the
▇▇▇▇▇-▇▇▇▇▇ Guarantee and (ii) secure payment and performance of the
obligations of the Pledgor under the Timberlands Credit Agreement.
NOW, THEREFORE, in consideration of the premises and to
induce (i) the Paper Company Agent and the Paper Company Lenders to
enter into the Paper Company Credit Agreement and to induce the Paper
Company Lenders to make the Paper Company Loans and (ii) the
Timberlands Agent and the Timberlands Lenders to enter into the
Timberlands Credit Agreement and to induce the Timberlands Lenders to
make the Timberlands Loans, the Pledgor hereby agrees with the Agent,
for the benefit of (i) the Paper Company Agent for the benefit of the
Paper Company Lenders and (ii) the Timberlands Agent for the benefit
of the Timberlands Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms
defined in the Paper Company Credit Agreement and used herein shall
have the meanings given to them in the Paper Company Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Pledge Agreement, as the same may be amended,
modified or otherwise supplemented from time to time.
"Code": the Uniform Commercial Code from time to time in effect
in the State of New York.
"Collateral": the Pledged LLC Interests and all Proceeds.
"Collateral Account": any account established to hold cash
Proceeds, maintained under the sole dominion and control of the Agent,
subject to withdrawal by the Agent for the account of the Lenders only as
provided in paragraph 7(a).
"Credit Agreements": the collective reference to the Paper
Company Credit Agreement and the Timberlands Credit Agreement.
"Issuer": the company identified on Schedule 1 attached hereto as
the issuer of the Pledged LLC Interests.
"Lenders": the collective reference to the Paper Company Lenders
and the Timberlands Lenders.
"Loans": the collective reference to the Paper Company Loans and
the Timberlands Loans.
"Obligations": as defined in the ▇▇▇▇▇-▇▇▇▇▇ Guarantee.
"Paper Company": as defined in the definition of the Paper
Company Credit Agreement.
"Paper Company Agent": as defined in the definition of the Paper
Company Credit Agreement.
"Paper Company Credit Agreement": the credit agreement, dated
as of December 1, 1997 (as amended, supplemented or otherwise modified
from time to time) among Bear Island Paper Company, LLC (the "Paper
Company"), Toronto-Dominion (Texas), Inc., as administrative agent (in
such capacity, the "Paper Company Agent"), the arranger party thereto
and the Lenders parties thereto (the "Paper Company Lenders").
"Paper Company Lenders": as defined in the definition of the
Paper Company Credit Agreement.
"Paper Company Loans": as defined in the recitals hereto.
"Pledged LLC Interests": in each case, whether now existing or
hereafter acquired, all of the Pledgor's right, title and interest in and
to:
(a) equity interests of the Issuer, but not the
Pledgor's obligations from time to time as a holder of equity
interests in such Issuer (unless the Agent or its designee, on
behalf of the Agent and the Lenders, shall elect to become a
holder of interests in any such Issuer in connection with its
exercise of remedies pursuant to the terms hereof);
(b) any and all moneys due and to become due to the
Pledgor now or in the future by way of a distribution made to
the Pledgor in its capacity as a holder of equity interests in
the Issuer or otherwise in respect of the Pledgor's interest
as a holder of equity interests in the Issuer;
(c) any other property of the Issuer to which the
Pledgor now or in the future may be entitled in respect of its
equity interests in the Issuer by way of distribution, return
of capital or otherwise;
(d) any other claim or right which the Pledgor now has
or may in the future acquire in respect of its equity
interests in the Issuer;
(e) all certificates, options or rights of any nature
whatsoever that may be issued or granted by the Issuer with
respect to the equity interests of the Issuer to the Pledgor
while this Agreement is in effect; and
(f) to the extent not otherwise included, all Proceeds
of any or all of the foregoing.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New
York on the date hereof and, in any event, shall include, without
limitation, all dividends or other income from the Pledged LLC
Interests, collections thereon or distributions with respect thereto.
"Secured Obligations": the collective reference to (a) the
Obligations, (b) any and all unpaid principal of and interest on any
obligations of the Pledgor to the Timberlands Agent and the
Timberlands Lenders (or, in the case of Interest Rate Protection
Agreements and Currency Swap Agreements, any affiliate of any Lender)
(including, without limitation, interest accruing at the then
applicable rate provided in the Timberlands Credit Agreement after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like petition, relating to the Pledgor
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the
Timberlands Credit Agreement, the notes thereunder, any Interest Rate
Protection Agreement or Currency Swap Agreement entered into with any
Timberlands Lender or any affiliate thereof or any other document
made, delivered or given in connection therewith, in each case whether
on account of principal, interest, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all reasonable fees and
disbursements of counsel to the Timberlands Agent or to the
Timberlands Lenders that are required to be paid by the Pledgor
pursuant to the terms of the Timberlands Credit Agreement or any other
document made, delivered or given in connection therewith), and (c)
all obligations and liabilities of the Pledgor which may arise under
or in connection with this Agreement, the ▇▇▇▇▇-▇▇▇▇▇ Guarantee or any
other Loan Document to which the Pledgor is a party, whether on
account of fees, indemnities, costs, expenses or otherwise that are
required to be paid by the Pledgor pursuant to the terms thereof
(including, without limitation, all reasonable fees and disbursements
of counsel to the Administrative Agent or to the Lenders that are
required to be paid by the Pledgor pursuant to the terms of this
Agreement or any other Loan Document to which the Pledgor is a party).
"Securities Act": the Securities Act of 1933, as amended.
"Timberlands Agent": as defined in the definition of the
Timberlands Credit Agreement.
"Timberlands Credit Agreement": the credit agreement, dated as
of December 1, 1997 (as amended, supplemented or otherwise modified
from time to time) among the Pledgor, Toronto-Dominion (Texas), Inc.,
as administrative agent (in such capacity, the "Timberlands Agent")
and the Lenders parties thereto (the "Timberlands Lenders").
"Timberlands Lenders": as defined in the definition of the
Timberlands Credit Agreement.
"Timberlands Loans": as defined in the recitals hereto.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. The Pledgor hereby
grants to the Agent, for the benefit of (i) the Paper Company Agent
for the benefit of the Paper Company Lenders and (ii) the Timberlands
Agent for the benefit of the Timberlands Lenders, a first priority
security interest in the Collateral, as collateral security for the
prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of the Secured
Obligations (for the benefit of the Paper Company Lenders and the
Timberlands Lenders in the respective priorities established pursuant
to the Intercreditor Agreement).
3. Representations and Warranties. The Pledgor represents
and warrants that:
(a) The Pledgor has the corporate power and authority and
the legal right to execute and deliver, to perform its obligations
under, and to grant the security interests in the Collateral pursuant
to, this Agreement and has taken all necessary corporate action to
authorize its execution, delivery and performance of, and grant of the
security interests in the Collateral pursuant to, this Agreement.
(b) This Agreement constitutes a legal, valid and binding
obligation of the Pledgor, enforceable in accordance with its terms,
and upon the filing of a UCC-1 financing statement in appropriate form
in the office of the Secretary of State of Connecticut, the security
interests created pursuant to this Agreement will constitute a valid,
perfected first priority security interest in the Collateral in favor
of the Agent for the benefit of (i) the Paper Company Agent for the
benefit of the Paper Company Lenders and (ii) the Timberlands Agent
for the benefit of the Timberlands Lenders, respectively, enforceable
in accordance with its terms against all creditors of the Pledgor and
any Persons purporting to purchase any Collateral from the Pledgor,
except in each case as enforceability may be affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing.
(c) The execution, delivery and performance of this
Agreement will not violate any provision of any material Requirement
of Law or material Contractual Obligation of the Pledgor and will not
result in the creation or imposition of any Lien on any of the
properties or revenues of the Pledgor pursuant to any such Requirement
of Law or Contractual Obligation of the Pledgor, except the security
interest created by this Agreement.
(d) No consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority and
no consent of any other Person (including, without limitation, any
equity holder or creditor of the Pledgor), is required in connection
with the execution, delivery, performance, validity or enforceability
of this Agreement, except as described in Section 3.4 of the Paper
Company Credit Agreement.
(e) No litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Pledgor, threatened by or against the Pledgor or
against any of its properties or revenues with respect to this
Agreement or any of the transactions contemplated hereby.
(f) The Pledged LLC Interests constitute all of the issued
and outstanding equity interests of the Issuer.
(g) All of the Pledged LLC Interests have been duly and
validly issued.
(h) The Pledgor is the owner of, and has title to, the
Pledged LLC Interests, free of any and all Liens or options in favor
of, or claims of, any other Person, except the security interests
created by this Agreement and Liens pursuant to the Second Priority
Note Security Documents.
4. Covenants. The Pledgor covenants and agrees with the
Agent and the Lenders that, from and after the date of this Agreement
until this Agreement is terminated and the security interests created
hereby are released in accordance with the terms hereof:
(a) If the Pledgor shall, as a result of its ownership of
the Pledged LLC Interests, become entitled to receive or shall receive
any certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights,
whether in addition to, in substitution of, as a conversion of, or in
exchange for any equity interests of the Pledged LLC Interests, or
otherwise in respect thereof, the Pledgor shall accept the same as the
agent of the Agent and the Lenders, hold the same in trust for the
Agent and the Lenders and deliver the same forthwith to the Agent in
the exact form received, duly indorsed by the Pledgor to the Agent, if
required, together with an undated power covering such certificate
duly executed in blank by the Pledgor and with, if the Agent so
requests, signature guaranteed, to be held by the Agent, subject to
the terms hereof, as additional collateral security for the Secured
Obligations. Any sums paid upon or in respect of the Pledged LLC
Interests upon the liquidation or dissolution of the Issuer shall be
paid over to the Agent to be held by it hereunder as additional
collateral security for the Secured Obligations, and in case any
distribution of capital shall be made on or in respect of the Pledged
LLC Interests or any property shall be distributed upon or with
respect to the Pledged LLC Interests, in each case pursuant to the
recapitalization or reclassification of the capital of the Issuer or
pursuant to the reorganization thereof, the property so distributed
shall be delivered to the Agent to be held by it hereunder as
additional collateral security for the Secured Obligations. If any
sums of money or property so paid or distributed in respect of the
Pledged LLC Interests (other than distributions permitted to be made
or received pursuant to the Credit Agreements) shall be received by
the Pledgor, the Pledgor shall, until such money or property is paid
or delivered to the Agent, hold such money or property in trust for
the Lenders, segregated from other funds of the Pledgor, as additional
collateral security for the Secured Obligations.
(b) Except as permitted by the Credit Agreements, without
the prior written consent of the Agent, the Pledgor will not (1) vote to
enable, or take any other action to permit, the Issuer to issue any
stock or other equity securities of any nature or to issue any other
securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of the
Issuer except issuances of equity interests to the Pledgor which
constitute Collateral hereunder, (2) sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the
Collateral, (3) create, incur or permit to exist any Lien or option in
favor of, or any claim of any Person with respect to, any of the
Collateral, or any interest therein, except for the security interests
created by this Agreement or (4) enter into any agreement or undertaking
restricting the right or ability of the Pledgor or the Agent (after
foreclosure) to sell, assign or transfer any of the Collateral other
than such restrictions under the Credit Agreements, the Second
Priority Notes and the Second Priority Indenture.
(c) The Pledgor shall maintain the security interest created
by this Agreement as a first priority perfected security interest, and
shall defend such security interests against claims and demands of all
Persons whomsoever except for permitted liens. At any time and from
time to time, upon the written request of the Agent, and at the sole
expense of the Pledgor, the Pledgor will promptly and duly execute and
deliver such further instruments and documents and take such further
actions as the Agent may reasonably request for the purposes of
obtaining or preserving the full benefits of this Agreement and of the
rights and powers herein granted, including, without limitation, the
filing of any financing or continuation statements under the Uniform
Commercial Code (or similar laws) in effect in any jurisdiction with
respect to the security interests created hereby. If any amount
payable under or in connection with any of the Collateral (to the
extent such amounts are otherwise required by this Agreement to be
paid to the Agent) shall be or become evidenced by any promissory
note, other instrument or chattel paper, such note, instrument or
chattel paper in excess of $500,000 shall promptly upon receipt by the
Pledgor be delivered to the Agent, duly endorsed in a manner
satisfactory to the Agent, to be held as Collateral pursuant to this
Agreement.
(d) With respect to the Pledged LLC Interests, the Pledgor
shall and shall cause the Issuer to, directly or indirectly, (i)
perform and comply in all material respects with all the terms and
provisions of any limited liability company agreement then in effect
with respect thereto and required to be performed or complied by it
and (ii) enforce any limited liability company agreement then in
effect in accordance with its terms.
(e) The Pledgor shall pay, and save the Agent and the
Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales
or other similar taxes which may be payable or determined to be
payable with respect to any of the Collateral or in connection with
any of the transactions contemplated by this Agreement, other than
taxes covered by Section 2.18 of the Paper Company Credit Agreement or
Section 2.15 of the Timberlands Credit Agreement.
(f) The Pledgor shall not, directly or indirectly, create,
incur, assume or suffer to exist any Indebtedness, except as permitted
by the Timberlands Credit Agreement.
(g) The Pledgor shall not permit the Issuer to, directly or
indirectly, create, incur, assume or suffer to exist any Indebtedness,
except as permitted by the Timberlands Credit Agreement.
(h) The Pledgor shall not (i) directly or indirectly,
create, incur, assume or suffer to exist any Lien on the Capital Stock
of the Issuer or (ii) permit the Issuer to create, incur, assume or
suffer to exist any Lien on any Property of the Issuer except, in each
case, as permitted by the Timberlands Credit Agreement.
To the extent that the provisions of this Section 4
refer to the Timberlands Credit Agreement, if the Timberlands Credit
Agreement shall terminate, such references shall be deemed to refer to
the Timberlands Credit Agreement immediately prior to such
termination.
5. Voting Rights. No vote shall be cast or corporate right
exercised or other action taken which, in the Agent's reasonable
judgment, would impair in any material respect the Collateral or which
would be inconsistent with or result in any violation of any provision
of the Credit Agreements, the notes thereunder, this Agreement or any
other Loan Document.
6. Rights of the Lenders and the Agent. (a) All money Proceeds
received by the Agent hereunder shall be held by the Agent for the
ratable benefit of the Lenders in a Collateral Account. All Proceeds
while held by the Agent in a Collateral Account (or by the Pledgor in
trust for the Agent and the Lenders) shall continue to be held as
collateral security for all the Secured Obligations and shall not
constitute payment thereof until applied as provided in paragraph 7(a).
