Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) HTML 1.51M
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, 109 441K
Liquidation or Succession
3: EX-2.2 Plan of Acquisition, Reorganization, Arrangement, 44 179K
Liquidation or Succession
4: EX-4.3 Instrument Defining the Rights of Security Holders 204 690K
5: EX-4.4 Instrument Defining the Rights of Security Holders 29 100K
6: EX-4.5 Instrument Defining the Rights of Security Holders 30 98K
7: EX-10.1 Material Contract 7 29K
16: EX-10.10 Material Contract 24 81K
17: EX-10.11 Material Contract 13 69K
18: EX-10.12 Material Contract 13 58K
19: EX-10.13 Material Contract 13 57K
20: EX-10.14 Material Contract 7 28K
21: EX-10.15 Material Contract 10 44K
22: EX-10.16 Material Contract 10 42K
23: EX-10.17 Material Contract 18 73K
24: EX-10.18 Material Contract 8 30K
25: EX-10.19 Material Contract 5 21K
8: EX-10.2 Material Contract 37 149K
26: EX-10.20 Material Contract 8 36K
9: EX-10.3 Material Contract 21 88K
10: EX-10.4 Material Contract 7 32K
11: EX-10.5 Material Contract 19 82K
12: EX-10.6 Material Contract 160 522K
13: EX-10.7 Material Contract 78 246K
14: EX-10.8 Material Contract 4 17K
15: EX-10.9 Material Contract 4 18K
27: EX-21.1 Subsidiaries of the Registrant 2± 10K
28: EX-23.1 Consent of Experts or Counsel 1 10K
Exhibit 10.6
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CREDIT AGREEMENT
dated as of
October 29, 2004
among
BOISE CASCADE HOLDINGS, L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP.,
BOISE CASCADE, L.L.C.,
BOISE LAND & TIMBER CORP.,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK,
as Administrative Agent
----------
J.P. MORGAN SECURITIES INC.
and
LEHMAN BROTHERS INC.,
as Joint Lead Arrangers and
Joint Bookrunners
LEHMAN COMMERCIAL PAPER INC.,
as Syndication Agent
COBANK, ACB,
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
and
GOLDMAN SACHS CREDIT PARTNERS L.P.
as Documentation Agents
================================================================================
[CS&M No. 6701-411]
TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms................................................................1
SECTION 1.02. Classification of Loans and Borrowings......................................35
SECTION 1.03. Terms Generally.............................................................35
SECTION 1.04. Accounting Terms; GAAP; Treatment of Timber Installment Note Subsidiaries...35
SECTION 1.05. Certificates................................................................36
ARTICLE II
The Credits
SECTION 2.01. Commitments.................................................................36
SECTION 2.02. Loans and Borrowings........................................................36
SECTION 2.03. Requests for Borrowings.....................................................37
SECTION 2.04. Swingline Loans.............................................................38
SECTION 2.05. Letters of Credit...........................................................39
SECTION 2.06. Funding of Borrowings.......................................................44
SECTION 2.07. Interest Elections..........................................................45
SECTION 2.08. Termination and Reduction of Commitments....................................46
SECTION 2.09. Repayment of Loans; Evidence of Debt........................................47
SECTION 2.10. Amortization of Term Loans..................................................47
SECTION 2.11. Prepayment of Loans.........................................................49
SECTION 2.12. Fees........................................................................52
SECTION 2.13. Interest....................................................................53
SECTION 2.14. Alternate Rate of Interest..................................................54
SECTION 2.15. Increased Costs.............................................................54
SECTION 2.16. Break Funding Payments......................................................55
SECTION 2.17. Taxes.......................................................................56
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.................57
SECTION 2.19. Mitigation Obligations; Replacement of Lenders..............................59
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers........................................................60
SECTION 3.02. Authorization; Enforceability...............................................60
SECTION 3.03. Governmental Approvals; No Conflicts........................................60
SECTION 3.04. Financial Condition; No Material Adverse Change.............................61
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SECTION 3.05. Properties..................................................................62
SECTION 3.06. Litigation and Environmental Matters........................................63
SECTION 3.07. Compliance with Laws and Agreements.........................................63
SECTION 3.08. Investment and Holding Company Status.......................................63
SECTION 3.09. Taxes.......................................................................63
SECTION 3.10. ERISA.......................................................................64
SECTION 3.11. Disclosure..................................................................64
SECTION 3.12. Subsidiaries................................................................64
SECTION 3.13. Insurance...................................................................64
SECTION 3.14. Labor Matters...............................................................65
SECTION 3.15. Solvency....................................................................65
SECTION 3.16. Senior Indebtedness.........................................................65
SECTION 3.17. Security Interests..........................................................65
ARTICLE IV
Conditions
SECTION 4.01. Effective Date..............................................................65
SECTION 4.02. Each Credit Event...........................................................69
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information..................................70
SECTION 5.02. Notices of Material Events..................................................71
SECTION 5.03. Information Regarding Collateral............................................72
SECTION 5.04. Existence; Conduct of Business..............................................72
SECTION 5.05. Payment of Obligations......................................................73
SECTION 5.06. Maintenance of Properties...................................................73
SECTION 5.07. Insurance...................................................................73
SECTION 5.08. Casualty and Condemnation...................................................73
SECTION 5.09. Books and Records; Inspection Rights........................................74
SECTION 5.10. Compliance with Laws........................................................74
SECTION 5.11. Use of Proceeds and Letters of Credit.......................................74
SECTION 5.12. Additional Subsidiaries.....................................................74
SECTION 5.13. Further Assurances..........................................................75
SECTION 5.14. Interest Rate Protection....................................................75
SECTION 5.15. Fiscal Periods..............................................................76
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities; Designated Senior Indebtedness.....76
SECTION 6.02. Liens.......................................................................79
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SECTION 6.03. Fundamental Changes.........................................................82
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions...................83
SECTION 6.05. Asset Sales.................................................................87
SECTION 6.06. Sale and Leaseback Transactions.............................................90
SECTION 6.07. Swap Agreements.............................................................90
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.......................90
SECTION 6.09. Transactions with Affiliates................................................92
SECTION 6.10. Restrictive Agreements......................................................93
SECTION 6.11. Amendment of Material Documents.............................................93
SECTION 6.12. Interest Expense Coverage Ratio.............................................94
SECTION 6.13. Leverage Ratio..............................................................94
SECTION 6.14. Capital Expenditures........................................................95
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices....................................................................101
SECTION 9.02. Waivers; Amendments........................................................102
SECTION 9.03. Expenses; Indemnity; Damage Waiver.........................................103
SECTION 9.04. Successors and Assigns.....................................................105
SECTION 9.05. Survival...................................................................108
SECTION 9.06. Counterparts; Integration; Effectiveness...................................108
SECTION 9.07. Severability...............................................................109
SECTION 9.08. Right of Setoff............................................................109
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.................109
SECTION 9.10. WAIVER OF JURY TRIAL.......................................................110
SECTION 9.11. Headings...................................................................110
SECTION 9.12. Confidentiality............................................................110
SECTION 9.13. Interest Rate Limitation...................................................111
SECTION 9.14. USA Patriot Act............................................................111
SECTION 9.15. Sale of Timber Borrower....................................................112
SCHEDULES:
Schedule 1.01 -- Existing Letters of Credit
Schedule 2.01 -- Commitments
Schedule 3.05(c) -- Timber Real Property
Schedule 3.05(d) -- Non-Timber Real Property
Schedule 3.05(e) -- Purchase Rights on Mortgaged Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02(a) -- Existing BC Borrower Liens
Schedule 6.02(b) -- Existing Timber Borrower Liens
Schedule 6.04(a) -- Existing BC Borrower Investments
Schedule 6.04(b) -- Existing Timber Borrower Investments
Schedule 6.09 -- Effective Date Agreements
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Opinion of Borrowers' Counsel
Exhibit C -- Form of Guarantee and Collateral Agreement
Exhibit D -- Form of Perfection Certificate
CREDIT AGREEMENT dated as of October 29, 2004, among BOISE
CASCADE HOLDINGS, L.L.C., BOISE LAND & TIMBER HOLDINGS CORP.,
BOISE CASCADE, L.L.C., BOISE LAND & TIMBER CORP., the LENDERS
party hereto and JPMORGAN CHASE BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"ACCOUNT" means, collectively, (a) an "account" as such term is
defined in the Uniform Commercial Code as in effect from time to time in the
State of New York or under other relevant law, and (b) any rights of the BC
Borrower or any BC Subsidiary to payment for goods sold or leased or services
performed, including all such rights evidenced by an account, note, contract,
security agreement, chattel paper, or other evidence of indebtedness or
security.
"ACQUIRED BUSINESSES" means the Operating Businesses and the
Timberland Assets, collectively.
"ACQUISITION" means the acquisition (a) by the BC Subsidiaries of all
of the assets exclusively or primarily related to or used exclusively or
primarily in the conduct of the Operating Businesses prior to the Effective Date
and (b) by the Timber Borrower and the Timber Subsidiaries of the Timberland
Assets, in each case pursuant to and as set forth in the Acquisition Agreement.
"ACQUISITION AGREEMENT" means the Asset Purchase Agreement dated as of
July 26, 2004, by and among the Sellers, FPH and the Timber Borrower and the
Schedules and exhibits attached thereto.
"ACQUISITION DOCUMENTS" means (a) the Acquisition Agreement, (b) the
Aviation Services Agreements, the Additional Consideration Agreement, the
Amended Paper Sales Agreement, the Shareholder Agreements and the Mutual
Administrative Services Agreement, in each case as defined in the Acquisition
Agreement and (c) all other documents and agreements entered into in connection
with or relating to the Acquisition.
"ADDITIONAL CONSIDERATION AGREEMENT" has the meaning assigned to such
term in the Acquisition Agreement.
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"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/32 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders hereunder. The terms "Administrative Agent"
and "Collateral Agent" are used interchangeably and shall not be construed to
distinguish separate roles, functions or duties.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified; PROVIDED
that, solely for purposes of Section 6.09, a Person shall not be an "Affiliate"
of either Holding Company or Borrower solely by reason of being commonly
Controlled by Madison Dearborn if (a) such Person is not Controlled by either
Holding Company or either Borrower and (b) the Equity Interests in such Person
owned or Controlled, directly or indirectly, by Madison Dearborn represent less
than 20% of each of the aggregate ordinary voting power and the aggregate equity
value represented by such Person's outstanding Equity Interests.
"AGENTS" means the Administrative Agent and the Syndication Agent.
"ALTERNATE BASE RATE" means, for any day, a rate per annum 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%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"APPLICABLE PERCENTAGE" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"APPLICABLE RATE" means, for any day (a) with respect to any Tranche B
Term Loan, (i) in the case of an ABR Loan, 1.25% per annum and (ii) in the case
of a Eurodollar Loan, 2.25% per annum; (b) with respect to any Tranche C Term
Loan, (i) in the case of an ABR Loan, 1.25% per annum and (ii) in the case of a
Eurodollar Loan, 2.25% per annum and (c) with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan, the applicable rate per annum set
forth below under the caption "ABR Spread" or "Eurodollar Spread", as the case
may be, based upon the Leverage Ratio as of the most recent determination date;
PROVIDED that prior to delivery of combined consolidated financial statements
for the fiscal quarter ending March 31, 2005, the
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Applicable Rate in respect of Revolving Loans shall be determined by reference
to Category 1 below:
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ABR Eurodollar
Leverage Ratio: Spread Spread
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CATEGORY 1
Greater than 4.00 to 1.00 1.25% 2.25%
CATEGORY 2
Greater than 3.50 to 1.00
but less than or equal to 4.00 to 1.00 1.00% 2.00%
CATEGORY 3
Greater than 3.00 to 1.00
but less than or equal to 3.50 to 1.00 0.75% 1.75%
CATEGORY 4
Less than or equal to 3.00 to 1.00 0.50% 1.50%
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of the Borrowers' fiscal year based upon the
combined consolidated financial statements of the Holding Companies delivered
pursuant to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the date of delivery to the Administrative
Agent of such combined consolidated financial statements indicating such change
and ending on the date immediately preceding the effective date of the next such
change; PROVIDED that the Leverage Ratio shall be deemed to be in Category 1 (A)
at any time that an Event of Default has occurred and is continuing or (B) at
the option of the Administrative Agent or at the request of the Required Lenders
if the Borrowers fail to deliver the consolidated financial statements of the
Holding Companies required to be delivered pursuant to Section 5.01(a) or (b),
during the period from the expiration of the time for delivery thereof until
such consolidated financial statements are delivered.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"BC BORROWER" means Boise Cascade, L.L.C., a Delaware limited
liability company that is a wholly owned subsidiary of BC Holdings.
"BC HOLDINGS" means Boise Cascade Holdings, L.L.C., a Delaware limited
liability company.
"BC SUBSIDIARY" means a Subsidiary of the BC Borrower.
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"BOARD" means the Board of Governors of the Federal Reserve System of
the United States of America.
"BORROWERS" means the BC Borrower and the Timber Borrower.
"BORROWING" means (a) all Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"BORROWING REQUEST" means a request by a Borrower for a Borrowing in
accordance with Section 2.03.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; PROVIDED that, when used in connection with a Eurodollar Loan,
the term "BUSINESS DAY" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CAPITAL EXPENDITURES" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Holding
Companies, the Borrowers and their consolidated Subsidiaries that are (or would
be) set forth as capital expenditures in a combined consolidated statement of
cash flows of the Holding Companies for such period prepared in accordance with
GAAP and (b) the principal portion of Capital Lease Obligations incurred by the
Holding Companies, the Borrowers and their consolidated Subsidiaries during such
period; PROVIDED that Capital Expenditures shall not include (i) the purchase
price paid in connection with a Permitted Acquisition, (ii) expenditures made
pursuant to any election to apply Net Proceeds of a Prepayment Event described
in clause (a) or (b) of the definition of the term "Prepayment Event" to acquire
assets as contemplated by the proviso to Section 2.11(c), or made pursuant to
any election to apply Net Proceeds described in clause (b)(ii) of the definition
of the term "Timberland Prepayment Event" to repair or replace Timberland Assets
as described therein, (iii) the non-cash consideration transferred or disposed
of in connection with a Permitted Operating Asset Swap or Permitted Timberland
Asset Swap, (iv) any Specified Investment and (v) payments required to be made
by any Loan Party under the Additional Consideration Agreement.
"CAPITAL LEASE OBLIGATIONS" of any Person means 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 the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person of any Equity Interest
in a Borrower (other than (i) the ownership by BC Holdings of Equity Interests
in the BC Borrower, (ii) the ownership by Timber Holdings of Equity Interests in
the Timber Borrower and
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(iii) pursuant to a sale of the Equity Interests of the Timber Borrower
permitted by Section 6.05(c)); (b) at any time prior to an IPO with respect to
BC Holdings, the failure by Madison Dearborn to own, directly or indirectly,
beneficially and of record, Equity Interests of BC Holdings representing at
least a majority of each of the aggregate ordinary voting power and aggregate
equity value represented by the issued and outstanding Equity Interests of BC
Holdings; (c) at any time prior to an IPO with respect to Timber Holdings, the
failure by Madison Dearborn to own, directly or indirectly, beneficially and of
record, Equity Interests of Timber Holdings representing at least a majority of
each of the aggregate ordinary voting power and aggregate equity value
represented by the issued and outstanding Equity Interests of Timber Holdings;
(d) at any time after an IPO with respect to BC Holdings, the failure by Madison
Dearborn to own, directly or indirectly, beneficially and of record, Equity
Interests of BC Holdings representing at least 30% of each of the aggregate
ordinary voting power and the aggregate equity value represented by the issued
and outstanding Equity Interests of BC Holdings; (e) at any time after an IPO
with respect to Timber Holdings, the failure by Madison Dearborn to own,
directly or indirectly, beneficially and of record, Equity Interests of Timber
Holdings representing at least 30% of each of the aggregate ordinary voting
power and the aggregate equity value represented by the issued and outstanding
Equity Interests of Timber Holdings; (f) at any time after an IPO with respect
to BC Holdings, the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof) of Equity Interests
representing a percentage of either the aggregate ordinary voting power or the
aggregate equity value represented by the issued and outstanding Equity
Interests of BC Holdings greater than that represented by the Equity Interests
therein owned, directly or indirectly, by Madison Dearborn; (g) at any time
after an IPO with respect to Timber Holdings, the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
of Equity Interests representing a percentage of either the aggregate ordinary
voting power or the aggregate equity value represented by the issued and
outstanding Equity Interests of Timber Holdings greater than that represented by
the Equity Interests therein owned, directly or indirectly, by Madison Dearborn;
(h) after an IPO with respect to BC Holdings, occupation of a majority of the
seats (other than vacant seats) on the board of directors of BC Holdings by
Persons who were neither nominated by the board of directors of BC Holdings nor
appointed by directors so nominated; (i) after an IPO with respect to Timber
Holdings, occupation of a majority of the seats (other than vacant seats) on the
board of directors of Timber Holdings by Persons who were neither nominated by
the board of directors of Timber Holdings nor appointed by directors so
nominated; (j) the acquisition, by reason of a written agreement, of direct or
indirect Control of BC Holdings, Timber Holdings, the BC Borrower or the Timber
Borrower (other than pursuant to a sale of the Equity Interests of the Timber
Borrower permitted by Section 6.05(c)) by any Person or group other than Madison
Dearborn; or (k) the occurrence of a "Change of Control", as defined in the
Subordinated Debt Documents or the Senior Unsecured Debt Documents; PROVIDED
that clauses (c), (e), (g) and (i) above shall not apply at any time after each
of Timber
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Holdings and the Timber Borrower cease to be parties to this Agreement pursuant
to and in accordance with Section 9.15.
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or any Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or such Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Tranche B Term Loans, Tranche C Term Loans or Swingline Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a Revolving
Commitment, Tranche B Commitment or Tranche C Commitment.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COLLATERAL" means any and all "Collateral", as defined in any
applicable Security Document.
"COLLATERAL AGENT" means JPMorgan Chase Bank, as collateral agent
under the Security Documents. The terms "Administrative Agent" and "Collateral
Agent" are used interchangeably and shall not be construed to distinguish
separate roles, functions or duties.
"COLLATERAL AGREEMENT" means the Guarantee and Collateral Agreement
among each of the Holding Companies, the Borrowers, the Subsidiary Loan Parties
and the Administrative Agent, substantially in the form of Exhibit C.
"COLLATERAL AND GUARANTEE REQUIREMENT" means the requirement that:
(a) the Administrative Agent shall have received from each Loan Party
either (i) a counterpart of the Collateral Agreement duly executed and
delivered on behalf of such Loan Party or (ii) in the case of any Person
that becomes a Loan Party after the Effective Date, a supplement to the
Collateral Agreement, in the form specified therein, duly executed and
delivered on behalf of such Loan Party;
(b) all outstanding Equity Interests of each Borrower and each
Subsidiary owned by or on behalf of any Loan Party shall have been pledged
pursuant to the Collateral Agreement (except that the Loan Parties shall
not be required to pledge more than 65% of the outstanding voting Equity
Interests of any Foreign Subsidiary that is not a Loan Party) and the
Administrative Agent shall have received certificates or other instruments
representing all such Equity Interests,
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together with stock powers or other instruments of transfer with respect
thereto endorsed in blank;
(c) all Indebtedness of each of the Holding Companies, the Borrowers
and the Subsidiaries that is owing to any Loan Party shall be evidenced by
a promissory note and shall have been pledged pursuant to the Collateral
Agreement and the Administrative Agent shall have received all such
promissory notes, together with instruments of transfer with respect
thereto endorsed in blank; PROVIDED that Indebtedness of any such Person
owing to a Loan Party shall not be required to be evidenced by a promissory
note (but shall nevertheless constitute Collateral) if the aggregate
principal amount of outstanding Indebtedness of such Person owing to Loan
Parties and not so evidenced by promissory notes does not exceed
$5,000,000;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create the
Liens intended to be created by the Collateral Agreement and perfect such
Liens to the extent required by, and with the priority required by, the
Collateral Agreement, shall have been filed, registered or recorded or
delivered to the Administrative Agent for filing, registration or
recording;
(e) the Administrative Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) for each
Non-Timber Mortgaged Property, a policy or policies of title insurance
issued by a nationally recognized title insurance company insuring the Lien
of each such Mortgage as a valid first Lien on the Non-Timber Mortgaged
Property described therein, free of any other Liens except as expressly
permitted by Section 6.02, together with such endorsements, coinsurance and
reinsurance as the Administrative Agent or the Required Lenders may
reasonably request, (iii) title reports for each Timber Mortgaged Property
provided by a nationally recognized title insurance company providing (A)
the record owner of such Timber Mortgaged Property, (B) a list of all Liens
against such Timber Mortgaged Property and (C) a valid legal description of
such Timber Mortgaged Property, and (iv) such surveys, abstracts,
appraisals, legal opinions and other documents as the Administrative Agent
or the Required Lenders may reasonably request with respect to any such
Mortgage or Mortgaged Property;
(f) each Loan Party shall have obtained all material consents and
approvals required to be obtained by it in connection with the execution
and delivery of all Security Documents to which it is a party, the
performance of its obligations thereunder and the granting by it of the
Liens thereunder; and
(g) the Administrative Agent shall be reasonably satisfied that all
warehousemen, bailees, agents or processors which have in their possession
or control any Inventory with a fair market value in excess of $5,000,000
at any one
8
time have been notified of the Liens created by the Security Documents in
such Inventory and that the Borrowers shall have used reasonable efforts to
cause each such warehouseman, bailee, agent or processor to (i) acknowledge
in writing, in form and substance satisfactory to the Administrative Agent,
that such warehouseman, agent, bailee or processor holds the Inventory for
the benefit of the Administrative Agent subject to the Liens created by the
Security Documents and shall act upon the instructions of the
Administrative Agent without further consent from any Loan Party, and (ii)
agree to waive and release any Lien held by it with respect to such
Inventory, whether arising by operation of law or otherwise.
"COMMITMENT" means a Revolving Commitment, Tranche B Commitment or
Tranche C Commitment, or any combination thereof (as the context requires).
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period, the excess
of (a) the sum (without duplication) of (i) the interest expense (including
imputed interest expense in respect of Capital Lease Obligations) of the Holding
Companies, the Borrowers and the Subsidiaries for such period, determined on a
combined consolidated basis in accordance with GAAP, (ii) any cash payments made
during such period in respect of obligations referred to in clause (b)(iii)
below that were amortized or accrued in a previous period and (iii)
interest-equivalent costs associated with any Permitted Receivables Financing,
whether accounted for as interest expense or loss on the sale of Receivables,
minus (b) the sum of (i) interest income of the Holding Companies, the Borrowers
and the Subsidiaries for such period, determined on a combined consolidated
basis in accordance with GAAP, (ii) to the extent included in such combined
consolidated interest expense for such period, non-cash amounts attributable to
amortization of financing costs paid in a previous period, plus (iii) to the
extent included in such combined consolidated interest expense for such period,
non-cash amounts attributable to amortization of debt discounts or accrued
interest payable in kind for such period.
"CONSOLIDATED EBITDA" means, for any period, the sum of Consolidated
Net Income for such period, plus the following, without duplication, to the
extent deducted in calculating such Consolidated Net Income:
(a) all income tax expense of the Holding Companies, the Borrowers and
the Subsidiaries, on a combined consolidated basis;
(b) all interest expense of the Holding Companies, the Borrowers and
the Subsidiaries, on a combined consolidated basis;
(c) depreciation, depletion and amortization expense of the Holding
Companies, the Borrowers and the Subsidiaries, on a combined consolidated
basis (in each case excluding amortization expense attributable to a
prepaid item that was paid in cash in a prior period);
(d) any management fees paid to Madison Dearborn in such period, not
to exceed $2,000,000 for any consecutive four quarter period;
9
(e) any non-recurring costs and expenses incurred in connection with
the Acquisition, including non-recurring costs and expenses incurred in
connection with the Financing Transactions (other than the Installment Note
Financing) and severance costs, facility closure and related restructuring
costs incurred within 18 months of the Effective Date, in an aggregate
amount for all periods not to exceed $25,000,000;
(f) any non-recurring costs and expenses related to (i) any public or
private offering of Equity Interests of BC Holdings, Timber Holdings or the
BC Borrower, (ii) any investment or acquisition permitted by Section 6.04
or (iii) recapitalizations or Indebtedness permitted by Section 6.01; and
(g)(i) all other non-cash charges of the Holding Companies, the
Borrowers and the Subsidiaries, on a combined consolidated basis (in each
case excluding any such non-cash charge to the extent that it represents an
accrual of or reserve for cash expenditures in any future period) less (ii)
all non-cash items of income of the Holding Companies, the Borrowers and
the Subsidiaries, on a combined consolidated basis (in each case other than
accruals of revenue in the ordinary course of business and other than
reversals (to the extent made without any payment in cash) of reserves
previously excluded from clause (g)(i)),
in each case for such period. Notwithstanding the foregoing, the provision for
taxes based on the income or profits of, and the depreciation, amortization and
depletion and non-cash charges of, a Subsidiary shall be added to Consolidated
Net Income to compute Consolidated EBITDA only to the extent (and in the same
proportion, including by reason of minority interests) that the net income or
loss of such Subsidiary was included in calculating Consolidated Net Income for
any purpose and, with respect to a Subsidiary that is not a Subsidiary Loan
Party, only if a corresponding amount would be permitted at the date of
determination to be dividended to a Loan Party by such Subsidiary without prior
approval (that has not been obtained), pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Subsidiary or its stockholders.
