Exhibit 10.5
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment"),
dated as of March 15, 2001, is entered into by and among GEORGIA-
PACIFIC CORPORATION, a Georgia corporation (the "Company"), BANK
OF AMERICA, N.A., as administrative agent for itself and the
Lenders (the "Agent"), and the several financial institutions
parties to the Credit Agreement (collectively, the "Lenders")
signatory hereto.
RECITALS
A. The Company, Lenders, and Agent are parties to a Credit
Agreement (Capital Markets Bridge Facility) dated as of November
3, 2000 (the "Credit Agreement") pursuant to which the Agent and
the Lenders have extended certain credit facilities to the
Company.
B. The Company has requested that the Lenders agree to certain
amendments of the Credit Agreement.
C. The Lenders are willing to amend the Credit Agreement,
subject to the terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings, if any, assigned to
them in the Credit Agreement.
2. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement shall be amended by
deleting clause (a) of the definition of "Indebtedness for
Borrowed Money" therein and replacing such clause with the
following:
(a) all indebtedness of such Person for borrowed
money, excluding the Company's Premium Equity Participating
Security Units, whether or not treated as indebtedness under
GAAP;
(b) Section 2.07 of the Credit Agreement shall be amended by
adding the following sentence at the end of clause (c) thereof:
"Notwithstanding anything herein to the contrary, from the
Effective Date under and as defined in the First Amendment to
this Agreement through the date (which date shall in no event be
earlier than October 1, 2001) on which the Company notifies the
Agent in writing that it desires to exercise its Leverage Ratio
Replacement Option as set forth in Section 8.08 hereof, each of
the percentages as would apply pursuant to clauses (a) and (b)
above and this clause (c) as the Applicable Margin for Reference
Rate Loans and Offshore Rate Loans shall be increased by 0.25%.
For avoidance of doubt, in the event that the Company exercises
its Leverage Ratio Replacement Option, the 0.25% increase in the
Applicable Margin referenced in the preceding sentence shall
cease to apply as of the day after the Company makes such
exercise.
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(c) The Credit Agreement shall be amended by deleting Section
8.08 thereof in its entirety and replacing such Section with the
following:
8.08 Leverage Ratio.
(a) The Company shall not permit the ratio of (a)
Funded Indebtedness on the last day of any fiscal quarter to
(b) EBITDA for the Measurement Period ending on such date to
be greater than the respective ratios set forth below for
the respective fiscal quarters ending on the dates set forth
below:
Fiscal Quarter End Dates Ratio
March 31, 2001 4.50 to 1.00
June 30, 2001 4.75 to 1.00
September 29, 2001 and 4.50 to 1.00
December 29, 2001
March 30, 2002 and thereafter 4.25 to 1.00
(b) The Company shall not permit the ratio of
(a) Funded Indebtedness on the last day of any fiscal
quarter ending after the Company exercises its Leverage
Ratio Replacement Option to (b) EBITDA for the Measurement
Period ending on such date to be greater than 4.00 to 1.00.
(c) The Company may irrevocably elect to exercise the
option referenced in this Section 8.08 (the "Leverage Ratio
Replacement Option") on any date on or after October 1,
2001, by delivery of written notice to the Agent.
(d) The Credit Agreement shall be amended by deleting clause (b)
of Section 3.01 and replacing such clause with the following:
(b) The Company agrees to pay to each Lender for its
own account an upfront fee (i) on the date which is the
earlier of the Closing Date or November 30, 2000 in an
amount equal to such Lender's Commitment multiplied by
0.20%, (ii) on the date which is 180 days after the Closing
Date in an amount equal to such Lender's Commitment
(regardless of utilization) multiplied by 0.30%, (iii) on
the date which is 180 days after the Closing Date in an
amount equal to such Lender's Pro Rata Share of (x) the
Effective Amount of the aggregate Loans held by all Lenders
minus (y) $1,000,000,000 multiplied by 0.25%, and (iv) if
the Company shall not have exercised the Leverage Ratio
Replacement Option prior to November 28, 2001, on November
28, 2001, in an amount equal to such Lender's Loans
multiplied by 0.25%.
3. Representations and Warranties. The Company hereby
represents and warrants as follows:
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(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the Company of
this Amendment (and the execution, delivery and performance by
each of the Principal Subsidiaries party to the Consent described
below of the Consent) have been duly authorized by all necessary
corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or action
by, any Person (including any governmental agency) in order to be
effective and enforceable. The Credit Agreement as amended by
this Amendment constitutes the legal, valid and binding
obligations of the Company, enforceable against it in accordance
with its respective terms, without defense, counterclaim or
offset, and the Consent constitutes the legal, valid and binding
obligations of the Principal Subsidiaries party thereto,
enforceable against such Person it in accordance with its
respective terms, without defense, counterclaim or offset.
(c) All representations and warranties of the Company contained
in the Credit Agreement are true and correct.
(d) The Company is entering into this Amendment on the basis of
its own investigation and for its own reasons, without reliance
upon the Agent and the Lenders or any other person.
