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EXHIBIT 10.A.1
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AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of November 15, 1994
among
PLUM CREEK TIMBER COMPANY, L.P.
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Agent
ABN AMRO BANK, N.V.,
as Co-Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY THERETO
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Other Interpretive Provisions . . . . . . . . . . . . . . . . . . . . . . . 37
1.03 Accounting Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE II THE CREDITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.01 Amounts and Terms of Commitments . . . . . . . . . . . . . . . . . . . . . 38
2.02 Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2.03 Procedure for Committed Borrowing . . . . . . . . . . . . . . . . . . . . . 39
2.04 Conversion and Continuation Elections for Committed Borrowings . . . . . . 41
2.05 Bid Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.06 Procedure for Bid Borrowings . . . . . . . . . . . . . . . . . . . . . . . 43
2.07 Voluntary Termination or Reduction of Commitments . . . . . . . . . . . . . 48
2.08 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
2.09 Mandatory Prepayments of Loans; Mandatory Commitment Reductions . . . . . . 49
2.10 Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
2.11 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
2.12 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
2.13 Computation of Fees and Interest . . . . . . . . . . . . . . . . . . . . . 53
2.14 Payments by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . 53
2.15 Payments by the Banks to the Agent . . . . . . . . . . . . . . . . . . . . 54
2.16 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 55
2.17 Effect of Limitations in Facility B Credit Agreement . . . . . . . . . . . . 56
ARTICLE III THE LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
3.01 The Letter of Credit Facility . . . . . . . . . . . . . . . . . . . . . . . 56
3.02 Issuance, Amendment and Renewal of Letters of Credit . . . . . . . . . . . 58
3.03 Existing ABN Letters of Credit; Risk Participations, Drawings and
Reimbursements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
3.04 Repayment of Participations . . . . . . . . . . . . . . . . . . . . . . . . 64
3.05 Role of the Issuing Bank . . . . . . . . . . . . . . . . . . . . . . . . . 64
3.06 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
3.07 Cash Collateral Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . 67
3.08 Letter of Credit Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
3.09 Uniform Customs and Practice . . . . . . . . . . . . . . . . . . . . . . . 68
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ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY . . . . . . . . . . . . . . . . . . 68
4.01 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
4.02 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
4.03 Increased Costs and Reduction of Return . . . . . . . . . . . . . . . . . . 72
4.04 Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
4.05 Inability to Determine Rates . . . . . . . . . . . . . . . . . . . . . . . 74
4.06 Certificate of Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
4.07 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE V CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
5.01 Conditions of Initial Credit Extensions . . . . . . . . . . . . . . . . . . 75
5.02 Conditions to All Credit Extensions . . . . . . . . . . . . . . . . . . . . 78
ARTICLE VI REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . 79
6.01 Corporate Existence and Power . . . . . . . . . . . . . . . . . . . . . . . 79
6.02 Authorization; No Contravention . . . . . . . . . . . . . . . . . . . . . . 79
6.03 Governmental Authorization . . . . . . . . . . . . . . . . . . . . . . . . 80
6.04 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
6.05 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
6.06 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
6.07 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
6.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . . . . . . . 83
6.09 Title to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
6.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
6.11 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
6.12 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
6.13 Regulated Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
6.14 No Burdensome Restrictions . . . . . . . . . . . . . . . . . . . . . . . . 85
6.15 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
6.16 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
6.17 Copyrights, Patents, Trademarks and Licenses, Etc. . . . . . . . . . . . . 85
6.18 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
6.19 Partnership Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
6.20 Broker's, Transaction Fees . . . . . . . . . . . . . . . . . . . . . . . . 86
6.21 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
6.22 Timber Harvest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
6.23 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
ARTICLE VII AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
7.01 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
7.02 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . . . 88
7.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
7.04 Preservation of Corporate Existence, Etc. . . . . . . . . . . . . . . . . . 91
7.05 Maintenance of Property . . . . . . . . . . . . . . . . . . . . . . . . . . 92
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7.06 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
7.07 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 92
7.08 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
7.09 Inspection of Property and Books and Records . . . . . . . . . . . . . . . 93
7.10 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
7.11 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
7.12 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
ARTICLE VIII NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
8.01 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
8.02 Merger; Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . 96
8.03 Harvesting Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . 99
8.04 Loans and Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
8.05 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 101
8.06 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . 104
8.07 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
8.08 Sale of Stock and Indebtedness of Subsidiaries . . . . . . . . . . . . . . 105
8.09 Certain Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
8.10 Joint Ventures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
8.11 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
8.12 Sale and Leaseback . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
8.13 Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
8.14 Change in Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
8.15 Issuance of Stock by Subsidiaries . . . . . . . . . . . . . . . . . . . . . 109