Solely for purposes of calculating the Leverage Ratio, if during any period
(each, a "REFERENCE PERIOD") (or, in the case of PRO FORMA calculations, during
the period from the last day of such Reference Period to and including the date
as of which such calculation is made) either of the Borrowers or any Subsidiary
shall have made a Material Disposition or Material Acquisition (other than the
Acquisition), their Consolidated EBITDA for such Reference Period shall be
calculated after giving PRO FORMA effect thereto as if such Material Disposition
or Material Acquisition occurred on the first day of such Reference Period;
PROVIDED that such PRO FORMA calculations shall give effect to operating expense
reductions and other cost savings only to the extent that such reductions and
savings would be permitted to be reflected in a pro forma financial statement
prepared in compliance with Regulation S-X. As used in this definition,
"MATERIAL ACQUISITION" means any Permitted Acquisition or series of related
Permitted Acquisitions that involves consideration (including any non-cash
consideration) with a fair market value in excess of $20,000,000; and "MATERIAL
DISPOSITION" means any disposition of property or series of related dispositions
of property or assets (including the Equity Interests of a Subsidiary)
10
that involves consideration (including any non-cash consideration) with a fair
market value in excess of $20,000,000.
For purposes of this Agreement, Consolidated EBITDA for any Reference Period
that includes any period of time prior to the Acquisition shall be calculated
after giving PRO FORMA effect for such period to the Acquisition and the other
categories of adjustments to "EBITDA" used to calculate pro forma "Adjusted
EBITDA" as set forth in footnote 7 under the section of the Offering Memorandum
entitled "Offering memorandum summary--Summary historical and pro forma
condensed combined financial data" (without duplication of amounts otherwise
included in the calculation of "EBITDA" as presented in the Offering
Memorandum), it being understood that, with respect to the adjustment related to
the Additional Consideration Agreement, the adjustment shall be for a deemed
one-time receipt by the BC Borrower of $40,233,000 pursuant to such agreement
during the relevant Reference Period until such time as such Reference Period
includes an actual payment or receipt pursuant to such agreement, at which point
such actual payment or receipt shall be used in place of such deemed receipt.
"CONSOLIDATED NET INCOME" means, for any period, the net income or
loss of the Holding Companies, the Borrowers and the Subsidiaries for such
period determined on a combined consolidated basis in accordance with GAAP;
PROVIDED that there shall not be included in such Consolidated Net Income:
(a) any net income of any Person (other than the Holding Companies and
the Borrowers) if such Person is not a Subsidiary, except that, subject to
the exclusion contained in clause (c) below, the BC Borrower's or the
Timber Borrower's, as the case may be, equity in the net income of any such
Person for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash actually distributed by such Person during
such period to the BC Borrower or the Timber Borrower, as the case may be,
or a Subsidiary as a dividend or other distribution (subject, in the case
of a dividend or other distribution paid to a Subsidiary, to the
limitations contained in clause (b) below);
(b) any net income of any Subsidiary that is not a Subsidiary Loan
Party if such Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions by
such Subsidiary, directly or indirectly, to the BC Borrower or the Timber
Borrower, as the case may be, except that:
(i) subject to the exclusion contained in clause (c) below, the
BC Borrower's or the Timber Borrower's, as the case may be, equity in
the net income of any such Subsidiary for such period shall be
included in such Consolidated Net Income to the extent that the net
income of such Subsidiary would be permitted at the date of
determination to be dividended to the BC Borrower or the Timber
Borrower, as the case may be, without any prior approval or waiver
(that has not been obtained) pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes,
rules or governmental regulations applicable to that Subsidiary or its
stockholders (subject, in the case of a
11
dividend or other distribution paid to another Subsidiary, to the
limitation contained in this clause (i)) and
(ii) the BC Borrower's or the Timber Borrower's, as the case may
be, equity in a net loss of any such Subsidiary for such period shall
be included in determining such Consolidated Net Income;
(c) any gain or loss (or, in respect of sales of Timberland Assets,
income or loss) realized upon the sale or other disposition of any assets
of any Holding Company, any Borrower or any Subsidiary or any other Person
(including pursuant to any sale-and-leaseback arrangement) which are not
sold or otherwise disposed of in the ordinary course of business (it being
understood that the determination of whether any sale of Timberlands Assets
has been made in the ordinary course of business shall be made in good
faith on a basis consistent with that used in the calculation of pro forma
"Adjusted EBITDA" used in the Offering Memorandum (it being understood that
such calculation makes adjustments for non-ordinary course of business
sales of Timberlands Assets and not for ordinary course of business sales))
and any gain (or loss) realized upon the sale or other disposition of any
Equity Interests of any Person;
(d) extraordinary gains or losses;
(e) any unrealized Statement of Financial Accounting Standards No. 133
gain or loss in respect of any Swap Agreement;
(f) any non-cash gains or losses attributable to the early
extinguishment of Indebtedness;
(g) unusual or non-recurring non-cash gains or losses;
(h) any non-cash goodwill impairment charges resulting from the
application of Statement of Financial Accounting Standards No. 142; and
(i) any non-cash compensation charge or expense, including any such
charge or expense arising from grants of stock options or restricted stock
or other equity-incentive programs for the benefit of officers, directors
and employees of any Holding Company, any Borrower or any Subsidiary,
in each case for such period. Notwithstanding the foregoing, any amounts
received and any amounts paid by any Holding Company, any Borrower or any
Subsidiary under the Additional Consideration Agreement during such period shall
be added and subtracted, respectively, in calculating Consolidated Net Income,
without duplication.
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person
through the right to exercise voting power or by contract. "CONTROLLING" and
"CONTROLLED" have meanings correlative thereto.
12
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"EFFECTIVE DATE" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"ELIGIBLE SWAP ASSETS" means (a) in the case of a Permitted Timberland
Asset Swap, interests in real property and related assets (including timber and
other products of or rights in or to any such interests in real property)
relating to or used for the purpose of growing or harvesting timber, and (b) in
the case of a Permitted Operating Asset Swap, assets constituting warehousing or
distribution facilities (including any related equipment and interests in real
property associated therewith).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions or legally binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the protection of the environment, preservation or
reclamation of natural resources, the management, release or threatened release
of any Hazardous Material or to occupational health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of any of the Holding Companies, the Borrowers or the
Subsidiaries directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"EQUITY FINANCING" means the contribution (a) by FPH of not less than
$242,448,980 in cash to BC Holdings in the form of common equity, (b) by the
Sellers or one of their Affiliates of not less than $96,428,571 in cash to BC
Holdings in the form of common equity, (c) by FPH of not less than $197,551,020
in cash to Timber Holdings in the form of common equity, (d) by the Sellers or
one of their Affiliates of not less than $78,571,429 in cash to Timber Holdings
in the form of common equity, (e) by BC Holdings of not less than $338,877,551
in cash to the BC Borrower in the form of common equity and (f) by Timber
Holdings of not less than $276,122,449 in cash to the Timber Borrower in the
form of common equity.
13
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with either Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Plan
(other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by either Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by either Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by either Borrower or any of its ERISA Affiliates
of any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the receipt by either Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from either
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"EURODOLLAR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VII.
"EXCESS CASH FLOW" means, for any fiscal year, the sum (without
duplication) of:
(a) the combined consolidated net income (or loss) of the Holding
Companies, the Borrowers and their consolidated Subsidiaries for such
fiscal year, adjusted to exclude (i) any gains or losses attributable to
Prepayment Events, Timberland Prepayment Events, Permitted Operating Asset
Swaps, Permitted Timberland Asset Swaps or any sale or other disposition of
Non-Cash Timberlands Consideration and (ii) any income attributable to any
Non-Cash Timberlands Consideration; PLUS
14
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining such combined consolidated net income (or loss) for
such fiscal year; PLUS
(c) the aggregate amount of payments received by any Loan Party
pursuant to the Additional Consideration Agreement during such fiscal year;
PLUS
(d) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such fiscal year plus (ii) the net amount, if any, by
which the combined consolidated deferred revenues of the Holding Companies,
the Borrowers and their consolidated Subsidiaries increased during such
fiscal year; MINUS
(e) the sum of (i) any non-cash gains included in determining such
combined consolidated net income (or loss) for such fiscal year plus (ii)
the amount, if any, by which Net Working Capital increased during such
fiscal year plus (iii) the net amount, if any, by which the combined
consolidated deferred revenues of the Holding Companies, the Borrowers and
their consolidated Subsidiaries decreased during such fiscal year; MINUS
(f) Capital Expenditures for such fiscal year, except to the extent
attributable to (i) the incurrence of Capital Lease Obligations or
otherwise financed by incurring Long-Term Indebtedness or (ii) the
reinvestment of Net Proceeds received in respect of any Prepayment Events
or Timberland Prepayment Events; MINUS
(g) the aggregate amount of payments made by any Loan Party pursuant
to the Additional Consideration Agreement during such fiscal year; MINUS
(h) the amount of Tax Distributions paid in cash during such fiscal
year in compliance with Section 6.08; MINUS
(i) the amount of any expenses related to severance costs, facility
closure and related restructuring costs incurred in connection with the
Acquisition and paid within 18 months of the Effective Date by any of the
Holding Companies, the Borrowers or the Subsidiaries which expenses are not
otherwise deducted in calculating the combined consolidated net income (or
loss) of the Holding Companies, the Borrowers and their consolidated
Subsidiaries as a result of the application of purchase accounting
principles; MINUS
(j) the aggregate principal amount of Long-Term Indebtedness repaid or
prepaid by the Borrowers and their consolidated Subsidiaries during such
fiscal year, excluding (i) Indebtedness in respect of Revolving Loans,
Swingline Loans and LC Exposure unless (and then only to the extent that)
the Revolving Commitments are also reduced, (ii) Term Loans prepaid
pursuant to Section 2.11, (iii) repayments or prepayments of Long-Term
Indebtedness financed by incurring other Long-Term Indebtedness, (iv)
repayments or prepayments of Long-Term Indebtedness (other than Loans)
deducted in calculating the amount
15
of Net Proceeds in connection with any Prepayment Event or Timberland
Prepayment Event and (v) repayments or prepayments of Unsecured Senior Debt
or Subordinated Debt pursuant to clause (v) of Section 6.08(b).
"EXCESS TIMBER CONSIDERATION" means any Net Proceeds and Non-Cash
Timberlands Consideration received in respect of Timberland Prepayment Events
other than (a) the first $1,650,000,000 of Net Proceeds from Timberland
Prepayment Events and (b) 50% of the Net Proceeds received from Timberland
Prepayment Events in excess of $1,650,000,000. For purposes hereof, any Net
Proceeds or non-cash consideration received from the sale, transfer or
disposition of Non-Cash Timberlands Consideration constitutes Excess Timber
Consideration.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, any Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of either Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by either Borrower
under Section 2.19(b)), any withholding tax that (i) is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.17(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from either Borrower with respect to any withholding tax
pursuant to Section 2.17(a).
"EXISTING LETTERS OF CREDIT" means the letters of credit listed on
Schedule 1.01.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) 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 that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means, in respect of any Person, the chief
financial officer, principal accounting officer, treasurer or controller of such
Person.
"FINANCING TRANSACTIONS" means (a) the execution, delivery and
performance by each Loan Party of the Loan Documents to which it is to be a
party, the borrowing of Loans, the use of the proceeds thereof and the issuance
of Letters of Credit
16
hereunder, (b) the execution, delivery and performance by each Loan Party of the
Subordinated Debt Documents to which it is to be a party, the issuance of the
Subordinated Debt and the use of the proceeds thereof, (c) the execution,
delivery and performance by each Loan Party of the Senior Unsecured Debt
Documents to which it is to be a party, the issuance of Senior Unsecured Debt
and the use of the proceeds thereof, (d) the Equity Financing and (e) the
execution, delivery and performance by each Timber Installment Note Subsidiary
of the Installment Note Documents to which it is to be a party and the
consummation of the Installment Note Financing.
"FOREIGN LENDER" means any Lender that is organized under the laws of
a jurisdiction other than that in which either of the Borrowers is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"FPH" means Forest Products Holdings, L.L.C., a Delaware limited
liability company and a direct subsidiary of Madison Dearborn Capital Partners,
IV, L.P.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease (including pursuant to any "synthetic lease") property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; PROVIDED, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
17
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HOLDING COMPANIES" means BC Holdings and Timber Holdings.
"IMMATERIAL SUBSIDIARIES" means, at any time, BC Subsidiaries, that,
on a consolidated basis with their respective BC Subsidiaries and treated as if
all such BC Subsidiaries and their respective BC Subsidiaries were combined and
consolidated as a single BC Subsidiary, (a) had consolidated assets representing
less than 2% of the consolidated assets of BC Holdings as of the last day of the
most recently ended fiscal quarter for which financial statements are available,
(b) accounted for less than 2% of the consolidated revenues of BC Holdings for
the period of four consecutive fiscal quarters most recently ended for which
financial statements are available and (c) accounted for less than 2% of
Consolidated EBITDA of BC Holdings for the period of four consecutive fiscal
quarters most recently ended for which financial statements are available.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding accounts
payable due within one year and accrued expenses, in each case incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed;
PROVIDED that if recourse for such Indebtedness is limited to such property, the
amount of Indebtedness arising under this clause (f) shall be limited to the
lesser of (i) the outstanding principal amount thereof and (ii) the fair market
value of the property subject to such Lien, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INFORMATION MEMORANDUM" means the Confidential Information Memorandum
dated September 2004 relating to the Borrowers and the Transactions.
18
"INSTALLMENT NOTE DOCUMENTS" means the Installment Notes, the
Installment Note Guaranties and the "Collateral Notes" (as defined in
Installment Note Guaranties) and all other documents and agreements contemplated
by the Installment Note Guaranties.
"INSTALLMENT NOTE FINANCING" means the transactions contemplated by
the Installment Note Documents, including (a) the contribution by the Timber
Borrower of $1,635,250,000 in cash to the Timber Installment Note Subsidiaries,
(b) the issuance of the Installment Notes by the Timber Installment Note
Subsidiaries to certain of the Sellers, (c) the purchase for cash by the Timber
Installment Note Subsidiaries of private placement notes from various financial
institutions in the aggregate principal amount of $1,635,250,000, (d) the
issuance by Wachovia Corporation and Lehman Brothers Holdings Inc. of guaranties
pursuant to the Installment Note Guaranties to provide credit support for the
Installment Notes and (e) the pledge by each of the Timber Installment Note
Subsidiaries of the private placement notes purchased by it (as contemplated by
clause (c) above) and certain other collateral as security for its obligations
under its Installment Note Guaranty.
"INSTALLMENT NOTE GUARANTIES" means (a) the Guaranty dated as of the
date hereof issued by Lehman Brothers Holdings Inc. and (b) the Guaranty dated
as of the date hereof issued by Wachovia Corporation, in each case to provide
credit support for the Installment Notes.
"INSTALLMENT NOTES" means the installment notes to be issued by the
respective Timber Installment Note Subsidiaries to certain of the Sellers as
contemplated by the Acquisition Agreement and the Reimbursement Agreements, in
an aggregate principal amount equal to $1,635,000,000.
"INTEREST ELECTION REQUEST" means a request by a Borrower to convert
or continue a Borrowing in accordance with Section 2.07.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"INTEREST PERIOD" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
(or, with respect to a Eurodollar Revolving Borrowing, one week or, with the
consent of each Lender participating in such Borrowing, nine or twelve months)
thereafter, as the applicable Borrower may elect; PROVIDED, that (a) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next
19
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (b) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"INVENTORY" has the meaning assigned to such term in the Collateral
Agreement.
"IPO" means the initial offering by BC Holdings or Timber Holdings, as
applicable, of its Equity Interests to the public by means of an offering
registered with the Securities and Exchange Commission.
"ISSUING BANK" means, as the context may require, (a) JPMorgan Chase
Bank, in its capacity as an issuer of Letters of Credit hereunder, and (b) any
other Revolving Lender that becomes an Issuing Bank pursuant to Section 2.05(j),
in its capacity as an issuer of Letters of Credit hereunder, and, in each case,
its successors in such capacity as provided in Section 2.05(i). Any Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of such Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"LC DISBURSEMENT" means a payment made by any Issuing Bank pursuant to
a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the BC Borrower at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"LENDERS" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement.
"LEVERAGE RATIO" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Holding Companies ended on such date (or, if
such date is not the last day of a fiscal quarter, ended on the last day of the
fiscal quarter of the Holding Companies most recently ended prior to such date).
20
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO RATE" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" means this Agreement, the Collateral Agreement and
the other Security Documents.
"LOAN PARTIES" means the Holding Companies, the Borrowers and the
Subsidiary Loan Parties.
"LOANS" means the loans made by the Lenders to the Borrowers pursuant
to this Agreement.
"LONG-TERM INDEBTEDNESS" means any Indebtedness that, in accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
"MADISON DEARBORN" means Madison Dearborn Capital Partners, IV, L.P.,
its Affiliates and investment funds under common management with Madison
Dearborn Capital Partners, IV, L.P., but excluding any such Affiliate that is
(a) a "portfolio company", (b) a Person that is Controlled by, or under common
Control with, Madison Dearborn Capital Partners, IV, L.P., or any of its
Affiliates and conducts any business other than investment activities and
activities incidental thereto or (c) Controlled by a Person described in clause
(a) or (b) above.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, financial condition or results of operations of the Holding Companies,
the Borrowers and the Subsidiaries, taken as a whole, (b) the ability of any
Loan Party to
21
perform any of its material obligations under any Loan Document or (c) the
rights of the Lenders under the Loan Documents.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements, of
any one or more of the Holding Companies, the Borrowers and the Subsidiaries in
an aggregate principal amount exceeding $25,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of any of the
Holding Companies, the Borrowers or the Subsidiaries in respect of any Swap
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that such Holding Company, Borrower or Subsidiary would
be required to pay if such Swap Agreement were terminated at such time.
"MATERIAL SUBSIDIARY" means any Subsidiary that is not an Immaterial
Subsidiary.
"MEMBERS" means the holders of the Equity Interests of BC Holdings.
"MISSING CONSENT" means the consent to assignment required to be
obtained in connection with the Acquisition under that certain Lease Agreement
dated September 23, 1997 between Handelsbanken Finans AB (publ) and Boise
Cascade Corporation.
"MOODY'S" means Moody's Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be reasonably
satisfactory in form and substance to the Collateral Agent.
"MORTGAGED PROPERTY" means, any Timber Mortgaged Property or
Non-Timber Mortgaged Property.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NET PROCEEDS" means, with respect to any event (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
fees and out-of-pocket expenses paid by any of the Holding Companies, the
Borrowers and the Subsidiaries to third parties (other than Affiliates) in
connection with such event, (ii) in the case of a sale, transfer or other
disposition of an asset (including pursuant to a sale and leaseback transaction
or a casualty or a condemnation or similar proceeding), the amount of all
payments required to be made by any of the Holding Companies, the Borrowers and
the Subsidiaries as a result of such event to repay Indebtedness (other than
Loans) owed to third parties secured by such asset, and (iii) the amount of all
taxes paid (or reasonably estimated to be
22
payable) by any of the Holding Companies, the Borrowers and the Subsidiaries,
and the amount of any reserves established by the Holding Companies, the
Borrowers and the Subsidiaries to fund contingent liabilities reasonably
estimated to be payable to third parties, in each case during the year that such
event occurred or the next succeeding year and that are directly attributable to
such event (as determined reasonably and in good faith by the chief financial
officer of any of the Holding Companies or the Borrowers).
"NET WORKING CAPITAL" means, at any date, (a) the combined
consolidated current assets of the Holding Companies, the Borrowers and their
consolidated Subsidiaries as of such date (excluding cash and Permitted
Investments) minus (b) the combined consolidated current liabilities of the
Holding Companies, the Borrowers and their consolidated Subsidiaries as of such
date (excluding current liabilities in respect of Indebtedness). Net Working
Capital at any date may be a positive or negative number. Net Working Capital
increases when it becomes more positive or less negative and decreases when it
becomes less positive or more negative.
"NON-CASH TIMBERLANDS CONSIDERATION" means any non-cash consideration
received in respect of a sale made in reliance upon Section 6.05(c) as permitted
by clause (B)(2) of the proviso to such Section.
"NON-TIMBER MORTGAGED PROPERTY" means, initially, the real property
set forth on Schedule 3.05(d) that is identified on such Schedule as Mortgaged
Property and the improvements thereto, and includes each other parcel of real
property and improvements thereto owned by the BC Borrower or any BC Subsidiary
with respect to which a Mortgage is granted.
"OBLIGATIONS" has the meaning assigned to such term in the Collateral
Agreement.
"OFFERING MEMORANDUM" means the offering memorandum dated October 15,
2004 relating to the Senior Unsecured Debt and the Subordinated Debt.
"OPERATING BUSINESSES" means the forest products and distribution
businesses (and assets comprising such businesses) of the Sellers and their
subsidiaries to be acquired by the BC Borrower and its Subsidiaries pursuant to
the Acquisition Agreement, including, (a) their paper manufacturing, conversion,
distribution and sales operations, (b) their building solutions manufacturing
and conversion operations, (c) their packaging and newsprint manufacturing,
conversion, distribution and sales operations, (d) certain of their aviation
operations and (e) their transportation operations.
"OTHER TAXES" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
23
"PERFECTION CERTIFICATE" means a certificate in the form of Exhibit D
or any other form approved by the Collateral Agent.
"PERMITTED ACQUISITION" means any acquisition by the BC Borrower or
any BC Subsidiary of all or substantially all the assets of, or all the Equity
Interests in, a Person or division or line of business of a Person if,
immediately after giving effect thereto, (a) no Default has occurred and is
continuing or would result therefrom, (b) any such business shall comply with
the permitted businesses of the BC Borrower and the BC Subsidiaries as provided
in Section 6.03(b), (c) all of the Equity Interests of each Subsidiary formed
for the purpose of or resulting from such acquisition shall be owned directly by
the BC Borrower or a BC Subsidiary and all actions required to be taken with
respect to each such acquired or newly formed Subsidiary under Sections 5.12 and
5.13 have been taken, (d) the Holding Companies, the Borrowers and the
Subsidiaries are in compliance, on a PRO FORMA basis after giving effect to such
acquisition (and any operating expense reductions related thereto that would be
permitted to be deducted in any calculation of Consolidated EBITDA in accordance
with the definition of such term contained herein), with the covenants contained
in Sections 6.12 and 6.13 recomputed as at the last day of the most recently
ended fiscal quarter of the Holding Companies for which financial statements are
available, as if such acquisition had occurred on the first day of each relevant
period for testing such compliance and (e) the BC Borrower has delivered to the
Administrative Agent an officers' certificate to the effect set forth in clauses
(a), (b), (c) and (d) above, together with all relevant financial information
for the Person or assets to be acquired and reasonably detailed calculations
demonstrating satisfaction of the requirement set forth in clause (d) above;
PROVIDED that, for purposes of clause (d) above, if any such acquisition is made
at a time before financial statements are available for the fiscal quarter ended
December 31, 2004, compliance with the covenants contained in Sections 6.12 and
6.13 will be (A) calculated based upon the four-quarter period ended September
30, 2004 unless financial statements for the fiscal quarter ended September 30,
2004 are not then available, in which event such compliance will be calculated
based upon the four-quarter period ended June 30, 2004 and (B) determined as
though the ratios required to be met by Sections 6.12 and 6.13 beginning on
December 31, 2004 had been the ratios required to be met throughout the
four-quarter period for which compliance is to be determined.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 60 days
or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
24
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of either Borrower or any Subsidiary;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, at
least an A2 credit rating from S&P or at least a P2 credit rating from
Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above; and
(e) demand deposit accounts with commercial banks.
"PERMITTED OPERATING ASSET SWAP" means any transfer of Eligible Swap
Assets by the BC Borrower or any BC Subsidiary in which at least 95% of the
consideration received by the transferor consists of Eligible Swap Assets (and
any balance of such consideration consists of cash); PROVIDED that (a) after
giving effect to such transfer, the aggregate fair market value of all assets
transferred pursuant to Permitted Operating Asset Swaps (i) during any fiscal
year of the Borrowers, on a cumulative basis, shall not exceed $20,000,000 and
(ii) during the term of this
25
Agreement, on a cumulative basis, shall not exceed $40,000,000 and (b) all
actions required to be taken pursuant to Sections 5.12 and 5.13 with respect to
any Eligible Swap Assets so received as consideration shall be taken.
"PERMITTED RECEIVABLES FINANCING" means financing arrangements
pursuant to which the BC Borrower or one or more of the BC Subsidiaries (or a
combination thereof) realizes cash proceeds in respect of Receivables and
Related Security by selling or otherwise transferring such Receivables and
Related Security (on a non-recourse basis, other than Standard Securitization
Undertakings) to one or more Receivables Subsidiaries, and such Receivables
Subsidiary or Receivables Subsidiaries realize cash proceeds in respect of such
Receivables and Related Security pursuant to a revolving committed financing
arrangement; PROVIDED that (a) the BC Borrower shall deliver to the
Administrative Agent copies of all documentation entered into in connection with
any such financing arrangements and (b) the BC Borrower represents, in a
certificate of a Financial Officer of the BC Borrower delivered to the
Administrative Agent, that the terms and conditions of such financing
arrangements are customary for accounts receivable securitization financings.