(b) If an Event of Default shall occur and be continuing and
the Agent shall give notice of its intent to exercise such rights to
the Pledgor, (1) the Agent shall have the right to receive any and all
cash dividends and distributions paid in respect of the Pledged LLC
Interests and make application thereof to the Secured Obligations in
such order as the Agent may determine, and (2) all equity interests of the
Pledged LLC Interests shall be registered in the name of the Agent or
its nominee, and the Agent or its nominee may thereafter exercise all
voting, corporate and other rights pertaining to such Pledged LLC
Interests at any meeting of shareholders of the Issuer or otherwise
and any and all rights of conversion, exchange, subscription and any
other rights, privileges or options pertaining to such Pledged LLC
Interests as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the
Pledged LLC Interests upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate
structure of the Issuer, or upon the exercise by the Pledgor or the
Agent of any right, privilege or option pertaining to such Pledged LLC
Interests, and in connection therewith, the right to deposit and
deliver any and all of the Pledged LLC Interests with any committee,
depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as the Agent may determine), all without
liability except to account for property actually received by it, but
the Agent shall have no duty to the Pledgor to exercise any such
right, privilege or option and shall not be responsible for any
failure to do so or delay in so doing.
7. Remedies.(a) If an Event of Default shall have occurred and
be continuing, at any time at the Agent's election, the Agent may
apply all or any part of Proceeds held in any Collateral Account in
payment of the Secured Obligations in accordance with the
Intercreditor Agreement and as permitted by law.
(b) If an Event of Default shall occur and be continuing,
the Agent, on behalf of the Lenders, may exercise, in addition to all
other rights and remedies granted in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the
Secured Obligations, all rights and remedies of a secured party under
the Code. Without limiting the generality of the foregoing, the Agent,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law
referred to below) to or upon the Pledgor or any other Person (all and
each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof,
and/or may forthwith sell, assign, give option or options to purchase
or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market, at
any exchange, broker's board or office of the Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and
at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Agent or
any Lender shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or
sales, to purchase the whole or any part of the Collateral so sold,
free of any right or equity of redemption in the Pledgor, which right
or equity is waived or released upon the consummation of such sale.
The Agent shall apply any Proceeds from time to time held by it and
the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable
costs and expenses of every kind incurred in respect thereof or
incidental to the care or safekeeping of any of the Collateral or in
any way relating to the Collateral or the rights of the Agent and the
Lenders hereunder, including, without limitation, reasonable
attorneys' fees and reasonable disbursements of counsel to the Agent,
to the payment in whole or in part of the Secured Obligations, in
accordance with the Intercreditor Agreement and as permitted by law,
and only after such application and after the payment by the Agent of
any other amount required by any provision of law, including, without
limitation, Section 9-504(1)(c) of the Code, need the Agent account
for the surplus, if any, to the Pledgor. To the extent permitted by
applicable law, the Pledgor waives all claims, damages and demands it
may acquire against the Agent or any Lender arising out of the
exercise by them of any rights hereunder except to the extent arising
out of gross negligence or willful misconduct of the Agent or such
Lender. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 10 days before such sale or
other disposition.
8. Registration Rights; Private Sales. (a) If the Agent shall
determine to exercise its right to sell any or all of the Pledged LLC
Interests pursuant to paragraph hereof, and if in the reasonable
opinion of the Agent it is necessary or advisable to have the Pledged
LLC Interests, or that portion thereof to be sold, registered under
the provisions of the Securities Act, the Pledgor will cause the
Issuer thereof to execute and deliver, and cause the directors and
officers of the Issuer to (1) execute and deliver, all such instruments
and documents, and do or cause to be done all such other acts as may
be, in the reasonable opinion of the Agent, necessary or advisable to
register the Pledged LLC Interests, or that portion thereof to be
sold, under the provisions of the Securities Act, (2) to use its
reasonable efforts to cause the registration statement relating
thereto to become effective and to remain effective for a period of
one year from the date of the first public offering of the Pledged LLC
Interests, or that portion thereof to be sold, and (3) to make all
amendments thereto and/or to the related prospectus which, in the
reasonable opinion of the Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules
and regulations of the Securities and Exchange Commission applicable
thereto. The Pledgor agrees to cause the Issuer to comply with the
provisions of the securities or "Blue Sky" laws of any and all
jurisdictions of the United States which the Agent shall designate and
to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Securities Act.
(b) The Pledgor recognizes that the Agent may be unable to
effect a public sale of any or all the Pledged LLC Interests, by
reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to
acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. The Pledgor
acknowledges and agrees that any such private sale may result in
prices and other terms less favorable than if such sale were a public
sale and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially
reasonable manner. The Agent shall be under no obligation to delay a
sale of any of the Pledged LLC Interests for the period of time
necessary to permit the Issuer thereof to register such securities for
public sale under the Securities Act, or under applicable state
securities laws of the United States, even if the Issuer would agree
to do so.
(c) The Pledgor further agrees to use its reasonable efforts
to do or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Pledged LLC
Interests pursuant to this Section valid and binding and in compliance
with any and all other applicable Requirements of Law. The Pledgor
further agrees that a breach of any of the covenants contained in this
Section will cause irreparable injury to the Agent and the Lenders,
that the Agent and the Lenders have 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 the Pledgor, and the Pledgor hereby waives and agrees not to
assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred
under the Credit Agreement.
9. Irrevocable Authorization and Instruction to Issuer. The
Pledgor hereby authorizes and instructs the Issuer to comply with any
instruction received by it from the Agent in writing that (a) states
that an Event of Default has occurred and is continuing and (b) is
otherwise in accordance with the terms of this Agreement, without any
other or further instructions from the Pledgor, and the Pledgor agrees
that the Issuer shall be fully protected in so complying.
10. Agent's Appointment as Attorney-in-Fact. (a) The Pledgor
hereby irrevocably constitutes and appoints the Agent and any officer
or agent of the Agent, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority
in the place and stead of the Pledgor and in the name of the Pledgor
or in the Agent's own name, from time to time in the Agent's
discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any
and all documents and instruments which may be necessary or desirable
to accomplish the purposes of this Agreement, including, without
limitation, any financing statements, endorsements, assignments or
other instruments of transfer, which power of attorney is only
exercisable if an Event of Default shall have occurred and be
continuing.
(b) The Pledgor hereby ratifies all that said attorneys
shall lawfully do or cause to be done pursuant to the power of
attorney granted in paragraph 10(a). All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and
are irrevocable until this Agreement is terminated and the security
interests created hereby are released in accordance with the terms
hereof.
11. Duty of Agent. The Agent's sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in
its possession, under Section 9-207 of the Code or otherwise, shall be
to deal with it in the same manner as the Agent deals with similar
securities and property for its own account, except that after the
occurrence and during the continuance of an Event of Default the Agent
shall have no obligation to invest funds held in any Collateral
Account and may hold the same as demand deposits. Neither the Agent,
any Lender nor any of their respective directors, officers, employees
or agents shall be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so (unless the
same shall result from the gross negligence or willful misconduct of
such Person) or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Pledgor or any other
Person or to take any other action whatsoever with regard to the
Collateral or any part thereof.
12. Execution of Financing Statements. Pursuant to Section
9-402 of the Code, the Pledgor authorizes the Agent to file financing
statements with respect to the Collateral without the signature of the
Pledgor in such form and in such filing offices as the Agent
reasonably determines appropriate to perfect the security interests of
the Agent under this Agreement. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
13. Authority of Agent. The Pledgor acknowledges that the
rights and responsibilities of the Agent under this Agreement with
respect to any action taken by the Agent or the exercise or
non-exercise by the Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or
arising out of this Agreement shall, as between the Agent, the Paper
Company Agent and the Timberlands Agent, be governed by the Credit
Agreements and the Intercreditor Agreement, but, as between the Agent
and the Pledgor, the Agent shall be conclusively presumed to be acting
as agent for the Paper Company Agent and the Timberlands Agent with
full and valid authority so to act or refrain from acting, and neither
the Pledgor nor the Issuer shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
14. Notices. All notices, requests and demands to or upon the
Agent or the Pledgor to be effective shall be in writing (including by
telecopy) and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered or three
Business Days after being deposited in the mails, postage prepaid, or
in the case of telecopy notice, when received, addressed as follows:
(1) if to the Agent, at its address or transmission number
for notices provided below:
Toronto-Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: The Toronto-Dominion Bank
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(2) if to the Pledgor, at its address or transmission number
for notices set forth under its signature below.
The Agent and the Pledgor may change their addresses and transmission
numbers for notices by notice in the manner provided in this Section.
15. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
16. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise modified except by a written
instrument executed by the Pledgor and the Agent, provided that any
provision of this Agreement may be waived by the Agent and the Lenders
in a letter or agreement executed by the Agent or by telex or
facsimile transmission from the Agent.
(b) Neither the Agent nor any Lender shall by any act
(except by a written instrument pursuant to paragraph 16(a) hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right
or remedy hereunder or to have acquiesced in any Default or Event of
Default or in any breach of any of the terms and conditions hereof. No
failure to exercise, nor any delay in exercising, on the part of the
Agent or any Lender, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any
right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Agent or any Lender of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Agent or such Lender would otherwise have on
any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
(d) The Pledgor agrees that it will not permit any amendment
or other modification of any of the covenants in the Timberlands
Credit Agreement that are incorporated by reference or referred to
herein unless such amendment or other modification has been consented
to in writing by the Required Lenders under the Paper Company Credit
Agreement.
17. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the
interpretation hereof.
18. Term of this Agreement. This Agreement shall continue in
full force and effect until the Obligations and the obligations of the
Pledgor hereunder shall be paid in full and the Commitments shall have
been terminated. Upon such payment and termination, this Agreement
shall automatically terminate and the security interests, pledges and
liens hereunder released and the Agent and the Lenders shall, upon the
request of the Pledgor and at the Pledgor's expense, execute and
deliver to the Pledgor such documents and instruments evidencing such
termination and release.
19. Limitation on Recourse. Anything herein to the contrary
notwithstanding, from and after the date on which the ▇▇▇▇▇-▇▇▇▇▇
Guarantee shall have terminated in accordance with Section 11 thereof,
the Agent and the Lenders shall have recourse in respect of the
Pledgor's obligations hereunder solely to the Collateral and not to
the Pledgor personally or to other assets of the Pledgor other than
the Collateral.
20. Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of the Pledgor and shall inure to the
benefit of the Agent and the Lenders and their successors and assigns.
21. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New
York.
IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Pledge Agreement dated December 1, 1997, made by ▇▇▇▇▇-▇▇▇▇▇
Industries, Inc. for the benefit of Toronto-Dominion (Texas), Inc., as
Administrative Agent (the "Pledge Agreement"). The undersigned agrees
for the benefit of the Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Pledge
Agreement and will comply with such terms insofar as such terms are
applicable to the undersigned.
2. The undersigned will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described
in paragraph 4(a) of the Pledge Agreement.
3. The terms of paragraph 9 of the Pledge Agreement shall apply
to it, mutatis mutandis, with respect to all actions that may be
required of it under or pursuant to or arising out of Section 8 of the
Pledge Agreement.
4. The undersigned agrees that it will not take any action or
fail to take any action that will permit the Pledged LLC Interests to
become "securities" within the meaning of Article 8 of the Uniform
Commercial Code of the State of New York unless (i) the Issuer shall
have provided 30 days prior written notice to the Administrative Agent
and (ii) at the sole expense of the Issuer, the Issuer shall promptly
and duly execute and deliver such further instruments and documents
and take such further actions as the Administrative Agent may
reasonably request to ensure that the Administrative Agent has
"control" of such securities within the meaning of Article 8 of the
Uniform Commercial Code of the State of New York for the purposes of
obtaining or preserving the full benefits of the Pledge Agreement and
of the rights and powers granted therein.
BEAR ISLAND TIMBERLANDS COMPANY, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
Address for Notices
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
SCHEDULE 1
TO TIMBERLANDS PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED LLC INTERESTS
------------------------------------
Issuer Type of Interest Percentage Interest
------ ---------------- -------------------
Bear Island Timberlands Membership 100%
Company, LLC, a Virginia Interest
limited liability Company
EXHIBIT (C-1)
▇▇▇▇▇ PLEDGE AGREEMENT
▇▇▇▇▇ PLEDGE AGREEMENT, dated as of December 1, 1997,
made by ▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC., a Delaware corporation (the
"Pledgor") in favor of (i) TORONTO-DOMINION (TEXAS), INC., as
agent (in such capacity, the "Agent") for (i) the Timberlands
Agent for the benefit of the Timberlands Lenders and (ii) the
Paper Company Agent for the benefit of the Paper Company Lenders
(as such terms are hereinafter defined).
W I T N E S S E T H :
WHEREAS, pursuant to the Paper Company Credit Agreement, the
Paper Company Lenders have severally agreed to make loans to the
Paper Company (the "Paper Company Loans") upon the terms and
subject to the conditions set forth therein and as a condition
precedent thereof, the Pledgor has guaranteed payment and
performance of the obligations of the Paper Company thereunder
pursuant to a Guarantee of even date herewith (as amended
modified and otherwise supplemented from time to time (the
"▇▇▇▇▇-▇▇▇▇▇ Guarantee");
WHEREAS pursuant to the Timberlands Credit Agreement, the
Timberlands Lenders have severally agreed to make loans to the
Pledgor (the "Timberlands Loans") upon the terms and subject to
the conditions set forth therein; and
WHEREAS, it is a condition precedent to the obligation of
the Paper Company Lenders to make the Paper Company Loans under
the Paper Company Credit Agreement and the Timberlands Lenders to
make the Timberlands Loans under the Timberlands Credit Agreement
that the Pledgor shall have executed and delivered this Agreement
to (i) secure payment and performance of the obligations of the
Paper Company under the Paper Company Credit Agreement and the
Pledgor under the ▇▇▇▇▇-▇▇▇▇▇ Guarantee and (ii) secure payment
and performance of the obligations of the Pledgor under the
Timberlands Credit Agreement.
NOW, THEREFORE, in consideration of the premises and to
induce (i) the Paper Company Administrative Agent and the Paper
Company Lenders to enter into the Paper Company Credit Agreement
and to induce the Paper Company Lenders to make the Paper Company
Loans and (ii) the Timberlands Administrative Agent and the
Timberlands Lenders to enter into the Timberlands Credit
Agreement and to induce the Timberlands Lenders to make the
Timberlands Loans, the Pledgor hereby agrees with the Agent, for
the ratable benefit of (i) the Paper Company Agent for the
benefit of the Paper Company Lenders and (ii) the Timberlands
Agent for the benefit of the Timberlands Lenders, as follows:
1. Defined Terms. (a) The following terms shall have
the following meanings:
"Agreement": this Pledge Agreement, as the same may be
amended, modified or otherwise supplemented from time to time.
"Capital Stock": as defined in the Paper Company Credit
Agreement.
"Closing Date": as defined in the Paper Company Credit
Agreement.
"Code": the Uniform Commercial Code from time to time in
effect in the State of New York.
"Collateral": the Pledged Stock and all Proceeds.
"Collateral Account": any account established to hold cash
Proceeds, maintained under the sole dominion and control of the
Agent, subject to withdrawal by the Agent for the account of the
Lenders only as provided in paragraph 8(a).
"Commitment": as defined in the Paper Company Credit
Agreement.
"Contractual Obligation": as defined in the Paper Company
Credit Agreement.
"Credit Agreements": the collective reference to the Paper
Company Credit Agreement and the Timberlands Credit Agreement.
"Default": any of the events specified in either Section 7
of the Paper Company Credit Agreement or Section 7 of the
Timberlands Credit Agreement , whether or not any requirement for
the giving of notice, the lapse of time, or both, has been
satisfied.