8.16 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
8.17 Available Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
ARTICLE IX EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
9.01 Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
9.02 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
9.03 Rights Not Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
ARTICLE X THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
10.01 Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . 114
10.02 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
10.03 Liability of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
10.04 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
10.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
10.06 Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
10.07 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
10.08 Agent in Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . 119
10.09 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
10.10 Co-Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
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ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
11.01 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . 120
11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
11.03 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . 122
11.04 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
11.05 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
11.06 Marshalling; Payments Set Aside . . . . . . . . . . . . . . . . . . . . . . 124
11.07 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . 124
11.08 Assignments, Participations, Etc. . . . . . . . . . . . . . . . . . . . . . 124
11.09 Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
11.10 Automatic Debits of Fees . . . . . . . . . . . . . . . . . . . . . . . . . 128
11.11 Notification of Addresses, Lending Offices, Etc. . . . . . . . . . . . . . 128
11.12 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
11.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
11.14 No Third Parties Benefited . . . . . . . . . . . . . . . . . . . . . . . . 129
11.15 Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
11.16 Governing Law and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . 129
11.17 Arbitration; Reference . . . . . . . . . . . . . . . . . . . . . . . . . . 129
11.18 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
SCHEDULES
Schedule 1.01 Corporate Investment Policy
Schedule 2.01 Commitments
Schedule 3.03 Existing ABN Letters of Credit
Schedule 6.05 Litigation
Schedule 6.07 ERISA
Schedule 6.12 Environmental Matters
Schedule 6.18 Subsidiaries and Equity Investments
Schedule 8.01 Permitted Liens
Schedule 8.04 Permitted Investments
EXHIBITS
Exhibit A Notice of Borrowing
Exhibit B Notice of Conversion/Continuation
Exhibit C-1 Legal Opinion of Counsel for the Company
Exhibit C-2 Legal Opinion of Perkins Coie
Exhibit D Compliance Certificate
Exhibit E Form of Cash Collateral Account Agreement
Exhibit F Form of Assignment and Acceptance
Exhibit G Competitive Bid Request
Exhibit H Invitation for Competitive Bid
Exhibit I Competitive Bid
Exhibit J Consent to Amendment and Restatement
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AMENDED AND RESTATED
CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as
of November 15, 1994, among Plum Creek Timber Company, L.P., a Delaware limited
partnership (the "Company"), the several financial institutions from time to
time party to this Agreement (collectively, the "Banks"; individually, a
"Bank"), ABN AMRO Bank N.V., as a letter of credit issuing bank and as co-agent
for the Banks, and Bank of America National Trust and Savings Association, as a
letter of credit issuing bank and as agent for the Banks.
WHEREAS, the Company, certain of the Banks and BofA as agent
for those Banks entered into a Credit Agreement dated as of October 28, 1993
(the "Original Credit Agreement");
WHEREAS, the Banks have agreed to make available to the
Company a revolving credit facility with a letter of credit subfacility upon
the terms and conditions set forth in this Agreement to refinance indebtedness
outstanding under the Original Credit Agreement and certain other existing
indebtedness and to use for general corporate purposes;
WHEREAS, to give effect to the foregoing, the Company, the
Banks, the Co-Agent and the Agent desire to enter into this Agreement to amend
and restate the Original Credit Agreement;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties hereby amend and restate
the Original Credit Agreement in its entirety as follows:
ARTICLE I
DEFINITIONS
1.01 Defined Terms. In addition to the terms defined elsewhere in
this Agreement, the following terms have the following meanings:
"ABN" means ABN AMRO Bank N.V., a bank organized under the laws of The
Netherlands.
"Absolute Rate" has the meaning specified in subsection 2.06(c).
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"Absolute Rate Auction" means a solicitation of Competitive Bids
setting forth Absolute Rates pursuant to Section 2.06.
"Absolute Rate Bid Loan" means a Bid Loan that bears interest at a
rate determined with reference to the Absolute Rate.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract or otherwise. Without
limitation, any director, executive officer or beneficial owner of 5% or more
of the equity of a Person shall for the purposes of this Agreement, be deemed
to control the other Person. Notwithstanding the foregoing, no Bank shall be
deemed an "Affiliate" of the Company or of any Subsidiary of the Company.
"Agent" means BofA in its capacity as agent for the Banks hereunder,
and any successor agent.
"Agent's Payment Office" means the address for payments set forth on
the signature page hereto in relation to the Agent or such other address as the
Agent may from time to time specify in accordance with Section 11.02.
"Agent-Related Persons" means BofA, the Arranger, BofA as agent under
the Original Credit Agreement, and any successor agent arising under Section
10.09 and any successor to BofA as a letter of credit issuing bank hereunder,
together with their respective Affiliates, and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitment" means the combined Commitments of the Banks, in
the initial amount of one hundred million dollars ($100,000,000), as such
amount may be reduced from time to time pursuant to this Agreement.
"Agreement" means this Amended and Restated Credit Agreement, as
amended from time to time in accordance with the terms hereof.
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"Applicable Margin" means, in respect of all Committed Loans
outstanding on any date (A) for the period from the Closing Date through
December 31, 1994, 0.5000% for Offshore Rate Committed Loans, 0.6250% for CD
Rate Committed Loans and 0.0000% for Base Rate Committed Loans, and (B) from
January 1, 1995, the percentage specified below opposite the Fixed Charge
Coverage Ratio (which ratio shall be calculated for the relevant four fiscal
quarter period) calculated for the periods described below.