The "funded amount" or "principal amount" of any Permitted Receivables Financing
at any time shall be the principal amount of Receivables Financing Debt in
respect thereof.
"PERMITTED TIMBERLAND ASSET SWAP" means any transfer of Eligible Swap
Assets by the Timber Borrower or any Timber Subsidiary in the ordinary course of
business in which at least 95% of the consideration received by the transferor
consists of Eligible Swap Assets (and any balance of such consideration consists
of cash); PROVIDED that all actions required to be taken pursuant to Sections
5.12 and 5.13 with respect to any Eligible Swap Assets so received as
consideration shall be taken.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"PLEDGED COLLATERAL" has the meaning assigned to such term in the
Collateral Agreement.
"PREPAYMENT EVENT" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of either Holding
Company, either Borrower or any Subsidiary (other than a Receivables
Subsidiary), other than (i) Timberland Prepayment Events, (ii) dispositions
described in clauses (i), (ii), (iii) and (iv) of Section 6.05(a), (iii)
dispositions described in clauses (i), (ii), (iii),
26
(iv) and (v) of Section 6.05(b), and (iv) other dispositions resulting in
aggregate Net Proceeds not exceeding $5,000,000 during any fiscal year of
the Borrowers; or
(b) any insured casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding of,
any property or asset of either Holding Company, either Borrower or any
Subsidiary (other than a Timberland Asset Disposition) other than those
resulting in aggregate Net Proceeds not exceeding $5,000,000 during any
fiscal year of the Borrowers; or
(c) the issuance by either Holding Company, either Borrower or any
Subsidiary of any Equity Interests, or the receipt by either Holding
Company, either Borrower or any Subsidiary of any capital contribution,
other than (i) any such issuance of Equity Interests to, or receipt of any
such capital contribution from, a Holding Company, a Borrower or a
Subsidiary, (ii) the issuance of Equity Interests of either Holding Company
to employees of either Holding Company, either Borrower or any Subsidiary
in their capacity as such pursuant to employee benefit plans and employment
arrangements, (iii) the issuance of Equity Interests of either Holding
Company pursuant to the Equity Financing, (iv) the issuance of Equity
Interests of a Holding Company to fund Specified Investments, (v) the
issuance of Equity Interests of a Holding Company to Madison Dearborn or
(vi) the issuance of Equity Interests of BC Holdings pursuant to and in
compliance with clause (xiv) of Section 6.04(b); or
(d) the incurrence by either Holding Company, either Borrower or any
Subsidiary of any Indebtedness, other than Indebtedness permitted by
Section 6.01; or
(e) any transfer of Receivables pursuant to a Permitted Receivables
Financing; PROVIDED that any such transfer will be treated as a Prepayment
Event only to the extent that, after giving effect thereto, the aggregate
funded amount of such Permitted Receivables Financing exceeds the greatest
aggregate funded amount previously outstanding thereunder.
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"QUALIFIED PREFERRED STOCK" means, with respect to either Holding
Company, any preferred Equity Interest of such Holding Company that (a) is not
subject to any requirement to pay mandatory cash dividends or similar
distributions, (b) is not subject to any mandatory redemption or repurchase
requirement (whether pursuant to a sinking fund obligation, or at the option of
the holder thereof, or upon the occurrence of specified events, or otherwise),
(c) is not convertible, or exchangeable, other than into or for common Equity
Interests of a Holding Company or Qualified Preferred Stock, and
27
(d) does not entitle the holder thereof to any other rights or remedies that
could subject either Holding Company, either Borrower or any Subsidiary to any
mandatory payment obligation; PROVIDED that the foregoing shall not be construed
to prohibit rights to receive dividends and distributions in preference to those
paid on any other Equity Interests of the relevant Holding Company (if and when
paid).
"RECEIVABLE" means an Account owing to the BC Borrower or any BC
Subsidiary (before its transfer to a Receivables Subsidiary), whether now
existing or hereafter arising, together with all cash collections and other cash
proceeds in respect of such Account, including all yield, finance charges or
other related amounts accruing in respect thereof and all cash proceeds of
Related Security with respect to such Receivable.
"RECEIVABLES FINANCING DEBT" means, as of any date with respect to any
Permitted Receivables Financing, the amount of the outstanding Receivables
subject to such Permitted Receivables Financing that would be required to
discharge all principal obligations to financing parties (and would not be
returned, directly or indirectly, to the BC Borrower or any BC Subsidiary) if
all such Receivables were to be collected at such date and such Permitted
Receivables Financing were to be terminated at such date.
"RECEIVABLES SUBSIDIARY" means a wholly owned BC Subsidiary that does
not engage in any activities other than participating in one or more Permitted
Receivables Financings and activities incidental thereto; PROVIDED that (a) such
Subsidiary does not have any Indebtedness other than (i) Indebtedness incurred
pursuant to a Permitted Receivables Financing owed to financing parties
supported by Receivables and Related Security and (ii) Subordinated Receivables
Transfer Debt, (b) neither of the Holding Companies or the Borrowers nor any
other Subsidiary Guarantees any Indebtedness or other obligation of such
Subsidiary, other than Standard Securitization Undertakings and (c) all Equity
Interests of and other investments in such Subsidiary that are owned by the BC
Borrower or any other BC Subsidiary (including any Subordinated Receivables
Transfer Debt) are pledged pursuant to the Collateral Agreement.
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents,
and advisors and trustees of such Person and such Person's Affiliates.
"RELATED SECURITY" means, with respect to any Receivable: (a) all of
the BC Borrower's or the applicable BC Subsidiary's right, title and interest in
and to any goods, the sale of which gave rise to such Receivable; (b) all
security pledged, assigned, hypothecated or granted to or held by the BC
Borrower or the applicable BC Subsidiary to secure such Receivable; (c) all
guaranties, endorsements and indemnifications on, or of, such Receivable or any
of the foregoing (other than by any of the Holding Companies, the Borrowers and
the Subsidiaries that is not a Receivables Subsidiary); (d) all powers of
attorney for the execution of any evidence of indebtedness or security or other
writing in connection therewith; (e) all books, records, ledger cards and
invoices related to such Receivable or any of the foregoing, whether maintained
electronically, in paper form or
28
otherwise; (f) all evidences of the filing of financing statements and other
statements and the registration of other instruments in connection therewith and
amendments thereto, notices to other creditors or secured parties, and
certificates from filing or other registration officers; (g) all credit
information, reports and memoranda relating thereto; (h) all other writings
related thereto; and (i) all proceeds of any of the foregoing.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
either Holding Company, either Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancelation or termination of any Equity Interests in either
Holding Company, either Borrower or any Subsidiary or any option, warrant or
other right to acquire any such Equity Interests in either Holding Company,
either Borrower or any Subsidiary.
"REVOLVING AVAILABILITY PERIOD" means the period from and including
the Effective Date to but excluding the earlier of the Revolving Maturity Date
and the date of termination of the Revolving Commitments.
"REVOLVING COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The initial aggregate amount of the
Lenders' Revolving Commitments is $400,000,000.
"REVOLVING EXPOSURE" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure and Swingline Exposure at such time.
"REVOLVING LENDER" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"REVOLVING LOAN" means a Loan made pursuant to clause (c) of Section
2.01.
"REVOLVING MATURITY DATE" means October 29, 2010.
29
"S&P" means Standard & Poor's.
"SECURED PARTIES" has the meaning assigned to such term in the
Collateral Agreement.
"SECURITY DOCUMENTS" means the Collateral Agreement, the Mortgages and
each other security agreement or other instrument or document executed and
delivered pursuant to Section 5.12 or 5.13 to secure any of the Obligations.
"SELLERS" means Seller Parent, Boise Southern Company and Minidoka
Paper Company.
"SELLER PARENT" means Boise Cascade Corporation, a Delaware
corporation, and shall include such Person to which the name thereof may be
changed after the Effective Date.
"SENIOR UNSECURED DEBT" means (a) the senior unsecured notes to be
issued by the BC Borrower on or prior to the Effective Date in the aggregate
principal amount of not more than $250,000,000 and the Indebtedness represented
thereby (the "INITIAL SENIOR UNSECURED DEBT") and (b) any senior unsecured debt
securities issued by the BC Borrower after the Effective Date to refinance the
Initial Senior Unsecured Debt; PROVIDED that (i) such senior unsecured debt
securities do not mature earlier than, or require any scheduled payment of
principal, sinking fund payment or similar payment prior to, the scheduled
maturity date of the Initial Senior Unsecured Debt, (ii) the Indebtedness in
respect of such senior unsecured debt securities is not Guaranteed by any Person
that did not Guarantee (and is not permitted by this Agreement to Guarantee) the
Initial Senior Unsecured Debt, (iii) the aggregate principal amount of such
senior unsecured debt securities does not exceed the aggregate principal amount
of Initial Senior Unsecured Debt refinanced thereby plus capitalized interest
and any applicable redemption premiums paid in respect of the refinancing
thereof, (iv) the portion of the interest rate payable in cash in respect of
such senior unsecured debt securities does not exceed the interest rate in
respect of the Initial Senior Unsecured Debt, (v) such senior unsecured debt
securities are not supported by any letter of credit or other credit
enhancement, (vi) the terms and conditions of such senior unsecured debt
securities and any Senior Unsecured Debt Documents in respect thereof (including
covenants, events of default and any provisions relating to any mandatory
redemption or required offer to repurchase such senior unsecured debt
securities) are no less favorable in any material respect to the Loan Parties
and the Lenders than the terms and conditions of the Initial Senior Unsecured
Debt and the Senior Unsecured Debt Documents in respect of the Initial Senior
Unsecured Debt and (vii) the Initial Senior Unsecured Debt being refinanced by
such senior unsecured debt securities is repaid on the same date that such
senior unsecured debt securities are issued.
"SENIOR UNSECURED DEBT DOCUMENTS" means any indenture under which any
Senior Unsecured Debt is issued and all other instruments, agreements and other
documents evidencing or governing any Senior Unsecured Debt or providing for any
Guarantee or other right in respect thereof.
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"SPECIFIED INVESTMENT" means any investment by the BC Borrower or any
BC Subsidiary that is financed solely with Net Proceeds received from the
issuance of Equity Interests by BC Holdings (other than pursuant to the Equity
Financing), PROVIDED that (i) the Administrative Agent receives written notice
describing such investment concurrently with or presently following the issuance
of such Equity Interests and (ii) such investment is made within 90 days of
receipt by BC Holdings of such Net Proceeds.
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, covenants and indemnities made by the BC Borrower or any BC
Subsidiary in connection with a Permitted Receivables Financing that are
customary for accounts receivables securitization financings; PROVIDED that
Standard Securitization Undertakings shall not include any Guarantee of any
Indebtedness or collectability of any Receivables.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"SUBORDINATED DEBT" means (a) the senior subordinated notes to be
issued by the BC Borrower on or prior to the Effective Date in the aggregate
principal amount of $650,000,000 (when combined with the aggregate principal
amount of the Senior Unsecured Debt) and the Indebtedness represented thereby
(the "INITIAL SUBORDINATED DEBT") and (b) any subordinated debt securities
issued by the BC Borrower after the Effective Date to refinance the Initial
Subordinated Debt; PROVIDED that (i) such subordinated debt securities do not
mature earlier than, or require any scheduled payment of principal, sinking fund
payment or similar payment prior to, the scheduled maturity date of the Initial
Subordinated Debt, (ii) the Indebtedness in respect of such subordinated debt
securities is not Guaranteed by any Person that did not Guarantee (and is not
permitted by this Agreement to Guarantee) the Initial Subordinated Debt, (iii)
the aggregate principal amount of such subordinated debt securities does not
exceed the aggregate principal amount of Initial Subordinated Debt refinanced
thereby plus capitalized interest and any applicable redemption premiums paid in
respect of the refinancing thereof, (iv) the portion of the interest rate
payable in cash in respect of such subordinated debt securities does not exceed
the interest rate in respect of the Initial Subordinated Debt, (v) such
subordinated debt securities are unsecured and are not supported by any letter
of credit or other credit enhancement, (vi) the terms and conditions of such
subordinated debt securities and any Subordinated Debt Documents in respect
thereof (including subordination provisions, covenants, events of default and
any
31
provisions relating to any mandatory redemption or required offer to repurchase
such subordinated debt securities) are no less favorable in any material respect
to the Loan Parties and the Lenders than the terms and conditions of the Initial
Subordinated Debt and the Subordinated Debt Documents in respect of the Initial
Subordinated Debt and (vii) the Initial Subordinated Debt being refinanced by
such subordinated debt securities is repaid on the same date that such
subordinated debt securities are issued.
"SUBORDINATED DEBT DOCUMENTS" means any indenture under which any
Subordinated Debt is issued and all other instruments, agreements and other
documents evidencing or governing any Subordinated Debt or providing for any
Guarantee or other right in respect thereof.
"SUBORDINATED RECEIVABLES TRANSFER DEBT" means Indebtedness of a
Receivables Subsidiary owed to the BC Borrower or a BC Subsidiary and incurred
to finance the purchase of Receivables and Related Security from the BC Borrower
or a BC Subsidiary in connection with a Permitted Receivables Financing;
PROVIDED that (a) such Indebtedness is evidenced by a promissory note pledged
pursuant to the Collateral Agreement and (b) all proceeds of such Indebtedness
are applied by such Receivables Subsidiary to pay the purchase price of such
Receivables and Related Security.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of either Borrower, other than the
Timber Installment Note Subsidiaries. For purposes of the representations and
warranties made herein and in the other Loan Documents on the Effective Date,
the term "Subsidiary" includes each Person that becomes (or is required to
become) a Subsidiary as a result of the Acquisition.
"SUBSIDIARY LOAN PARTY" means (a) any BC Subsidiary that is not a
Foreign Subsidiary or a Receivables Subsidiary and (b) any Timber Subsidiary.
"SUPPLY AGREEMENT" means the Paper Purchase Agreement dated the
Effective Date by and among Boise White Paper, L.L.C., Seller Parent, Boise
Cascade Office Products Corporation (to be renamed OfficeMax Contract, Inc.) and
OfficeMax, Inc. (to be renamed OfficeMax Retail, Inc.), amending and superseding
the Paper Purchase Agreement Term Sheet dated April 28, 2004 between Seller
Parent and Boise Office Solutions.
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"SWAP AGREEMENT" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; PROVIDED that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Holding Companies, the Borrowers or the Subsidiaries shall be
a Swap Agreement.
"SWINGLINE EXPOSURE" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"SWINGLINE LENDER" means JPMorgan Chase Bank, in its capacity as
lender of Swingline Loans hereunder.
"SWINGLINE LOAN" means a Loan made pursuant to Section 2.04.
"SYNDICATION AGENT" means Lehman Commercial Paper Inc., in its
capacity as syndication agent for the Lenders.
"TAX DISTRIBUTIONS" means cash distributions by BC Holdings to the
Members in respect of its Equity Interests for the purpose of providing the
Members with funds to pay the tax liability attributable to their shares of the
taxable income of BC Holdings and its consolidated subsidiaries.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERM LOANS" means Tranche B Term Loans and Tranche C Term Loans.
"TIMBER BORROWER" means Boise Land & Timber Corp., a Delaware
corporation.
"TIMBER HOLDINGS" means Boise Land & Timber Holdings Corp., a Delaware
corporation.
"TIMBER INSTALLMENT NOTE SUBSIDIARIES" means Boise Land & Timber,
L.L.C. and Boise Land & Timber II, L.L.C., each a Delaware limited liability
company.
"TIMBER MORTGAGED PROPERTY" means, initially, the real property set
forth on Schedule 3.05(c) that is identified on such Schedule as Mortgaged
Property and the improvements thereto (including all timber thereon), and
includes each other parcel of real property and improvements thereto owned by
the Timber Borrower with respect to which a Mortgage is granted.
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"TIMBER SUBSIDIARY" means a Subsidiary of the Timber Borrower.
"TIMBERLAND ASSET DISPOSITION" means (a) any sale, transfer or other
disposition (including pursuant to any sale and leaseback transaction) of any
Timberland Asset or (b) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding of, any
Timberland Asset.
"TIMBERLAND ASSETS" means, initially, the interests in real property
and related assets (including timber and other products of or rights in or to
any such interests in real property) of certain of the Sellers and their
subsidiaries relating to or used for the purpose of growing or harvesting timber
that are to be acquired by the Timber Borrower pursuant to the Acquisition
Agreement (including the properties identified on Schedule 3.05(c)), and also
includes any other assets acquired by the Timber Borrower after the Effective
Date for the same or similar purposes (including pursuant to any Permitted
Timberland Asset Swap).
"TIMBERLAND PREPAYMENT EVENT" means (a) any sale made in reliance upon
Section 6.05(c) and (b) any other Timberland Asset Disposition, other than (i)
those permitted by clauses (i), (ii), (iii), (v) and (vi) of Section 6.05(b) and
(ii) any casualty or other insured damage to, or any taking under power of
eminent domain or by condemnation or similar proceeding of, any Timberland Asset
if (A) the Timber Borrower elects, by notice to the Administrative Agent
delivered prior to or promptly upon receipt of the Net Proceeds therefrom, to
apply such Net Proceeds to repair or replace such Timberland Asset, (B) pending
application of such Net Proceeds, such Net Proceeds are deposited with the
Collateral Agent and held as Collateral and (C) such Net Proceeds are so applied
within 180 days after receipt of such Net Proceeds (it being understood that any
such Net Proceeds that are not so applied within such period shall be treated as
Net Proceeds of a Timberland Prepayment Event).
"TOTAL INDEBTEDNESS" means, as of any date, the sum (without
duplication) of (a) the aggregate principal amount of Indebtedness of the
Holding Companies, the Borrowers and the Subsidiaries outstanding as of such
date, in the amount that would be reflected on a balance sheet prepared as of
such date on a combined consolidated basis in accordance with GAAP, plus (b) the
aggregate principal amount of Indebtedness of the Holding Companies, the
Borrowers and the Subsidiaries outstanding as of such date that is not required
to be reflected on a balance sheet in accordance with GAAP, determined on a
combined consolidated basis (but, in each case, excluding (i) Receivables
Financing Debt and (ii) obligations arising under the Additional Consideration
Agreement) as of such date minus (c) cash on hand and Permitted Investments of
the Holding Companies, the Borrowers and the Subsidiaries as of such date (other
than any such cash or Permitted Investments subject to any Lien (other than (i)
Liens securing Indebtedness described in clause (a) or (b) above and (ii)
Permitted Encumbrances that would not prohibit, limit, or otherwise impair the
ability of the Borrowers to use such cash and Permitted Investments to pay the
Obligations hereunder)) in an aggregate amount not to exceed $35,000,000;
PROVIDED that, for purposes of clause (b) above, the term "Indebtedness" shall
not include contingent obligations of either Borrower or any Subsidiary as an
account party in respect
34
of any letter of credit or letter of guaranty unless such letter of credit or
letter of guaranty supports an obligation that constitutes Indebtedness.
"TRANCHE B COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Tranche B Term Loan hereunder on
the Effective Date, expressed as an amount representing the maximum principal
amount of the Tranche B Term Loan to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Tranche B
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Tranche B Commitment, as
applicable. The initial aggregate amount of the Lenders' Tranche B Commitments
is $1,330,000,000.
"TRANCHE B LENDER" means a Lender with a Tranche B Commitment or an
outstanding Tranche B Term Loan.
"TRANCHE B MATURITY DATE" means October 28, 2011.
"TRANCHE B TERM LOAN" means a Loan made pursuant to clause (a) of
Section 2.01.
"TRANCHE C COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Tranche C Term Loan hereunder on
the Effective Date, expressed as an amount representing the maximum principal
amount of the Tranche C Term Loan to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Tranche C
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Tranche C Commitment, as
applicable. The initial aggregate amount of the Lenders' Tranche C Commitments
is $1,225,000,000.
"TRANCHE C LENDER" means a Lender with a Tranche C Commitment or an
outstanding Tranche C Term Loan.
"TRANCHE C MATURITY DATE" means October 29, 2010.
"TRANCHE C TERM LOAN" means a Loan made pursuant to clause (b) of
Section 2.01.
"TRANSACTIONS" means the Acquisition and the Financing Transactions.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
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"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (E.G., a
"Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class and Type
(E.G., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (E.G., a "Revolving Borrowing") or by Type (E.G., a
"Eurodollar Borrowing") or by Class and Type (E.G., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP; TREATMENT OF TIMBER INSTALLMENT
NOTE SUBSIDIARIES. (a) Except as otherwise expressly provided herein, all terms
of an accounting or financial nature shall be construed in accordance with GAAP,
as in effect from time to time; PROVIDED that, if a Borrower notifies the
Administrative Agent that the Borrowers request an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies a Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
(b) Notwithstanding any provision to the contrary contained herein,
the Timber Installment Note Subsidiaries (and their respective assets,
liabilities, revenues, income, expenses, cash flows and results of operations,
as well as any Equity Interest or
36
other investment therein) shall be disregarded for purposes of all financial and
accounting calculations and determinations hereunder relating to the Holding
Companies, the Borrowers and their Subsidiaries (including for purposes of
determining the Leverage Ratio, Consolidated EBITDA, Consolidated Cash Interest
Expense and Excess Cash Flow), in each case as though the Timber Installment
Note Subsidiaries were not subsidiaries of the Timber Borrower and the Timber
Borrower did not own any Equity Interests of the Timber Installment Note
Subsidiaries.
SECTION 1.05. CERTIFICATES. All certificates and other documents or
statements of any sort provided, executed or attested to by any officer,
director or employee of any Loan Party shall be treated as being provided,
executed or attested to on behalf of such Loan Party, and not in such officer's,
director's or employee's individual capacity.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions set
forth herein, each Lender agrees (a) to make a Tranche B Term Loan to the BC
Borrower on the Effective Date in a principal amount not exceeding its Tranche B
Commitment, (b) to make a Tranche C Term Loan to the Timber Borrower on the
Effective Date in a principal amount not exceeding its Tranche C Commitment and
(c) to make Revolving Loans to the BC Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will not
result in such Lender's Revolving Exposure exceeding such Lender's Revolving
Commitment; PROVIDED that the Lenders will not be required to make Revolving
Loans on the Effective Date in aggregate principal amount greater than
$175,000,000. Within the foregoing limits and subject to the terms and
conditions set forth herein, the BC Borrower may borrow, prepay and reborrow
Revolving Loans. Amounts repaid or prepaid in respect of Term Loans may not be
reborrowed.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; PROVIDED that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
applicable Borrower may request in accordance herewith; PROVIDED that (i) all
Borrowings made on the Effective Date must be made as ABR Borrowings and (ii)
each Eurodollar Borrowing that has an Interest Period beginning prior to the
date that is 30 days after the Effective Date shall have an Interest Period with
a duration of one month. Each Swingline Loan shall be an ABR Loan. Each Lender
at its option may
37
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan; PROVIDED that (i) any exercise of such option
shall not affect the obligation of the applicable Borrower to repay such Loan in
accordance with the terms of this Agreement and (ii) the applicable Borrower
shall be entitled to treat any Lender exercising such option as the Lender in
respect of such Eurodollar Loan for all purposes hereunder, including Section
2.15.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $5,000,000; PROVIDED
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Revolving Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Each Swingline Loan shall be in an amount that is an integral multiple
of $500,000 and not less than $1,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time; PROVIDED that there shall not at any
time be more than a total of 12 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, neither
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Maturity Date, Tranche B Maturity Date or Tranche C Maturity Date,
as applicable.
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Borrowing, the
applicable Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 12:00 noon,
New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 2:00 p.m., New
York City time, one Business Day before the date of the proposed Borrowing;
PROVIDED that any such notice of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e) may be
given not later than 10:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the applicable Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the identity of the Borrower making such request;
(ii) whether the requested Borrowing is to be a Revolving Borrowing, a
Tranche B Term Borrowing or a Tranche C Term Borrowing;
(iii) the aggregate amount of such Borrowing;
38
(iv) the date of such Borrowing, which shall be a Business Day;
(v) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(vi) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vii) the location and number of the applicable Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the applicable
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each participating Lender of
the details thereof and of the amount of such Lender's Loan to be made as part
of the requested Borrowing.
SECTION 2.04. SWINGLINE LOANS. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the BC
Borrower from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$20,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments; PROVIDED that (A) the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan and
(B) no Swingline Loans shall be made on the Effective Date. Within the foregoing
limits and subject to the terms and conditions set forth herein, the BC Borrower
may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the BC Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 1:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the BC Borrower. The Swingline Lender shall make each
Swingline Loan available to the BC Borrower by means of a credit to the general
deposit account of the BC Borrower with the Swingline Lender (or, in the case of
a Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e), by remittance to the applicable Issuing Bank) by
3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business
39
Day require the Revolving Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Revolving Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Revolving Lender, specifying in such notice such
Lender's Applicable Percentage of such Swingline Loan or Loans. Each Revolving
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the
Swingline Lender, such Lender's Applicable Percentage of such Swingline Loan or
Loans. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, MUTATIS
MUTANDIS, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving Lenders. The Administrative Agent shall notify
the BC Borrower of any participations in any Swingline Loan acquired pursuant to
this paragraph, and thereafter payments in respect of such Swingline Loan shall
be made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the BC Borrower (or other party on behalf
of the BC Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear; PROVIDED
that any such payment so remitted shall be repaid to the Swingline Lender or to
the Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the BC Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the BC Borrower of any default in the payment thereof.