"Disposition": as defined in the Paper Company Credit
Agreement.
"Event of Default": any of the events specified in Section
7 of the Paper Company Credit Agreement or Section 7 of the
Timberlands Credit Agreement, provided that any requirement for
the giving of notice, the lapse of time, or both, has been
satisfied.
"Governmental Authority": as defined in the Paper Company
Credit Agreement.
"Guarantee Obligation": as defined in the Paper Company
Credit Agreement.
"▇▇▇▇▇-▇▇▇▇▇ Guarantee": as defined in the recitals hereto.
"Issuer": the company identified on Schedule 1 attached
hereto as the issuer of the Pledged Stock.
"Lenders": the collective reference to the Paper Company
Lenders and the Timberlands Lenders.
"Lien": as defined in the Paper Company Credit Agreement.
"Loans": the collective reference to the Paper Company
Loans and the Timberlands Loans.
"Material Adverse Effect": as defined in the Timberlands
Credit Agreement.
"Paper Company": as defined in the definition of the Paper
Company Credit Agreement.
"Paper Company Agent": as defined in the definition of the
Paper Company Credit Agreement.
"Paper Company Credit Agreement": the Credit Agreement,
dated as of December 1, 1997 (as amended, supplemented or
otherwise modified from time to time) among Bear Island Paper
Company, LLC (the "Paper Company"), Toronto-Dominion (Texas),
Inc., as administrative agent (in such capacity, the "Paper
Company Agent"), the arranger party thereto and the Lenders
parties thereto (the "Paper Company Lenders").
"Paper Company Lenders": as defined in the definition of
the Paper Company Credit Agreement.
"Paper Company Loans": as defined in the recitals hereto.
"Paper Company Obligations": the "Obligations" as defined
in the Paper Company Credit Agreement.
"Person": as defined in the Paper Company Credit Agreement.
"Pledged Stock": the shares of Capital Stock listed on
Schedule 1 hereto, together with all stock certificates, options
or rights of any nature whatsoever that may be issued or granted
by the Issuer to the Pledgor while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in
Section 9-306(1) of the Uniform Commercial Code in effect in the
State of New York on the date hereof and, in any event, shall
include, without limitation, all dividends or other income from
the Pledged Stock, collections thereon or distributions with
respect thereto.
"Property": as defined in the Paper Company Credit
Agreement.
"Requirement of Law": as defined in the Paper Company
Credit Agreement.
"Responsible Officer": as defined in the Paper Company
Credit Agreement.
"Secured Obligations": the collective reference to (a) the
Paper Company Obligations, (b) Timberlands Obligations and (c)
all obligations and liabilities of the Pledgor which may arise
under or in connection with this Agreement, the ▇▇▇▇▇-▇▇▇▇▇
Guarantee or any other Loan Document to which the Pledgor is a
party, whether on account of fees, indemnities, costs, expenses
or otherwise that are required to be paid by the Pledgor pursuant
to the terms thereof (including, without limitation, all
reasonable fees and disbursements of counsel to the
Administrative Agent or to the Lenders that are required to be
paid by the Pledgor pursuant to the terms of this Agreement or
any other Loan Document to which the Pledgor is a party).
"Securities Act": the Securities Act of 1933, as amended,
together with the securities laws of any other jurisdiction in
which the Pledged Stock may be sold.
"▇▇▇▇▇ Management Contract": as defined in the Paper
Company Credit Agreement.
"Subsidiary": as defined in the Paper Company Credit
Agreement.
"Timberlands Agent": as defined in the definition of the
Timberlands Credit Agreement.
"Timberlands Credit Agreement": the Credit Agreement, dated
as of December 1, 1997 (as amended, supplemented or otherwise
modified from time to time) among the Pledgor, Toronto-Dominion
(Texas), Inc., as administrative agent (in such capacity, the
"Timberlands Agent") and the Lenders parties thereto (the
"Timberlands Lenders").
"Timberlands Lenders": as defined in the definition of the
Timberlands Credit Agreement.
"Timberlands Loans": as defined in the recitals hereto.
"Timberlands Obligations": the "Obligations" as defined in
the Timberlands Credit Agreement.
"Total Committed Debt": as defined in the Paper Company
Credit Agreement.
(b) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this
Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
2. Pledge; Grant of Security Interest. The Pledgor hereby
delivers to the Agent, for the benefit of (i) the Paper Company
Agent for the benefit of the Paper Company Lenders and (ii) the
Timberlands Agent for the benefit of the Timberlands Lenders, all
the Pledged Stock and hereby pledges in favor of and grants to
the Agent, for the benefit of the Paper Company Lenders and the
Timberlands Lenders, a first security interest in the Collateral,
as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Secured Obligations (for the
benefit of the Paper Company Lenders and the Timberlands Lenders
in the respective priorities established pursuant to the
Intercreditor Agreement).
3. Stock Powers. Concurrently with the delivery to the
Agent of each certificate representing one or more shares of
Pledged Stock, the Pledgor shall deliver an undated stock power
covering such certificate, duly executed in blank by the Pledgor
with, if the Agent so requests, signature guaranteed.
4. Representations and Warranties. The Pledgor represents
and warrants that:
(a) The Pledgor has the corporate power and authority and
the legal right to execute and deliver, to perform its
obligations under, and to grant the security interest in the
Collateral pursuant to, this Agreement and has taken all
necessary corporate action to authorize its execution, delivery
and performance of, and grant of the security interest in the
Collateral pursuant to, this Agreement.
(b) This Agreement constitutes a legal, valid and binding
obligation of the Pledgor, enforceable in accordance with its
terms, and upon delivery to the Agent of the stock certificates
evidencing the Pledged Stock and completion of the registration
actions required under Quebec Law, the security interest created
pursuant to this Agreement will constitute a valid, perfected
first priority security interest in the Collateral in favor of
the Agent for the benefit of (i) the Paper Company Agent for the
benefit of the Paper Company Lenders and (ii) the Timberlands
Agent for the benefit of the Timberlands Lenders, respectively,
enforceable in accordance with its terms against all creditors of
the Pledgor and any Persons purporting to purchase any Collateral
from the Pledgor, except in each case as enforceability may be
affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(c) The execution, delivery and performance of this
Agreement will not violate any provision of any material
Requirement of Law or material Contractual Obligation of the
Pledgor and will not result in the creation or imposition of any
Lien on any of the properties or revenues of the Pledgor pursuant
to any such Requirement of Law or Contractual Obligation of the
Pledgor, except the security interest created by this Agreement.
(d) No consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority
and no consent of any other Person (including, without
limitation, any stockholder or creditor of the Pledgor), is
required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement, except as described
in Section 3.4 of the Paper Company Credit Agreement.
(e) No litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Pledgor, threatened by or against the Pledgor or
against any of its properties or revenues with respect to this
Agreement or any of the transactions contemplated hereby.
(f) The shares of Pledged Stock constitute 65% of all the
issued and outstanding shares of all classes of the capital stock
of the Issuer.
(g) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(h) The Pledgor is the record and beneficial owner of, and
has title to, the Pledged Stock, free of any and all Liens or
options in favor of, or claims of, any other Person, except the
security interest created by this Agreement and Liens pursuant to
the Second Priority Note Security Documents.
5. Covenants. The Pledgor covenants and agrees with the
Agent and the Lenders that, from and after the date of this
Agreement until this Agreement is terminated and the security
interests created hereby are released in accordance with the
terms hereof:
(a) If the Pledgor shall, as a result of its ownership of
the Pledged Stock, become entitled to receive or shall receive
any stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in
connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any
reorganization), option or rights, whether in addition to, in
substitution of, as a conversion of, or in exchange for any
shares of the Pledged Stock, or otherwise in respect thereof, the
Pledgor shall accept the same as the agent of the Agent and the
Lenders, hold the same in trust for the Agent and the Lenders and
deliver the same forthwith to the Agent in the exact form
received, duly indorsed by the Pledgor to the Agent, if required,
together with an undated stock power covering such certificate
duly executed in blank by the Pledgor and with, if the Agent so
requests, signature guaranteed, to be held by the Agent, subject
to the terms hereof, as additional collateral security for the
Secured Obligations. Any sums paid upon or in respect of the
Pledged Stock upon the liquidation or dissolution of any Issuer
shall be paid over to the Agent to be held by it hereunder as
additional collateral security for the Secured Obligations, and
in case any distribution of capital shall be made on or in
respect of the Pledged Stock or any property shall be distributed
upon or with respect to the Pledged Stock, in each case pursuant
to the recapitalization or reclassification of the capital of the
Issuer or pursuant to the reorganization thereof, the property so
distributed shall be delivered to the Agent to be held by it
hereunder as additional collateral security for the Secured
Obligations. If any sums of money or property so paid or
distributed in respect of the Pledged Stock (other than
distributions permitted to be made or received pursuant to the
Credit Agreements) shall be received by the Pledgor, the Pledgor
shall, until such money or property is paid or delivered to the
Agent, hold such money or property in trust for the Lenders,
segregated from other funds of the Pledgor, as additional
collateral security for the Secured Obligations.
(b) Except as permitted by the Credit Agreements, without
the prior written consent of the Agent, the Pledgor will not (1)
vote to enable, or take any other action to permit, the Issuer to
issue any stock or other equity securities of any nature or to
issue any other securities convertible into or granting the right
to purchase or exchange for any stock or other equity securities
of any nature of the Issuer except issuances of equity interests
to the Pledgor which constitute Collateral hereunder, (2) sell,
assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Collateral or any other shares of
Capital Stock of the Issuer owned by the Pledgor, (3) create,
incur or permit to exist any Lien or option in favor of, or any
claim of any Person with respect to, any of the Collateral or any
other shares of Capital Stock of the Issuer owned by the Pledgor,
or any interest therein, except for the security interests
created by this Agreement or (4) enter into any agreement or
undertaking restricting the right or ability of the Pledgor or
the Agent (after foreclosure) to sell, assign or transfer any of
the Collateral other than such restrictions under the Credit
Agreements, the Second Priority Notes and the Second Priority
Note Indenture (as each such term is defined in the Paper Company
Credit Agreement).
(c) The Pledgor shall maintain the security interest
created by this Agreement as a first, perfected security interest
and shall defend such security interest against claims and
demands of all Persons whomsoever except for permitted liens. At
any time and from time to time, upon the written request of the
Agent, and at the sole expense of the Pledgor, the Pledgor will
promptly and duly execute and deliver such further instruments
and documents and take such further actions as the Agent may
reasonably request for the purposes of obtaining or preserving
the full benefits of this Agreement and of the rights and powers
herein granted. If any amount payable under or in connection
with any of the Collateral (to the extent such amounts are
otherwise required by this Agreement to be paid to the Agent)
shall be or become evidenced by any promissory note, other
instrument or chattel paper, such note, instrument or chattel
paper in excess of $500,000 shall promptly upon receipt be
delivered to the Agent, duly endorsed in a manner satisfactory to
the Agent, to be held as Collateral pursuant to this Agreement.
(d) The Pledgor shall pay, and save the Agent and the
Lenders harmless from, any and all liabilities with respect to,
or resulting from any delay in paying, any and all stamp, excise,
sales or other similar taxes which may be payable or determined
to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this
Agreement, other than taxes covered by Section 2.18 of the Paper
Company Credit Agreement or Section 2.15 of the Timberlands
Credit Agreement.
(e) The Pledgor shall not permit the Issuer to, directly or
indirectly, create, incur, assume or suffer to exist any
Indebtedness except as permitted by the Timberlands Credit
Agreement.
(f) The Pledgor shall not directly or indirectly, create,
incur, assume or suffer to exist any Lien on the Capital Stock of
the Issuer owned by the Pledgor except as permitted by the
Timberlands Credit Agreement.
(g) The Pledgor shall not permit the Issuer to, directly or
indirectly, declare or pay any dividend (other than dividends
payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement, or other acquisition of, any
shares of any class of Capital Stock of the Issuer or any of its
Subsidiaries or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any
other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of the
Issuer or any of its Subsidiaries, except as permitted by the
Timberlands Credit Agreement.
(h) The Pledgor shall not and shall not permit the Issuer
to, directly or indirectly, amend, supplement or otherwise modify
(pursuant to a waiver or otherwise) the terms and conditions of
the ▇▇▇▇▇ Management Contract except as permitted by the
Timberlands Credit Agreement; provided, however, that the Pledgor
may transfer its interest thereunder to an Affiliate of the
Pledgor.
To the extent that the provisions of this Section 5
refer to the Timberlands Credit Agreement, if the Timberlands
Credit Agreement shall terminate, such references shall be deemed
to refer to the Timberlands Credit Agreement immediately prior to
such termination.
6. Voting Rights. No vote shall be cast or corporate right
exercised or other action taken which, in the Agent's reasonable
judgment, would impair in any material respect the Collateral or
which would be inconsistent with or result in any violation of
any provision of the Credit Agreements, the notes thereunder,
this Agreement or any other Loan Document.
7. Rights of the Lenders and the Agent. (a) All money
Proceeds received by the Agent hereunder shall be held by the
Agent for the ratable benefit of the Lenders in a Collateral
Account. All Proceeds while held by the Agent in a Collateral
Account (or by the Pledgor in trust for the Agent and the
Lenders) shall continue to be held as collateral security for all
the Secured Obligations and shall not constitute payment thereof
until applied as provided in paragraph 8(a).
(b) If an Event of Default shall occur and be continuing
and the Agent shall give notice of its intent to exercise such
rights to the Pledgor, (1) the Agent shall have the right to
receive any and all cash dividends paid in respect of the Pledged
Stock and make applications thereof to the Secured Obligations in
such order as the Agent may determine, and (2) all shares of the
Pledged Stock shall be registered in the name of the Agent or its
nominee, and the Agent or its nominee may thereafter exercise (A)
all voting, corporate and other rights pertaining to such shares
of the Pledged Stock at any meeting of shareholders of the Issuer
or otherwise and (B) any and all rights of conversion, exchange,
subscription and any other rights, privileges or options
pertaining to such shares of the Pledged Stock as if it were the
absolute owner thereof (including, without limitation, the right
to exchange at its discretion any and all of the Pledged Stock
upon the merger, consolidation, reorganization, recapitalization
or other fundamental change in the corporate structure of the
Issuer, or upon the exercise by the Pledgor or the Agent of any
right, privilege or option pertaining to such shares of the
Pledged Stock, and in connection therewith, the right to deposit
and deliver any and all of the Pledged Stock with any committee,
depositary, transfer agent, registrar or other designated agency
upon such terms and conditions as the Agent may determine), all
without liability except to account for property actually
received by it, but the Agent shall have no duty to the Pledgor
to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
8. Remedies. (a) If an Event of Default shall have
occurred and be continuing, at any time at the Agent's election,
the Agent may apply all or any part of Proceeds held in any
Collateral Account in payment of the Secured Obligations ratably
in accordance with the Intercreditor Agreement and as permitted
by law.