Fixed Charge Coverage Ratio
at End of Fiscal Quarter Applicable Margin
- --------------------------- -----------------
Offshore CD Base
Rate Rate Rate
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Greater than or equal to
3:25 to 1:00 0 .4375% 0 .5625% 0 .0000%
Less than 3:25 to 1:00 but
greater than or equal
to 2:75 to 1:00 0 .5000% 0 .6250% 0 .0000%
Less than 2:75 to 1:00 but
greater than or equal to
2:00 to 1:00 0 .6250% 0 .7500% 0 .0000%
Less than 2:00 to 1:00 0 .8750% 1 .0000% 0 .0000%
The Applicable Margin for each fiscal quarter commencing on and after
January 1, 1995 shall be calculated in reliance on the financial
reports delivered pursuant to subsection 7.01(c) and the certificate
delivered pursuant to subsection 7.02(b) with respect to the fiscal
quarter ending one fiscal quarter before the fiscal quarter in
question (e.g., June 30 financials determine the Applicable Margin for
the fiscal quarter beginning October 1). If the Company fails to
deliver such financial reports and certificate to the Agent for any
fiscal quarter by the beginning of the next succeeding fiscal quarter
(e.g., by October 1 for the fiscal quarter ending June 30), then the
Applicable Margin for the following fiscal quarter (e.g., October 1
through December 31) shall equal the next higher Applicable Margin as
set forth in the chart above immediately below the previously
effective Applicable Margin; thus if the Applicable Margin had
previously been 0.5000% for Offshore Rate Committed Loans, 0.6250% for
CD Rate Committed Loans and 0.0000% for Base Rate Committed Loans, a
failure to deliver quarterly
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financials by the first day of the next fiscal quarter would cause the
Applicable Margin to be 0.6250%, 0.7500% and 0.0000%, respectively,
for the duration of that quarter. In addition, if such financial
reports and certificate when delivered indicate that the Applicable
Margin for such period should have been higher than the Applicable
Margin provided for in the previous sentence, then the Company shall
pay on the date of delivery of such financial reports and certificate
an amount equal to the positive difference, if any, between the
interest that the Company should have paid hereunder had the financial
reports and certificate been delivered on a timely basis over what the
Company actually paid. The Applicable Margin shall be adjusted
automatically as to all Committed Loans then outstanding (without
regard to the timing of Interest Periods) as of the effective date of
any change in the Applicable Margin.
"Arranger" means BA Securities, Inc., a Delaware corporation.
"Assignee" has the meaning specified in subsection 11.08(a).
"Assignment and Acceptance" has the meaning specified in subsection
11.08(a).
"Attorney Costs" means and includes all fees and disbursements of any
law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"Available Cash" means, with respect to any calendar quarter, (i) the
sum of:
(a) the Company's net income (or net loss) (excluding gain on the
sale of any Capital Asset) for such quarter,
(b) the amount of depletion, depreciation, amortization and other
noncash charges utilized in determining net income of the Company for such
quarter,
(c) the amount of any reduction in reserves of the Company of the
types referred to in clause (ii)(d) below,
(d) proceeds received by the Company from the sale of Designated
Acres, and
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(e) any Cash from Capital Transactions received by the Company
during such quarter in specific contemplation that such Cash from Capital
Transactions will be used to refund or refinance any payment of Indebtedness of
the type specified in clause (ii)(a) below which was made in either of the two
immediately preceding quarters,
less (ii) the sum of:
(a) all payments of principal on Indebtedness made by the Company
in such quarter (excluding any payments of principal on Indebtedness made with
Cash from Capital Transactions received by the Company during such quarter or,
to the extent such Cash from Capital Transactions remains available, received
by the Company during the four immediately preceding quarters),
(b) capital expenditures made by the Company during such quarter
(excluding any capital expenditures for such quarter made with Cash from
Capital Transactions received by the Company during such quarter or, to the
extent such Cash from Capital Transactions remains available, received by the
Company during the four immediately preceding quarters, and capital
expenditures which the General Partner reasonably anticipates will be financed
with Cash from Capital Transactions within 90 days from the end of such
quarter),
(c) the amount of any capital expenditures made by the Company in
a prior quarter which was anticipated would be financed from Cash from Capital
Transactions but which have not been financed from such source within 90 days
from the end of such quarter,
(d) the amount of any reserves of the Company established during
such quarter which are necessary or appropriate (1) to provide funds for the
future payment of items of the types specified in clauses (ii)(a) and (ii)(b)
above, (2) to provide additional working capital, (3) to provide funds for cash
distributions with respect to any one or more of the next four quarters, or (4)
to provide funds for the future payment of interest in an amount equal to the
interest to be accrued in the next quarter,
(e) the amount of any noncash items of income utilized in
determining net income of the Company for such quarter,
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(f) the amount of any Investments (other than guarantees,
contingent liabilities or endorsements, except to the extent payments are
actually made under such guarantees, contingent liabilities or endorsements)
made by the Company during such quarter pursuant to subsections 8.04(a), (h) or
(i) (or in the case of any Subsidiary, Investments (other than guarantees,
contingent liabilities or endorsements, except to the extent payments are
actually made under such guarantees, contingent liabilities or endorsements) of
similar type) to the extent not included in capital expenditures or payments on
principal on Indebtedness made by the Company during such quarter (excluding
any such Investments for such quarter made with Cash from Capital Transactions
received by the Company during such quarter or, to the extent such Cash from
Capital Transactions remains available, received by the Company during the four
immediately preceding quarters, and Investments which the General Partner
reasonably anticipates will be financed with Cash from Capital Transactions
within 90 days from the end of such quarter), and
(g) the amount of any Investments (other than guarantees,
contingent liabilities or endorsements, except to the extent payments are
actually made under such guarantees, contingent liabilities or endorsements)
made by the Company in a prior quarter pursuant to subsections 8.04(a), (h) or
(i) (or in the case of any Subsidiary, Investments (other than guarantees,
contingent liabilities or endorsements, except to the extent payments are
actually made under such guarantees, contingent liabilities or endorsements) of
similar type) to the extent not included in capital expenditures made by the
Company during such quarter which was anticipated would be financed from Cash
from Capital Transactions but which have not been financed from such source
within 90 days from the end of such quarter.