SECTION 2.05. LETTERS OF CREDIT. (a) GENERAL. Subject to the terms and
conditions set forth herein, the BC Borrower may request the issuance of Letters
of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the Revolving Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the BC Borrower to, or entered into by the BC Borrower with, any
Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the BC Borrower shall
hand deliver or
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telecopy (or transmit by electronic communication, if arrangements for doing so
have been approved by the applicable Issuing Bank) to the relevant Issuing Bank
selected by the BC Borrower to issue such Letter of Credit and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the applicable Issuing Bank, the BC Borrower also
shall submit a letter of credit application on such Issuing Bank's standard form
in connection with any request for a Letter of Credit. A Letter of Credit shall
be issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the BC Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed $150,000,000 and (ii)
the total Revolving Exposures shall not exceed the total Revolving Commitments.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension), subject to renewal
provisions reasonably acceptable to the applicable Issuing Bank (which shall in
any event permit such Issuing Bank to disallow renewal) and (ii) the date that
is five Business Days prior to the Revolving Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, the
Issuing Bank in respect of such Letter of Credit hereby grants to each Revolving
Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the applicable Issuing Bank, such Lender's Applicable
Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed
by the BC Borrower on the date due as provided in paragraph (e) of this Section,
or of any reimbursement payment required to be refunded to the BC Borrower for
any reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
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(e) REIMBURSEMENT. If an Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the BC Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on (i) the date that
such LC Disbursement is made, if the BC Borrower shall have received notice of
such LC Disbursement prior to 10:00 a.m., New York City time, on the Business
Day immediately preceding the date that such LC Disbursement is made or (ii)
otherwise, the Business Day immediately following the later of the date that
such LC Disbursement is made or the date of receipt by the BC Borrower of notice
of such LC Disbursement; PROVIDED that, if such LC Disbursement is not less than
the applicable minimum borrowing amount, the BC Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the BC
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If the BC Borrower
fails to make such payment when due, the Administrative Agent shall notify each
Revolving Lender of the applicable LC Disbursement, the payment then due from
the BC Borrower in respect thereof and such Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each Revolving Lender shall
pay to the Administrative Agent its Applicable Percentage of the payment then
due from the BC Borrower, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, MUTATIS
MUTANDIS, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Revolving Lenders. Promptly following receipt
by the Administrative Agent of any payment from the BC Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then to such
Lenders and such Issuing Bank as their interests may appear. Any payment made by
a Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the BC Borrower of its obligation to reimburse such LC Disbursement.
(f) OBLIGATIONS ABSOLUTE. The BC Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the BC Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders
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nor any Issuing Bank, nor any of their Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of any Issuing Bank; PROVIDED that the foregoing shall
not be construed to excuse an Issuing Bank from liability to the BC Borrower to
the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the BC Borrower to the extent permitted by
applicable law) suffered by the BC Borrower that are caused by such Issuing
Bank's failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that, in the absence of gross negligence or
wilful misconduct on the part of an Issuing Bank (as finally determined by a
court of competent jurisdiction), such Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the applicable Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) DISBURSEMENT PROCEDURES. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Such Issuing Bank shall
promptly notify the Administrative Agent and the BC Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing Bank
has made or will make an LC Disbursement thereunder; PROVIDED that any failure
to give or delay in giving such notice shall not relieve the BC Borrower of its
obligation to reimburse such Issuing Bank and the Revolving Lenders with respect
to any such LC Disbursement.
(h) INTERIM INTEREST. If an Issuing Bank shall make any LC
Disbursement, then, unless the BC Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof
shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the BC Borrower reimburses
such LC Disbursement, at the rate per annum then applicable to ABR Revolving
Loans; PROVIDED that, if the BC Borrower fails to reimburse such LC Disbursement
when due pursuant to paragraph (e) of this Section, then Section 2.13(c) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of
the applicable Issuing Bank, except that interest accrued on and after the date
of payment by any Revolving Lender pursuant to paragraph (e) of this Section to
reimburse such Issuing Bank shall be for the account of such Lender to the
extent of such payment.
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(i) REPLACEMENT OR TERMINATION OF AN ISSUING BANK. Any Issuing Bank
may be replaced at any time by written agreement among the BC Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.
An Issuing Bank's obligations to issue additional Letters of Credit hereunder
may be terminated at any time by written agreement among the BC Borrower, the
Administrative Agent and such Issuing Bank; PROVIDED that after giving effect
thereto there is at least one remaining Issuing Bank obligated to issue Letters
of Credit. The Administrative Agent shall notify the Lenders of any such
replacement or termination of an Issuing Bank. At the time any such replacement
or termination shall become effective, the BC Borrower shall pay all unpaid fees
accrued for the account of the replaced or terminated Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, the
successor Issuing Bank shall have all the rights and obligations of the replaced
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter. After the replacement or termination of an Issuing Bank hereunder,
the replaced or terminated Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement or termination, but shall not be required to issue additional
Letters of Credit.
(j) ADDITION OF ISSUING BANK. Any Revolving Lender may at any time
become an Issuing Bank hereunder by written agreement between the BC Borrower
and such Revolving Lender, subject to notice to and the consent (not to be
unreasonably withheld) of the Administrative Agent. From and after the effective
date of any such Revolving Lender becoming an Issuing Bank, such Revolving
Lender shall have the rights and obligations of an Issuing Bank under this
Agreement. Any Revolving Lender that becomes an Issuing Bank shall not cease to
be an Issuing Bank hereunder if it later ceases to be a Revolving Lender
hereunder.
(k) CASH COLLATERALIZATION. If any Event of Default shall occur and be
continuing, on the Business Day that the BC Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the BC Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; PROVIDED that the obligation
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to the BC
Borrower described in clause (h) or (i) of Article VII. The BC Borrower also
shall deposit cash collateral pursuant to this paragraph as and to the extent
required by Section 2.11(b). Each such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrowers under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the BC Borrower's risk and
44
expense, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse any Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the BC Borrower for the LC Exposure at such time or, if the maturity of the
Loans has been accelerated (but subject to the consent of Revolving Lenders with
LC Exposure representing greater than 50% of the total LC Exposure), be applied
to satisfy other obligations of the Borrowers under this Agreement. If the BC
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the BC Borrower within three Business
Days after all Events of Default have been cured or waived.
(l) CERTAIN NOTICES BY ISSUING BANKS. Each Issuing Bank that is not
the same Person as the Person serving as the Administrative Agent shall notify
the Administrative Agent of (i) the amount and expiration date of each Letter of
Credit issued by such Issuing Bank at or prior to the time of issuance thereof,
(ii) any amendment or modification to any such Letter of Credit at or prior to
the time of such amendment or modification and (iii) any termination, surrender,
cancelation or expiry of any such Letter of Credit at or prior to the time of
such termination, surrender, cancelation or expiration.
(m) EXISTING LETTERS OF CREDIT. All Existing Letters of Credit shall
be deemed to be Letters of Credit issued under this Agreement as of the
Effective Date and thereupon shall constitute Letters of Credit for all purposes
of the Loan Documents.
SECTION 2.06. FUNDING OF BORROWINGS. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; PROVIDED that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
applicable Borrower by promptly crediting the amounts so received, in like
funds, to an account of such Borrower maintained with the Administrative Agent
in New York City and designated by such Borrower in the applicable Borrowing
Request; PROVIDED that ABR Revolving Loans made to finance the reimbursement of
an LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the applicable Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date
45
such amount is made available to such Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of such Borrower, the interest rate applicable
to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. INTEREST ELECTIONS. (a) Each Revolving Borrowing and
Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
applicable Borrower may elect to convert such Borrowing to a different Type or
to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The applicable
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the applicable
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if such
Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the applicable Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(f) of this Section:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
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If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower submitting such Interest
Election Request shall be deemed to have selected an Interest Period of one
month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If a Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies either of the Borrowers, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.08. TERMINATION AND REDUCTION OF COMMITMENTS. (a) Unless
previously terminated, (i) the Tranche B Commitments and Tranche C Commitments
shall terminate at 5:00 p.m., New York City time, on the Effective Date and (ii)
the Revolving Commitments shall terminate on the Revolving Maturity Date.
(b) Each of the Borrowers may at any time terminate, or from time to
time reduce, in the case of the BC Borrower, the Tranche B Commitments and
Revolving Commitments and, in the case of the Timber Borrower, the Tranche C
Commitments; PROVIDED that (i) each such reduction shall be in an amount that is
an integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the BC
Borrower shall not terminate or reduce the Revolving Commitments if, after
giving effect to any concurrent prepayment of the Revolving Loans in accordance
with Section 2.11, the sum of the Revolving Exposures would exceed the total
Revolving Commitments.
(c) The applicable Borrower shall notify the Administrative Agent of
any election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the relevant Lenders of the contents thereof. Each notice delivered
by a Borrower pursuant to this Section shall be irrevocable; PROVIDED that a
notice of termination of the Revolving Commitments delivered by the BC Borrower
may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the BC Borrower (by
notice to the Administrative Agent on or prior to the specified effective date)
if such condition is not satisfied. Any termination or reduction of the
Commitments of any Class shall be permanent. Each reduction of the Commitments
of any Class shall be made ratably among the Lenders in accordance with their
respective Commitments of such Class.
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SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The BC
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Tranche B Term Loan of such Lender as provided in Section 2.10
and (iii) to the Swingline Lender the then unpaid principal amount of each
Swingline Loan on the earlier of the Revolving Maturity Date and the date that
is five Business Days after such Swingline Loan is made; PROVIDED that on each
date that a Revolving Borrowing is made, the BC Borrower shall repay all
Swingline Loans that were outstanding on the date such Borrowing was requested.
(b) The Timber Borrower hereby unconditionally promises to pay to the
Administrative Agent the then unpaid principal amount of each Tranche C Term
Loan as provided in Section 2.10.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(d) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made to each Borrower hereunder, the Class
and Type thereof and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(e) The entries made in the accounts maintained pursuant to paragraph
(c) or (d) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrowers to repay
the Loans in accordance with the terms of this Agreement.
(f) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the applicable Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.10. AMORTIZATION OF TERM LOANS. (a) Subject to adjustment
pursuant to paragraph (d) of this Section, the BC Borrower shall repay Tranche B
Term
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Borrowings on each date set forth below in the aggregate principal amount set
forth opposite such date:
[Download Table]
Date Amount
---- ------
March 31, 2005 $ 3,325,000
June 30, 2005 $ 3,325,000
September 30, 2005 $ 3,325,000
December 31, 2005 $ 3,325,000
March 31, 2006 $ 3,325,000
June 30, 2006 $ 3,325,000
September 30, 2006 $ 3,325,000
December 31, 2006 $ 3,325,000
March 31, 2007 $ 3,325,000
June 30, 2007 $ 3,325,000
September 30, 2007 $ 3,325,000
December 31, 2007 $ 3,325,000
March 31, 2008 $ 3,325,000
June 30, 2008 $ 3,325,000
September 30, 2008 $ 3,325,000
December 31, 2008 $ 3,325,000
March 31, 2009 $ 3,325,000
June 30, 2009 $ 3,325,000
September 30, 2009 $ 3,325,000
December 31, 2009 $ 3,325,000
March 31, 2010 $ 3,325,000
June 30, 2010 $ 3,325,000
September 30, 2010 $ 3,325,000
March 31, 2011 $ 626,762,500
Tranche B Maturity Date $ 626,762,500
(b) Subject to adjustment pursuant to paragraph (d) of this Section,
the Timber Borrower shall repay Tranche C Term Borrowings on each date set forth
below in the aggregate principal amount set forth opposite such date:
[Download Table]
Date Amount
---- ------
March 31, 2005 $ 3,062,500
June 30, 2005 $ 3,062,500
September 30, 2005 $ 3,062,500
December 31, 2005 $ 3,062,500
March 31, 2006 $ 3,062,500
June 30, 2006 $ 3,062,500
September 30, 2006 $ 3,062,500
December 31, 2006 $ 3,062,500
March 31, 2007 $ 3,062,500
June 30, 2007 $ 3,062,500
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[Download Table]
Date Amount
---- ------
September 30, 2007 $ 3,062,500
December 31, 2007 $ 3,062,500
March 31, 2008 $ 3,062,500
June 30, 2008 $ 3,062,500
September 30, 2008 $ 3,062,500
December 31, 2008 $ 3,062,500
March 31, 2009 $ 3,062,500
June 30, 2009 $ 3,062,500
September 30, 2009 $ 3,062,500
December 31, 2009 $ 3,062,500
March 31, 2010 $ 3,062,500
June 30, 2010 $ 3,062,500
Tranche C Maturity Date $ 1,157,625,000
(c) To the extent not previously paid, (i) all Tranche B Term Loans
shall be due and payable on the Tranche B Maturity Date and (ii) all Tranche C
Term Loans shall be due and payable on the Tranche C Maturity Date.
(d) Any prepayment of a Term Borrowing of either Class shall be
applied to reduce the subsequent scheduled repayments of the Term Borrowings of
such Class to be made pursuant to this Section in the direct chronological order
of maturity. If the initial aggregate amount of the Lenders' Term Commitments of
either Class exceeds the aggregate principal amount of Term Loans of such Class
that are made on the Effective Date, then the scheduled repayments of Term
Borrowings of such Class to be made pursuant to this Section shall be reduced
ratably by an aggregate amount equal to such excess.
(e) Prior to any repayment of any Term Borrowings of either Class
hereunder, the applicable Borrower shall select the Borrowing or Borrowings of
the applicable Class to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 11:00 a.m.,
New York City time, three Business Days before the scheduled date of such
repayment. Each repayment of a Borrowing shall be applied ratably to the Loans
included in the repaid Borrowing. Repayments of Term Borrowings shall be
accompanied by accrued interest on the amount repaid.
SECTION 2.11. PREPAYMENT OF LOANS. (a) Each Borrower shall have the
right at any time and from time to time to prepay any of its Borrowings in whole
or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the BC Borrower shall prepay
Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are
outstanding, deposit cash collateral in an account with the Administrative Agent
pursuant to Section 2.05(k)) in an aggregate amount equal to such excess.
50
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of either Holding Company, either Borrower or any
Subsidiary in respect of any Prepayment Event, the Borrowers shall, within three
Business Days after such Net Proceeds are so received, prepay Term Borrowings in
accordance with paragraph (f) below in an aggregate amount equal to 100% of such
Net Proceeds (or, in the case of a Prepayment Event described in clause (c) of
the definition of the term Prepayment Event, 50% of such Net Proceeds); PROVIDED
that, in the case of any event described in clause (a) or (b) of the definition
of the term Prepayment Event and subject to Section 6.06, if either Borrower
shall deliver to the Administrative Agent a certificate of a Financial Officer
of such Borrower to the effect that the applicable Borrower or its Subsidiaries
intend to apply the Net Proceeds from such event (or a portion thereof specified
in such certificate), within 360 days after receipt of such Net Proceeds, to
acquire real property, equipment or other tangible assets to be used in the
business of such Borrower or its Subsidiaries, and certifying that no Default
has occurred and is continuing, then no prepayment shall be required pursuant to
this paragraph in respect of the Net Proceeds in respect of such event (or the
portion of such Net Proceeds specified in such certificate, if applicable)
except to the extent of any such Net Proceeds therefrom that have not been so
applied by the end of such 360-day period, at which time a prepayment shall be
required in an amount equal to such Net Proceeds that have not been so applied.
In addition, in the event and on each occasion that the BC Borrower, the Timber
Borrower or any Subsidiary shall sell, lease or otherwise dispose of any asset
(whether or not such transaction shall constitute a Prepayment Event), if the BC
Borrower would be required to prepay or redeem, or to offer to prepay or redeem,
any Subordinated Debt or any Senior Unsecured Debt as a result of such
transaction unless the proceeds of such transaction are applied within a
specified period to prepay Term Borrowings (or otherwise reinvested as permitted
in accordance with the terms of such Subordinated Debt or Senior Unsecured Debt,
as applicable), then the BC Borrower shall (unless such proceeds are otherwise
reinvested within the specified period in a manner that relieves the BC Borrower
of any such requirement in respect of the Subordinated Debt or Senior Unsecured
Debt, as applicable) prepay Term Borrowings in accordance with paragraph (f)
below within such specified period to the extent necessary to relieve the BC
Borrower of any such requirement.
(d) Following the end of each fiscal year of the Borrowers, commencing
with the fiscal year ending December 31, 2005, the Borrowers shall prepay Term
Borrowings in accordance with paragraph (f) below in an aggregate amount equal
to the excess, if any, of (A) 50% of Excess Cash Flow for such fiscal year over
(B) the aggregate principal amount of Term Loans optionally prepaid during the
period from and including March 31 of the fiscal year for which Excess Cash Flow
is being calculated to but excluding March 31 of the fiscal year during which
such prepayment is being made (or, if earlier, the date on which such prepayment
is made); PROVIDED that (i) the aggregate prepayment amount required by this
paragraph in respect of a fiscal year shall be calculated based upon 25%
(instead of 50%) of Excess Cash Flow for such fiscal year if the Leverage Ratio
is less than or equal to 3.5 to 1.0 on the last day of such fiscal year and (ii)
no prepayment shall be required by this paragraph in respect of Excess Cash Flow
for any fiscal year if the Leverage Ratio is less than or equal to 3.0 to 1.0 on
the last day of such fiscal year. Each prepayment pursuant to this paragraph
shall be made on or
51
before the date on which financial statements are delivered pursuant to Section
5.01 with respect to the fiscal year for which Excess Cash Flow is being
calculated (and in any event within 90 days after the end of such fiscal year).
(e) In the event that any Net Proceeds are received by or on behalf of
either Holding Company, either Borrower or any Subsidiary in respect of a
Timberland Prepayment Event, the Borrowers shall prepay Term Borrowings in
accordance with paragraph (f) below in an aggregate amount equal to (i) 100% of
such Net Proceeds with respect to the first $1,650,000,000 so received and (ii)
50% of such Net Proceeds so received in excess of $1,650,000,000 (it being
understood that, for purposes of determining the amount of any prepayment
pursuant to this clause (ii), such Net Proceeds shall be deemed to include the
fair market value of all Non-Cash Timberlands Consideration received by any Loan
Party in connection with such Timberland Prepayment Event). Prepayments required
pursuant to this paragraph (e) shall be made within three Business Days after
the date of receipt of any Net Proceeds that results in the aggregate cumulative
amount of such Net Proceeds so received (and in respect of which no prepayment
has been made pursuant to this paragraph (e)) exceeding $5,000,000.
(f) Prior to any optional or mandatory prepayment of Borrowings under
this Section, the Borrowers shall select the Borrowing or Borrowings to be
prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (g) of this Section. In the event of any such optional or
mandatory prepayment of Term Borrowings made at a time when Term Borrowings of
both Classes remain outstanding, the Borrowers shall select Term Borrowings to
be prepaid so that the aggregate amount of such prepayment is allocated between
the Tranche B Term Borrowings and Tranche C Term Borrowings pro rata based on
the aggregate principal amount of then outstanding Borrowings of each such
Class; PROVIDED that, in the case of a prepayment made under paragraph (e) of
this Section at a time other than during the continuance of an Event of Default,
the Borrowers shall select Term Borrowings to be prepaid in accordance with the
following: FIRST, to prepay Tranche C Term Borrowings until such time as no
Tranche C Term Borrowings remain outstanding and, SECOND, to prepay Tranche B
Term Borrowings.
(g) The Borrowers shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; PROVIDED that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with
52
Section 2.08. Promptly following receipt of any such notice (other than a notice
relating solely to Swingline Loans), the Administrative Agent shall advise the
relevant Lenders of the contents thereof. Each partial prepayment of any
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02, except as
necessary to apply fully the required amount of a mandatory prepayment. Each
prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.13.
SECTION 2.12. FEES. (a) The BC Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at the rate of 0.50% per annum on the average daily unused
amount of the Revolving Commitment of such Lender during the period from and
including the Effective Date to but excluding the date on which such Revolving
Commitment terminates. Accrued commitment fees shall be payable in arrears on
the last day of March, June, September and December of each year and on the date
on which the Revolving Commitments terminate, commencing on the first such date
to occur after the date hereof. All commitment fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). For purposes of
computing commitment fees, a Revolving Commitment of a Lender shall be deemed to
be used to the extent of the outstanding Revolving Loans and LC Exposure of such
Lender (and the Swingline Exposure of such Lender shall be disregarded for such
purpose).
(b) The BC Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as applicable for purposes of determining the interest rate applicable to
Eurodollar Revolving Loans on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Revolving Commitment
terminates and the date on which such Lender ceases to have any LC Exposure, and
(ii) to each Issuing Bank a fronting fee, which shall accrue at the rate of
0.25% per annum (or such other rate separately agreed upon between the BC
Borrower and such Issuing Bank) on the average daily amount of the LC Exposure
attributable to Letters of Credit issued by such Issuing Bank (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to
be any such LC Exposure, as well as such Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees
accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following such
last day, commencing on the first such date to occur after the Effective Date;
PROVIDED that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to an Issuing Bank
53
pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Borrowers jointly and severally agree to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed to be payable to the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the applicable
Issuing Bank, in the case of fees payable to it) for distribution, in the case
of commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by either Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; PROVIDED that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Revolving Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for
54
the actual number of days elapsed (including the first day but excluding the
last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit issued by such Issuing Bank or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrowers jointly and severally agree to pay to such Lender or such Issuing
Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or such Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or an Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return
55
on such Lender's or such Issuing Bank's capital or on the capital of such
Lender's or such Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a
level below that which such Lender or such Issuing Bank or such Lender's or such
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or such Issuing Bank's policies and the
policies of such Lender's or such Issuing Bank's holding company with respect to
capital adequacy), then from time to time the Borrowers jointly and severally
agree to pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing Bank
or such Lender's or such Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or such Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrowers and shall be conclusive absent
manifest error. The Borrowers shall pay such Lender or such Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; PROVIDED
that the Borrowers shall not be required to compensate a Lender or an Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or such Issuing Bank, as
the case may be, notifies the Borrowers of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or such Issuing Bank's
intention to claim compensation therefor; PROVIDED FURTHER that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(g) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by either Borrower pursuant
to Section 2.19, then, in any such event, the applicable Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined reasonably and in good
faith by such Lender to be the excess, if any, of (i) the amount of interest
which would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then
current Interest
56
Period therefor (or, in the case of a failure to borrow, convert or continue,
for the period that would have been the Interest Period for such Loan), over
(ii) the amount of interest which would accrue on such principal amount for such
period at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the applicable Borrower and shall
be conclusive absent manifest error. The applicable Borrower shall pay such
Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.17. TAXES. (a) Any and all payments by or on account of any
obligation of either Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; PROVIDED that if either Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the applicable Borrower shall make such deductions and (iii) the
applicable Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, each Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent, each
Lender and each Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or such Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of such
Borrower hereunder or under any other Loan Document (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the applicable Borrower by a Lender or an Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or an
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by either Borrower to a Governmental Authority, such Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
57
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which either
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to such Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by such Borrower as will permit such payments to be
made without withholding or at a reduced rate, provided that such Foreign Lender
has received written notice from such Borrower advising it of the availability
of such exemption or reduction and supplying all applicable documentation.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by either Borrower or with respect to which either
Borrower has paid additional amounts pursuant to this Section 2.17, it shall pay
over such refund to the applicable Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by such Borrower under this Section
2.17 with respect to the Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); PROVIDED, that each Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to such Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent or
such Lender in the event the Administrative Agent or such Lender is required to
repay such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems
confidential) to either Borrower or any other Person.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. (a) Each Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, New York City time), on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except payments to be made directly to an Issuing Bank or the
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a Business Day, the
58
date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be payable for
the period of such extension. All payments under each Loan Document shall be
made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans, Term Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans; PROVIDED that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by a Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to a Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against each Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or an Issuing Bank hereunder that such
Borrower will not make such payment, the Administrative Agent may assume that
such Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or such Issuing
Bank, as the case may be, the
59
amount due. In such event, if such Borrower has not in fact made such payment,
then each of the Lenders or the applicable Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or such Issuing Bank with interest thereon,
for each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
any Lender requests compensation under Section 2.15, or if either Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. Each Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if
either Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then either
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); PROVIDED that (i) such Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, each Issuing Bank and the Swingline
Lender), which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrowers (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to
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Section 2.17, such assignment will result in a material reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrowers to require such
assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Holding Companies and the Borrowers represents and
warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Holding Companies, the
Borrowers and the Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required. Each of the Timber Installment Note Subsidiaries is
duly organized and validly existing as a Delaware limited liability company.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate or
limited liability company powers and have been duly authorized by all necessary
corporate or limited liability company and, if required, stockholder action.