(b) If an Event of Default shall occur and be continuing,
the Agent, on behalf of the Lenders, may exercise, in addition to
all other rights and remedies granted in this Agreement and in
any other instrument or agreement securing, evidencing or
relating to the Secured Obligations, all rights and remedies of a
secured party under the Code. Without limiting the generality of
the foregoing, the Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind
(except any notice required by law referred to below) to or upon
the Pledgor or any other Person (all and each of which demands,
defenses, advertisements and notices are hereby waived), may in
such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may
forthwith sell, assign, give option or options to purchase or
otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more
parcels at public or private sale or sales, in the over-the-
counter market, at any exchange, broker's board or office of the
Agent or any Lender or elsewhere upon such terms and conditions
as it may deem advisable and at such prices as it may deem best,
for cash or on credit or for future delivery without assumption
of any credit risk. The Agent or any Lender shall have the right
upon any such public sale or sales, and, to the extent permitted
by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or
equity of redemption in the Pledgor, which right or equity is
waived or released upon the consummation of such sale. The Agent
shall apply any Proceeds from time to time held by it and the net
proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred in respect
thereof or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights
of the Agent and the Lenders hereunder, including, without
limitation, reasonable attorneys' fees and disbursements of
counsel to the Agent, to the payment in whole or in part of the
Secured Obligations ratably in accordance with the Intercreditor
Agreement and as permitted by law, and only after such
application and after the payment by the Agent of any other
amount required by any provision of law, including, without
limitation, Section 9-504(1)(c) of the Code, need the Agent
account for the surplus, if any, to the Pledgor. To the extent
permitted by applicable law, the Pledgor waives all claims,
damages and demands it may acquire against the Agent or any
Lender arising out of the exercise by them of any rights
hereunder except to the extent arising out of gross negligence or
willful misconduct of the Agent or such Lender. If any notice of
a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and
proper if given at least 10 days before such sale or other
disposition.
9. Registration Rights; Private Sales. (a) If the Agent
shall determine to exercise its right to sell any or all of the
Pledged Stock pursuant to paragraph 8(b) hereof, and if in the
reasonable opinion of the Agent it is necessary or advisable to
have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, the
Pledgor will cause the Issuer thereof to (1) execute and deliver,
and cause the directors and officers of the Issuer to execute and
deliver, all such instruments and documents, and do or cause to
be done all such other acts as may be, in the reasonable opinion
of the Agent, necessary or advisable to register the Pledged
Stock, or that portion thereof to be sold, under the provisions
of the Securities Act, (2) to use its reasonable efforts to cause
the registration statement relating thereto to become effective
and to remain effective for a period of one year from the date of
the first public offering of the Pledged Stock, or that portion
thereof to be sold, and (3) to make all amendments thereto and/or
to the related prospectus which, in the reasonable opinion of the
Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations
of the Securities and Exchange Commission applicable thereto.
The Pledgor agrees to cause the Issuer to comply with the
provisions of the securities or "Blue Sky" laws of any and all
jurisdictions of the United States and Canada which the Agent
shall designate and to make available to its security holders, as
soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of
the Securities Act.
(b) The Pledgor recognizes that the Agent may be unable to
effect a public sale of any or all the Pledged Stock, by reason
of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be
compelled to resort to one or more private sales thereof to a
restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges and agrees that any
such private sale may result in prices and other terms less
favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private
sale shall be deemed to have been made in a commercially
reasonable manner. The Agent shall be under no obligation to
delay a sale of any of the Pledged Stock for the period of time
necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under
applicable state securities laws of the United States and Canada,
even if the Issuer would agree to do so.
(c) The Pledgor further agrees to use its reasonable
efforts to do or cause to be done all such other acts as may be
necessary to make such sale or sales of all or any portion of the
Pledged Stock pursuant to this Section valid and binding and in
compliance with any and all other applicable Requirements of Law.
The Pledgor further agrees that a breach of any of the covenants
contained in this Section will cause irreparable injury to the
Agent and the Lenders, that the Agent and the Lenders have 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 the Pledgor,
and the Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has
occurred under the Credit Agreement.
10. Irrevocable Authorization and Instruction to Issuer.
The Pledgor hereby authorizes and instructs the Issuer to comply
with any instruction received by it from the Agent in writing
that (a) states that an Event of Default has occurred and is
continuing and (b) is otherwise in accordance with the terms of
this Agreement, without any other or further instructions from
the Pledgor, and the Pledgor agrees that the Issuer shall be
fully protected in so complying.
11. Agent's Appointment as Attorney-in-Fact. (a) The
Pledgor hereby irrevocably constitutes and appoints the Agent and
any officer or agent of the Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the
Pledgor and in the name of the Pledgor or in the Agent's own
name, from time to time in the Agent's discretion, for the
purpose of carrying out the terms of this Agreement, to take any
and all appropriate action and to execute any and all documents
and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including, without limitation,
any financing statements, endorsements, assignments or other
instruments of transfer, which power of attorney is only
exercisable if an Event of Default shall have occurred and be
continuing.
(b) The Pledgor hereby ratifies all that said attorneys
shall lawfully do or cause to be done pursuant to the power of
attorney granted in paragraph 11(a). All powers, authorizations
and agencies contained in this Agreement are coupled with an
interest and are irrevocable until this Agreement is terminated
and the security interests created hereby are released in
accordance with the terms hereof.
12. Duty of Agent. The Agent's sole duty with respect to
the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or
otherwise, shall be to deal with it in the same manner as the
Agent deals with similar securities and property for its own
account, except that after the occurrence and during the
continuance of an Event of Default the Agent shall have no
obligation to invest funds held in any Collateral Account and may
hold the same as demand deposits. Neither the Agent, any Lender
nor any of their respective directors, officers, employees or
agents shall be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so (unless
the same shall result from the gross negligence or willful
misconduct of such Person) or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of
the Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section
9-402 of the Code, the Pledgor authorizes the Agent to file
financing statements with respect to the Collateral without the
signature of the Pledgor in such form and in such filing offices
as the Agent reasonably determines appropriate to perfect the
security interests of the Agent under this Agreement. A carbon,
photographic or other reproduction of this Agreement shall be
sufficient as a financing statement for filing in any
jurisdiction.
14. Authority of Agent. The Pledgor acknowledges that the
rights and responsibilities of the Agent under this Agreement
with respect to any action taken by the Agent or the exercise or
non-exercise by the Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the
Agent, the Paper Company Agent and the Timberlands Agent, be
governed by the Credit Agreements and the Intercreditor
Agreement, but, as between the Agent and the Pledgor, the Agent
shall be conclusively presumed to be acting as agent for the
Paper Company Agent and the Timberlands Agent with full and valid
authority so to act or refrain from acting, and neither the
Pledgor nor the Issuer shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
15. Release of Pledge Agreement. The Pledgor shall be
automatically released from its obligations under this Agreement
and this Agreement shall automatically terminate on the earlier
of (a) the date on which all the Secured Obligations are paid in
full and all the Commitments thereunder are terminated, and (b)
the later of (i) the date upon which the Timberlands Loans have
been repaid in full and (ii) the date on which Total Committed
Debt is less than $145,000,000; and at the time of such release
the Agent shall deliver the Collateral to the Pledgor.
16. Notices. All notices, requests and demands to or upon
the Agent or the Pledgor to be effective shall be in writing
(including by telecopy) and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when
delivered three Business Days after being deposited in the mails,
postage prepaid, or in the case of telecopy notice, when
received, addressed as follows:
(1) if to the Agent, at its address or transmission number
for notices provided below:
Toronto-Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: The Toronto-Dominion Bank
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(2) if to the Pledgor, at its address or transmission
number for notices set forth under its signature below.
The Agent and the Pledgor may change their addresses and
transmission numbers for notices by notice in the manner provided
in this Section.
17. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
18. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Pledgor and the Agent,
provided that any provision of this Agreement may be waived by
the Agent and the Lenders in a letter or agreement executed by
the Agent or by telex or facsimile transmission from the Agent.
(b) Neither the Agent nor any Lender shall by any act
(except by a written instrument pursuant to paragraph 18(a)
hereof), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced
in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any
delay in exercising, on the part of the Agent or any Lender, any
right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
A waiver by the Agent or any Lender of any right or remedy
hereunder on any one occasion shall not be construed as a bar to
any right or remedy which the Agent or such Lender would
otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
(d) The Pledgor agrees that it will not permit any
amendment or other modification of any of the covenants in the
Timberlands Credit Agreement that are incorporated by reference
or referred to herein unless such amendment or other modification
has been consented to in writing by the Required Lenders under
the Paper Company Credit Agreement.
19. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in
the interpretation hereof.
20. Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of the Pledgor and shall
inure to the benefit of the Agent and the Lenders and their
respective permitted successors and assigns.
21. Governing Law. This Agreement shall be governed by,
and construed and interpreted in accordance with, the law of the
State of New York.
22. Notwithstanding any other provision of this Agreement,
at no time shall the Pledgor be required to pledge more than 65%
of all of the voting stock of all classes of the capital stock of
the Issuer.
IN WITNESS WHEREOF, the undersigned has caused this
Agreement to be duly executed and delivered as of the date first
above written.
▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Pledge Agreement dated December 1, 1997, made by ▇▇▇▇▇-▇▇▇▇▇
Industries, Inc. for the benefit of Toronto-Dominion (Texas),
Inc., as Agent (the "Pledge Agreement"). The undersigned agrees
for the benefit of the Agent and the Lenders as follows:
1. The undersigned will notify the Agent promptly in
writing of the occurrence of any of the events described in
paragraph 5(a) of the Pledge Agreement.
2. The terms of paragraph 9(c) of the Pledge Agreement
shall apply to it, mutatis mutandis, with respect to all actions
that may be required of it under or pursuant to or arising out of
Section 9 of the Pledge Agreement.
F.F. ▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
SCHEDULE 1
TO ▇▇▇▇▇ PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
Stock
Class of Certificate No. of
Issuer Stock No. Shares
F.F. ▇▇▇▇▇, Inc., a Common C-5 271,479
corporation organized
under the laws of
Quebec, Canada
EXHIBIT C-2
CASH COLLATERAL AGREEMENT
CASH COLLATERAL AGREEMENT dated as of December 1, 1997,
between ▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC., a Delaware corporation (the
"Borrower") and TORONTO-DOMINION (TEXAS), INC., as Administrative
Agent (in such capacity, the "Administrative Agent") for the
Lenders parties to the Credit Agreement, dated as of the date
hereof (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among the Borrower, the
Lenders, the Arranger named therein and the Administrative Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Loans to the Borrower upon the terms and
subject to the conditions set forth therein; and
WHEREAS, it is a condition precedent to the obligations of
the Lenders to make their respective Loans to the Borrower under
the Credit Agreement that the Borrower shall have executed and
delivered this Agreement to the Administrative Agent for the
ratable benefit of the Lenders.
NOW, THEREFORE, in consideration of the premises and to
induce the Administrative Agent and the Lenders to enter into the
Credit Agreement and to induce the Lenders to make their
respective Loans to the Borrower under the Credit Agreement, the
Borrower hereby agrees with the Administrative Agent, for the
ratable benefit of the Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Cash Collateral Agreement, as the same
may be amended, modified or otherwise supplemented from time to
time.
"Cash Collateral": the collective reference to:
(i) all cash, instruments, securities and funds deposited
from time to time in the Cash Collateral Account, including,
without limitation, all cash or other money proceeds of any
collateral subject to a security interest for the benefit of the
Administrative Agent under any Security Document;
(ii) all investments of funds in the Cash Collateral
Account and all instruments and securities evidencing such
investments; and
(iii) all interest, dividends, cash, instruments,
securities and other property received in respect of, or as
proceeds of, or in substitution or exchange for, any of the
foregoing.
"Cash Collateral Account": account no. 222-7539 established
at the office of The Toronto-Dominion Bank at its New York
branch, designated "▇▇▇▇▇-▇▇▇▇▇ Cash Collateral Account, c/o
Toronto-Dominion (Texas), Inc., as Agent."
"Code": the Uniform Commercial Code from time to time in
effect in the State of New York.
"Collateral": the collective reference to the Cash
Collateral and the Cash Collateral Account.
"Required Amount": on any date, an amount equal to the sum
of all interest (calculated at the weighted average interest rate
in effect in respect of the Loans on such date) payable on the
then unpaid principal amount of Loans (assuming for this purpose
that the Revolving Credit Commitments will be fully drawn during
such period) pursuant to Section 2.10 of the Credit Agreement
calculated from and including such date to the earlier of (i) the
date that is one year after such date and (ii) December 31, 1999.
(c) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
2. Grant of Security Interest. As collateral security for
the prompt and complete payment and performance when due (whether
at the stated maturity, by acceleration or otherwise) of the
Obligations, the Borrower hereby grants to the Administrative
Agent, for the ratable benefit of the Lenders, a security
interest in the Collateral.
3. Maintenance of Cash Collateral Account. (a) The Cash
Collateral Account shall be maintained until the Obligations have
been paid and performed in full.
(b) The Collateral shall be subject to the exclusive
dominion and control of the Administrative Agent, which shall
hold the Cash Collateral and administer the Cash Collateral
Account subject to the terms and conditions of this Agreement.
The Borrower shall have no right of withdrawal from the Cash
Collateral Account nor any other right or power with respect to
the Collateral, except as expressly provided herein.
4. Deposit of Funds. Contemporaneously with the Closing
Date, the Borrower shall deposit in the Cash Collateral Account
immediately available funds in an amount equal to the Required
Amount calculated after giving effect to the borrowings to be
made on the Closing Date. Thereafter, on any date on which the
amount of Cash Collateral on deposit in the Cash Collateral
Account is less than the Required Amount, the Borrower shall
deposit an amount equal to the amount of such deficiency in the
Cash Collateral Account in immediately available funds.
5. Representation and Warranty. The Borrower represents
and warrants to the Administrative Agent that this Agreement
creates in favor of the Administrative Agent a perfected, first
priority security interest in the Collateral, enforceable in
accordance with its terms, except as affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
6. Covenants. The Borrower covenants and agrees with the
Administrative Agent that:
(a) The Borrower will not (1) sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with
respect to, the Collateral, or (2) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Collateral, or any interest therein,
except for the security interest created by this Agreement.
(b) The Borrower will maintain the security interest
created by this Agreement as a first, perfected security interest
and defend the right, title and interest of the Administrative
Agent and the Lenders in and to the Collateral against the claims
and demands of all Persons whomsoever. At any time and from time
to time, upon the written request of the Administrative Agent,
and at the sole expense of the Borrower, the Borrower will
promptly and duly execute and deliver such further instruments
and documents and take such further actions as the Administrative
Agent reasonably may request for the purposes of obtaining or
preserving the full benefits of this Agreement and of the rights
and powers herein granted, including, without limitation, of
financing statements under the Uniform Commercial Code.
(c) The Borrower will at all times be required to maintain
Cash Collateral in the Cash Collateral Account in an amount no
less than the Required Amount.
7. Investment of Cash Collateral. (a) Subject to the
provisions of paragraph 7(b), collected funds on deposit in the
Cash Collateral Account shall be invested by the Administrative
Agent from time to time in Cash Equivalents with overnight
maturities. All investments shall be made in the name of the
Administrative Agent or a nominee of the Administrative Agent and
in a manner, determined by the Administrative Agent in its sole
discretion, that preserves the Administrative Agent's perfected,
first priority security interest in such investments.