4. Effective Date. This Amendment will become effective on
March 15, 2001 (the "Effective Date") provided that each of the
following conditions precedent has been satisfied:
(a) The Agent has received from the Company and the Required
Lenders a duly executed original or facsimile counterpart of this
Amendment, together with a duly executed original or facsimile
counterpart of the Guarantor Acknowledgment and Consent in the
form attached hereto (the "Consent") (any such facsimiles to be
promptly followed by the originals thereof).
(b) All representations and warranties contained herein are
true and correct as of the Effective Date.
(c) The Company shall have paid to the Agent, for the account
of each Lender that has executed a counterpart of this Amendment and
delivered (by hard copy or facsimile) the same to the Agent or
its counsel by 5:00 p.m. (San Francisco time) the Business Day
before the Effective Date, a nonrefundable amendment fee in an
amount equal to such Lender's Commitment multiplied by 0.125%;
which amounts the Company hereby covenants to pay to the Agent
for the account of such Lenders on demand.
5. Reservation of Rights. The Company acknowledges and agrees
that the execution and delivery by the Agent and the Lenders of
this Amendment shall not be deemed to create a course of dealing
or otherwise obligate the Agent or the
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Lenders to forbear or execute similar agreements under the same
or similar circumstances in the future.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full
force and effect and all references therein to such Credit
Agreement shall henceforth refer to the Credit Agreement as
amended by this Amendment. This Amendment shall be deemed
incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective
successors and assigns. No third party beneficiaries are
intended in connection with this Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of New York.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all
such counterparts together shall constitute but one and the same
instrument.
(e) This Amendment, together with the Credit Agreement,
contains the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein and therein. This
Amendment supersedes all prior drafts and communications with
respect thereto. This Amendment may not be amended except in
accordance with the provisions of Section 11.02 of the Credit
Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision
shall be invalidated without affecting the remaining provisions
of this Amendment or the Credit Agreement, respectively.
(g) Company confirms its obligations under Section 11.04(a) of
the Credit Agreement to reimburse the Agent for all costs and
expenses including reasonable attorneys' fees and expenses
incurred by the Agent in connection with this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed
and delivered this Amendment as of the date first above written.
GEORGIA-PACIFIC CORPORATION
By: /s/ Phillip M. Johnson
Name: Phillip M. Johnson
Title: Vice President and Treasurer
BANK OF AMERICA, N.A.,
as Agent and as Lender
By: /s/ Michael Balok
Name: Michael Balok
Title: Managing Director
MERRILL LYNCH CAPITAL CORP,
as Co-Syndication Agent and as Lender
By: /s/ Carol J. E. Feeley
Name: Carol J. E. Feeley
Title: Vice President
MORGAN STANLEY SENIOR
FUNDING, INC.
as Co-Syndication Agent and as Lender
By: /s/ T. Morgan Edwards II
Name: T. Morgan Edwards II
Title: Vice President
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GUARANTOR ACKNOWLEDGMENT
AND CONSENT
The undersigned, each a guarantor or third party pledgor
with respect to the Company's obligations to the Agent and the
Lenders under the Credit Agreement, each hereby (i) acknowledge
and consent to the execution, delivery and performance by Company
of the foregoing First Amendment to Credit Agreement
("Amendment"), and (ii) reaffirm and agree that the respective
guaranty, third party pledge or security agreement to which the
undersigned is party and all other documents and agreements
executed and delivered by the undersigned to the Agent and the
Lenders in connection with the Credit Agreement are in full force
and effect, without defense, offset or counterclaim. (Capitalized
terms used herein have the meanings specified in the Amendment.)
UNISOURCE WORLDWIDE, INC.
By: /s/ Phillip M. Johnson
Dated: March 15, 2001 Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30348-5605
Attn: Treasurer's Department
Facsimile: 404-230-5598
GREAT NORTHERN NEKOOSA
CORPORATION
By: /s/ Phillip M. Johnson
Dated: March 15, 2001 Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30348-5605
Attn: Treasurer's Department
Facsimile: 404-230-5598
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BRUNSWICK PULP & PAPER
COMPANY
By: /s/ Phillip M. Johnson
Dated: March 15, 2001 Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30348-5605
Attn: Treasurer's Department
Facsimile: 404-230-5598
GEORGIA-PACIFIC WEST, INC.
By: /s/ Phillip M. Johnson
Dated: March 15, 2001 Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30348-5605
Attn: Treasurer's Department
Facsimile: 404-230-5598
G-P GYPSUM CORPORATION
By: /s/ Phillip M. Johnson
Dated: March 15, 2001 Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30348-5605
Attn: Treasurer's Department
Facsimile: 404-230-5598
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LEAF RIVER FOREST PRODUCTS, INC.
By: /s/ Phillip M. Johnson
Dated: March 15, 2001 Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30348-5605
Attn: Treasurer's Department
Facsimile: 404-230-5598
NEKOOSA PACKAGING CORPORATION
By: /s/ Phillip M. Johnson
Dated: March 15, 2001 Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30348-5605
Attn: Treasurer's Department
Facsimile: 404-230-5598
NEKOOSA PAPERS INC.
By: /s/ Phillip M. Johnson
Dated: March 15, 2001 Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30348-5605
Attn: Treasurer's Department
Facsimile: 404-230-5598
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FORT JAMES CORPORATION
By: /s/ Phillip M. Johnson
Dated: March 15, 2001 Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30348-5605
Attn: Treasurer's Department
Facsimile: 404-230-5598
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