This Agreement has been duly executed and delivered by each of the Holding
Companies and the Borrowers and constitutes, and each other Loan Document to
which any Loan Party is to be a party, when executed and delivered by such Loan
Party, will constitute, a legal, valid and binding obligation of such Holding
Company, such Borrower or such Loan Party (as the case may be), enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect and except filings necessary
to perfect Liens created under the Loan Documents, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of any of the Holding Companies, the Borrowers or the Subsidiaries or
any order of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon any of
the Holding Companies, the Borrowers or the Subsidiaries or its assets, or give
rise to a right thereunder to require any payment to be made by any of the
Holding Companies, the Borrowers or the Subsidiaries, and (d) will not result in
the creation or
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imposition of any Lien on any asset of any of the Holding Companies, the
Borrowers or the Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE. (a) The
Holding Companies and the Borrowers have heretofore furnished to the Lenders (i)
consolidated and consolidating balance sheets and related statements of income,
stockholders' equity and cash flows of each of (x) the Acquired Businesses,
taken as a whole, (y) the Timberlands Assets, on a stand-alone basis and (z) the
Operating Businesses, taken as a whole, in each case as of and for (A) the
fiscal years ended December 31, 2002 and 2003, reported on by KPMG LLP,
independent public accountants, and (B) the six-month period ended June 30, 2004
(and the comparable period for 2003), and (ii) with respect to each of July 2004
and August 2004 (and comparable periods for 2003), a copy of Seller Parent's
internal operating balance sheet, profit and loss statement, and cash flow
statement for each of the Operating Units (as defined in the Acquisition
Agreement) and for Seller Parent's aviation division, transportation operations
(including the operations of Seller Parent's subsidiaries, Minnesota, Dakota and
Western Railroad Company and B C T, Inc.) and its cottonwood farm operations, at
and for the year to date periods ending on the last day of each such month,
together with a balance sheet and a profit and loss statement for Seller
Parent's corporate staff departments for each of the periods provided for above,
certified, in the case of financial statements delivered pursuant to clause
(i)(B) and (ii) above, by the chief financial officer of each of the Holding
Companies. Such financial statements present fairly, in all material respects,
the financial position and results of operations and cash flows of the Acquired
Businesses, the Timberland Assets, the Operating Businesses, the Operating Units
and the other relevant portions of the Seller Parent's business, as the case may
be, as of such dates and for such periods, in accordance with GAAP, subject, in
the case of (i)(B) and (ii) above, to normal year-end audit adjustments and the
absence of footnotes.
(b) The Holding Companies and the Borrowers have heretofore furnished
to the Lenders the pro forma combined consolidated balance sheet of the Holding
Companies as of June 30, 2004, prepared giving effect to the Transactions as if
the Transactions had occurred on such date. Such pro forma combined consolidated
balance sheet (i) has been prepared in good faith based on the same assumptions
used to prepare the pro forma financial statements included in the Information
Memorandum (which assumptions are believed by the Holding Companies and the
Borrowers to be reasonable), (ii) is based on the best information available to
the Holding Companies and the Borrowers after due inquiry, (iii) accurately
reflects all adjustments (including reasonably estimated purchase accounting
adjustments) necessary to give effect to the Transactions and (iv) presents
fairly, in all material respects, the pro forma combined financial position of
the Holding Companies and their consolidated subsidiaries as of June 30, 2004,
as if the Transactions had occurred on such date.
(c) Except as disclosed in the financial statements referred to above
or the notes thereto or in the Information Memorandum and except for the
Disclosed Matters, after giving effect to the Transactions, none of the Holding
Companies, the Borrowers or
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the Subsidiaries has, as of the Effective Date, any material contingent
liabilities, unusual long-term commitments or unrealized losses.
(d) Since December 31, 2003, there has been no change or effect that
is or would reasonably be expected to be materially adverse to (i) the business,
financial condition or results of operations of (A) the Acquired Businesses,
taken as a whole, or (B) the Holding Companies, the Borrowers and the
Subsidiaries, taken as a whole, or (ii) the value of the Acquired Businesses,
taken as a whole.
SECTION 3.05. PROPERTIES. (a) Each of the Holding Companies, the
Borrowers and the Subsidiaries has good title to, or valid leasehold interests
in, or other valid and enforceable rights to use, all its real and personal
property material to its business (including its Mortgaged Properties), except
for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended
purposes.
(b) Each of the Holding Companies, the Borrowers and the Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and
other intellectual property material to its business, and the use thereof by the
Holding Companies, the Borrowers and the Subsidiaries does not infringe upon the
rights of any other Person, except for any such infringements that, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
(c) Schedule 3.05(c) sets forth a summary list of the real property
that is owned or leased by the Timber Borrower or a Timber Subsidiary as of the
Effective Date after giving effect to the Transactions, indicating therein
whether such real property is a Timber Mortgaged Property. The Timber Borrower
has separately delivered to the Administrative Agent a certificate attaching the
address or legal description of each parcel of such real property, in each case
indicating whether such real property is owned or leased, the record owner of
such real property and whether such real property is a Timber Mortgaged
Property.
(d) Schedule 3.05(d) sets forth the address or legal description of
each parcel of real property that is owned or leased by the BC Borrower or any
BC Subsidiary as of the Effective Date after giving effect to the Transactions,
in each case indicating whether such real property is owned or leased, the
record owner of such real property and whether such real property is a
Non-Timber Mortgaged Property.
(e) As of the Effective Date, none of the Holding Companies, the
Borrowers or the Subsidiaries has received notice of, or has knowledge of, any
pending or contemplated condemnation proceeding affecting any Mortgaged Property
or any sale or disposition thereof in lieu of condemnation. Except as set forth
on Schedule 3.05(e), as of the Effective Date, neither any Mortgaged Property
nor any interest therein is subject to any right of first refusal, option to
purchase or other contractual right to purchase such Mortgaged Property or
interest therein.
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SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Holding Companies or the
Borrowers, threatened against or affecting any of the Holding Companies, the
Borrowers or the Subsidiaries (i) as to which there is a reasonable possibility
of an adverse determination and that, if adversely determined, could reasonably
be expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve any of the Loan
Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, none of the Holding Companies,
the Borrowers or the Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received written notice of any claim with
respect to any Environmental Liability or (iv) knows of any facts, conditions or
circumstances that would reasonably be expected to result in any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the Holding
Companies, the Borrowers and the Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. None of the
Holding Companies, the Borrowers or the Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of the Holding Companies, the Borrowers and
the Subsidiaries has timely filed or caused to be filed all Tax returns and
reports required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) any Taxes that are being contested
in good faith by appropriate proceedings and for which such Holding Company,
Borrower or Subsidiary, as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
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SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent annual financial statements reflecting such amounts, exceed
the fair market value of the assets of such Plan by an amount that, if required
to be paid, would reasonably be expected to result in a Material Adverse Effect,
and the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent annual
financial statements reflecting such amounts, exceed the fair market value of
the assets of all such underfunded Plans by an amount that, if required to be
paid, would reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. DISCLOSURE. The Holding Companies and the Borrowers have
disclosed to the Lenders all agreements, instruments and corporate or other
restrictions to which any of the Holding Companies, the Borrowers or the
Subsidiaries is subject, and all other matters known to any of them, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished by or
on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or any other Loan Document or
delivered hereunder or thereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; PROVIDED that,
with respect to projected financial information, the Holding Companies and the
Borrowers represent only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.
SECTION 3.12. SUBSIDIARIES. (a) BC Holdings does not have any
subsidiaries other than the BC Borrower and the BC Subsidiaries. Schedule 3.12
sets forth the name and jurisdiction of organization of, and the direct or
indirect ownership interest of the BC Borrower in, each BC Subsidiary and
identifies each such BC Subsidiary that is a Subsidiary Loan Party, in each case
as of the Effective Date.
(b) Timber Holdings does not have any subsidiaries other than the
Timber Borrower, the Timber Subsidiaries and the Timber Installment Note
Subsidiaries. Schedule 3.12 sets forth the name and jurisdiction of organization
of, and the direct or indirect ownership interest of the Timber Borrower in,
each Timber Subsidiary, in each case as of the Effective Date. Each Timber
Subsidiary is a Subsidiary Loan Party.
SECTION 3.13. INSURANCE. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of the Holding Companies, the Borrowers and
the Subsidiaries as of the Effective Date. As of the Effective Date, all
premiums due and payable in respect of such insurance have been paid. The
Holding Companies and the
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Borrowers reasonably believe that the insurance maintained by or on behalf of
the Holding Companies, the Borrowers and the Subsidiaries is adequate.
SECTION 3.14. LABOR MATTERS. As of the Effective Date, there are no
strikes, lockouts or slowdowns against any Holding Company, Borrower or
Subsidiary pending or, to the knowledge of the Holding Companies or the
Borrowers, threatened. The hours worked by and payments made to employees of the
Holding Companies, the Borrowers and the Subsidiaries have not been in violation
of the Fair Labor Standards Act or any other applicable Federal, state, local or
foreign law dealing with such matters, except to the extent that the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. All payments due from any Holding Company,
Borrower or Subsidiary, or for which any claim may be made against any Holding
Company, Borrower or Subsidiary, on account of wages and employee health and
welfare insurance and other benefits, have been paid or accrued as a liability
on the books of such Holding Company, Borrower or Subsidiary. The consummation
of the Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which any Holding Company, Borrower or Subsidiary is bound.
SECTION 3.15. SOLVENCY. Immediately after the consummation of the
Transactions to occur on the Effective Date and immediately following the making
of each Loan made on the Effective Date and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
the Loan Parties, taken as a whole, at a fair valuation, will exceed their debts
and liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of the Loan Parties, taken as a whole, will be
greater than the amount that will be required to pay the probable liability of
their debts and other liabilities, subordinated, contingent or otherwise, as
such debts and other liabilities become absolute and matured; (c) the Loan
Parties, taken as a whole, will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) the Loan Parties, taken as a whole, will not have
unreasonably small capital with which to conduct the business in which they are
engaged as such business is now conducted and is proposed to be conducted
following the Effective Date.
SECTION 3.16. SENIOR INDEBTEDNESS. The Obligations constitute "Senior
Indebtedness" under and as defined in the Subordinated Debt Documents.
SECTION 3.17. SECURITY INTERESTS. The representations and warranties
in the Security Documents are true and correct.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to make
Loans and of each Issuing Bank to issue Letters of Credit hereunder and of the
Revolving Lenders to participate in any such Letters of Credit shall not become
effective until the
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date on which each of the following conditions is satisfied (or waived in
accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of each of (i) John W. Holleran, Senior Vice President
and General Counsel of Boise Cascade Corporation, substantially in the form
of Exhibit B-1, (ii) Kirkland & Ellis LLP, counsel for the Loan Parties,
substantially in the form of Exhibit B-2, and (iii) local counsel in each
jurisdiction where a Mortgaged Property is located in form and substance
reasonably satisfactory to the Administrative Agent, and, in the case of
each such opinion required by this paragraph, covering such other matters
relating to the Loan Parties, the Loan Documents or the Transactions as the
Required Lenders shall reasonably request. Each of the Holding Companies
and the Borrowers hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Agents or their counsel may reasonably request relating
to the organization, existence and good standing of each Loan Party, the
authorization of the Transactions and any other legal matters relating to
the Loan Parties, the Loan Documents or the Transactions, all in form and
substance reasonably satisfactory to the Agents and their counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of each of the Borrowers, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
(including fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan
Document.
(f) The Collateral and Guarantee Requirement shall have been satisfied
and the Administrative Agent shall have received a completed Perfection
Certificate dated the Effective Date and signed by an executive officer or
Financial Officer of each of the Borrowers, together with all attachments
contemplated thereby, including the results of a search of the Uniform
Commercial Code (or equivalent) filings made with respect to the Loan
Parties in the jurisdictions contemplated by the Perfection Certificate and
copies of the
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financing statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Agents that the Liens indicated by
such financing statements (or similar documents) are permitted by Section
6.02 or have been released.
(g) The Administrative Agent shall have received evidence that the
insurance required by Section 5.07 and the Security Documents is in effect.
(h) The Lenders shall be reasonably satisfied as to the amount and
nature of any material contingent liabilities (including but not limited to
Environmental Liabilities and employee health and safety exposures) to
which either Holding Company, either Borrower or any Subsidiary may be
subject after giving effect to the Transactions, and with the plans of the
Holding Companies, the Borrowers or such Subsidiaries with respect thereto.
The Lenders shall have received environmental information and assessments
satisfactory to the Agents in their reasonable discretion.
(i) Each of the Equity Financing and the Installment Note Financing
shall have been consummated on terms reasonably satisfactory to the
Lenders.
(j) The provisions of the Installment Note Documents shall be
reasonably satisfactory to the Agents. The Administrative Agent shall have
received copies of the Installment Note Documents, certified by a Financial
Offer of the Timber Borrower as complete and correct.
(k) The BC Borrower shall have received gross cash proceeds of not
less than $650,000,000 in the aggregate from the issuance of the
Subordinated Debt and the Senior Unsecured Debt. The terms and conditions
of the Subordinated Debt and the provisions of the Subordinated Debt
Documents shall be reasonably satisfactory to the Lenders. The
Administrative Agent shall have received copies of the Subordinated Debt
Documents, certified by a Financial Officer of the BC Borrower as complete
and correct.
(l) The BC Borrower shall have received gross cash proceeds of not
more than $250,000,000 from the issuance of the Senior Unsecured Debt. The
terms and conditions of the Senior Unsecured Debt and the provisions of the
Senior Unsecured Debt Documents shall be reasonably satisfactory to the
Lenders. The Administrative Agent shall have received copies of the Senior
Unsecured Debt Documents, certified by a Financial Officer of the BC
Borrower as complete and correct.
(m) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the Acquisition
(other than the Missing Consent) shall have been obtained, and all
applicable waiting periods and appeal periods (including any extensions
thereof) shall have expired, in each case without the imposition of any
burdensome conditions. There shall be no action, suit or proceeding
initiated or, to any Loan Party's knowledge,
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threatened by any Governmental Authority that could reasonably be expected
to restrain, prevent or impose burdensome conditions on the Transactions
(it being understood that the Missing Consent has not been obtained). The
Acquisition shall have been, or substantially simultaneously with the
initial funding of Loans on the Effective Date shall be, consummated in all
material respects in accordance with the Acquisition Documents (without
giving effect to any amendment or waiver to or of the terms of such
Acquisition Documents that are adverse to the Lenders, unless consented to
by the Agents) and applicable law. The Administrative Agent shall have
received copies of the Acquisition Documents and all certificates, opinions
and other documents delivered thereunder, certified by a Financial Officer
of each of the Borrowers as complete and correct.
(n) The Lenders shall have received the Financial Statements described
in clauses (a) and (b) of Section 3.04 and such financial statements shall
be consistent in all material respects with the forecasts and other
information previously provided to the Lenders. After giving effect to the
Transactions, none of the Holding Companies, the Borrowers or the
Subsidiaries shall have outstanding any shares of preferred stock or any
Indebtedness, other than (i) Indebtedness incurred under the Loan
Documents, (ii) the Subordinated Debt, (iii) the Senior Unsecured Debt,
(iv) in the case of the Timber Installment Note Subsidiaries, Indebtedness
incurred under the Installment Note Documents and (v) the Indebtedness
permitted by clause (iv) or (v) of Section 6.01(a) or clause (ii), (iv) or
(v) of Section 6.01(b) or set forth on Schedule 6.01. The aggregate amount
of fees and expenses (including underwriting discounts and commissions)
payable or otherwise borne by the Holding Companies, the Borrowers and the
Subsidiaries in connection with the Transactions shall not exceed
$180,700,000.
(o) The Administrative Agent shall have received a certificate of the
chief financial officer of each of the Holding Companies, in a form
reasonably satisfactory to the Agents, certifying as to the solvency of the
applicable Holding Company and its Subsidiaries on a consolidated basis
after giving effect to the Transactions.
(p) The Administrative Agent shall be satisfied that Consolidated
EBITDA for the four-fiscal quarter period ended June 30, 2004 shall not be
less than $470,000,000.
(q) The Administrative Agent shall be satisfied that the Leverage
Ratio as of the Effective Date (after giving effect to the Transactions)
shall be no more than 6.75 to 1.00.
(r) The Administrative Agent shall have received all documentation and
other information requested by it to satisfy the requirements of bank
regulatory authorities under applicable "know your customer" and anti-money
laundering rules and regulations, including the USA Patriot Act.
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The Administrative Agent shall notify the Borrowers and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of each Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at
or prior to 5:00 p.m., New York City time, on October 29, 2004 (and, in the
event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to make
a Loan on the occasion of any Borrowing (it being understood that the
continuation or conversion of a Borrowing does not constitute the making of a
Loan for purposes of this Section 4.02), and of each Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct (except representations and
warranties not qualified as to materiality, which representations and warranties
shall be true and correct in all material respects) on and as of the date of
such Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable (except, to the extent such representations or
warranties expressly relate to an earlier date, in which case as of such earlier
date).
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Holding Companies and the Borrowers on the date thereof as to the matters
specified in paragraphs (a) and (b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated or
have been cash collateralized (to the satisfaction of the Issuing Banks) and all
LC Disbursements shall have been reimbursed, each of the Holding Companies and
the Borrowers covenants and agrees with the Lenders that:
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SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Holding
Companies and the Borrowers will furnish to the Administrative Agent and each
Lender:
(a) within 90 days after the end of each fiscal year of the Borrowers
(or, during any time that either Holding Company or either Borrower is
subject to the periodic reporting requirements of the Securities Exchange
Act of 1934, as amended, such shorter period as the Securities and Exchange
Commission shall specify for the filing of annual reports on Form 10-K),
the audited consolidated and unaudited consolidating balance sheet and
related statements of operations, stockholders' equity and cash flows of
each of (i) the Holding Companies and their consolidated subsidiaries
(combined), (ii) the BC Borrower and its consolidated subsidiaries and
(iii) the Timber Borrower and its consolidated subsidiaries, in each case
as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on
by KPMG LLP or other independent public accountants of recognized national
standing (without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present fairly in
all material respects the combined financial condition and results of
operations of the entities to which such financial statements pertain on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrowers (or, during any time that
either Holding Company or either Borrower is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934, as amended,
such shorter period as the Securities and Exchange Commission shall specify
for the filing of quarterly reports on Form 10-Q), the consolidated and
consolidating balance sheet and related statements of operations,
stockholders' equity and cash flows of each of (i) the Holding Companies
and their consolidated subsidiaries (combined), (ii) the BC Borrower and
its consolidated subsidiaries and (iii) the Timber Borrower and its
consolidated subsidiaries, in each case as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end
of) the previous fiscal year, all certified by a Financial Officer of each
Holding Company (in the case of clause (i)), the BC Borrower (in the case
of clause (ii)) or the Timber Borrower (in the case of clause (iii)), as
presenting fairly in all material respects the financial condition and
results of operations of the entities to which such financial statements
pertain on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of
footnotes;
(c) within 30 days after the end of each of the first two fiscal
months of each fiscal quarter of the Borrowers, the consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows of each of (i) the Holding Companies and their consolidated
subsidiaries (combined), (ii) the BC
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Borrower and its consolidated subsidiaries and (iii) the Timber Borrower
and its consolidated subsidiaries, in each case as of the end of and for
such fiscal month and the then elapsed portion of the fiscal year, all
certified by a Financial Officer of each Holding Company (in the case of
clause (i)), the BC Borrower (in the case of clause (ii)) or the Timber
Borrower (in the case of clause (iii)), as presenting in all material
respects the financial condition and results of operations of the entities
which such financial statements pertain on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of each
Holding Company (i) certifying as to whether a Default has occurred and, if
a Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.12, 6.13 and
6.14, (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements
referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate and (iv) stating whether any Tax
Distributions were made during the period covered by such financial
statements and, if so, the amount thereof and setting forth a summary
description of the calculation thereof;
(e) at least 30 days prior to the commencement of each fiscal year of
the Holding Companies beginning with the fiscal year commencing January 1,
2006, a reasonably detailed combined consolidated budget for such fiscal
year (including a projected combined consolidated balance sheet and related
statements of projected operations and cash flow as of the end of and for
such fiscal year and setting forth the assumptions used for purposes of
preparing such budget) and, promptly when available, any significant
revisions of such budget;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
any of the Holding Companies, the Borrowers or the Subsidiaries with the
Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with any
national securities exchange, as the case may be; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of any
of the Holding Companies, the Borrowers or the Subsidiaries, or compliance
with the terms of any Loan Document, as the Administrative Agent or any
Lender may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Holding Companies and
the Borrowers will furnish to the Administrative Agent and each Lender written
notice of
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the following promptly after any Financial Officer or other executive officer of
any of the Holding Companies or Borrowers obtains knowledge thereof:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting any of
the Holding Companies, the Borrowers or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability to any of the Holding Companies, the Borrowers or the
Subsidiaries in an aggregate amount exceeding $5,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of each of the Holding Companies
or the Borrowers setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. INFORMATION REGARDING COLLATERAL. The Holding Companies
or the Borrowers will furnish to the Administrative Agent prompt written notice
of any change (a) in any Loan Party's legal name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (b) in the case of any Loan Party that is not a "registered
organization" (as defined in Article 9 of the Uniform Commercial Code as from
time to time in effect in the State of New York), in the location of such Loan
Party's chief executive office, its principal place of business, any office in
which it maintains books or records relating to Collateral owned by it or any
office or facility at which Collateral owned by it is located (including the
establishment of any such new office or facility), (c) in any Loan Party's
identity or corporate structure, (d) in any Loan Party's "organizational
identification number" or any similar jurisdictional identification number
required for the filing of financing statements in any jurisdiction or (e) in
any Loan Party's jurisdiction of organization. The Holding Companies and the
Borrowers agree not to effect or permit any change referred to in the preceding
sentence unless all filings have been made (or have been prepared and delivered
to the Administrative Agent for filing) under the Uniform Commercial Code or
otherwise that are required in order for the Administrative Agent and Collateral
Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. The Holding Companies and the
Borrowers also agree promptly to notify the Administrative Agent if any material
portion of the Collateral is damaged or destroyed.
SECTION 5.04. EXISTENCE; CONDUCT OF BUSINESS. Each of the Holding
Companies and the Borrowers will, and will cause each of the Subsidiaries to, do
or
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cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence and the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business; PROVIDED that the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 6.03.
The Timber Borrower will do or cause to be done, and cause each of the Timber
Installment Note Subsidiaries to do or cause to be done, all things necessary to
preserve the legal existence of each Timber Installment Note Subsidiary as a
Delaware limited liability company and to observe and comply with its limited
liability company operating agreement.
SECTION 5.05. PAYMENT OF OBLIGATIONS. Each of the Holding Companies
and the Borrowers will, and will cause each of the Subsidiaries to, pay its
Indebtedness and other obligations, including Tax liabilities, before the same
shall become delinquent or in default, except (a) where (i) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (ii)
such Holding Company, Borrower or Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (iii) such contest
effectively suspends collection of the contested obligation and the enforcement
of any Lien securing such obligation, or (b) except for Tax liabilities, where
the failure to make payment (individually or in the aggregate) could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06. MAINTENANCE OF PROPERTIES. Each of the Holding Companies
and the Borrowers will, and will cause each of the Subsidiaries to, maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted and subject to casualty and
condemnation events (in which case such property shall be repaired or replaced
as promptly as practicable).
SECTION 5.07. INSURANCE. Each of the Holding Companies and the
Borrowers will, and will cause each of the Subsidiaries to, maintain, with
financially sound and reputable insurance companies (a) insurance in such
amounts (with no greater risk retention) and against such risks as are
customarily maintained by companies of established repute engaged in the same or
similar businesses operating in the same or similar locations and (b) all
insurance required to be maintained pursuant to the Security Documents. The
Holding Companies and the Borrowers will furnish (or cause to be furnished) to
the Lenders, upon request of the Administrative Agent, information in reasonable
detail as to the insurance so maintained.
SECTION 5.08. CASUALTY AND CONDEMNATION. (a) The Holding Companies and
the Borrowers (a) will furnish to the Administrative Agent prompt written notice
of any casualty or other insured damage to any material portion of any
Collateral or the commencement of any action or proceeding for the taking of any
material portion of the Collateral or any part thereof or interest therein under
power of eminent domain or by condemnation or similar proceeding and (b) will
ensure that the Net Proceeds of any such event (whether in the form of insurance
proceeds, condemnation awards or otherwise) are collected and applied in
accordance with the applicable provisions of the Security Documents.
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SECTION 5.09. BOOKS AND RECORDS; INSPECTION RIGHTS. Each of the
Holding Companies and the Borrowers will, and will cause each of the
Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its
business and activities. Each of the Holding Companies and the Borrowers will,
and will cause each of the Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and (so long as a representative of the Holding Companies or
Borrowers has been afforded a reasonable opportunity to be present at such
discussions) independent accountants, all at such reasonable times and as often
as reasonably requested; PROVIDED that, unless a Default has occurred and is
continuing, the Borrowers shall not be required to pay the expense of any such
visit by a representative of a Lender and shall only be required to pay the
expense of two such visits by a representative of the Administrative Agent
during any fiscal year.
SECTION 5.10. COMPLIANCE WITH LAWS. Each of the Holding Companies and
the Borrowers will, and will cause each of the Subsidiaries to, comply with all
laws, rules, regulations and orders of any Governmental Authority applicable to
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.11. USE OF PROCEEDS AND LETTERS OF CREDIT. The proceeds of
the Term Loans, together with the proceeds of the Equity Financing, the
Subordinated Debt and the Senior Unsecured Debt, will be used only for (a) the
payment of amounts payable under the Acquisition Documents as consideration for
the Acquisition, (b) the payment of fees and expenses payable in connection with
the Transactions, (c) the payment of any working capital adjustments required by
the Acquisition Documents and (d) the contribution by the Timber Borrower of
$1,635,250,000 to the Timber Installment Note Subsidiaries. The proceeds of the
Revolving Loans and Swingline Loans will be used only for general corporate
purposes after the Effective Date; PROVIDED that up to $175,000,000 of proceeds
of Revolving Loans may be used on the Effective Date for the purposes set forth
in the preceding sentence. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations G, U and X. Letters of
Credit will be issued only for general corporate purposes.