(b) The Administrative Agent shall have no obligation to
invest collected funds during the first night after their
collection.
(c) The Administrative Agent shall have no responsibility
to the Borrower for any loss or liability arising in respect of
such investments of the Cash Collateral (including, without
limitation, as a result of the liquidation of any thereof before
maturity), except to the extent that such loss or liability
arises from the Administrative Agent's gross negligence or
willful misconduct.
(d) The Borrower will pay or reimburse the Administrative
Agent for any and all reasonable out-of-pocket costs, expenses
and liabilities of the Administrative Agent incurred in
connection with this Agreement, the maintenance and operation of
the Cash Collateral Account and the investment of the Cash
Collateral, including, without limitation, any reasonable and
customary investment, brokerage or placement commissions and fees
incurred by the Administrative Agent in connection with the
investment or reinvestment of Cash Collateral, and any reasonable
and customary investment charges or other fees of The Toronto-
Dominion Bank in connection with maintenance of the Cash
Collateral Account.
8. Release of Cash Collateral. (a) The Administrative
Agent shall, from time to time, upon the request of the Borrower,
release to the Borrower Cash Collateral in an amount equal to the
excess, if any, of the Cash Collateral on deposit in the Cash
Collateral Account over the Cash Collateral required to be
maintained by the Borrower pursuant to Section 6(c).
(b) Notwithstanding any other provision of this paragraph,
the Administrative Agent shall have no obligation to release Cash
Collateral unless each of the following conditions is satisfied
at the time of such release:
(1) No Default or Event of Default shall have occurred
and be continuing; and
(2) Such release shall not require termination of any
investment prior to its maturity.
9. Remedies. (a) Upon the occurrence of an Event of
Default if such Event of Default shall be continuing, the
Administrative Agent may, without notice of any kind, except for
notices required by law which may not be waived, apply the
Collateral, after deducting all reasonable costs and expenses of
every kind incurred in respect thereof or incidental to the care
or safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of the Administrative Agent and the
Lenders hereunder, including, without limitation, reasonable
attorneys' fees and disbursements of counsel to the
Administrative Agent, to the payment in whole or in part of the
Obligations, in such order as the Administrative Agent in its
sole discretion may elect and as permitted by law, and only after
such application and after the payment by the Administrative
Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Code,
need the Administrative Agent account for the surplus, if any, to
the Borrower. In addition to the rights, powers and remedies
granted to it under this Agreement and in any other agreement
securing, evidencing or relating to the Obligations, the
Administrative Agent shall have all the rights, powers and
remedies available at law, including, without limitation, the
rights and remedies of a secured party under the Code. To the
extent permitted by law, the Borrower waives presentment, demand,
protest and all notices of any kind and all claims, damages and
demands it may acquire against the Administrative Agent or any
Lender arising out of the exercise by them of any rights
hereunder except for gross negligence or willful misconduct of
the Administrative Agent or such Lender.
(b) The Borrower shall remain liable for any deficiency if
the proceeds of any sale or other disposition of the Collateral
are insufficient to pay the Obligations and the fees and
disbursements of any attorneys employed by the Administrative
Agent or any Lender to collect such deficiency.
10. Administrative Agent's Appointment as Attorney-in-Fact.
(a) The Borrower hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent of the
Administrative Agent, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the Borrower and in the name
of the Borrower or in the Administrative Agent's own name, from
time to time in the Administrative Agent's discretion, for the
purpose of carrying out the terms of this Agreement, to take any
and all appropriate action and to execute any and all documents
and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including, without limitation,
any financing statements, endorsements, assignments or other
instruments of transfer which power of attorney shall only be
exercisable upon the occurrence and during the continuance of an
Event of Default.
(b) The Borrower hereby ratifies all that said attorneys
shall lawfully do or cause to be done pursuant to the power of
attorney granted in paragraph 10(a). All powers, authorizations
and agencies contained in this Agreement are coupled with an
interest and are irrevocable until this Agreement is terminated
and the security interests created hereby are released.
11. Duty of Administrative Agent. The Administrative
Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under
Section 9-207 of the Code or otherwise, shall be to comply with
the specific duties and responsibilities set forth herein. The
powers conferred on the Administrative Agent in this Agreement
are solely for the protection of the Administrative Agent's and
the Lenders' interests in the Collateral and shall not impose any
duty upon the Administrative Agent or any Lender to exercise any
such powers. Neither the Administrative Agent nor any Lender nor
its or their directors, officers, employees or agents shall be
liable for any action lawfully taken or omitted to be taken by
any of them under or in connection with the Collateral or this
Agreement, except for its or their gross negligence or willful
misconduct.
12. Execution of Financing Statements. Pursuant to Section
9-402 of the Code, the Borrower authorizes the Administrative
Agent to file financing statements with respect to the Collateral
without the signature of the Borrower in such form and in such
filing offices as the Administrative Agent reasonably determines
appropriate to perfect the security interests of the
Administrative Agent under this Agreement. A carbon,
photographic or other reproduction of this Agreement shall be
sufficient as a financing statement for filing in any
jurisdiction.
13. Authority of Administrative Agent. The Borrower
acknowledges that the rights and responsibilities of the
Administrative Agent under this Agreement with respect to any
action taken by the Administrative Agent or the exercise or non-
exercise by the Administrative Agent of any option, right,
request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the
Administrative Agent and the Lenders, be governed by the Credit
Agreement, but, as between the Administrative Agent and the
Borrower, the Administrative Agent shall be conclusively presumed
to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and the Borrower
shall not be under any obligation, or entitlement, to make any
inquiry respecting such authority.
14. Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing
(including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when
delivered, or three Business Days after being deposited in the
mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed to the Administrative Agent or the Borrower
at its address or transmission number for notices provided in
subsection 9.2 of the Credit Agreement.
15. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
16. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Borrower and the
Administrative Agent, provided that any provision of this
Agreement may be waived by the Administrative Agent and the
Lenders in a letter or agreement executed by the Administrative
Agent and delivered to the Borrower in accordance with Section
14.
(b) Neither the Administrative Agent nor any Lender shall
by any act (except by a written instrument pursuant to paragraph
16(a) hereof), delay, indulgence, omission or otherwise be deemed
to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of
any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Administrative
Agent or any Lender, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise
of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent
or any Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy
which the Administrative Agent or such Lender would otherwise
have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
17. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in
the interpretation hereof.
18. Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of the Borrower and shall
inure to the benefit of the Administrative Agent and the Lenders
and their successors and assigns.
19. Governing Law. This Agreement shall be governed by,
and construed and interpreted in accordance with, the law of the
State of New York.
IN WITNESS WHEREOF, the Borrower and the Administrative
Agent have caused this Cash Collateral Agreement to be duly
executed and delivered as of the date first above written.
▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
TORONTO-DOMINION (TEXAS), INC., as
Administrative Agent
By: /s/ ▇▇▇▇ ▇▇▇▇
Title: Vice President
EXHIBIT D
EXECUTION COPY
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of December 1, 1997,
among CRESTAR BANK (the "Trustee"), under the Indenture dated
December 1, 1997 made by Bear Island Paper Company, LLC ("BIPCO")
and Bear Island Finance Company ("▇▇▇▇▇") in favor of the Trustee
(the "Indenture"); TORONTO-DOMINION (TEXAS), INC., as
Administrative Agent under the BIPCO Credit Agreement
(capitalized terms having the definitions set forth in Section 1
below; in such capacity, the "BIPCO Agent"); TORONTO-DOMINION
(TEXAS), INC., in its capacity as Administrative Agent under the
BAI Credit Agreement (in such capacity, the "BAI Agent"); and
BEAR ISLAND PAPER COMPANY, LLC ("BIPCO") and ▇▇▇▇▇-▇▇▇▇▇
INDUSTRIES, INC. ("BAI"; together with BIPCO, the "Borrowers").
W I T N E S S E T H :
WHEREAS, BIPCO, a wholly owned subsidiary of BAI,
intends to make secured borrowings under the BIPCO Credit
Agreement;
WHEREAS, BAI intends to make secured borrowings under
the BAI Credit Agreement;
WHEREAS, BIPCO and its wholly owned subsidiary ▇▇▇▇▇
intend to issue secured notes under the Indenture;
WHEREAS, BAI and its affiliates have pledged certain
collateral ("Collateral") to secure their obligations under more
than one of the foregoing agreements;
WHEREAS, the parties hereto desire to set forth their
relative rights in respect of such shared collateral and the
security interests granted therein;
NOW, THEREFORE, in consideration of the premises, the
parties hereto hereby agree as follows:
1. Definitions. (a) Unless otherwise defined herein,
terms defined in the Credit Agreements and the Loan Documents
have the meanings given to them in such documents.
(b) The following terms shall have the following meanings:
"Agreement": this Intercreditor Agreement, as the same
may be amended, supplemented or otherwise modified from time
to time.
"BAI Credit Agreement": the Credit Agreement, dated as
of the date hereof, among the BAI Agent, the BAI Lenders and
BAI, as amended, supplemented or otherwise modified from
time to time; for the purposes hereof, "BAI Credit
Agreement" shall also be deemed to refer to any credit
agreement or similar document entered into by BAI and any
lenders to replace the BAI Credit Agreement in whole or in
part.
"BAI Lenders": the lenders parties from time to time
to the BAI Credit Agreement in their capacity as lenders
thereunder, and their respective successors and assigns.
"BAI Lender Priority Collateral": any and all Lender
Priority Collateral pledged to secure the BAI Obligations.
"BAI Loan Documents": the collective reference to the
BAI Credit Agreement, each "Loan Document" as defined
therein and all other documents that from time to time
evidence the BAI Obligations or secure or support payment or
performance thereof or of any guarantee thereof.
"BAI Loan Parties": BAI and each other Loan Party
under (and as defined in) the BAI Loan Documents, and each
successor and assign of the foregoing.
"BAI Obligations": the Lender Obligations in respect
of the BAI Loan Documents.
"BIPCO Credit Agreement": the Credit Agreement, dated
as of the date hereof, among the BIPCO Agent, the BIPCO
Lenders and BIPCO, as amended, supplemented or otherwise
modified from time to time; for the purposes hereof, "BIPCO
Credit Agreement" shall also be deemed to refer to any
credit agreement or similar document entered into by BIPCO
and any lenders to replace the BIPCO Credit Agreement in
whole or in part.
"BIPCO Lenders": the lenders parties from time to time
to the BIPCO Credit Agreement in their capacity as lenders
thereunder, and their respective successors and assigns.
"BIPCO Lender Priority Collateral": any and all Lender
Priority Collateral pledged to secure the BIPCO Obligations.
"BIPCO Loan Documents": the collective reference to
the BIPCO Credit Agreement, each "Loan Document" as defined
therein and all other documents that from time to time
evidence the BIPCO Obligations or secure or support payment
or performance thereof or of any guarantee thereof.
"BIPCO Loan Parties": BIPCO and each other Loan Party
under (and as defined in) the BIPCO Loan Documents, and each
successor and assign of the foregoing.
"BIPCO Obligations": the Lender Obligations in respect
of the BIPCO Loan Documents.
"BITCO": Bear Island Timberlands Company, LLC, a
Virginia limited liability company.
"BITCO Collateral": the membership interests of BITCO
identified on Schedule 1 of the Timberlands Pledge
Agreement.
"Credit Agreements": the BAI Credit Agreement and the
BIPCO Credit Agreement.
"Lender Obligations": the collective reference to the
unpaid principal of and interest owing under the Credit
Agreements and all other obligations and liabilities of the
Borrowers thereunder, including, without limitation,
interest accruing at the applicable rate provided in the
Credit Agreements after the filing of any petition in
bankruptcy or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower
or any other party specified therein, whether or not a claim
for post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreements (including, without
limitation, any obligations under any Interest Rate
Protection Agreement referred to in a Credit Agreement),
this Agreement, the BAI Loan Documents, the BIPCO Loan
Documents or any other document made, delivered or given in
connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise, including,
without limitation, all fees and disbursements of counsel
that are required to be paid by the Borrowers pursuant to
the terms of the Credit Agreements, this Agreement or, the
BAI Loan Documents or the BIPCO Loan Documents.
"Lender Priority Collateral": the collective reference
to any and all property from time to time subject to a
security interest to secure payment or performance of the
Lender Obligations or the Trustee Obligations.
"Loan Documents": the BAI Loan Documents and the BIPCO
Loan Documents.
"Loan Parties": the BAI Loan Parties and the BIPCO
Loan Parties.
"Senior Secured Lender": each of the BAI Agent, the
BIPCO Agent, each BAI Lender and each BIPCO Lender.
"▇▇▇▇▇ Collateral": the "Pledged Stock" as defined in
the ▇▇▇▇▇ Pledge Agreement.
"▇▇▇▇▇ Pledge Agreement": the ▇▇▇▇▇ Pledge Agreement
dated as of the date hereof, made by BAI in favor of the
BIPCO Agent and the BAI Agent and, for the purposes of this
Agreement, the notarial deed of hypothec granted on the
Collateral (as defined in the ▇▇▇▇▇ Pledge Agreement)
pursuant to the laws of the province of Quebec (Canada).
"Subordinated Security Documents": the collective
reference to any and all documents providing for collateral
security, guarantees or negative pledges in connection with
the notes issued under the Indenture as the same may be
amended, supplemented or otherwise modified from time to
time in accordance with Section 6.9 of the BIPCO Credit
Agreement.
"Timberlands Pledge Agreement": the meaning ascribed
in the BAI Credit Agreement.
"Trustee Documents": the collective reference to the
Indenture, the notes issued thereunder and the Subordinated
Security Documents.
"Trustee Obligations": the collective reference to the
unpaid principal of and interest owing under the Indenture
and the notes issued thereunder and all other obligations
and liabilities of BIPCO and ▇▇▇▇▇ thereunder (including,
without limitation, interest accruing at the then applicable
rate provided in the Indenture and the notes issued
thereunder after the maturity of the principal obligations
owing thereunder and interest accruing at the then
applicable rate provided in the Indenture and the notes
issued thereunder after the filing of any petition in
bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to BIPCO or
▇▇▇▇▇, whether or not a claim for post-filing or post-
petition interest is allowed in such proceeding), whether
direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Indenture, the
notes issued thereunder, this Agreement, or any other
Subordinated Security Document, in each case whether on
account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to
the Trustee that are required to be paid by the Borrower or
▇▇▇▇▇ pursuant to the terms of the Indenture or this
Agreement or any other Subordinated Security Document).