Notwithstanding the foregoing, "Available Cash" shall not take into
account any reductions in reserves or disbursements made or reserves
established after commencement of the dissolution and liquidation of the
Company. In determining "Available Cash", (i) all items under clauses (i)(a),
(b), (c), (d) and (e) above and all items under clauses (ii)(a), (b), (c), (d),
(e), (f) and (g) above shall be calculated on a combined basis with any
Subsidiary of the Company whose income is accounted for on a consolidated or
combined basis with the Company and, in accordance therewith, "Available Cash"
shall include a percentage of each such item of each such Subsidiary equal to
the Company's percentage
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ownership interest in such Subsidiary, provided, however, that the items under
clauses (i)(a), (b), (c), (d) and (e) above shall only be included in Available
Cash to the extent that the General Partner determines such amount to be
legally available for dividends or distributions to the Company by such
Subsidiary; (ii) the amount of net income and the amount of depletion,
depreciation, amortization and other noncash charges utilized in determining
net income shall be determined, with respect to the Company, by the General
Partner in accordance with generally accepted accounting principals and, with
respect to any Subsidiary, by its Board of Directors (or by such other body or
person which has the ultimate management authority of such Subsidiary) in
accordance with generally accepted accounting principles; (iii) the net income
of any Subsidiary shall be determined on an after-tax basis; (iv) the amount of
any reductions in, or additions to, reserves for purposes of clauses (i)(c) and
(ii)(d) above shall be determined, with respect to the Company, by the General
Partner in its reasonable good faith judgment and, with respect to any
Subsidiary, by its Board of Directors (or by such other body or person which
has the ultimate management authority of such Subsidiary) in its reasonable
good faith judgment; and (v) any determination of whether any capital
expenditures or Investments are financed, or anticipated to be financed, with
Cash from Capital Transactions for purposes of clause (ii)(b) or (ii)(f) above
shall be made, with respect to the Company, by the General Partner in its
reasonable good faith judgment and, with respect to any Subsidiary, by its
Board of Directors (or by such other body or person which has the ultimate
management authority of such Subsidiary) in its reasonable good faith judgment.
"Bank" has the meaning specified in the introductory clause hereto.
References to the "Banks" shall include BofA and ABN, including in their
capacity as an Issuing Bank; for purposes of clarification only, to the extent
that BofA or ABN may have any rights or obligations in addition to those of the
Banks due to its status as an Issuing Bank, its status as such will be
specifically referenced.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of:
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13
(a) the rate of interest in effect for such day as publicly
announced from time to time by BofA in San Francisco, California, as
its "reference rate." It is a rate set by BofA based upon various
factors including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate; and
(b) 0.50% per annum above the latest Federal Funds Rate.
Any change in the reference rate announced by BofA shall take effect
at the opening of business on the day specified in the public announcement of
such change.
"Base Rate Committed Loan" means a Committed Loan or an L/C Advance
that bears interest based on the Base Rate.
"Bid Borrowing" means a Borrowing hereunder consisting of one or more
Bid Loans made to the Company on the same day by one or more Banks.
"Bid Loan" means a Loan by a Bank to the Company under Section 2.05,
which may be a LIBOR Bid Loan or an Absolute Rate Bid Loan.
"Bid Loan Lender" means, in respect of any Bid Loan, the Bank making
such Bid Loan to the Company.
"BofA" means Bank of America National Trust and Savings Association, a
national banking association.
"Board Foot" means a unit of measurement one foot square and one inch
thick.
"Borrowing" means a borrowing hereunder consisting of Loans of the
same Type made to the Company on the same day by the Banks pursuant to Article
II, and may be a Committed Borrowing or a Bid Borrowing and, other than in the
case of Base Rate Committed Loans, having the same Interest Period.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or San Francisco are authorized
or required by law to close and, if the applicable Business Day relates to any
Offshore Rate Loan, means such a day on which
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dealings are carried on in the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the force of law, in each case,
regarding capital adequacy of any bank or of any corporation controlling a
bank.
"Capital Asset" means any asset on the Company's or any Subsidiary's
balance sheet, as the case may be, other than inventory, accounts receivable or
any other current asset and assets disposed of in connection with normal
retirements or replacements.
"Capital Lease" has the meaning specified in the definition of
"Capital Lease Obligations."
"Capital Lease Obligations" means all monetary obligations of the
Company or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, is classified as a capital lease ("Capital
Lease").