SECTION 5.12. ADDITIONAL SUBSIDIARIES. If any additional Subsidiary is
formed or acquired after the Effective Date, the Borrowers will, within five
Business Days after such Subsidiary is formed or acquired, notify the
Administrative Agent and the Lenders thereof (which notice shall indicate the
name of such Subsidiary, the jurisdiction in which it is organized, whether such
Subsidiary is a BC Subsidiary or a Timber Subsidiary and its status, if
applicable, as a Foreign Subsidiary or a Receivables Subsidiary or a Subsidiary
Loan Party) and cause the Collateral and Guarantee Requirement to be satisfied
with respect to such Subsidiary (if it is a Subsidiary Loan Party) and with
respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or
on behalf of any Loan Party.
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SECTION 5.13. FURTHER ASSURANCES. (a) Each of the Holding Companies
and the Borrowers will, and will cause each Subsidiary Loan Party to, execute
any and all further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording of
financing statements, fixture filings, mortgages, deeds of trust and other
documents), which may be required under any applicable law, or which the
Administrative Agent or the Required Lenders may reasonably request, to cause
the Collateral and Guarantee Requirement to be and remain satisfied, all at the
expense of the Loan Parties. The Holding Companies and the Borrowers also agree
to provide to the Administrative Agent, from time to time upon request, evidence
reasonably satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the Security
Documents. In addition to the foregoing, with respect to the real property
leased by Boise Louisiana Land & Timber, L.L.C. in and around Labokay, Louisiana
(the "LABOKAY PROPERTY"), each of the Holding Companies and the Borrowers will,
and will cause each Subsidiary Loan Party to, use its commercially reasonable
efforts from and after the Effective Date to provide the Collateral Agent (for
the benefit of the Secured Parties) with a valid leasehold Mortgage with respect
to the Labokay Property to secure the Obligations, including using its
commercially reasonable efforts to obtain all required consents with respect
thereto from the landlord of the Labokay Property. Additionally, within 10
Business Days of the Effective Date, either (i) the Missing Consent shall have
been obtained and a Loan Party shall have become the lessee under the lease to
which the Missing Consent relates or (ii) a notice of termination shall be
delivered pursuant to the terms of such lease which shall result, within 30 days
of delivery of such notice, in a Loan Party acquiring fee title to the property
and equipment currently subject to such lease.
(b) If any material assets (including (i) any real property
constituting Timberland Assets acquired pursuant to a Permitted Timberland Asset
Swap, (ii) any real property acquired pursuant to a Permitted Operating Asset
Swap if a Mortgaged Property was transferred pursuant to such Permitted
Operating Asset Swap and (iii) any other material real property or material
improvements thereto or any material interest therein, howsoever acquired) are
acquired by any Loan Party after the Effective Date (other than assets
constituting Collateral under the Collateral Agreement that become subject to
the Lien of the Collateral Agreement upon acquisition thereof), the Holding
Companies and the Borrowers will notify the Administrative Agent and the Lenders
thereof, and, if requested by the Administrative Agent or the Required Lenders,
the Holding Companies and the Borrowers will cause such assets to be subjected
to a Lien securing the Obligations and will take, and cause the Subsidiary Loan
Parties to take, such actions as shall be necessary or reasonably requested by
the Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Loan
Parties.
SECTION 5.14. INTEREST RATE PROTECTION. As promptly as practicable,
and in any event within 90 days after the Effective Date, the Borrowers will
enter into, and thereafter maintain in effect for the periods specified below,
one or more interest rate protection agreements on such terms and with such
parties as shall be reasonably satisfactory to the Administrative Agent, the
effect of which shall be that (a) for a period
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of at least three years after the Effective Date, at least 30% of the
consolidated Long-Term Indebtedness of the Borrowers outstanding as of the
Effective Date (as reduced at or before the date that such interest protection
agreement becomes effective) will be Indebtedness that either bears interest at
a fixed rate or the interest cost of which is hedged pursuant to such interest
rate protection agreements and (b) for a period of at least one year after the
Effective Date, at least an additional 20% of the consolidated Long-Term
Indebtedness of the Borrowers outstanding as of the Effective Date (as reduced
at or before the date that such interest protection agreement becomes effective)
will be Indebtedness that either bears interest at a fixed rate or the interest
cost of which is hedged pursuant to such interest protection agreements.
SECTION 5.15. FISCAL PERIODS. Each of the Holding Companies and the
Borrowers will, and will cause each of the Subsidiaries to, have a fiscal year
ending on December 31 and fiscal quarters ending on the last day of each
calendar quarter.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated or have been cash
collateralized (to the satisfaction of the Issuing Banks) and all LC
Disbursements shall have been reimbursed, each of the Holding Companies and the
Borrowers covenants and agrees with the Lenders that:
SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES; DESIGNATED
SENIOR INDEBTEDNESS. (a) The BC Borrower will not, and will not permit any BC
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(i) Indebtedness created under the Loan Documents;
(ii) the Subordinated Debt and the Senior Unsecured Debt;
(iii) Indebtedness existing on the Effective Date and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
(other than by capitalization of interest and fees) or result in an earlier
maturity date or decreased weighted average life thereof;
(iv) Indebtedness of (A) the BC Borrower to any BC Subsidiary (other
than a Receivables Subsidiary) or to the Timber Borrower or (B) any BC
Subsidiary to the BC Borrower or any other BC Subsidiary (other than a
Receivables Subsidiary); PROVIDED that Indebtedness of any BC Subsidiary
that is not a Loan Party to the BC Borrower or any Subsidiary Loan Party
shall be subject to Section 6.04;
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(v) Guarantees by the BC Borrower of Indebtedness of any BC Subsidiary
(other than a Receivables Subsidiary) and by any BC Subsidiary (other than
a Receivables Subsidiary) of Indebtedness of the BC Borrower or any other
BC Subsidiary (other than a Receivables Subsidiary); PROVIDED that (A)
Guarantees by the BC Borrower or any BC Subsidiary that is a Subsidiary
Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall
be subject to Section 6.04 and (B) a BC Subsidiary that is not a Loan Party
shall not Guarantee Indebtedness of any Loan Party;
(vi) Indebtedness of the BC Borrower or any BC Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets after the Effective Date, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition
of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
(other than by capitalization of interest and fees) or result in an earlier
maturity date or decreased weighted average life thereof; PROVIDED that (A)
such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement and (B)
the aggregate principal amount of Indebtedness permitted by this clause
(vi) shall not exceed $50,000,000 at any time outstanding;
(vii) Indebtedness of any Person that becomes a BC Subsidiary after
the Effective Date; PROVIDED that (A) such Indebtedness exists at the time
such Person becomes a BC Subsidiary and is not created in contemplation of
or in connection with such Person becoming a BC Subsidiary and (B) the
aggregate principal amount of Indebtedness permitted by this clause (vii)
shall not exceed $50,000,000 at any time outstanding;
(viii) Indebtedness of any Receivables Subsidiary incurred pursuant to
any Permitted Receivables Financing;
(ix) purchase price adjustment and similar obligations incurred by the
BC Borrower or any BC Subsidiary in connection with a Permitted
Acquisition, to the extent such obligations would otherwise constitute
Indebtedness; and
(x) other unsecured Indebtedness in an aggregate principal amount not
exceeding $25,000,000 at any time outstanding; PROVIDED that the aggregate
principal amount of Indebtedness of the BC Subsidiaries permitted by this
clause (x) shall not exceed $15,000,000 at any time outstanding.
(b) The Timber Borrower will not, and will not permit any Timber
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(i) Indebtedness created under the Loan Documents;
(ii) Guarantees by the Timber Borrower or any Timber Subsidiary of the
Subordinated Debt and the Senior Unsecured Debt; PROVIDED that such
Guarantees
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in respect of the Subordinated Debt shall be subordinated on the same terms
as the Subordinated Debt;
(iii) Indebtedness existing on the Effective Date and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
or result in an earlier maturity date or decreased weighted average life
thereof;
(iv) Indebtedness of (A) the Timber Borrower to any Timber Subsidiary
or to the BC Borrower or (B) any Timber Subsidiary to the Timber Borrower
or to any other Timber Subsidiary;
(v) Guarantees by the Timber Borrower of Indebtedness of any Timber
Subsidiary and by any Timber Subsidiary of Indebtedness of the Timber
Borrower or any other Timber Subsidiary; and
(vi) Indebtedness incurred to finance the acquisition, construction or
improvement of any fixed or capital assets acquired after the Effective
Date, including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on
any such assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date
or decreased weighted average life thereof; PROVIDED that (A) such
Indebtedness is incurred prior to or within 90 days after such acquisition
or the completion of such construction or improvement and (B) the aggregate
principal amount of Indebtedness permitted by this clause (vi) shall not
exceed $20,000,000 at any time outstanding.
(c) The Timber Borrower will not permit any of the Timber Installment
Note Subsidiaries to create, incur, assume or permit to exist any Indebtedness,
except Indebtedness created under the Installment Note Documents.
(d) Neither Holding Company will create, incur, assume or permit to
exist any Indebtedness except Indebtedness created under the Loan Documents.
(e) Neither the Holding Companies nor the Borrowers will, nor will
they permit any Subsidiary to, issue any preferred stock or other preferred
Equity Interests, other than Qualified Preferred Stock issued by the Holding
Companies.
(f) The Borrowers will not, and the Borrowers will not permit any
Subsidiary to, designate any Indebtedness (other than the Obligations) as
"Designated Senior Indebtedness" for purposes of, and as defined in, any of the
Subordinated Debt Documents.
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SECTION 6.02. LIENS. (a) The BC Borrower will not, and will not permit
any BC Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the BC Borrower or any BC
Subsidiary existing on the date hereof and set forth in Schedule 6.02(a);
PROVIDED that (i) such Lien shall not apply to any other property or asset
of the BC Borrower or any BC Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof (other than with respect to (A) the capitalization
of interest and (B) the capitalization of any prepayment premiums payable
in respect of the obligations so extended, renewed or replaced);
(iv) any Lien on any property or asset acquired after the Effective
Date and existing prior to the acquisition thereof by the BC Borrower or
any BC Subsidiary or existing on any property or asset of any Person that
becomes a BC Subsidiary after the Effective Date that exists prior to the
time such Person becomes a BC Subsidiary; PROVIDED that (A) such Lien is
not created in contemplation of or in connection with such acquisition or
such Person becoming a BC Subsidiary, as the case may be, (B) such Lien
shall not apply to any other property or assets of the BC Borrower or any
BC Subsidiary and (C) such Lien shall secure only those obligations which
it secures on the date of such acquisition or the date such Person becomes
a BC Subsidiary, as the case may be, and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof (other than with respect to (A) the capitalization of interest and
(B) the capitalization of any prepayment premiums payable in respect of the
obligations so extended, renewed or replaced);
(v) Liens on fixed or capital assets acquired, constructed or improved
by the BC Borrower or any BC Subsidiary after the Effective Date; PROVIDED
that (A) such security interests secure Indebtedness permitted by clause
(vi) of Section 6.01(a), (B) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement, (C) the
Indebtedness secured thereby does not exceed 100% of the cost of acquiring,
constructing or improving such fixed or capital assets and (D) such
security interests shall not apply to any other property or assets of the
BC Borrower or any BC Subsidiary;
(vi) assignments and sales of Receivables and Related Security
pursuant to a Permitted Receivables Financing and Liens arising pursuant to
a Permitted
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Receivables Financing on Receivables and Related Security sold or financed
in connection with such Permitted Receivables Financing;
(vii) Liens arising from precautionary UCC financing statements filed
with respect to any lease permitted by this Agreement;
(viii) customary rights of set-off, revocation, refund or chargeback
under deposit agreements or under the Uniform Commercial Code of banks or
other financial institutions where the BC Borrower or any BC Subsidiary
maintains deposits (other than deposits intended as cash collateral) in the
ordinary course of business;
(ix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(x) Liens on insurance policies and the proceeds thereof securing the
financing of the premiums with respect thereto;
(xi) licenses, sublicenses, leases and subleases entered into in the
ordinary course of business and any landlords' liens arising under any such
leases;
(xii) Liens arising solely under Article 4 of the Uniform Commercial
Code relating to collection on items in collection and documents and
proceeds related thereto;
(xiii) obligations with respect to repurchase agreements of the type
described in clause (d) of the definition of Permitted Investments; and
(xiv) other Liens not otherwise permitted by this Section securing
Indebtedness in an aggregate amount, when taken together with the aggregate
amount of all Indebtedness secured by Liens permitted in reliance on clause
(xii) of Section 6.02(b), not exceeding $25,000,000 at any time
outstanding.
(b) The Timber Borrower will not, and will not permit any Timber
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Timber Borrower or any
Timber Subsidiary existing on the date hereof and set forth in Schedule
6.02(b); PROVIDED that (i) such Lien shall not apply to any other property
or asset of the Timber Borrower or any Timber Subsidiary and (ii) such Lien
shall secure only those obligations which it secures on the date hereof and
extensions, renewals and
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replacements thereof that do not increase the outstanding principal amount
thereof (other than with respect to (A) the capitalization of interest and
(B) the capitalization of any prepayment premiums payable in respect of the
obligations so extended, renewed or replaced);
(iv) any Lien on any property or asset acquired after the Effective
Date and existing prior to the acquisition thereof by the Timber Borrower
or any Timber Subsidiary; PROVIDED that (A) such Lien is not created in
contemplation of or in connection with such acquisition, (B) such Lien
shall not apply to any other property or assets of the Timber Borrower or
any Timber Subsidiary and (C) such Lien shall secure only those obligations
which it secures on the date of such acquisition and extensions, renewals
and replacements thereof that do not increase the outstanding principal
amount thereof (other than with respect to (A) the capitalization of
interest and (B) the capitalization of any prepayment premiums payable in
respect of the obligations so extended, renewed or replaced);
(v) Liens on fixed or capital assets acquired, constructed or improved
by the Timber Borrower or any Timber Subsidiary after the Effective Date;
PROVIDED that (A) such security interests secure Indebtedness permitted by
clause (vi) of Section 6.01(b), (B) such security interests and the
Indebtedness secured thereby are incurred prior to or within 90 days after
such acquisition or the completion of such construction or improvement, (C)
the Indebtedness secured thereby does not exceed 100% of the cost of
acquiring, constructing or improving such fixed or capital assets and (D)
such security interests shall not apply to any other property or assets of
the Timber Borrower or any Timber Subsidiary;
(vi) customary rights of set-off, revocation, refund or chargeback
under deposit agreements or under the Uniform Commercial Code of banks or
other financial institutions where the Timber Borrower or any Timber
Subsidiary maintains deposits (other than deposits intended as cash
collateral) in the ordinary course of business;
(vii) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(viii) Liens on insurance policies and the proceeds thereof securing
the financing of the premiums with respect thereto;
(ix) licenses, sublicenses, leases and subleases entered into in the
ordinary course of its business and landlords' liens arising under any such
leases;
(x) Liens arising solely under Article 4 of the Uniform Commercial
Code relating to collection on items in collection and documents and
proceeds related thereto;
(xi) obligations with respect to repurchase agreements of the type
described in clause (d) of the definition of Permitted Investments; and
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(xii) other Liens not otherwise permitted by this Section securing
Indebtedness in an aggregate amount, when taken together with the aggregate
amount of all Indebtedness secured by Liens permitted in reliance on clause
(xiv) of Section 6.02(a), not exceeding $25,000,000 at any time
outstanding.
(c) Neither Holding Company will create, incur, assume or permit to
exist any Lien on any property or asset now owned or hereafter acquired by it,
or assign or sell any income or revenues (including accounts receivable) or
rights in respect thereof, except Liens created under the Loan Documents and
Permitted Encumbrances.
SECTION 6.03. FUNDAMENTAL CHANGES. (a) None of the Holding Companies
or the Borrowers will, nor will they permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any BC Subsidiary (other than a Receivables
Subsidiary) may merge into the BC Borrower in a transaction in which the BC
Borrower is the surviving entity, (ii) any BC Subsidiary (other than a
Receivables Subsidiary) may merge into any other BC Subsidiary (other than a
Receivables Subsidiary) in a transaction in which the surviving entity is a BC
Subsidiary and (if any party to such merger is a Subsidiary Loan Party) is a
Subsidiary Loan Party, (iii) any BC Subsidiary (other than a Receivables
Subsidiary) may liquidate or dissolve if the BC Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the BC
Borrower and is not materially disadvantageous to the Lenders, (iv) the BC
Borrower may permit another Person to merge or consolidate with the BC Borrower
or a BC Subsidiary (other than a Receivables Subsidiary) in order to effect a
Permitted Acquisition that is permitted by Section 6.04 (provided that the
surviving entity is the BC Borrower or a wholly-owned BC Subsidiary); PROVIDED
that any such merger involving a Person that is not a wholly owned BC Subsidiary
immediately prior to such merger shall not be permitted unless also permitted by
Section 6.04, (v) any Timber Subsidiary may merge into the Timber Borrower in a
transaction in which the Timber Borrower is the surviving entity, (vi) any
Timber Subsidiary may merge into any other Timber Subsidiary in a transaction in
which the surviving entity is a Timber Subsidiary, (vii) any Timber Subsidiary
may liquidate or dissolve if the Timber Borrower determines in good faith that
such liquidation or dissolution is in the best interests of the Timber Borrower
and is not materially disadvantageous to the Lenders and (viii) a BC Subsdiary
or a Timber Subsidiary may merge into and consolidate with another Person in
order to effect a transaction in which all the Equity Interests of such
Subsidiary owned directly or indirectly by the BC Borrower or the Timber
Borrower, respectively, would be disposed of; PROVIDED that such transaction is
(A) treated as a sale of the Equity Interests of such Subsidiary for all
purposes of this Agreement and (B) permitted by and conducted in compliance with
(and treated for all purposes of this Agreement as a sale of the Equity
Interests of such Subsidiary pursuant to) Section 6.05(a)(v) (with respect to a
merger or consolidation involving a BC Subsidiary) or Section 6.05(c)(ii) (with
respect to a merger or consolidation involving a Timber Subsidiary).
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(b) The BC Borrower will not, and will not permit any BC Subsidiary
to, engage to any material extent in any business other than businesses
conducted by the Operating Businesses at the time of the Acquisition and
businesses reasonably related thereto. The Timber Borrower will not, and will
not permit any Timber Subsidiary to, engage to any material extent in any
business other than ownership of the Timberland Assets, the harvesting and sale
of timber therefrom, the sale of Timberland Assets and businesses reasonably
related thereto.
(c) Neither Holding Company will engage in any business or activity
other than (i) in the case of BC Holdings, the ownership of all the outstanding
Equity Interests of the BC Borrower and activities incidental thereto and (ii)
in the case of Timber Holdings, the ownership of all the outstanding Equity
Interests of the Timber Borrower and activities incidental thereto. Neither
Holding Company will own or acquire any assets (other than Equity Interests of
the Borrowers, cash and Permitted Investments) or incur any liabilities (other
than liabilities under the Loan Documents, liabilities imposed by law, including
tax liabilities, and other liabilities incidental to its existence and permitted
business and activities).
(d) The Timber Borrower will not permit either of the Timber
Installment Note Subsidiaries to (i) engage in any business or activity (other
than those activities expressly contemplated by the Installment Note Documents),
(ii) own or acquire any assets (other than as expressly contemplated by the
Installment Note Documents) or (iii) incur any liabilities (other than as
expressly contemplated by the Installment Note Documents, liabilities imposed by
law, and other liabilities incidental to its existence and permitted business
and activities).
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. (a) The BC Borrower will not, and will not permit any of the BC
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned BC Subsidiary prior to such merger)
any Equity Interests in or evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person constituting a business unit,
except:
(i) the Acquisition;
(ii) Permitted Investments;
(iii) investments, loans, advances and Guarantees existing on the
Effective Date and set forth on Schedule 6.04(a);
(iv) investments by the BC Borrower and the BC Subsidiaries in Equity
Interests in their respective Subsidiaries; PROVIDED that (A) any such
Equity Interests held by a Loan Party shall be pledged to the extent
required to satisfy the
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Collateral and Guarantee Requirement and (B) the aggregate amount of
investments by Loan Parties in, and loans and advances by Loan Parties to,
and Guarantees by Loan Parties of Indebtedness and other obligations of,
Subsidiaries that are not Loan Parties (excluding all such investments,
loans, advances and Guarantees existing on the Effective Date that are set
forth on Schedule 6.04(a)), shall not exceed $25,000,000 at any time
outstanding;
(v) loans or advances made by the BC Borrower to any BC Subsidiary and
made by any BC Subsidiary to the BC Borrower or any other BC Subsidiary or
made by the BC Borrower to the Timber Borrower; PROVIDED that (A) any such
loans and advances made by a Loan Party shall be evidenced by a promissory
note pledged to the extent required to satisfy the Collateral and Guarantee
Requirement and (B) the amount of such loans and advances made by Loan
Parties to Subsidiaries that are not Loan Parties shall be subject to the
limitation set forth in clause (a)(iv) above;
(vi) Guarantees constituting Indebtedness permitted by Section 6.01(a)
and Guarantees by the BC Borrower of other obligations of any BC Subsidiary
(other than a Receivables Subsidiary) and by any BC Subsidiary (other than
a Receivables Subsidiary) of other obligations of the BC Borrower or any
other BC Subsidiary (other than a Receivables Subsidiary); PROVIDED that
(A) a BC Subsidiary shall not Guarantee the Subordinated Debt or the Senior
Unsecured Debt unless (1) such BC Subsidiary also has Guaranteed the
Obligations pursuant to the Collateral Agreement, (2) such Guarantee of the
Subordinated Debt is subordinated to such Guarantee of the Obligations on
terms no less favorable to the Lenders than the subordination provisions of
the Subordinated Debt and (3) such Guarantee of the Subordinated Debt or
the Senior Unsecured Debt, as applicable, provides for the release and
termination thereof, without action by any party, upon any release and
termination of such Guarantee of the Obligations, (B) a BC Subsidiary that
is not a Loan Party shall not Guarantee any obligations of any Loan Party
and (C) the aggregate principal amount of Indebtedness and other
obligations of Subsidiaries that are not Loan Parties that is Guaranteed by
any Loan Party shall be subject to the limitation set forth in clause
(a)(iv) above;
(vii) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(viii) Permitted Acquisitions; PROVIDED that (A) the consideration for
each Permitted Acquisition shall consist solely of cash, Indebtedness
permitted by clause (vi), (ix) or (x) of Section 6.01(a), Equity Interests
of BC Holdings or a combination thereof, (B) the sum of all consideration
for Permitted Acquisitions (other than Equity Interests of BC Holdings) and
the principal amount of all Indebtedness permitted by clause (vii) of
Section 6.01(a) that results from Permitted Acquisitions (calculated based
on the outstanding principal amount thereof as of the date of each
Permitted Acquisition, regardless of whether subsequently repaid) shall not
exceed $200,000,000 on a cumulative basis during
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the term of this Agreement, and (C) the amount of consideration for
Permitted Acquisitions that result in Subsidiaries that are not Loan
Parties shall be subject to the limitation set forth in clause (a)(iv)
above (with the amount of such consideration to be allocated ratably among
the assets and businesses acquired pursuant to a Permitted Acquisition for
this purpose, based on the fair value thereof, as reasonably determined by
a Financial Officer of the BC Borrower and certified to the Administrative
Agent, and the amount so allocated to Subsidiaries that are not Loan
Parties being treated as investments therein for purposes of the limitation
in clause (a)(iv) above);
(ix) investments consisting of non-cash consideration received by the
BC Borrower or any BC Subsidiary in connection with any sale, transfer,
lease or other disposition of assets permitted by Section 6.05(a);
(x) deposits, prepayments and other credits made or extended to
suppliers (A) in the ordinary course of business and consistent with past
practices of the Operating Businesses or (B) otherwise in an amount not to
exceed $5,000,000 at any time outstanding;
(xi) loans or advances to employees, officers or directors of the BC
Borrower or any BC Subsidiary made in the ordinary course of business in an
aggregate principal amount, when combined with all such loans or advances
made pursuant to clause (xi) of Section 6.04(b), not to exceed $5,000,000
at any time outstanding;
(xii) Swap Agreements permitted by Section 6.07;
(xiii) Specified Investments;
(xiv) minority investments made in cooperatives required to obtain
goods or services in the ordinary course of business, not to exceed
$5,000,000 at any time outstanding; and
(xv) investments not otherwise permitted by this Section; PROVIDED
that the aggregate amount of investments made in reliance upon this clause
(xv) and clause (xv) of Section 6.04(b) (determined on the basis of the
fair market value of the assets invested at the time so invested, in the
case of non-cash investments) shall not exceed $10,000,000.