(c) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
2. Acknowledgements The Trustee (a) acknowledges that the
Borrowers and the other Loan Parties have granted senior priority
security interests in the Lender Priority Collateral to secure
the Lender Obligations and that such security interests are prior
in all respects to the junior security interests in the Lender
Priority Collateral granted to the Trustee, (b) agrees that the
Trustee shall not have any claim to or in respect of the BAI
Lender Priority Collateral, or any proceeds of or realization on
such BAI Lender Priority Collateral, on a parity with or prior to
the claim of the BAI Obligations, nor any claim to or in respect
of the BIPCO Lender Priority Collateral, or any proceeds of or
realization on such BIPCO Lender Priority Collateral, on a parity
with or prior to the claim of the BIPCO Obligations, and (c)
agrees that, notwithstanding such junior security interests and
any rights of the Trustee in respect thereof, (i) so long as the
BAI Obligations have not been paid in full or the commitments
under the BAI Credit Agreement have not been terminated, the
Trustee shall not have any right or claim in respect of the
exercise of rights and remedies of the Senior Secured Lenders in
respect of the BAI Lender Priority Collateral nor shall any
Senior Secured Lender have any obligation regarding any such
exercise or any other obligation or duty in respect of the
interests of the Trustee except as set forth in paragraph 3(d)
hereof, and that the Trustee shall not assert any such claim or
right in any such bankruptcy proceeding or otherwise, and (ii) so
long as the BIPCO Obligations have not been paid in full or the
commitments under the BIPCO Credit Agreement have not been
terminated, the Trustee shall not have any right or claim in
respect of the exercise of rights and remedies of the Senior
Secured Lenders in respect of the BIPCO Lender Priority
Collateral nor shall any Senior Secured Lender have any
obligation regarding any such exercise or any other obligation or
duty in respect of the interests of the Trustee except as set
forth in paragraph 3(d) hereof, and that the Trustee shall not
assert any such claim or right in any such bankruptcy proceeding
or otherwise.
3. Rights in Lender Priority Collateral (a) Notwithstanding
anything to the contrary contained in any filing or agreement to
which the Trustee, the Senior Secured Lenders or the Borrowers
now or hereafter may be a party and irrespective of the time,
order or method of attachment or perfection of the security
interests created by the Loan Documents or the Subordinated
Security Documents, the rules for determining priority under the
Uniform Commercial Code or any other law governing the relative
priorities of secured creditors, (i) any security interest in any
BAI Lender Priority Collateral in favor of or for the benefit of
the Senior Secured Lenders pursuant to the BAI Loan Documents has
and shall have priority, to the extent of any unpaid BAI Loan
Obligations, over any security interest in such BAI Lender
Priority Collateral in favor of or for the benefit of the Trustee
pursuant to the Subordinated Security Documents; and (ii) any
security interest in any BIPCO Lender Priority Collateral in
favor of or for the benefit of the Senior Secured Lenders
pursuant to the BIPCO Loan Documents has and shall have priority,
to the extent of any unpaid BIPCO Loan Obligations, over any
security interest in such BIPCO Lender Priority Collateral in
favor of or for the benefit of the Trustee pursuant to the
Subordinated Security Documents.
(b) (i) So long as the BAI Obligations have not been paid
in full or the commitments under the BAI Credit Agreement have
not been terminated, whether or not any bankruptcy proceeding or
similar event or proceeding has been commenced by or against BAI
or any other BAI Loan Party, (i) the Trustee will not (A)
exercise or seek to exercise any rights or exercise any remedies
with respect to any BAI Lender Priority Collateral, (B) institute
any action or proceeding with respect to such rights or remedies,
including without limitation, any action of foreclosure, (C)
contest, protest or object to any foreclosure proceeding or
action brought by the BAI Agent or any BAI Lender, or any other
exercise by any such party, of any rights and remedies relating
to the BAI Lender Priority Collateral under the Subordinated
Security Documents or otherwise, or any release of any or all of
the BAI Lender Priority Collateral for any purpose, or (D) object
to the forbearance by the BAI Lenders from bringing or pursuing
any foreclosure proceeding or action or any other exercise of any
rights or remedies relating to the BAI Lender Priority
Collateral, and (ii) the BAI Lenders shall have the exclusive
right to enforce rights, exercise remedies and make
determinations regarding release, disposition, or restrictions
with respect to the Lender Priority Collateral; provided, that in
any bankruptcy proceeding or similar event or proceeding
commenced by or against BAI or any other BAI Loan Party, the
Trustee may file a claim or statement of interest with respect to
the Trustee Obligations.
(ii) So long as the BIPCO Obligations have not been paid in full
or the commitments under the BIPCO Credit Agreement have not been
terminated, whether or not any bankruptcy proceeding or similar
event or proceeding has been commenced by or against BIPCO or any
other BIPCO Loan Party, (i) the Trustee will not (A) exercise or
seek to exercise any rights or exercise any remedies with respect
to any BIPCO Lender Priority Collateral, (B) institute any action
or proceeding with respect to such rights or remedies, including
without limitation, any action of foreclosure, (C) contest,
protest or object to any foreclosure proceeding or action brought
by the BIPCO Agent or any BIPCO Lender, or any other exercise by
any such party, of any rights and remedies relating to the BIPCO
Lender Priority Collateral under the Subordinated Security
Documents or otherwise, or any release of any or all of the BIPCO
Lender Priority Collateral for any purpose, or (D) object to the
forbearance by the BIPCO Lenders from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any
rights or remedies relating to the BIPCO Lender Priority
Collateral, and (ii) the BIPCO Lenders shall have the exclusive
right to enforce rights, exercise remedies and make
determinations regarding release, disposition, or restrictions
with respect to the Lender Priority Collateral; provided, that in
any bankruptcy proceeding or similar event or proceeding
commenced by or against BIPCO or any other BIPCO Loan Party, the
Trustee may file a claim or statement of interest with respect to
the Trustee Obligations.
(c) (i) In exercising rights and remedies with respect to
the BAI Lender Priority Collateral, the BAI Lenders may enforce
the provisions of the BAI Loan Documents and exercise remedies
thereunder, all in such order and in such manner as they may
determine in the exercise of their sole discretion. Such
exercise and enforcement shall include, without limitation, the
rights of an agent appointed by them to sell or otherwise dispose
of BAI Lender Priority Collateral upon foreclosure, to incur
expenses in connection with such sale or disposition, and to
exercise all the rights and remedies of a secured lender under
the Uniform Commercial Code of any applicable jurisdiction and of
a secured creditor under bankruptcy or similar laws of any
applicable jurisdiction.
(ii) In exercising rights and remedies with respect to the BIPCO
Lender Priority Collateral, the BIPCO Lenders may enforce the
provisions of the BIPCO Loan Documents and exercise remedies
thereunder, all in such order and in such manner as they may
determine in the exercise of their sole discretion. Such
exercise and enforcement shall include, without limitation, the
rights of an agent appointed by them to sell or otherwise dispose
of BIPCO Lender Priority Collateral upon foreclosure, to incur
expenses in connection with such sale or disposition, and to
exercise all the rights and remedies of a secured lender under
the Uniform Commercial Code of any applicable jurisdiction and of
a secured creditor under bankruptcy or similar laws of any
applicable jurisdiction.
(d) (i) BIPCO Lender Priority Collateral. Subject to the
provisions of paragraph 6 hereof, any money, property, securities
or other direct or indirect distributions of any nature
whatsoever received from the sale, disposition or other
realization upon a forclosure or other exercise of remedies upon
the occurrence and continuance of an Event of Default (as defined
in the Credit Agreements or the Indenture) by any Senior Secured
Party or the Trustee of all or any part of the BIPCO Lender
Priority Collateral (other than the BITCO Collateral and the
▇▇▇▇▇ Collateral which constitute a part of the BIPCO Lender
Priority Collateral), regardless of whether such money, property,
securities or other distributions are received directly or
indirectly during the pendency of or in connection with any
bankruptcy, insolvency or other like proceeding or otherwise,
shall be delivered to the BIPCO Agent in the form received, duly
indorsed to such party, if required, and applied by the BIPCO
Agent in the following order:
First, to the payment in full of all costs and expenses
(including, without limitation, attorneys' fees and
disbursements) paid or incurred by the Senior Secured
Lenders in connection with such realization on the BIPCO
Lender Priority Collateral or the protection of any of their
rights and interests therein;
Second, to the payment in full of all BIPCO Obligations
in the order prescribed by Section 2.16 of the BIPCO Credit
Agreement;
Third, to the Trustee for application to the Trustee
Obligations to the full extent thereof at such time; and
Fourth, to pay the appropriate Loan Party or designee
thereof or as a court of competent jurisdiction may direct,
any surplus then remaining.
(ii) BITCO Collateral. Subject to the provisions of paragraph 6
hereof, any money, property, securities or other direct or
indirect distributions of any nature whatsoever received from the
sale, disposition or other realization upon a forclosure or other
exercise of remedies upon the occurrence and continuance of an
Event of Default (as defined in the Credit Agreements or the
Indenture) by any Senior Secured Party or the Trustee of all or
any part of the BITCO Collateral, regardless of whether such
money, property, securities or other distributions are received
directly or indirectly during the pendency of or in connection
with any bankruptcy, insolvency or other like proceeding or
otherwise, shall be delivered to the BAI Agent in the form
received, duly indorsed to such party, if required, and applied
by the BAI Agent in the following order:
First, to the payment in full of all costs and expenses
(including, without limitation, attorneys' fees and
disbursements) paid or incurred by the Senior Secured
Lenders in connection with such realization on the BITCO
Collateral or the protection of any of their rights and
interests therein;
Second, to the payment in full of all BAI Obligations
in the order prescribed by Section 2.13 of the BAI Credit
Agreement;
Third, to the payment in full of all BIPCO Obligations
in the order prescribed by Section 2.16 of the BIPCO Credit
Agreement shall provide;
Fourth, to the Trustee for application to the Trustee
Obligations to the full extent thereof at such time; and
Fifth, to pay to the appropriate Loan Party or designee
thereof or as a court of competent jurisdiction may direct,
any surplus then remaining.
(iii) ▇▇▇▇▇ Collateral. Subject to the provisions of paragraph
6 hereof, any money, property, securities or other direct or
indirect distributions of any nature whatsoever received from the
sale, disposition or other realization upon a forclosure or other
exercise of remedies upon the occurrence and continuance of an
Event of Default (as defined in the Credit Agreements or the
Indenture) by any Senior Secured Party or the Trustee of all or
any part of the ▇▇▇▇▇ Collateral, regardless of whether such
money, property, securities or other distributions are received
directly or indirectly during the pendency of or in connection
with any bankruptcy, insolvency or other like proceeding or
otherwise, shall be delivered to the BIPCO Agent or the BAI Agent
in the form received, duly indorsed to such party, if required,
and applied by the BIPCO Agent or the BAI Agent in the following
order:
First, to the payment in full of all costs and expenses
(including, without limitation, attorneys' fees and
disbursements) paid or incurred by the Senior Secured
Lenders in connection with such realization on the ▇▇▇▇▇
Collateral or the protection of any of their rights and
interests therein;
Second, pro rata to the payment in full of all BAI
Obligations and BIPCO Obligations, in such order as each of
Section 2.13 of the BAI Credit Agreement and Section 2.16 of
the BIPCO Credit Agreement, respectively, shall provide;
Third, to the Trustee for application to the Trustee
Obligations to the full extent thereof at such time; and
Fourth, to pay to the appropriate Loan Party or
designee thereof or as a court of competent jurisdiction may
direct, any surplus then remaining.
(e) The BAI Lenders' rights with respect to the BAI Lender
Priority Collateral and the BIPCO Lenders' rights with respect to
the BIPCO Lender Priority Collateral shall include, without
limitation, the exclusive right to release at any time any or all
of such collateral from the liens under the Loan Documents and
the Subordinated Security Documents without the consent of the
Trustee and without any duty, obligation or liability arising
from any such action, provided, that such release is in
connection with the exercise of remedies in respect of the items
of Lender Priority Collateral so released. Upon any such sale,
release or other disposition of any Lender Priority Collateral,
the lien and security interest created for the benefit of the
Trustee pursuant to the Subordinated Security Documents in such
Lender Priority Collateral shall be automatically released, and
the Trustee shall execute or cause to be executed such release
documents and instruments and shall take such further actions as
the Senior Secured Lenders shall request.
(f) (A) Subject to the provisions of paragraph 6 hereof,
in the event that:
(i) the BAI Lenders, in exercise of their foreclosure or
similar remedies, have disposed of or otherwise realized
upon the BAI Lender Priority Collateral, or have been repaid
pursuant to a bankruptcy or similar proceeding at the
commencement of which the security interest securing the BAI
Obligations is in effect,
(ii) all of the BAI Obligations have been paid in full and
the commitments under the BAI Credit Agreement have been
terminated,
(iii) after giving effect thereto any BAI Lender Priority
Collateral remains that:
(x) never constituted BIPCO Lender Priority Collateral,
or has been released from the security interests
created by the BIPCO Loan Documents, and
(y) remains pledged pursuant to the Subordinated
Security Documents, and
(iv) at such time there are Trustee Obligations outstanding,
then the Trustee shall have the right to enforce the
provisions of the Subordinated Security Documents in respect
of BAI Lender Priority Collateral.
(B) Subject to the provisions of paragraph 6 hereof, in the
event that:
(i) the BIPCO Lenders, in exercise of their foreclosure or
similar remedies, have disposed of or otherwise realized
upon the BIPCO Lender Priority Collateral, or have been
repaid pursuant to a bankruptcy or similar proceeding at the
commencement of which the security interest securing the
BIPCO Obligations is in effect,
(ii) all of the BIPCO Obligations have been paid in full and
the commitments under the BIPCO Credit Agreement have been
terminated,
(iii) after giving effect thereto any BIPCO Lender Priority
Collateral remains that:
(x) never constituted BAI Lender Priority Collateral
or has been released from the security interests
created by the BAI Loan Documents, and
(y) remains pledged pursuant to the Subordinated
Security Documents, and
(iv) at such time there are Trustee Obligations outstanding,
then the Trustee shall have the right to enforce the
provisions of the Subordinated Security Documents in respect
of the BIPCO Lender Priority Collateral.
4. Obligations Unconditional. All rights, interests,
agreements and obligations of the Senior Secured Lenders and the
Trustee, respectively, hereunder shall remain in full force and
effect irrespective of:
(a) any lack of validity or enforceability of the Loan
Documents or any Trustee Documents;
(b) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Lender Obligations or
Trustee Obligations, or any amendment or waiver or other
modification, including any increase in the amount thereof,
whether by course of conduct or otherwise, of the terms of either
Credit Agreement or any other Loan Document or of the terms of
the Trustee Documents;
(c) any exchange, release or nonperfection of any security
interest in any Lender Priority Collateral or any other
collateral, or any release, amendment, waiver or other
modification, whether in writing or by course of conduct or
otherwise, of all or any of the Lender Obligations or Trustee
Obligations or any guarantee thereof;
(d) the commencement of any bankruptcy or similar
proceeding in respect of either of the Borrowers or any other
Loan Party; or
(e) any other circumstances which otherwise might
constitute a defense available to, or a discharge of, any Loan
Party in respect of the Lender Obligations or of the Trustee in
respect of this Agreement.
5. Waiver of Claims; Waivers of Jury Trial. (a) To the
maximum extent permitted by law, the Trustee waives any claim it
might have against any Senior Secured Lender with respect to, or
arising out of, any action or failure to act or any error of
judgment or negligence on the part of any Senior Secured Lender
or its respective directors, officers, employees or agents with
respect to any exercise of rights or remedies in respect of the
Lender Priority Collateral or any transaction relating to the
Lender Priority Collateral. Neither the BAI Agent, the BIPCO
Agent, any Senior Secured Lender nor any of their respective
directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon any of the Collateral
or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of
any Loan Party, the Trustee or any other Person or to take any
other action whatsoever with regard to the Collateral or any part
thereof.