"Capital Transaction" means (i) borrowings and sales of debt
securities (other than for working capital purposes and other than for items
purchased on open account in the ordinary course of business) by the Company,
(ii) sales of equity interests by the Company and (iii) sales or other
voluntary or involuntary dispositions of any assets of the Company (other than
(x) sales or other dispositions of inventory in the ordinary course of
business, (y) sales or other dispositions of other current assets including
receivables and accounts and (z) sales or other dispositions of assets as a
part of normal retirements or replacements), in each case prior to the
commencement of the dissolution and liquidation of the Company provided, that
in determining Cash from Capital Transactions, items (i), (ii) and (iii) above
shall include, with respect to each Subsidiary of the Company whose income is
accounted for on a consolidated or combined basis with the Company, a
percentage of each such item of such Subsidiary equal to the Company's
percentage ownership interest in such Subsidiary.
"Cash Collateral Account Agreement" means an agreement or agreements
entered into between the Company and the Agent, substantially in the form of
Exhibit E.
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"Cash Collateralize" means to pledge and deposit with or deliver to
the Agent, for the benefit of (i) in the case of L/C Obligations, the Agent,
the Issuing Banks and the Banks, (ii) in the case of CD Rate Committed Loans
and Offshore Rate Committed Loans, the Agent and the Banks, and (iii) in the
case of Bid Loans, the Agent and the Bid Loan Lenders, in each case as
collateral for the L/C Obligations, the Committed Loans or the Bid Loans, as
the case may be, cash or deposit account balances pursuant to a Cash Collateral
Account Agreement. Derivatives of such term shall have corresponding meaning.
"Cash from Capital Transactions" means at any date, such amounts of
cash as are determined by the General Partner to be cash made available to the
Company from or by reason of a Capital Transaction.
"CD Rate" means, for each Interest Period in respect of CD Rate
Committed Loans comprising a part of the same Borrowing, the rate of interest
(rounded upward to the nearest 1/100th of 1%) determined pursuant to the
following formula:
CD Rate = Certificate of Deposit Rate + Assessment
--------------------------- Rate
1.00 - Reserve Percentage
Where:
"Assessment Rate" means for any day of any Interest Period for
CD Rate Committed Loans, the rate determined by the Agent as equal to
the annual assessment rate in effect on such day that is payable to
the FDIC by a member of the Bank Insurance Fund that is classified as
adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification within the meaning
of 12 C.F.R. Section 327.3) for insuring time deposits at offices of
such member in the United States, or, in the event that the FDIC shall
at any time hereafter cease to assess time deposits based upon such
classifications or successor classifications, equal to the maximum
annual assessment rate in effect on such day that is payable to the
FDIC by commercial banks for insuring time deposits at offices of such
banks in the United States.
"Certificate of Deposit Rate" means for any Interest Period
for CD Rate Committed Loans the rate of interest per annum determined
by the Agent
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to be the arithmetic mean (rounded upward to the nearest 1/100th of
1%) of the rates notified to the Agent as the rates of interest bid by
two or more certificate of deposit dealers of recognized standing
selected by the Agent for the purchase at face value of dollar
certificates of deposit issued by major United States banks, for a
maturity comparable to such Interest Period and in the approximate
amount of the CD Rate Committed Loans to be made, at the time selected
by the Agent on the first day of such Interest Period.
"Reserve Percentage" means for any day for any Interest Period
for CD Rate Committed Loans the reserve percentage (expressed as a
decimal, rounded upward to the nearest 1/100th of 1%), as determined
by the Agent, in effect on such day (including any ordinary, marginal,
emergency, supplemental, special and other reserve percentages)
prescribed by the Federal Reserve Board for determining the reserves
to be maintained by member banks of the Federal Reserve System with
deposits exceeding $1,000,000,000 for new non-personal time deposits
for a period comparable to such Interest Period and in an amount of
$100,000 or more. The CD Rate shall be adjusted automatically as of
the effective date of any change in the Reserve Percentage.
"CD Rate Committed Loan" means a Committed Loan that bears interest
based on the CD Rate.
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"Closing Date" means the date on which all conditions precedent set
forth in Section 5.01 are satisfied or waived by all Banks.
"Co-Agent" means ABN in its capacity as co-agent for the Banks
hereunder.
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Columbia River Unit" means those certain approximately 63,000 acres
located in southwest Washington and generally referred to on the date hereof as
the Company's "Columbia River Unit."
"Commitment", with respect to each Bank, has the meaning specified in
Section 2.01.
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"Commitment Fee Percentage" means (A) for the period from the Closing
Date through December 31, 1994, 0.1750%, and (B) from January 1, 1995, the
percentage specified below opposite the Fixed Charge Coverage Ratio (which
ratio shall be calculated for the relevant four fiscal quarter period)
calculated for the periods described below.
Fixed Charge Coverage Ratio
at End of Fiscal Quarter Commitment Fee
- --------------------------- --------------
Greater than or equal to 2:00 to 1:00 .1750%
Less than 2:00 to 1:00 .2250%
The Commitment Fee Percentage for each fiscal quarter commencing on and after
January 1, 1995, shall be calculated in reliance on the financial reports
delivered pursuant to subsection 7.01(c) and the certificate delivered pursuant
to subsection 7.02(b) with respect to the fiscal quarter before the fiscal
quarter in question (e.g., June 30 financials determine the Commitment Fee
Percentage for the fiscal quarter beginning October 1). If the Company fails
to deliver such financial reports and certificate to the Agent for any fiscal
quarter by the beginning of the next succeeding fiscal quarter (e.g., by
October 1 for the fiscal quarter ending June 30), then the Commitment Fee
Percentage for the following fiscal quarter (e.g., October 1 through December
31) shall equal 0.2250% for the duration of that quarter.