(b) The Timber Borrower will not, and will not permit any Timber
Subsidiary to, purchase, hold or acquire (including pursuant to any merger with
any Person) any Equity Interests in or evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except:
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(i) the Acquisition;
(ii) Permitted Investments;
(iii) investments existing on the Effective Date and set forth on
Schedule 6.04(b);
(iv) investments by the Timber Borrower and the Timber Subsidiaries in
Equity Interests in their respective Subsidiaries; PROVIDED that any such
Equity Interests shall be pledged to the extent required to satisfy the
Collateral and Guarantee Requirement;
(v) loans or advances made by the Timber Borrower to any Timber
Subsidiary or made by any Timber Subsidiary to the Timber Borrower or any
other Timber Subsidiary or made by the Timber Borrower to the BC Borrower;
PROVIDED that any such loans and advances shall be evidenced by a
promissory note pledged to the extent required to satisfy the Collateral
and Guarantee Requirement;
(vi) investments made on or prior to the Effective Date in Equity
Interests in the Timber Installment Note Subsidiaries in an aggregate
amount not to exceed $1,635,250,000;
(vii) Guarantees constituting Indebtedness permitted by Section
6.01(b) and Guarantees by the Timber Borrower of other obligations of any
Timber Subsidiary and by any Timber Subsidiary of other obligations of the
Timber Borrower or any other Timber Subsidiary; PROVIDED that a Timber
Subsidiary shall not Guarantee the Subordinated Debt or the Senior
Unsecured Debt unless (A) such Timber Subsidiary also has Guaranteed the
Obligations pursuant to the Collateral Agreement, (B) such Guarantee of the
Subordinated Debt is subordinated to such Guarantee of the Obligations on
terms no less favorable to the Lenders than the subordination provisions of
the Subordinated Debt and (C) such Guarantee of the Subordinated Debt or
the Senior Unsecured Debt, as applicable, provides for the release and
termination thereof, without action by any party, upon any release and
termination of such Guarantee of the Obligations;
(viii) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(ix) investments consisting of non-cash consideration received by the
Timber Borrower or any Timber Subsidiary in connection with any sale,
transfer, lease or other disposition of assets permitted by Section 6.05(b)
or 6.05(c);
(x) deposits, prepayments and other credits made or extended to
suppliers in the ordinary course of business and consistent with past
practices of the Sellers of the Timberland Assets;
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(xi) loans or advances to employees, officers or directors of the
Timber Borrower or any Timber Subsidiary made in the ordinary course of
business in an aggregate principal amount, when combined with all such
loans or advances made pursuant to clause (xi) of Section 6.04(a), not to
exceed $5,000,000 at any time outstanding;
(xii) Swap Agreements permitted by Section 6.07;
(xiii) Specified Investments;
(xiv) cash investments in Equity Interests of BC Holdings; PROVIDED
that any such investment is made either (A) at the time of or promptly
after receipt by the Timber Borrower or any Timber Subsidiary of Net
Proceeds of a Prepayment Event or a Timberland Prepayment Event and is made
for the purpose of (and does not exceed the amount necessary for, when
taken together with any other amounts transferred to or invested in BC
Holdings, the BC Borrower or any BC Subsidiary that are permitted by this
Agreement for the same purpose) funding any prepayment of Tranche B Term
Borrowings required by Section 2.11 as a result of such Prepayment Event or
Timberland Prepayment Event or (B) after receipt by the Timber Borrower or
any Timber Subsidiary of any Excess Timber Consideration consisting of cash
and is made for the purpose of (and does not exceed the amount necessary
for, when taken together with any other amounts of such cash transferred to
or invested in BC Holdings, the BC Borrower or any BC Subsidiary that are
permitted by this Agreement for the same purpose and the amount of
Restricted Payments made with Excess Timber Consideration) funding any
redemption or repurchase of Senior Unsecured Debt or Subordinated Debt
pursuant to clause (v) of Section 6.08(b); and
(xv) investments not otherwise permitted by this Section; PROVIDED
that the aggregate amount of investments made in reliance upon this clause
(xv) and clause (xv) of Section 6.04(a) (determined on the basis of the
fair market value of the assets invested at the time so invested, in the
case of non-cash investments) shall not exceed $10,000,000.
SECTION 6.05. ASSET SALES. (a) The BC Borrower will not, and will not
permit any of the BC Subsidiaries to, sell, transfer, lease or otherwise dispose
of any asset, including any Equity Interest owned by it, nor will the BC
Borrower permit any of the BC Subsidiaries to issue any additional Equity
Interest in such BC Subsidiary, except:
(i) sales of inventory, used or surplus equipment and Permitted
Investments, in each case in the ordinary course of business;
(ii) sales, transfers and dispositions to the BC Borrower or a BC
Subsidiary; PROVIDED that any such sales, transfers or dispositions
involving a Subsidiary that is not a Loan Party shall be made in compliance
with Section 6.09;
(iii) Permitted Operating Asset Swaps;
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(iv) sales or transfers of Receivables and interests therein, together
with Related Security, pursuant to a Permitted Receivables Financing; and
(v) sales, transfers and other dispositions of assets (other than to a
Holding Company or to the Timber Borrower or a Timber Subsidiary) that are
not permitted by any other clause of this Section 6.05(a); PROVIDED that
(A) in the case of any such sale, transfer or disposition of Equity
Interests of a BC Subsidiary, such sale, transfer or disposition shall
include all Equity Interests of and other investments in and loans and
advances to such BC Subsidiary (and any other BC Subsidiary in which such
sold BC Subsidiary holds an Equity Interest) and, after giving effect
thereto, none of the Borrowers and the Subsidiaries shall owe any
Indebtedness to the BC Subsidiary so sold, transferred or otherwise
disposed of, and (B) the aggregate fair market value of all assets sold,
transferred or otherwise disposed of in reliance upon this clause (v) and
clause (vi) of paragraph (b) below shall not exceed $50,000,000 during any
fiscal year of the Borrowers;
PROVIDED that (A) all sales, transfers, leases and other dispositions permitted
by this paragraph (a) (other than those permitted by clause (ii) above) shall be
made for fair value and (B) shall be (1) in the case of clause (i) above, for
cash consideration (including accounts receivable on customary terms in the
ordinary course of business), (2) in the case of clause (iii) above, for
consideration permitted for a Permitted Operating Asset Swap, (3) in the case of
clause (iv) above, for cash consideration or Subordinated Receivables Transfer
Debt and (4) in the case of clause (v) above, for at least 80% cash
consideration.
(b) The Timber Borrower will not, and will not permit any of the
Timber Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset,
including any Equity Interest owned by it, nor will the Timber Borrower permit
any of the Timber Subsidiaries to issue any additional Equity Interests in such
Timber Subsidiary, except:
(i) sales of inventory (including sales of timber and cutting rights),
used or surplus equipment and Permitted Investments, in each case in the
ordinary course of business;
(ii) sales, transfers and dispositions to the Timber Borrower or a
Timber Subsidiary;
(iii) Permitted Timberland Asset Swaps;
(iv) sales, transfers and dispositions permitted by paragraph (c)
below;
(v) sales, transfers and dispositions of Non-Cash Timberlands
Consideration; and
(vi) sales, transfers and other dispositions of assets (other than (x)
interests in real property, (y) Equity Interests in a Timber Subsidiary and
(z) to a Holding Company or to the BC Borrower or a BC Subsidiary) that are
not permitted by any other clause of this Section 6.05(b); PROVIDED that
the aggregate fair market
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value of all assets sold, transferred or otherwise disposed of in reliance
upon this clause (vi) and clause (v) of paragraph (a) above shall not
exceed $50,000,000 during any fiscal year of the Borrowers;
PROVIDED that (A) all sales, transfers and dispositions permitted by this
paragraph (b) (other than those permitted by clauses (ii) and (v) above) shall
be made for fair value and (B) shall be (1) in the case of clause (i) above, for
cash consideration (including accounts receivable on customary terms in the
ordinary course of business), (2) in the case of clause (iii) above, for
consideration permitted for a Permitted Timberland Asset Swap and (3) in the
case of clause (vi) above, for at least 80% cash consideration.
(c) Notwithstanding the limitations in paragraph (b) above:
(i) the Timber Borrower and any Timber Subsidiary may sell Timberland
Assets (other than to a Holding Company, the BC Borrower or a BC
Subsidiary);
(ii) the Timber Borrower and Timber Subsidiaries may sell the Equity
Interests of any Timber Subsidiary (other than to a Holding Company, the BC
Borrower or a BC Subsidiary); PROVIDED that (A) such sale shall include all
Equity Interests of and other investments in and loans and advances to such
Timber Subsidiary (and any other Timber Subsidiary in which such sold
Timber Subsidiary holds an Equity Interest) and (B) after giving effect
thereto, none of the Borrowers and the Subsidiaries shall owe any
Indebtedness to the Timber Subsidiary so sold; and
(iii) Timber Holdings may sell the Equity Interests of the Timber
Borrower (other than to a Holding Company, the BC Borrower or a BC
Subsidiary); PROVIDED that (A) such sale shall include all Equity Interests
of and other investments in and loans and advances to the Timber Borrower
and the Timber Subsidiaries, (B) any loans, advances or other Indebtedness
of the Timber Borrower or any Timber Subsidiary owed to the BC Borrower or
any BC Subsidiary at the time of such sale shall be repaid in full, (C) at
the time of such sale and after giving effect thereto, no Default shall
have occurred and be continuing and the Administrative Agent shall have
received a certificate to such effect signed by a Financial Officer of each
of the Borrowers, (D) prior to or concurrently with such sale, the Tranche
C Term Loans shall have been repaid in full and the Timber Borrower shall
have paid any other amounts accrued and owing by it under this Agreement,
and (E) the amendment to (or amendment and restatement of) this Agreement
contemplated by Section 9.15 shall have been executed and delivered;
PROVIDED that all sales pursuant to this paragraph (c) (A) shall be made for
fair value and (B) shall be made (1) solely for cash consideration, until the
aggregate Net Proceeds from all such sales equals $1,650,000,000 and (2)
thereafter, for at least 50% cash consideration.
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SECTION 6.06. SALE AND LEASEBACK TRANSACTIONS. The Borrowers will not,
and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred, except (a) for any such sale of any fixed or capital assets
by the BC Borrower or any BC Subsidiary that is made for cash consideration in
an amount not less than the cost of such fixed or capital asset and is
consummated within 90 days after the BC Borrower or such BC Subsidiary acquires
or completes the construction of such fixed or capital asset and (b) this
Section 6.06 shall not prohibit the BC Borrower or any BC Subsidiary from
engaging in a sale or transfer of property permitted by clause (v) of Section
6.05(a) and thereafter leasing such property, PROVIDED that (i) such sale or
transfer is made solely for cash consideration, (ii) any Capital Lease
Obligations of the BC Borrower or any BC Subsidiary created thereby are
permitted under Section 6.01(a) and (iii) such sale or transfer shall be treated
as a Prepayment Event (regardless of whether such sale or transfer would
otherwise fall within the definition of that term) and any Net Proceeds received
in respect thereof shall be subject to the provisions of Section 2.11(c),
provided that the reinvestment provisions of Section 2.11(c) shall not apply to
any such Net Proceeds.
SECTION 6.07. SWAP AGREEMENTS. Neither Borrower will, nor will they
permit any Subsidiary to, enter into any Swap Agreement, other than (a) Swap
Agreements entered into to hedge or mitigate risks to which either Borrower or
any such Subsidiary has actual exposure (other than those in respect of (i)
Equity Interests of any Holding Company, Borrower or Subsidiary, (ii) the
Subordinated Debt or (iii) the Senior Unsecured Debt), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates
(from fixed to floating rates, from one floating rate to another floating rate
or otherwise) with respect to any interest-bearing liability or investment of
either Borrower or any Subsidiary.
SECTION 6.08. RESTRICTED PAYMENTS; CERTAIN PAYMENTS OF INDEBTEDNESS.
(a) None of the Holding Companies or the Borrowers will, nor will they permit
any Subsidiary to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except (i) Subsidiaries may declare and pay dividends or
make distributions ratably with respect to their capital stock or membership
interests, (ii) the BC Borrower may make Restricted Payments, not exceeding
$5,000,000 during any fiscal year, pursuant to and in accordance with stock
option plans or other benefit plans for management or employees of the BC
Borrower and the BC Subsidiaries, (iii) the BC Borrower and the Timber Borrower
may make distributions to BC Holdings and Timber Holdings, respectively, at such
times and in such amounts, not exceeding $5,000,000 during any fiscal year, as
shall be necessary to permit each of BC Holdings and Timber Holdings to
discharge its permitted liabilities, (iv) if at the time thereof and after
giving effect thereto no Default has occurred and is continuing, the Timber
Borrower may distribute to Timber Holdings, and Timber Holdings may distribute,
any Excess Timber Consideration (excluding any Excess Timber Consideration
consisting of cash that is transferred to or invested in BC Holdings, the BC
Borrower or any BC Subsidiary for the purpose of funding any
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redemption or repurchase of Senior Unsecured Debt or Subordinated Debt pursuant
to clause (v) of paragraph (b) of this Section), (v) each Holding Company may
redeem the Equity Interests of such Holding Company, and may make distributions
to FPH so that FPH may make such redemptions of Equity Interests of FPH, in each
case from former members of management, former employees, or former directors of
Loan Parties, and each Borrower may make distributions to its Holding Company as
necessary to fund such redemptions, PROVIDED that the aggregate amount applied
for all such purposes shall not exceed $3,000,000 during any fiscal year, (vi)
the Holding Companies and the Borrowers may pay (by distribution or otherwise)
management fees to Madison Dearborn of up to $1,000,000 in the aggregate in any
fiscal year, (vii) distributions by the Borrowers to the Holding Companies to
pay out-of-pocket expenses for directors' indemnities, (viii) the Timber
Borrower may distribute to Timber Holdings, and Timber Holdings may distribute,
any amount of the Net Proceeds received in respect of a Timberland Prepayment
Event that is required to be used to prepay Tranche B Term Borrowings pursuant
to Section 2.11, PROVIDED that (A) the amount so distributed is immediately
reinvested in BC Holdings, and invested by BC Holdings in the BC Borrower and
thereupon promptly used for such purpose and (B) such distribution and
reinvestment is made pursuant to procedures satisfactory to the Administrative
Agent, (ix) the Timber Borrower may distribute to Timber Holdings, and Timber
Holdings may distribute, any Equity Interests of BC Holdings acquired by the
Timber Borrower or any Timber Subsidiary pursuant to clause (xiv) of Section
6.04(b), (x) each Borrower may make distributions to the Holding Companies, and
each Holding Company may in turn make distributions to FPH, (A) not exceeding
$500,000 in the aggregate during any fiscal year, at such times as shall be
necessary to permit FPH to discharge its corporate maintenance obligations and
(B) not exceeding $500,000 in the aggregate during any fiscal year, at such
times as shall be necessary to permit FPH to discharge its obligations related
to its portion of common expenses shared with any of the Holding Companies or
the Borrowers, (xi) each Borrower may make distributions to the Holding
Companies, and each Holding Company may in turn make distributions to FPH, to
permit FPH to pay on the Effective Date one-time fees and out-of pocket expenses
incurred in connection with the Acquisition consistent with the use of proceeds
approved by the Lenders prior to the Effective Date and (xii) for so long as BC
Holdings is a pass-through or disregarded entity for United States Federal
income tax purposes, the BC Borrower may make distributions to BC Holdings, and
BC Holdings shall in turn be permitted, to make Tax Distributions in respect of
any taxable year of BC Holdings equal to the product of (A) the amount of
taxable income allocated to the Members for such taxable year, less the amount
of taxable loss allocated to the Members for all prior taxable years (except to
the extent such taxable losses have previously been taken into account under
this provision), times (B) the highest aggregate marginal statutory Federal,
state and local income tax rate (determined taking into account the
deductibility of state and local income taxes for Federal income tax purposes)
to which any of the direct or indirect Members of BC Holdings who is an
individual is subject for such year; and BC Holdings shall be permitted to make
such Tax Distributions pursuant to this clause (xii) on a quarterly basis during
such taxable year based on the best estimate of the chief financial officer of
BC Holdings of the amounts specified in clauses (A) and (B) above; PROVIDED that
if the aggregate amount of the estimated Tax Distributions made in any taxable
year of BC
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Holdings exceeds the actual maximum amount of Tax Distributions for that year as
finally determined, the amount of any Tax Distributions in the succeeding
taxable year (or, if necessary, any subsequent taxable years) shall be reduced
by the amount of such excess.
(b) None of the Holding Companies or the Borrowers will, nor will
either Borrower permit any Subsidiary to, make or agree to pay or make, directly
or indirectly, any payment or other distribution (whether in cash, securities or
other property) of or in respect of principal of or interest on any
Indebtedness, or any payment or other distribution (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancelation or termination of
any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of interest and principal payments as and when due in
respect of any Indebtedness, other than payments in respect of the
Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section
6.01;
(iv) payment of secured Indebtedness that becomes due as a result of
the voluntary sale or transfer or involuntary condemnation of the property
or assets securing such Indebtedness; and
(v) if at the time thereof and after giving effect thereto no Default
has occurred and is continuing, the BC Borrower may redeem or repurchase
Senior Unsecured Debt or Subordinated Debt for cash consideration; PROVIDED
that (A) at the time of and after giving effect to any such redemption or
repurchase, the aggregate amount applied for such purposes shall not exceed
the aggregate amount of Excess Timber Consideration consisting of cash that
has been transferred to or invested in BC Holdings, the BC Borrower and the
BC Subsidiaries in accordance with this Agreement for the purpose of
funding such redemptions and repurchases, (B) any Senior Unsecured Debt or
Subordinated Debt so redeemed or repurchased shall be retired and cancelled
and (C) the BC Borrower shall notify the Administrative Agent of any such
redemption or repurchase, setting forth the amount applied for such purpose
and a description of the method of funding such redemption or repurchase,
prior to the time of such redemption or repurchase.
SECTION 6.09. TRANSACTIONS WITH AFFILIATES. None of the Holding
Companies or the Borrowers will, nor will either Borrower permit any Subsidiary
to, sell, lease or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or otherwise engage in
any other transactions with, any of its Affiliates, except (a) transactions in
the ordinary course of business that do not involve either Holding Company or
either Timber Installment Note Subsidiary and are at prices and on terms and
conditions not less favorable to the relevant Borrower or
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Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (b) transactions between or among the BC Borrower and BC Subsidiaries
that are Subsidiary Loan Parties not involving any other Affiliate, (c)
transactions between or among the Timber Borrower and the Timber Subsidiaries
not involving any other Affiliate, (d) the payment to Madison Dearborn of
management fees in compliance with clause (vi) of Section 6.08(a), (e)
transactions entered into pursuant to and in compliance with the Supply
Agreement, (f) transactions pursuant to and in compliance with the agreements to
be entered into on the Effective Date described on Schedule 6.09 and (g) any
Restricted Payment permitted by Section 6.08.
SECTION 6.10. RESTRICTIVE AGREEMENTS. None of the Holding Companies or
the Borrowers will, nor will either Borrower permit any Subsidiary to, directly
or indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of any Holding Company, any Borrower or any Subsidiary to create, incur
or permit to exist any Lien upon any of its property or assets, or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its Equity Interests, or to make or repay loans or advances to
the Borrowers or any Subsidiary or to Guarantee Indebtedness of the Borrowers or
any other Subsidiary; PROVIDED that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by any Loan Document, Subordinated
Debt Document or Senior Unsecured Debt Document, (ii) the foregoing shall not
apply to restrictions and conditions existing on the Effective Date identified
on Schedule 6.10 (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause
(a) of the foregoing shall not apply to restrictions or conditions imposed by
any agreement relating to secured Indebtedness permitted by this Agreement or
any Permitted Receivables Financing if such restrictions or conditions apply
only to the property or assets securing such Indebtedness or the Receivables and
Related Security subject to such Permitted Receivables Financing, as the case
may be, (v) clause (a) of the foregoing shall not apply to customary provisions
in leases and other contracts restricting the assignment thereof and (vi) clause
(b) of the foregoing shall not apply to restrictions or conditions imposed on a
Receivables Subsidiary by a Permitted Receivables Financing.
SECTION 6.11. AMENDMENT OF MATERIAL DOCUMENTS. None of the Holding
Companies or the Borrowers will, nor will either Borrower permit any Subsidiary
to, amend, modify or waive any of its rights under (a) any Subordinated Debt
Document, (b) any Senior Unsecured Debt Document, (c) its certificate of
incorporation, by-laws or other organizational documents, (d) the Acquisition
Agreement, (e) the Additional Consideration Agreement, (f) the Supply Agreement
or (g) any agreement listed on Schedule 6.09, other than any such amendments or
modifications that are not adverse to the interests of the Lenders. The Timber
Borrower will not permit any amendment or modification of the limited liability
company operating agreement of either Timber Installment Note Subsidiary or any
Installment Note Document, other than
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any such amendments or modifications that are not adverse to the interests of
the Lenders.
SECTION 6.12. INTEREST EXPENSE COVERAGE RATIO. The Holding Companies
will not permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Cash
Interest Expense, in each case for any period of four consecutive fiscal
quarters ending on any quarter-end date during any period set forth below, to be
less than the ratio set forth below opposite such period:
[Download Table]
Period Ratio
------ -----
March 31, 2005 to and including December 31, 2005 1.875 to 1.000
January 1, 2006 to and including December 31, 2006 2.000 to 1.000
January 1, 2007 to and including December 31, 2007 2.000 to 1.000
January 1, 2008 to and including December 31, 2008 2.125 to 1.000
January 1, 2009 to and including December 31, 2009 2.375 to 1.000
January 1, 2010 to and including December 31, 2010 2.625 to 1.000
Thereafter 2.750 to 1.000
For purposes of determining compliance with this Section 6.12 for any period of
four consecutive fiscal quarters ending on or prior to September 30, 2005,
Consolidated Cash Interest Expense with respect to each fiscal quarter ending on
or prior to December 31, 2004 shall be deemed to be equal to 25% of the
annualized amount of Consolidated Cash Interest Expense accruing from the
Effective Date to the end of the four-quarter period for which compliance is
being determined.
SECTION 6.13. LEVERAGE RATIO. The Holding Companies will not permit
the Leverage Ratio as of any quarter-end date during any period set forth below
to exceed the ratio set forth opposite such period:
[Download Table]
Period Ratio
------ -----
March 31, 2005 to and including December 31, 2005 7.50 to 1.00
January 1, 2006 to and including December 31, 2006 6.00 to 1.00
January 1, 2007 to and including December 31, 2007 5.00 to 1.00
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[Download Table]
Period Ratio
------ -----
January 1, 2008 to and including December 31, 2008 4.75 to 1.00
January 1, 2009 to and including December 31, 2009 4.50 to 1.00
January 1, 2010 to and including December 31, 2010 4.00 to 1.00
Thereafter 3.75 to 1.00
SECTION 6.14. CAPITAL EXPENDITURES. The Holding Companies and the
Borrowers will not permit the aggregate amount of Capital Expenditures made by
the Holding Companies, the Borrowers and the Subsidiaries to exceed (a)
$40,000,000 during the period from the Effective Date to and including December
31, 2004 and (b) $240,000,000 during any fiscal year ending thereafter; PROVIDED
that 100% of the unused amount of any Capital Expenditures permitted to be made
during each period and not made during such period may be carried over and made
at any time during the next succeeding two fiscal years (and any amount so
carried over shall be deemed the first amount applied for Capital Expenditures
during such next succeeding two fiscal years).
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) either Borrower shall fail to pay any principal of any Loan or
fail to pay any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) either Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document, when
and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of any of the Holding Companies, the Borrowers or the Subsidiaries in any
Loan Document or any amendment or modification thereof or waiver
thereunder, or in any certificate, financial statement or other document
furnished by or on behalf of a Loan Party to an Agent or the Lenders
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
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(d) any of the Holding Companies or the Borrowers shall fail to
observe or perform any covenant, condition or agreement contained in
Section 5.02, 5.04 (with respect to the existence of any of the Holding
Companies or the Borrowers) or 5.11 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to either of the Borrowers (which notice will be
given at the request of any Lender);
(f) any of the Holding Companies, the Borrowers or the Subsidiaries
shall fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when and as
the same shall become due and payable (or, if applicable under the terms of
such Indebtedness without giving effect to any amendment entered into in
connection with the failure to make such payment, within any period of
grace allowed with respect to such payment);
(g) any event or condition occurs that (i) results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity or (ii) results in the termination
of a Permitted Receivables Financing prior to its scheduled termination
(other than a voluntary termination by the BC Borrower) or enables or
permits the financing parties thereunder or any trustee or agent on their
behalf to terminate a Permitted Receivables Financing; PROVIDED that this
clause (g) shall not apply (A) unless and until all applicable grace or
cure periods shall have passed and (B) to Indebtedness that becomes due as
a result of the voluntary sale or transfer of property or assets or as a
result of the application (other than by reason of a breach or default by a
Loan Party) of any provision in such Indebtedness that requires any Loan
Party to prepay a portion (but less than substantially all) of such
Indebtedness then outstanding or that requires any Loan Party to offer to
redeem or repurchase some (but less than substantially all) of such
Indebtedness then outstanding;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of any of the Holding Companies, the Borrowers or any
Material Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for any of the Holding Companies, the Borrowers or any Material Subsidiary
or for a substantial part of its assets, and, in
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any such case, such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) any of the Holding Companies, the Borrowers or any Material
Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any of the Holding Companies, the Borrowers or any
Material Subsidiary or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) any of the Holding Companies, the Borrowers or the Material
Subsidiaries shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $15,000,000 (to the extent not covered by independent
third party insurance as to which the insurer is rated at least "A" by A.M.