(b) THE BORROWERS, THE BAI AGENT (ON ITS OWN BEHALF AND ON
BEHALF OF THE BAI LENDERS), THE BIPCO AGENT (ON ITS OWN BEHALF
AND ON BEHALF OF THE BIPCO LENDERS) AND THE TRUSTEE HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR
COUNTERCLAIM THEREIN.
6. Provisions Define Relative Rights. This Agreement is
intended solely for the purpose of defining the relative rights
of the BAI Lenders, the BAI Agent, the BIPCO Lenders, the BIPCO
Agent and the Trustee, and no other Person shall have any right,
benefit or other interest under this Agreement. Notwithstanding
anything to the contrary contained herein, this Agreement shall
not modify or amend the rights and obligations of the Borrowers
or any other Loan Party under any Loan Document.
7. Shared Lender Priority Collateral. The BIPCO Agent and
the BAI Agent acknowledge that the Timberlands Pledge Agreement
and the ▇▇▇▇▇ Pledge Agreement create, in favor of Toronto-
Dominion (Texas), Inc., as secured party thereunder (in such
capacity, the "Agent"), security interests in Collateral to
secure both the BAI Obligations and the BIPCO Obligations. The
BIPCO Agent, on behalf of the BIPCO Lenders, and the BAI Agent,
on behalf of the BAI Lenders, hereby (i) confirm that the Agent
has been appointed as agent of such parties to be the secured
party under the Timberlands Pledge Agreement and the ▇▇▇▇▇ Pledge
Agreement, (ii) agree with the Agent that in taking and
refraining from actions under the Timberlands Pledge Agreement
(including amendments and waivers with respect thereto), the
Agent shall follow the directions of the Required Lenders under
the BAI Credit Agreement so long as the BAI Credit Agreement
remains outstanding, and thereafter shall follow the directions
of the Required Lenders under the BIPCO Credit Agreement and
(iii) agree with the Agent that in taking and refraining from
actions under the ▇▇▇▇▇ Pledge Agreement (including amendments
and waivers with respect thereto), the Agent shall follow the
directions of the Required Lenders under the BAI Credit Agreement
and the Required Lenders under the BIPCO Credit Agreement.
8. Payments in Ordinary Course. Notwithstanding any
provision of this Agreement limiting the rights of the holders of
the Trustee Obligations in the Collateral, nothing in this
Agreement shall prohibit BIPCO and ▇▇▇▇▇ from making payments in
respect of the Trustee Obligations in the ordinary course of
business, whether or not the cash with which such payments are
made constitutes proceeds of Collateral.
9. Termination of Agreement; Acknowledgements. (a) The
rights of the Senior Secured Lenders under this Agreement in
respect of the Collateral securing only the BIPCO Obligations
shall terminate when the BIPCO Obligations have been paid in full
in cash and all commitments to extend credit under the BIPCO
Credit Agreement have terminated. The BIPCO Agent agrees that,
within 30 days after payment in cash of all principal, interest
and other amounts then outstanding under the BIPCO Obligations
and termination of all commitments to extend credit under the
BIPCO Credit Agreement, it will, upon the request of the Trustee,
provide a written acknowledgement of such payment to the Trustee,
which acknowledgement shall also acknowledge that the Senior
Secured Lenders have no further rights under this Agreement in
respect of the Collateral securing only the BIPCO Obligations.
Concurrently with such acknowledgement, the BIPCO Agent will
deliver to the Trustee if any of the Trustee Obligations shall be
outstanding, any items of such Collateral held in the possession
of the BIPCO Agent, provided that if no Trustee Obligations shall
be outstanding, the BIPCO Agent will deliver any such items of
Collateral to the appropriate Loan Party. The BIPCO Agent
acknowledges that prior to such delivery it holds such items of
Collateral for the Trustee in accordance with the terms of this
Agreement, for purposes of perfecting the Trustee's security
interest therein.
(b) The rights of the Senior Secured Lenders under this
Agreement in respect of the Collateral securing only the BAI
Obligations shall terminate when the BAI Obligations have been
paid in full in cash and all commitments to extend credit under
the BAI Credit Agreement have terminated. The BAI Agent agrees
that, within 30 days after payment of all principal, interest and
other amounts then outstanding under the BAI Obligations and
termination of all commitments to extend credit under the BAI
Credit Agreement, it will, upon the request of the Trustee,
provide a written acknowledgement of such payment to the Trustee,
which acknowledgement shall also acknowledge that the Senior
Secured Lenders have no further rights under this Agreement in
respect of the Collateral securing only the BAI Obligations.
Concurrently with such acknowledgement, the BAI Agent will
deliver to the Trustee if any Trustee Obligations shall be
outstanding any items of such Collateral held in the possession
of the BAI Agent, provided that if no Trustee Obligations are
outstanding, the BAI Agent will deliver any such items of
Collateral to the appropriate Loan Party. The BAI Agent
acknowledges that prior to such delivery it holds such items of
Collateral for the Trustee in accordance with the terms of this
Agreement for purposes of perfecting the Trustee's security
interest therein.
(c) The rights of the Senior Secured Lenders under this
Agreement in respect of all Collateral (to the extent not
previously terminated pursuant to paragraphs (a) and (b) above)
shall in any event terminate when all Lender Obligations have
been paid in full in cash and all commitments to extend credit
under the Loan Documents have terminated.
10. Powers Coupled With An Interest. All powers,
authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until the Lender
Obligations are paid in full and the commitments under the Credit
Agreements are terminated.
11. Notices. All notices, requests and demands to or upon
the parties to be effective shall be in writing (or by telex, fax
or similar electronic transfer confirmed in writing) and shall be
deemed to have been duly given or made (i) when delivered by hand
or (ii) if given by mail, when deposited in the mails by
certified mail, return receipt requested, or (iii) if by telex,
fax or similar electronic transfer, when sent and receipt has
been confirmed, addressed as follows:
If to the BAI Agent or
the BIPCO Agent: TORONTO-DOMINION (TEXAS), INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee: CRESTAR BANK
Attention: Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The parties hereto may change their addresses and transmission
numbers for notices by notice in the manner provided in this
Section.
12. Counterparts. This Agreement may be executed by one or
more of the parties on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the
counterparts of this Agreement signed by all the parties shall be
lodged with the BAI Agent, the BIPCO Agent and the Trustee.
13. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
14. Integration. This Agreement represents the entire
agreement of the Senior Secured Lenders and the Trustee with
respect to the subject matter hereof and there are no promises or
representations by any of them relative to the subject matter
hereof not reflected herein.
15. Amendments in Writing. None of the terms or provisions
of this Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the
BAI Agent, the BIPCO Agent, the Borrowers and the Trustee.
16. Successors and Assigns. (a) This Agreement shall be
binding upon and inure to the benefit of each of the Senior
Secured Lenders and the Trustee and their successors and assigns.
(b) Upon a successor administrative agent becoming the
Administrative Agent under the BAI Credit Agreement or the BIPCO
Credit Agreement, such successor Administrative Agent
automatically shall become the BAI Agent or the BIPCO Agent, as
the case may be, hereunder with all the rights and powers of such
party hereunder, and bound by the provisions hereof, without the
need for any further action on the part of any party hereto.
(c) Upon a successor trustee becoming the Trustee under the
Indenture, such successor Trustee automatically shall become the
Trustee hereunder with all the rights and powers of the Trustee
hereunder, and bound by the provisions hereof, without the need
for any further action on the part of any party hereto.
17. Governing Law; Jurisdiction. This Agreement shall be
governed by, and construed and interpreted in accordance with,
the law of the State of New York, excluding (to the greatest
extent permissible by law) any rule of law that would cause the
application of the laws of any jurisdiction other than the State
of New York. Each party hereto agrees that all judicial
proceedings brought against it arising out of or relating to this
Agreement or its obligations hereunder may be brought in any
federal court of competent jurisdiction in the State, County and
City of New York, and accepts generally and unconditionally the
nonexclusive jurisdiction and venue of such courts.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and
year first above written.
TORONTO-DOMINION (TEXAS), INC., as
BAI Agent and as BIPCO Agent, and
as Agent for the BAI Agent and the
BIPCO Agent
By: /s/ ▇▇▇▇ ▇▇▇▇
Title: Vice President
CRESTAR BANK, as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Consented:
▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC., as Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
BEAR ISLAND PAPER COMPANY, as Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
BEAR ISLAND FINANCE COMPANY II
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President of Finance
EXHIBIT 10.3(E)
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered to you pursuant to
Section 5.2(b) of the Credit Agreement, dated as of _______________, as
amended, supplemented or modified from time to time (the "Credit
Agreement"), among ▇▇▇▇▇-▇▇▇▇▇ Industries, Inc. (the "Borrower"), the
financial institutions or other entities from time to time party thereto
as lenders (the "Lenders"), TD Securities (USA) Inc., as advisor and
arranger (in such capacity, the "Arranger") and Toronto-Dominion (Texas),
Inc., as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"). Terms defined in the Credit Agreement and not
otherwise defined herein are used herein with the meanings so defined.
i. I am the duly elected, qualified and acting Chief
Financial Officer of the Borrower.
ii. I have reviewed and am familiar with the contents of this
Certificate.
iii. I have reviewed the terms of the Credit Agreement and
the Loan Documents and have made or caused to be made under my
supervision, a review in reasonable detail of the transactions and
condition of the Borrower during the accounting period covered by the
financial statements attached hereto as Attachment 1 (the "Financial
Statements"). Such review did not disclose the existence during or at the
end of the accounting period covered by the Financial Statements, and I
have no knowledge of the existence, as of the date of this Certificate,
of any condition or event which constitutes a Default or Event of Default
[, except as set forth below].
iv. Attached hereto as Attachment 2 are the computations
showing compliance with the covenants set forth in Sections 6.1,
6.2(c),(d),(g),(i), and (k), 6.3(j),(k), 6.6(c),(e), 6.7, 6.8(e),(g) and
6.17 of the Credit Agreement.
IN WITNESS WHEREOF, I execute this Certificate this _____ day
of , ____.
---------
▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC.
By:_______________________________
Title:
Attachment 2
to Exhibit E
The information described herein is as of __________, ____, and pertains
to the period from __________, ___ to __________ __, ____.
[Set forth Covenant Calculations]
EXHIBIT F
FORM OF CLOSING CERTIFICATE
This Closing Certificate is delivered pursuant to subsections
4.1(m) and 4.1(n) of the Credit Agreement dated as of December 1, 1997
(the "Credit Agreement"; terms defined therein being used herein as
therein defined), among ▇▇▇▇▇-▇▇▇▇▇ Industries, Inc. (the "Borrower"),
the financial institutions or other entities from time to time party
thereto as lenders (the "Lenders"), TD Securities (USA) Inc., as advisor
and arranger (in such capacity, the "Arranger") and Toronto-Dominion
(Texas), Inc., as administrative agent for the Lenders (in such capacity,
the "Administrative Agent").
The undersigned ___________ of __________ (the "Company")
certifies as of the date hereof, on behalf of the Company and solely with
respect to paragraphs 1 through 8 hereof, as follows:
1. The representations and warranties of the Company set
forth in each of the Loan Documents to which it is a party are true and
correct in all material respects on and as of the date hereof with the
same effect as if made on the date hereof, except for representations and
warranties expressly stated to relate to a specific earlier date, in
which case such representations and warranties were true and correct in
all material respects as of such earlier date.
2. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other
Person that has not been obtained is required in connection with the
Transaction and the borrowings under the Credit Agreement or with the
execution, delivery, performance, validity or enforceability of the
Credit Agreement or any of the Loan Documents to which the Company is a
party, except (i) consents, authorizations, filings and notices described
in Schedule 3.4 to the Credit Agreement and (ii) the filings referred to
in Section 3.19 of the Credit Agreement.
3. No Default or Event of Default has occurred and is
continuing as of the date hereof or after giving effect to the Loans to
be made on the date hereof.
[Borrower only]
4. The Transaction has been consummated and no material provi
sion of the Acquisition Agreement or any document executed pursuant
thereto has been waived, amended, supplemented or otherwise modified.
[Borrower only]
5. The Borrower has paid the Retiring Partners cash in an
amount not exceeding an aggregate of $35,000,000 on the Closing Date.
[Borrower only]
6. The Borrower has deposited an amount no less than the
amount designated in the Cash Collateral Agreement into the Cash
Collateral Account.
[Borrower only]
7. ___________________ is the duly elected and qualified
Corpo rate Secretary of the Company and the signature set forth for such
officer below is such officer's true and genuine signature.
8. There are no liquidation or dissolution proceedings
pending or to my knowledge threatened against the Company, nor has any
other event occurred materially adversely affecting or threatening the
continued corporate existence of the Company.
The undersigned Corporate Secretary of the Company certifies
as of the date hereof, on behalf of the Company and solely with repsect
to paragraphs 9 through 14 herreof, as follows:
9. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
10. Attached hereto as Exhibit II is a true and complete copy
of resolutions duly adopted by the Board of Directors of the Company on
_________________ authorizing the execution, delivery and performance of
the Loan Documents to which the Company is a party; such resolutions have
not in any way been amended, modified, revoked or rescinded since the
date of adoption, have been in full force and effect since their adoption
to and including the date hereof and are now in full force and effect and
are the only corporate proceedings of the Company now in force relating
to or affecting the matters referred to therein.
11. Attached hereto as Exhibit III is a true and complete
copy of the By-Laws of the Company as in effect on the date hereof.
12. Attached hereto as Exhibit IV is a true and complete copy
of the Certificate of Incorporation or Articles of Organization of the
Company as in effect on the date hereof, and such certificate or articles
have not been amended, repealed, modified or restated.
13. Attached hereto as Exhibit V is a true and correct copy
of each of the following documents: (i) the Acquisition Agreement; (ii)
the Second Priority Note Indenture; (iii) the ▇▇▇▇ ▇▇▇▇▇▇▇ Credit
Agreement and (iv) the Paper Company Loan Agreement. [Borrower only]
14. The following persons are now duly elected and qualified
officers of the Company holding the offices indicated next to their
respective names below, and the signatures appearing opposite their
respective names below are the true and genuine signatures of such
officers, and each of such officers is duly authorized to execute and
deliver on behalf of the Company each of the Loan Documents to which it
is a party and any certificate or other document to be delivered by the
Company pursuant to the Loan Documents to which it is a party:
Name Office Signature
----------------------- ----------------------- -------------------------
----------------------- ----------------------- -------------------------
----------------------- ----------------------- -------------------------
IN WITNESS WHEREOF, the undersigned have hereunto set our
names as of the date set forth below.