"Commitment Percentage" means, as to any Bank, the percentage
equivalent of such Bank's Commitment divided by the Aggregate Commitment.
"Committed Borrowing" means a Borrowing hereunder consisting of
Committed Loans made on the same day by the Banks ratably according to their
respective Commitment Percentages and, in the case of CD Rate Committed Loans
and Offshore Rate Committed Loans, having the same Interest Periods.
"Committed Loan" has the meaning specified in Section 2.01, and may be
a CD Rate Committed Loan, an Offshore Rate Committed Loan or a Base Rate
Committed Loan (each, a "Type" of Committed Loan).
"Company's Knowledge" or "Knowledge of the Company" shall mean the
actual knowledge of (i) Rick R. Holley, President and Chief Executive Officer,
Charles P.
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Grenier, Executive Vice President, Robert E. Manne, Executive Vice President,
Diane M. Irvine, Vice President and Chief Financial Officer, James A. Kraft,
Vice President Law, Susanna N. Duke, Director, Law and Secretary, and Mitchell
Leu, Environmental Engineer, and any successor to the offices and officers,
such persons being the principal persons employed by the Company ultimately
responsible for environmental operations and compliance, ERISA and legal
matters relating to the Company and (ii) the Treasurer or any other person
having the primary responsibility for the day-to-day administration of, and
dealings with the Agent and the Banks in connection with, this Agreement.
"Competitive Bid" means an offer by a Bank to make a Bid Loan in
accordance with subsection 2.06(b).
"Competitive Bid Request" has the meaning specified in subsection
2.06(a).
"Contractual Obligations" means, as to any Person, any provision of
any security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement
to which such Person is a party or by which it or any of its property is bound.
"Controlled Group" means the Company and all Persons (whether or not
incorporated) under common control or treated as a single employer with the
Company pursuant to Section 414(b), (c), (m) or (o) of the Code.
"Conversion/Continuation Date" means any date on which, under Section
2.04, the Company (a) converts Committed Loans of one Type to another Type, or
(b) continues as Committed Loans of the same Type, but with a new Interest
Period, Committed Loans having Interest Periods expiring on such date.
"Credit Extension" means and includes (a) the making of any Committed
Loans or Bid Loans hereunder, including any conversion or continuation thereof,
and (b) the Issuance of any Letter of Credit hereunder.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Departing Bank" means Chemical Bank.
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"Designated Acres" means up to an aggregate of 200,000 acres owned by
the Company which (based on the good faith determination of the Responsible
Representatives that such acres have at the time such determination is made a
higher value as recreational, residential, grazing or agricultural property
than for timber production) may be reasonably designated by the General Partner
at the time of the sale thereof as constituting Designated Acres (such
aggregate number of acres to be determined over the term of existence of the
Note Agreements).
"Designated Immaterial Subsidiary" means any entity which would
otherwise be a Restricted Subsidiary and which at any time is designated by the
Company as a Designated Immaterial Subsidiary, provided that no such
designation of any entity as a Designated Immaterial Subsidiary shall be
effective unless (i) at the time of such designation, such entity does not own
any shares of stock or Indebtedness of any Restricted Subsidiary which is not
simultaneously being designated as a Designated Immaterial Subsidiary, (ii)
immediately after giving effect to such designation, (a) the Company could
incur at least $1 of additional Funded Debt pursuant to subsection 8.05(i), and
(b) no condition or event shall exist which constitutes an Event of Default or
Material Default, (iii) the Company is permitted to make the Investment in such
entity resulting from such designation pursuant to, and within the limitations
specified in, subsection 8.04(i), treating the aggregate book value (including
equity in retained earnings) of the Investments of the Company and its
Subsidiaries in such entity immediately prior to such designation as the cost
of such Investment, and provided, further, that if at any time all Designated
Immaterial Subsidiaries on a combined basis would be a "significant subsidiary"
(assuming the Company is the registrant) within the meaning of Regulation S-X
(17 C.F.R. Part 210) the Company shall designate one or more Designated
Immaterial Subsidiaries which are directly owned by the Company and its
Restricted Subsidiaries as Restricted Subsidiaries such that the condition in
this proviso is no longer applicable and the entities so designated shall no
longer be Designated Immaterial Subsidiaries. Any entity which has been
designated a Designated Immaterial Subsidiary shall not thereafter become a
Restricted Subsidiary except pursuant to a designation required by the last
proviso in the preceding sentence, and any Designated Immaterial Subsidiary
which has been designated a Restricted Subsidiary pursuant to the last proviso
of the preceding sentence shall not thereafter be redesignated as a Designated
Immaterial Subsidiary.
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"Designated Repurchases" means and includes purchases, redemptions or
other acquisitions, in each case at a price not to exceed fair market value, of
the publicly traded limited partnership interests in the Company, which are
retired by the Company within six months of such purchase, redemption or other
acquisition.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"Domestic Lending Office" means, with respect to each Bank, the office
of that Bank designated as such in the signature pages hereto or such other
office of the Bank as it may from time to time specify to the Company and the
Agent.