Best Company, has been notified of the potential claim and does not dispute
coverage) shall be rendered against any of the Holding Companies, the
Borrowers, the Subsidiaries or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by one or more judgment creditors to attach or levy upon any assets
of any of the Holding Companies, the Borrowers or the Subsidiaries to
enforce one or more of any such judgments in an aggregate amount in excess
of $15,000,000;
(l) an ERISA Event shall have occurred that, when taken together with
all other ERISA Events that have occurred, would reasonably be expected to
result in a Material Adverse Effect;
(m) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral (other than Collateral with an aggregate
fair market value not exceeding $5,000,000), with the priority required by
the applicable Security Document, except (i) as a result of the sale or
other disposition of the applicable Collateral in a transaction permitted
under the Loan Documents, (ii) as a result of the Collateral Agent's
failure to maintain possession of any stock certificates, promissory notes
or other instruments delivered to it under the Collateral Agreement, (iii)
as a result of the Collateral Agent's failure to file or record any UCC
financing statement or other document delivered to it for filing or
recording
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or (iv) as a result of the applicable Security Document not requiring
perfection with respect to such Collateral;
(n) any Guarantee of the Obligations purported to be created under any
Loan Document shall cease to be, or shall be asserted by any Loan Party not
to be, in full force and effect; PROVIDED that this clause (n) shall not
apply to any Guarantee that ceases to be in full force and effect in
accordance with the express terms of any applicable Loan Document; or
(o) a Change in Control shall occur;
then, and in every such event (other than an event with respect to either
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrowers,
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
each of the Borrowers; and in case of any event with respect to either Borrower
described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrowers accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each of the Borrowers.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Banks hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with any of the Holding Companies, the Borrowers or the
Subsidiaries or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
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The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing as directed by
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02), and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to any of the Holding Companies, the
Borrowers or the Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by a Holding Company, a Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrowers), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in good faith in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-agent,
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and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Banks and the
Borrowers. Upon any such resignation, the Required Lenders shall have the right,
to appoint a successor approved by the Borrowers (which approval (i) shall not
be unreasonably withheld or delayed and (ii) shall not be required during the
continuance of an Event of Default). If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrowers to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrowers and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
Each party hereto agrees and acknowledges that (i) the Syndication
Agent and the Joint Lead Arrangers do not have any duties or responsibilities in
their capacities as Syndication Agent and Joint Lead Arrangers, respectively,
hereunder and shall not have, or become subject to, any liability hereunder in
such capacities and (ii) the exculpation provisions contained herein relating to
the Administrative Agent shall be equally applicable to the Syndication Agent
and the Syndication Agent shall receive the full benefit thereof.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to either of the Holding Companies, to it at c/o Madison
Dearborn Capital Partners IV, L.P., Three First National Plaza, Suite 3800,
Chicago, IL 60602, Attention of Thomas S. Souleles and Samuel M. Mencoff
(Telecopy No. (312) 895-1001); (ii) if to either Borrower, to it at 1111
West Jefferson Street, P.O. Box 50, Boise, ID 83728, Attention of Chief
Executive Officer and Chief Financial Officer (Telecopy No. (208)
384-4920);
(iii) if to the Administrative Agent, to JPMorgan Chase Bank, Agent
Bank Services Group, 1111 Fannin Street, Houston, TX 77002, Attention of
Leah Hughes (Telecopy No. (713) 750-2932) and, in the event of the delivery
of a Borrowing Request, Saji Easo (Telecopy No. (713) 750-2599), with a
copy to JPMorgan Chase Bank, 270 Park Avenue, New York, New York 10017,
Attention of Peter Predun (Telecopy No. (212) 270-5100);
(iv) if to JPMorgan Chase Bank as Issuing Bank, to it at Agent Bank
Services Group, 1111 Fannin Street, Houston, TX 77002, Attention of Leah
Hughes (Telecopy No. (713) 750-2932), with a copy to JPMorgan Chase Bank,
270 Park Avenue, New York, New York 10017, Attention of Peter Predun
(Telecopy No. (212) 270-5100);
(v) if to the Swingline Lender, to JPMorgan Chase Bank, Agent Bank
Services Group, 1111 Fannin Street, Houston, TX 77002, Attention of Leah
Hughes (Telecopy No. (713) 750-2932), with a copy to JPMorgan Chase Bank,
270 Park Avenue, New York, New York 10017, Attention of Peter Predun
(Telecopy No. (212) 270-5100); and
(vi) if to any other Lender or Issuing Bank, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; PROVIDED that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrowers may, in their discretion, agree to accept notices and other
communications to it hereunder by electronic communications
102
pursuant to procedures approved by it; PROVIDED that approval of such procedures
may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt. All notices received by any Holding Company or
Borrower hereunder shall be deemed for all purposes under this Agreement to have
been received by each of the Holding Companies and the Borrowers.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the
Administrative Agent, any Issuing Bank, any Lender or any Loan Party in
exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Issuing Banks, the Lenders and the Loan Parties
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or any
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as contemplated by Section 9.15, neither this Agreement nor
any other Loan Document nor any provision hereof or thereof may be waived,
amended or modified except, in the case of this Agreement, pursuant to an
agreement or agreements in writing entered into by the Holding Companies, the
Borrowers and the Required Lenders or, in the case of any other Loan Document,
pursuant to an agreement or agreements in writing entered into by the
Administrative Agent and the Loan Party or Loan Parties that are parties
thereto, in each case with the consent of the Required Lenders; PROVIDED that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce or forgive the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the maturity of any Loan, or any scheduled date of
payment of the principal amount of any Term Loan under Section 2.10, or the
required date of reimbursement of any LC Disbursement, or any date for the
payment of any interest or fees payable hereunder, or reduce or forgive the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
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consent of each Lender, (v) change any of the provisions of this Section or the
percentage set forth in the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as the case
may be), (vi) release any material Guarantee under the Collateral Agreement
(except as expressly provided in the Collateral Agreement), or limit the
applicable Loan Party's liability in respect of any such material Guarantee,
without the written consent of each Lender, (vii) release all or substantially
all of the Collateral from the Liens of the Security Documents (other than the
releases expressly permitted by the Security Documents), without the written
consent of each Lender, or (viii) change any provisions of any Loan Document in
a manner that by its terms adversely affects the rights in respect of payments
due to Lenders holding Loans of any Class differently than those holding Loans
of any other Class, without the written consent of Lenders holding a majority in
interest of the outstanding Loans and unused Commitments of each affected Class;
PROVIDED FURTHER that (A) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, any Issuing Bank or the
Swingline Lender without the prior written consent of the Administrative Agent,
such Issuing Bank or the Swingline Lender, as the case may be, and (B) any
waiver, amendment or modification of this Agreement that by its terms affects
the rights or duties under this Agreement of one Class of Lenders (but not other
Classes) may be effected by an agreement or agreements in writing entered into
by the Holding Companies, the Borrowers and requisite percentage in interest of
the affected Class of Lenders that would be required to consent thereto under
this Section if such Class of Lenders were the only Class of Lenders hereunder
at the time. Notwithstanding the foregoing, any provision of this Agreement may
be amended by an agreement in writing entered into by the Holding Companies, the
Borrowers, the Required Lenders and the Administrative Agent (and, if their
rights or obligations are affected thereby, each Issuing Bank and the Swingline
Lender) if (i) by the terms of such agreement the Commitment of each Lender not
consenting to the amendment provided for therein shall terminate upon the
effectiveness of such amendment and (ii) at the time such amendment becomes
effective, each Lender not consenting thereto receives payment in full of the
principal of and interest accrued on each Loan made by it and all other amounts
owing to it or accrued for its account under this Agreement.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Borrowers
jointly and severally agree to pay (i) all reasonable out-of-pocket expenses
incurred by the Agents and their respective Affiliates, including the reasonable
fees, charges and disbursements of counsel for each of the Agents, in connection
with the syndication of the credit facilities provided for herein, the
preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by any Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by either Agent, any Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for either of the Agents, any Issuing Bank or any
Lender, in
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connection with the enforcement or protection of its rights in connection with
the Loan Documents, including its rights under this Section, or in connection
with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrowers jointly and severally agree to indemnify each Agent,
each Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "INDEMNITEE") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by an Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any Mortgaged Property or any other property
currently or formerly owned or operated by any of the Borrowers or the
Subsidiaries, or any Environmental Liability related in any way to any of the
Borrowers or the Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; PROVIDED that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from (i) the gross negligence, wilful
misconduct or bad faith of such Indemnitee or (ii) a dispute arising exclusively
between or among the Agents, the Lenders and/or the Issuing Banks.
(c) To the extent that the Borrowers fail to pay any amount required
to be paid by them to the Administrative Agent, any Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, (i) each Lender
severally agrees to pay to the Administrative Agent, such Lender's pro rata
share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount that is owing to the
Administrative Agent and (ii) each Revolving Lender severally agrees to pay to
such Issuing Bank or the Swingline Lender, as the case by be, such Revolving
Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount that
is owing to such Issuing Bank or the Swingline Lender, as the case may be;
PROVIDED, in each case, that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, such Issuing Bank or the Swingline
Lender in its capacity as such. For purposes of clause (i) above, a Lender's
"pro rata share" shall be determined based upon its share of the sum of the
total Revolving Exposures, outstanding Term Loans and unused Commitments at the
time. For purposes of clause (ii) above, a Revolving
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Lender's "pro rata share" shall be determined based upon its share of the sum of
the total Revolving Exposures and unused Revolving Commitments at the time.
(d) To the extent permitted by applicable law, none of the Holding
Companies, the Borrowers, the Agents, the Lenders or the Issuing Banks shall
assert, and each hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i)
neither Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by a Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Banks and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld or delayed) of:
(A) the applicable Borrower; PROVIDED that no consent of the Borrowers
shall be required for an assignment to a Lender, an Affiliate of a Lender,
an Approved Fund or, if an Event of Default has occurred and is continuing,
any other assignee; and
(B) the Administrative Agent; PROVIDED that no consent of the
Administrative Agent shall be required for an assignment of all or any
portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved
Fund; and
(C) each Issuing Bank; PROVIDED that no consent of any Issuing Bank
shall be required for an assignment of all or any portion of a Term Loan.
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(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender's Commitment or Loans of any Class, the
amount of the Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent)
shall not be less than $5,000,000 or, in the case of a Term Loan,
$1,000,000 unless the applicable Borrower and the Administrative Agent
otherwise consent; PROVIDED that no such consent of the Borrowers shall be
required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (B) shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or
Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 to be paid by the assignor or
assignee; PROVIDED that only one such fee shall be payable in connection
with simultaneous assignments to or by two or more related Approved Funds;
and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
For purposes of this Section 9.04(b), the term "Approved Fund" has the
following meaning:
"APPROVED FUND" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course and that is administered or managed
by, or has as its principal investment advisor, a Lender, an Affiliate of a
Lender or an entity or an Affiliate of an entity that administers or manages a
Lender or is the principal investment advisor of a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled
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to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section 9.04 shall be treated for purposes of this Agreement as
a sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be conclusive, and each of the Holding Companies, the
Borrowers, the Administrative Agent, the Issuing Banks and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the
Borrowers, any Issuing Bank and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrowers, the
Administrative Agent, the Issuing Banks or the Swingline Lender, sell
participations to one or more banks or other entities (a "PARTICIPANT") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
PROVIDED that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Holding Companies,
the Borrowers, the Administrative Agent, the Issuing Banks and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the Loan Documents and
to approve any amendment, modification or waiver of any provision of the Loan
Documents; PROVIDED that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the
Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its
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interest by assignment pursuant to paragraph (c)(ii) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the benefits
of Section 9.08 as though it were a Lender, provided such Participant agrees to
be subject to Section 2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
applicable Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.17 unless the applicable Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of such
Borrower, to comply with Section 2.17(e) as though it were a Lender.
(d) Any Lender may, without the consent of either Borrower or the
Administrative Agent, at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; PROVIDED that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, any Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the other
Loan Documents and any separate letter agreements with respect to fees payable
to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof
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and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become effective when it shall have been executed by
the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If (a) an Event of Default (other than
with respect to clause (a) or (b) of Article VII) shall have occurred and be
continuing and the Loans shall have been declared due and payable by the
Administrative Agent or (b) an Event of Default shall have occurred and be
continuing with respect to clause (a) or (b) of Article VII, each Lender and
each of its Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of either Borrower against any of and all the
obligations of the Borrowers now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. In
the event that any Lender or an Affiliate of a Lender exercises its rights under
this Section 9.08, such Lender shall promptly thereafter provide to each
Borrower notice thereof (it being understood that a Lender's failure to provide
such notice shall not affect its rights under this Section 9.08). The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of the Holding Companies and the Borrowers hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to
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the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, any Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against either Holding Company, either
Borrower or its properties in the courts of any jurisdiction.
(c) Each of the Holding Companies and the Borrowers hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in the first sentence of
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Administrative Agent, the
Issuing Banks and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other
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advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section,
to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (ii) any
pledgee referred to in Section 9.04(d) or (iii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
either of the Borrowers and their obligations, (g) with the consent of any of
the Holding Companies or the Borrowers or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent, any Issuing Bank or any
Lender on a nonconfidential basis from a source other than any of the Holding
Companies or the Borrowers. For the purposes of this Section, "INFORMATION"
means all information received from any of the Holding Companies or the
Borrowers relating to any of the Holding Companies or the Borrowers or their
business, other than any such information that is available to the
Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by any of the Holding Companies or the Borrowers. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "CHARGES"), shall exceed the
maximum lawful rate (the "MAXIMUM RATE") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. USA PATRIOT ACT. Each Lender hereby notifies each of the
Borrowers and the Holding Companies that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)),
(the "ACT"), it is required to obtain, verify and record information that
identifies each of the Borrowers and the Holding Companies, which information
includes the name and address
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of each of the Borrowers and the Holding Companies and other information that
will allow such Lender to identify each of the Borrowers and the Holding
Companies in accordance with the Act.
SECTION 9.15. SALE OF TIMBER BORROWER. (a) If all of the Equity
Interests of the Timber Borrower are sold in compliance with Section 6.05(c),
then, upon consummation of such sale, the Timber Borrower (and, upon
satisfaction of all payments required to be made hereunder as a result of such
sale, Timber Holdings) shall cease to be parties to this Agreement and shall be
released from their obligations hereunder and, subject to paragraph (b) below,
the provisions of this Agreement applicable to Timber Holdings, the Timber
Borrower and the Timber Subsidiaries shall cease to apply; PROVIDED that the
foregoing shall not be construed to relieve the BC Borrower and the BC
Subsidiaries from their Guarantees under the Collateral Agreement in respect of
any Obligations of the Timber Borrower that would have survived the termination
of this Agreement if Timber Holdings and the Timber Borrower had remained as
parties hereto and such release had not occurred.
(b) In connection with any such sale of the Equity Interests of the
Timber Borrower, BC Holdings, the BC Borrower and the Administrative Agent shall
enter into an amendment to (or amendment and restatement of) this Agreement in
order to reflect the elimination of the provisions of this Agreement applicable
to Timber Holdings, the Timber Borrower and the Timber Subsidiaries; PROVIDED
that no such amendment (or amendment and restatement) shall alter or amend in
any material way the covenants set forth in Sections 6.12, 6.13 and 6.14 without
the consent of the Required Lenders (it being understood that any change to the
numerical thresholds set forth in such covenants will be deemed to be material).
The Administrative Agent will furnish a draft of such amendment (or amendment
and restatement) to the Lenders not less than three Business Days prior to
execution and delivery thereof, and will furnish copies thereof to the Lenders
after execution and delivery thereof. Each Lender authorizes the Administrative
Agent to enter into such amendment (or amendment and restatement) and such
amendment (or amendment and restatement) shall be binding on all the parties
hereto and shall not require the consent or approval of any Lender.
113
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
BOISE CASCADE HOLDINGS, L.L.C.,
by /s/ Tom Carlile
-------------------------
Name: Tom Carlile
Title: Chief Financial Officer
Principal Place of Business:
1111 West Jefferson Street
Boise, ID 83728
TIN: 20-1478587
BOISE LAND & TIMBER HOLDINGS
CORP.,
by /s/ Tom Carlile
-------------------------
Name: Tom Carlile
Title: Chief Financial Officer
Principal Place of Business:
1111 West Jefferson Street
Boise, ID 83728
TIN: 20-1543041
BOISE CASCADE, L.L.C.,
by /s/ Tom Carlile
-------------------------
Name: Tom Carlile
Title: Chief Financial Officer
Principal Place of Business:
1111 West Jefferson Street
Boise, ID 83728
TIN: 20-1496201
114
BOISE LAND & TIMBER CORP.,
by /s/ Tom Carlile
-------------------------
Name: Tom Carlile
Title: Chief Financial Officer
Principal Place of Business:
1111 West Jefferson Street
Boise, ID 83728
TIN: 20-1481186
115
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by /s/ William J. Caggiano
-------------------------
Name: William J. Caggiano
Title: Managing Director
116
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution AgFirst FCB
-----------------------------------
by /s/ J. Michael Mancini, Jr.
--------------------------------
Name: J. Michael Mancini, Jr.
Title: Vice President
117
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Anchorage Crossover Credit Offshore
Master Fund, Ltd.
-----------------------------------
by /s/ Kevin Ulrich
--------------------------------
Name: Kevin Ulrich
Title: Director
118
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Bank of America, N.A.
-----------------------------------
by /s/ Thomas R. Sullivan
--------------------------------
Name: Thomas R. Sullivan
Title: Vice President
119
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Bank of Montreal
-----------------------------------
by /s/ Christine M. Jack
--------------------------------
Name: Christine M. Jack
Title: Vice President
120
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution CAJA MADRID
-----------------------------------
by /s/ Sergio Grasso
--------------------------------
Name: Sergio Grasso
Title:
by /s/ Maria Arenal
--------------------------------
Name: Maria Arenal
Primary Markets
121
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
CALYON NEW YORK BRANCH
/s/ James Gibson
--------------------------------
James Gibson
Managing Director
/s/ Rod Hurst
--------------------------------
Rod Hurst
Director
122
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution CAPITAL FARM CREDIT, FLCA
-----------------------------------
by /s/ Richard Gallagher
--------------------------------
Name: Richard Gallagher
Title: Senior Vice President
123
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
CoBANK, ACB
-----------------------------------
By: /s/ Michael Tousignant
--------------------------------
Name: Michael Tousignant
Title: Vice President
124
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Commerzbank AG, New York and
Grand Cayman Branches
By: /s/ Adam T. Strom
--------------------------------
Name: Adam T. Strom
Title: Vice President
By: /s/ Charles W. Polet
--------------------------------
Name: Charles W. Polet
Title: Assistant Treasurer
125
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
COOPERATIVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
INTERNATIONAL" NEW YORK BRANCH, as
Lender
By: /s/ John McHugh
--------------------------------
Name: John McHugh
--------------------------
Title: Executive Director
--------------------------
By: /s/ Rebecca O. Morrow
--------------------------------
Name: Rebecca O. Morrow
--------------------------
Title: Executive Director
--------------------------
126
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Credit Industriel et Commercial
--------------------------------------------
by: /s/ Brian O'Leary /s/ Sean Mounier
-------------------------------------------
Name: Brian O'Leary Sean Mounier
Title: Vice President First Vice President
127
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Deutsche Bank AG Cayman Islands
-----------------------------------
by /s/ Mary Kay Coyle
--------------------------------
Name: Mary Kay Coyle
Title: Managing Director
128
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
ERSTE BANK,
by /s/ Brandon A. Meyerson
--------------------------------
Name: Brandon A. Meyerson
Title: Vice President
Erste Bank New York Branch
by /s/ Bryan J. Lynch
--------------------------------
Name: Bryan J. Lynch
Title: First Vice President
129
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution FARM CREDIT BANK OF TEXAS
by: /s/ Eric J. Paul
--------------------------------
Name: Eric J. Paul
Title: Vice President
130
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Feingold Okeeffe Master Fund, LTD.
----------------------------------
by: /s/ Andrea S. Feingold
--------------------------------
Name: Andrea S. Feingold
Title: Director
131
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution General Electric Capital Corporation
------------------------------------
by: /s/ Brian Schwinn
--------------------------------
Name: Brian Schwinn
Title: Duly Authorized Signatory
132
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Goldman Sachs Credit Partners L.P.
------------------------------------
by: /s/ William W. Archer
--------------------------------
Name: William W. Archer
Title: Managing Director
133
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution IKB Capital Corporation
------------------------------------
by: /s/ David Snyder
--------------------------------
Name: David Snyder
Title: President
IKB Capital Corporation
134
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution KZH CYPRESSTREE-1 LLC
------------------------------------
by: /s/ Hi Hua
--------------------------------
Name: Hi Hua
Title: Authorized Agent
135
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution KZH PONDVIEW LLC
------------------------------------
by: /s/ Hi Hua
--------------------------------
Name: Hi Hua
Title: Authorized Agent
136
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution KZH SOLEIL LLC
------------------------------------
by: /s/ Hi Hua
--------------------------------
Name: Hi Hua
Title: Authorized Agent
137
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution KZH SOLEIL-2 LLC
------------------------------------
by: /s/ Hi Hua
--------------------------------
Name: Hi Hua
Title: Authorized Agent
138
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution KZH STERLING LLC
------------------------------------
by: /s/ Hi Hua
--------------------------------
Name: Hi Hua
Title: Authorized Agent
139
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Lehman Commercial Paper Inc.
------------------------------------
by: /s/ William J. Hughes
--------------------------------
Name: William J. Hughes
Title: Managing Director
140
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Metropolitan Life Insurance Company
------------------------------------
by: /s/ James R. Dingler
--------------------------------
Name: James R. Dingler
Title: Director
141
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Mizuho Corporate Bank, Ltd.
------------------------------------
by: /s/ James R. Fayen
--------------------------------
Name: James R. Fayen
Title: Senior Vice President
142
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution NATEXIS BANQUES POPULAIRES
-------------------------------------
by: /s/ Frank H. Madden, Jr.
------------------------------------
Name: Frank H. Madden, Jr.
Title: Vice President & Group Manager
by: /s/ Jordan H. Levy
------------------------------------
Name: Jordan H. Levy
Title: Assistant Vice President
143
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution NATIONAL CITY BANK
-------------------------------------
by: /s/ Tony J. Daher
------------------------------------
Name: Tony J. Daher
Title: Vice President
144
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution North Fork Business Capital Corp.
-------------------------------------
by: /s/ Steve Goetschiles
------------------------------------
Name: Steve Goetschiles
Title: SVP
145
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution PB Capital
-------------------------------------
by: /s/ Andrew L. Shipman
------------------------------------
Name: Andrew L. Shipman
Title: Vice President
by: /s/ Tyler J. McCarthy
------------------------------------
Name: Tyler J. McCarthy
Title: Vice President
146
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution PPM MONARCH BAY FUNDING LLC
-------------------------------------
by: /s/ Diana M. Himes
------------------------------------
Name: Diana M. Himes
Title: Assistant Vice President
147
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution PPM SHADOW CREEK FUNDING LLC
-------------------------------------
by: /s/ Diana M. Himes
------------------------------------
Name: Diana M. Himes
Title: Assistant Vice President
148
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution PPM SPYGLASS FUNDING LLC
-------------------------------------
by: /s/ Diana M. Himes
------------------------------------
Name: Diana M. Himes
Title: Authorized Agent
149
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Protective Life Insurance Company
-------------------------------------
by: /s/ Lance P. Black
------------------------------------
Name: Lance P. Black
Title: VP
150
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution SunTrust Bank
-------------------------------------
by: /s/ Kelly Gunter
------------------------------------
Name: Kelly Gunter
Title: Vice President
151
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution TORONTO DOMINION (TEXAS), INC.
-------------------------------------
by: /s/ Neva Nesbitt
------------------------------------
Name: Neva Nesbitt
Title: Vice President
152
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution Banking Products Services, US
-------------------------------------
by: /s/ Pamela Oh
------------------------------------
Name: Pamela Oh
Title: Associate Director
Banking Products Services, US
by: /s/ Janice L. Randolph
------------------------------------
Name: Janice L. Randolph
Title: Associate Director
Banking Products Services, US
153
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution U.S. Bank National Association
-------------------------------------
by: /s/ James W. Henken
------------------------------------
Name: James W. Henken
Title: Vice President
154
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution WACHOVIA BANK NATIONAL ASSOCIATION
-------------------------------------
by: /s/ Andrew G. Payne
------------------------------------
Name: Andrew G. Payne
Title: Director
155
SIGNATURE PAGE TO BOISE
CASCADE CREDIT AGREEMENT
DATED AS OF OCTOBER 29, 2004
Name of Institution WELLS FARGO BANK,
NATIONAL ASSOCIATION
by: /s/ Reginald M. Goldsmith, III
------------------------------------
Name: Reginald M. Goldsmith, III
Title: Vice President
Dates Referenced Herein and Documents Incorporated by Reference
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