[INSERT NAME OF COMPANY]
-------------------------------
------------------------------------
Name: Name:
Title: Title:
Date: _______________, 1997
EXHIBIT 10.3(G)
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of , 199
(as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among ▇▇▇▇▇-▇▇▇▇▇ Industries, Inc. (the "Borrower"),
the financial institutions or other entities from time to time party
thereto as lenders (the "Lenders"), TD Securities (USA) Inc., as advisor
and arranger (in such capacity, the "Arranger") and Toronto-Dominion
(Texas), Inc., as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"). Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor")
and the Assignee identified on Schedule l hereto (the "Assignee") agree
as follows, as of the Effective Date (as defined below):
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby
irrevocably purchases and assumes from the Assignor without recourse to
the Assignor, as of the Effective Date, the interest described in
Schedule 1 hereto (the "Assigned Interest") in and to the Assignor's
rights and obligations under the Credit Agreement with respect to those
credit facilities contained in the Credit Agreement as are set forth on
Schedule 1 hereto (individually, an "Assigned Facility"; collectively,
the "Assigned Facilities"), in a principal amount for each Assigned
Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or
with respect to the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any other Loan
Document or any other instrument or document furnished pursuant thereto,
other than that the Assignor has not created any adverse claim upon the
Assigned Interest and that such Assigned Interest is free and clear of
any such adverse claim; (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower, any of its Subsidiaries or any other obligor or the performance
or observance by the Borrower, any of its Subsidiaries or any other
obligor of any of their respective obligations under the Credit Agreement
or any other Loan Document or any other instrument or document furnished
pursuant hereto or thereto[; and (c) attaches any Notes held by it
evidencing the Assigned Facilities marked "cancelled" and (i) requests
that the Administrative Agent, upon request by the Assignee, exchange the
attached Notes marked "cancelled" for a new Note or Notes payable to the
Assignee in the principal amount of the Assigned Interest and (ii) if the
Assignor has retained any interest in the Assigned Facility, requests
that the Administrative Agent exchange the attached Notes for a new Note
or Notes payable to the Assignor, in each case in amounts which reflect
the Assignor's interest in the Assigned Facility after giving effect to
the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date)].
3. The Assignee (a) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance; (b)
confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in subsection 3.1
thereof 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 Acceptance; (c) agrees that it will, independently
and without reliance upon the Assignor, the Agents or any 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 Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Agents to take such action as the agents on
its behalf and to exercise such powers and discretion under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Agents by
the terms thereof, together with such powers as are incidental thereto;
and (e) agrees that it will be bound by the provisions of the Credit
Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws
of a jurisdiction outside the United States, its obligation pursuant to
subsection 2.15(d) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall
be the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent pursuant to
the Credit Agreement, effective as of the Effective Date (which shall
not, unless otherwise agreed to by the Administrative Agent, be earlier
than five Business Days after the date of such acceptance and recording
by the Administrative Agent).
5. Upon such acceptance and recording, 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 the Effective Date and to the Assignee for amounts which have
accrued subsequent to the Effective Date] [to the Assignee whether such
amounts have accrued prior to the Effective Date or accrue subsequent to
the Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly
between themselves.]
6. From and after the Effective Date, (a) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in
this Assignment and Acceptance, relinquish its rights and be released
from its obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above
written by their respective duly authorized officers.
[Name of Assignee]
By: _________________________________________
Title:
[Name of Assignor]
By: ________________________________________
Schedule 1
to Assignment and Acceptance
Name of Assignor: -----------------------------
Name of Assignee: -----------------------------
Effective Date of Assignment: -----------------
Credit Principal
Facility Assigned Ammount Assigned Commitment Percentage Assigned1
--------------------- ------------------ -------------------------------
$__________ __._____%
____________________
1. Calculate the assigned Commitment Percentage to at least 15 decimal
places and show as a percentage of the aggregate commitments of all Lenders.
Accepted: Consented To:
TORONTO-DOMINION (TEXAS), INC., [Name of Borrower]2
as Administrative Agent
By:___________________________ By:__________________________________
Title: Title:
TD SECURITIES (USA) INC., as Arranger
By:__________________________________
Title:
____________________
2. The Borrower's consent is not required with respect
to any assignment to a Lender.
FORM 3
U.S. SECURITIES AND EXCHANGE COMMISSION _____________________
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ | OMB APPROVAL |
INITIAL STATEMENT OF |_____________________|
BENEFICIAL OWNERSHIP OF SECURITIES |OMB NUMBER: 3235-0104|
|EXPIRES: |
| SEPTEMBER 30, 1998 |
Filed pursuant to Section 16(a) of the |ESTIMATED AVERAGE |
Securities Exchange Act of 1934, |BURDEN HOURS |
Section 17(a) of the Public Utility |PER RESPONSE 0.5 |
Holding Company Act of 1935 |_____________________|
or Section 30(f) of the Investment
Company Act of 1940
----------------------------------------------------------------------------
1. Name and Address of Reporting Person
Haland Yngve
---------------------------------------------------------------------
(Last) (First) (Middle)
c/o Autoliv, Inc. World Trade Center, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
---------------------------------------------------------------------
(Street)
▇-▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------------------------
(City) (State) (Zip)
----------------------------------------------------------------------------
2. Date of Event Requiring Statement (Month/Day/Year)
May 22, 1997
----------------------------------------------------------------------------
3. IRS OR SOCIAL SECURITY NUMBER OF REPORTING PERSON (VOLUNTARY)
----------------------------------------------------------------------------
4. Issuer Name and Ticker or Trading Symbol
Autoliv, Inc. Trading Symbol - ALV
----------------------------------------------------------------------------
5. RELATIONSHIP OF REPORTING PERSON(S) TO ISSUER (CHECK ALL APPLICABLE)
( ) DIRECTOR
( ) 10% OWNER
( X) OFFICER (GIVE TITLE BELOW)
( ) OTHER (SPECIFY TITLE BELOW)
Vice President - Research and Development
----------------------------------------------------------------------------
6. IF AMENDMENT, DATE OF ORIGINAL (MONTH/DAY/YEAR)
----------------------------------------------------------------------------
7. INDIVIDUAL OR JOINT/GROUP FILING (CHECK APPLICABLE LINE)
X FORM FILED BY ONE REPORTING PERSON
___FORM FILED BY MORE THAN ONE REPORTING PERSON
============================================================================
TABLE I - NON-DERIVATIVE SECURITIES BENEFICIALLY OWNED
____________________________________________________________________________
|1. TITLE OF SECURITY|2. AMOUNT OF |3. OWNERSHIP |4. NATURE OF INDIRECT |
| (INSTR. 4) | SECURITIES | FORM DIRECT| BENEFICIAL OWNERSHIP|
| | BENEFICIALLY| DIRECT (D) | (INSTR. 5) |
| | OWNED | OR INDIRECT| |
| | (INSTR. 4) | (I) (INSTR.| |
| | | 5) | |
| | | | |
____________________________________________________________________________
Common Stock, par 0
value $1.00 per
share
============================================================================
TABLE II - DERIVATIVE SECURITIES BENEFICIALLY OWNED
(E.G., PUTS, CALLS, WARRANTS, OPTIONS, CONVERTIBLE SECURITIES)
----------------------------------------------------------------------------
1. Title of Derivative Security (Instr. 4)
----------------------------------------------------------------------------
2. Date Exercisable and Expiration Date (Month/Day/Year)
________________________ _________________________
Date Exercisable Expiration Date
----------------------------------------------------------------------------
3. Title and Amount of Securities Underlying Derivative Security (Instr. 4)
________________________________ _______________________________
Title Amount of Number of Shares
----------------------------------------------------------------------------
4. Conversion or Exercise Price of Derivative Security
----------------------------------------------------------------------------
5. Ownership Form of Derivative Security: Direct(D) or Indirect(I)(Instr. 5)
----------------------------------------------------------------------------
6. Nature of Indirect Beneficial Ownership (Instr. 5)
============================================================================
EXPLANATION OF RESPONSES:
/s/ Yngve Haland July 7, 1997
---------------------------------------------------------------------
** SIGNATURE OF REPORTING PERSON DATE
_____________________________
** INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACTS CONSTITUTE FEDERAL
CRIMINAL VIOLATIONS.
SEE 18 U.S.C. 1001 AND 15 U.S.C. 78FF(A).
=============================================================================
EXHIBIT I-1
FORM OF TERM NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS
REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
________ __, 199__
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES,
INC., a Delaware corporation (the "Borrower"), hereby uncondi tionally
promises to pay to the Administrative Agent for the benefit of
(the "Lender") or its registered assigns at the Payment Office specified
in the Credit Agreement (as hereinafter defined) in lawful money of the
United States and in immediately available funds, the principal amount of
(a) DOLLARS ($ ), or, if less, (b) the unpaid principal amount of the
Term Loan made by the Lender pursuant to Section 2.1 of the Credit
Agreement. The entire principal amount of the Term Loan made by the
Lender outstanding under this Note shall be paid on the date specified in
Section 2.3 of the Credit Agree ment. The Borrower further agrees to pay
interest in like money at such office on the unpaid principal amount
hereof from time to time outstanding at the rates and on the dates
specified in Section 2.10 of the Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation
thereof which shall be attached hereto and made a part hereof the date,
Type and amount of the Term Loan evidenced hereby and the date and amount
of each payment or prepayment of principal with respect thereto, each
conversion of all or a portion thereof to another Type, each continuation
of all or a portion thereof as the same Type and, in the case of
Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute, absent manifest error,
prima facie evidence of the accurancy of the information endorsed. The
failure to make any such endorsement or any error in any such endorsement
shall not affect the obligations of the Borrower in respect of any of the
Term Loans.
This Note (a) is one of the Term Notes referred to in the
Credit Agreement dated as of _______________ (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lender, the other banks and financial institutions or
entities from time to time parties thereto, Toronto-Dominion (Texas),
Inc., as Administrative Agent, and TD Securities (USA) Inc., as Arranger,
(b) is subject to the provisions of the Credit Agreement and (c) is
subject to optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement. This Note is secured and guaranteed as
provided in the Loan Documents. Reference is hereby made to the Loan Docu
ments for a description of the properties and assets in which a security
interest has been granted, the nature and extent of the security and the
guarantees, the terms and conditions upon which the security interests
and each guarantee were granted and the rights of the holder of this Note
in respect thereof.
Upon the occurrence of any one or more of the Events of
Default, all principal and all accrued interest then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and
payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise,
hereby waive presentment, demand, protest and all other notices of any
kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR
IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED BY THE LENDER
EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER
PROVISIONS OF SECTION 9.6 OF THE CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC.
By: _______________________________
Name:
Title:
Schedule A
to Term Note
------------
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
Amount of Unpaid Principal
Amount of Amount Amount of Prin- Base Rate Loans Balance of
Base Rate Converted to cipal of Base Converted to Base Rate
Date Loans Base Rate Loans Rate Loans Repaid Eurodollar Loans Loans Notation Made By
Schedule B
to Term Note
------------
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Interest Period Amount of Amount of Unpaid Principal
Amount of Amount Converted and Eurodollar Principal of Eurodollar Loans Balance of
Eurodollar to Eurodollar Rate with Eurodollar Loans Converted to Eurodollar Notation
Date Loans Loans Respect Thereto Repaid Base Rate Loans Loans Made By
EXHIBIT I-2
FORM OF REVOLVING CREDIT NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS
REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
_________ __, 199__
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES,
INC., a Delaware corporation (the "Borrower"), hereby uncondi tionally
promises to pay to the Administrative Agent for the benefit of
____________________ (the "Lender") or its registered assigns at the
Payment Office specified in the Credit Agreement (as hereinafter defined)
in lawful money of the United States and in immediately available funds,
on the Revolving Credit Termination Date the principal amount of (a)
DOLLARS ($ ), or, if less, (b) the aggregate unpaid principal amount of
all Revolving Credit Loans made by the Lender to the Borrower pursuant to
Section [2.____] of the Credit Agreement. The Borrower further agrees to
pay interest in like money at such Payment Office on the unpaid principal
amount hereof from time to time outstand ing at the rates and on the
dates specified in Section 2.10 of the Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation
thereof which shall be attached hereto and made a part hereof the date,
Type and amount of each Revolv ing Credit Loan made pursuant to the
Credit Agreement and the date and amount of each payment or prepayment of
principal thereof, each continuation thereof, each conversion of all or a
portion thereof to another Type and, in the case of Eurodollar Loans, the
length of each Interest Period with respect thereto. Each such
endorsement shall constitute, absent manifest error, prima facie evidence
of the accuracy of the information endorsed. The failure to make any such
endorse ment or any error in any such endorsement shall not affect the
obligations of the Borrower in respect of any Revolving Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred
to in the Credit Agreement dated as of December 1, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Lender, the other banks and
financial institutions or entities from time to time parties thereto,
Toronto-Dominion (Texas), Inc. , as Administrative Agent, and TD
Securities (USA) Inc., as Arranger, (b) is subject to the provisions of
the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement. This
Note is secured and guaranteed as provided in the Loan Documents.
Reference is hereby made to the Loan Documents for a description of the
properties and assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and
conditions upon which the security interests and each guarantee were
granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of
Default, all principal and all accrued interest then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and
payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise,
hereby waive presentment, demand, protest and all other notices of any
kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR
IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED BY THE LENDER
EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER
PROVISIONS OF SECTION 9.6 OF THE CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC.
By: _______________________________
Name:
Title:
Schedule A
to Revolving Credit Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
Amount of Base Rate
Amount of Amount Amount of Loans Converted Unpaid Principal
Base Rate Converted to Principal of to Eurodollar Balance of Base
Date Loans Base Rate Loans Loans Repaid Loans Rate Loans Notation Made By
Schedule B
to Revolving Credit Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Interest Period Amount of Unpaid Principal
Amount of Amount Con- and Eurodollar Principal of Balance of
Eurodollar verted to Euro- Rate with Eurodollar Loans Eurodollar Notation
Date Loans dollar Loans Respect Thereto Repaid Loans Made By
EXHIBIT J
FORM OF EXEMPTION CERTIFICATE
Reference is made to the Credit Agreement, dated as of
___________________ (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement") among ▇▇▇▇▇-▇▇▇▇▇ Industries, Inc.,
a Delaware corporation (the "Borrower"), the several banks and other
financial institutions from time to time parties thereto (the "Lenders"),
Toronto-Dominion (Texas), Inc., as administrative agent for the Lenders
thereunder (in such capacity, the "Administrative Agent") and TD
Securities (USA) Inc., as Arranger. Capital ized terms used herein that
are not defined herein shall have the meanings ascribed to them in the
Credit Agreement. ______________________ (the "Non-U.S. Lender") is
providing this certificate pursuant to subsection 2.15(d) of the Credit
Agreement. The Non-U.S. Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial
owner of the Loans or the obligations evidenced by Note(s) in respect of
which it is providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of
Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended
(the "Code"). In this regard, the Non-U.S. Lender further represents and
warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other
legal requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank for
purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any
application made to a rating agency or qualification for any
exemption from tax, securities law or other legal
requirements;
3. The Non-U.S. Lender is not a 10-percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code; and
4. The Non-U.S. Lender is not a controlled foreign
corporation receiving interest from a related person within the meaning
of Section 881(c)(3)(C) of the Code.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By ____________________________
Name:
Title:
Date: ____________________