"EBITDA" means, for any period, for the Company and its Subsidiaries
on a combined basis, determined in accordance with GAAP, the sum of (a) the net
income (or net loss) for such period, plus (b) all amounts treated as expenses
for depreciation, depletion and interest and the amortization of intangibles of
any kind to the extent included in the determination of such net income (or
loss), plus (c) all adjustments arising by virtue of the conversion from
average cost accounting to a LIFO basis with respect to inventory to the extent
included in the determination of such net income, plus (d) all accrued taxes on
or measured by income to the extent included in the determination of such net
income (or loss); provided, however, that net income (or loss) shall be
computed for these purposes without giving effect to extraordinary losses or
extraordinary gains.
"Effective Amount" means (i) with respect to any Committed Loans or
Bid Loans, as the case may be, on any date, the aggregate outstanding principal
amount thereof after giving effect to any Borrowings and prepayments or
repayments thereof occurring on such date; and (ii) with respect to any
outstanding L/C Obligations on any date, the amount of such L/C Obligations on
such date after giving effect to any Issuances of Letters of Credit occurring
on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in
the maximum amount available for drawing under Letters of Credit taking effect
on such date.
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"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $250,000,000; (ii) a commercial bank organized under
the laws of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political subdivision
of any such country, and having a combined capital and surplus of at least
$250,000,000, provided that such bank is acting through a branch or agency
located in the United States; and (iii) a Person that is primarily engaged in
the business of commercial banking and that is (A) a Subsidiary of a Bank, (B)
a Subsidiary of a Person of which a Bank is a Subsidiary, or (C) a Person of
which a Bank is a Subsidiary.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon (a) the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and non-negligent, sudden
or non-sudden, accidental or non-accidental placement, spills, leaks,
discharges, emissions or releases) of any Hazardous Material at, in, or from
Property, whether or not owned by such person, or (b) any other circumstances
forming the basis of any violation, or alleged violation, of any Environmental
Law.
"Environmental Laws" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety, land use, conservation, and timber
harvesting matters; including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), the
Clean Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste
Disposal Act, the Federal Resource Conservation and Recovery Act,
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the Toxic Substances Control Act, the Emergency Planning and Community
Right-to-Know Act.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or 414(c) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a Qualified
Plan or a Multiemployer Plan; (b) a withdrawal by the Company or any ERISA
Affiliate from a Qualified Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA); (c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to
terminate, the treatment of a plan amendment as a termination under Section
4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to
terminate a Qualified Plan or Multiemployer Plan subject to Title IV of ERISA;
(e) a failure by the Company or any ERISA Affiliate to make required
contributions to a Qualified Plan or Multiemployer Plan; (f) an event or
condition which might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Qualified Plan or Multiemployer Plan; (g) the imposition of
any liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate; (h) an application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code with respect to any
Plan; (i) a non-exempt prohibited transaction occurs with respect to any Plan
for which the Company may be directly or indirectly liable; or (j) a violation
of the applicable requirements of Section 404 or 405 of ERISA or the exclusive
benefit rule under Section 401(a) of the Code by any fiduciary or disqualified
person with respect to any Plan for which the Company may be directly or
indirectly liable.
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances specified
in Section 9.01.
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"Exchange Act" means the Securities and Exchange Act of 1934, as
amended, and regulations promulgated thereunder.
"Existing ABN Letters of Credit" means the letters of credit described
in Schedule 3.03.
"Facilities Subsidiary" means, collectively, Plum Creek Manufacturing,
L.P., a Delaware limited partnership, and Plum Creek Marketing, Inc., a
Delaware corporation.
"Facilities Subsidiary's Facility" means any facility pursuant to
which the Facilities Subsidiary may incur Indebtedness for purposes of making
capital improvements, additions to, or expansions of, property, plant and
equipment of the Facilities Subsidiary or its Subsidiaries.
"Facilities Subsidiary's Revolving Credit Facility" means any facility
pursuant to which the Facilities Subsidiary may obtain revolving credit,
take-down credit, the issuance of standby and payment letters of credit and
backup for the issuance of commercial paper.
"Facility B Credit Agreement" means the $35,000,000 Credit Agreement
dated as of the date hereof between the Company, the Banks, the Co-Agent and
the Agent.
"FDIC" means the Federal Deposit Insurance Corporation, or any entity
succeeding to any of its principal functions.
"Federal Funds Rate" means, for any period, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30
p.m. Quotation") for such day under the caption "Federal Funds Effective Rate".
If on any relevant day the appropriate rate for such previous day is not yet
published in either H.15(519) or the Composite 3:30 p.m. Quotations, the rate
for such day will be the arithmetic mean as determined by the Agent
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of the rates for the last transaction in overnight Federal funds arranged prior
to 9:00 a.m. (New York time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any entity succeeding to any of its principal functions.
"Fixed Charge Coverage Ratio" means, as measured quarterly on the last
day of each fiscal quarter for, except as set forth below, the four fiscal
quarter period then ending, the ratio of
(i) EBITDA;
to
(ii) an amount equal to the sum of (A) the
combined interest expense (including capitalized interest) of the
Company and its Subsidiaries for the four fiscal quarter period then
ending calculated in accordance with GAAP, plus (B) the aggregate
amount of scheduled principal repayment on the Indebtedness of the
Company and its Subsidiaries for such period;provided that the
aggregate amount of scheduled principal repayment on the Indebtedness
(x) shall not include the amount of any prepayment of Indebtedness
except to the extent such prepayment includes any amounts that would
have been scheduled principal repayments during such period, (y) shall
not include the amount of any scheduled principal repayment to the
extent the Company refinanced such scheduled repayments and the
scheduled principal repayments under the refinancing have been or will
be included in the calculation of the aggregate amount of scheduled
principal repayments, and (z) with respect to the Facility B Credit
Agreement, shall only include (1) the scheduled installments to be
made by the Company pursuant to subsection 2.10(c) thereof during such
period, and (2) the amount of any repayment made by the Company
thereunder pursuant to subsection 2.10(b) thereof.
"Form 1001" has the meaning specified in subsection 4.01(f).
"Form 4224" has the meaning specified in subsection 4.01(f).
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"Funded Debt" means, without duplication, any Indebtedness payable
more than one year from the date of the creation thereof; provided that any
Indebtedness shall be treated as Funded Debt, regardless of its term, if such
Indebtedness is renewable at the option of the Company pursuant to the terms
thereof or of a revolving credit or similar agreement effective for more than
one year after the date of the creation of such Indebtedness, or may be payable
out of the proceeds of similar Indebtedness pursuant to the terms of such
Indebtedness or any such agreement.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies
with similar functions of comparable stature and authority within the
accounting profession), or in such other statements by such other entity as may
be in general use by significant segments of the U.S. accounting profession,
which are applicable to the circumstances as of the date of determination.
"General Partner" means Plum Creek Management Company, L.P., a
Delaware limited partnership, the managing general partner of the Company, and
any successor managing general partner of the Company.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guarantee" means the guarantee in paragraph 7 of the Mortgage Note
Agreements.
"Hazardous Materials" means all those substances which are regulated
by, or which may form the basis of liability under, any Environmental Law,
including all substances identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or petroleum
derived substance or waste.
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"Honor Date" has the meaning specified in subsection 3.03(c).
"Indebtedness" of any Person means, as of any date of determination,
without duplication, (a) all indebtedness of such Person for borrowed money or
for the deferred purchase price of property or services, (b) all amounts owed
by such Person to banks or other Persons in respect of reimbursement
obligations under letters of credit, surety bonds, banker's acceptances and
other similar instruments guaranteeing payment or other performance of
obligations by such Person, (c) all indebtedness for borrowed money or for the
deferred purchase price of property or services secured by any Lien on any
property owned by such Person, to the extent attributable to such Person's
interest in such property, even though such Person has not assumed or become
liable for the payment thereof, (d) lease obligations of such Person which, in
accordance with GAAP, should be capitalized, (e) lease obligations of such
Person under leases which have a term (including any option to renew
exercisable at the discretion of the lessee thereunder) longer than 10 years or
under leases under which the lessor, pursuant to an agreement with such Person,
has acquired the property specifically for the purpose of leasing it to such
Person, (f) obligations payable out of the proceeds of production from property
of such Person, even though such Person has not assumed or become liable for
the payment thereof, (g) all net obligations with respect to Rate Contracts,
and (h) any obligations of any other Person of the type described in the above
clauses (a) through (g), inclusive, which are guaranteed or in effect
guaranteed by such Person through any agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise), or to maintain the solvency or any balance sheet or other
financial condition of the obligor of such obligation, or to make payment for
any property, securities, products, materials or supplies or for any
transportation or services regardless of the non-delivery or nonfurnishing
thereof, in any such case if the purpose or intent of such agreement is to
provide assurance that such obligation will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected against loss in respect thereof or to otherwise
assure or hold harmless the holder of any primary obligation against loss in
respect thereof. The
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amount of any obligations of the type described in clause (h) of this
definition shall be deemed equal to the stated or determinable amount of the
primary obligation in respect of which such obligation is made or, if not
stated or if not determinable, the maximum reasonably anticipated liability in
respect thereof. The amount of any obligations of the type described in
clause (g) of this definition shall be marked to market on a current basis in
accordance with GAAP.
"Indemnified Person" has the meaning specified in subsection 11.05.
"Indemnified Liabilities" has the meaning specified in subsection
11.05.
"Independent Auditor" has the meaning specified in subsection 7.01(a).
"Insolvency Proceeding" means (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in each case (a) and (b) undertaken under U.S. Federal, State or
foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Loan other than a Base Rate
Committed Loan, the last day of each Interest Period applicable to such Loan
and, as to Base Rate Committed Loans, the last Business Day of each calendar
quarter and each date a Base Rate Committed Loan is converted into another Type
of Committed Loan, provided, however, that (a) if any Interest Period for a CD
Rate Committed Loan or Offshore Rate Committed Loan exceeds 90 days or three
months, respectively, the date which falls 90 days or three months (as the case
may be) after the beginning of such Interest Period and after each Interest
Payment Date thereafter shall also be an Interest Payment Date, and (b) as to
any Bid Loan, such intervening dates prior to the maturity thereof as may be
specified by the Company and agreed to by the applicable Bid Loan Lender in the
applicable Competitive Bid shall also be Interest Payment Dates.
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"Interest Period" means, (a) with respect to any Offshore Rate
Committed Loan, the period commencing on the Business Day the Loan is disbursed
or on the Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Committed Loan, and ending on the date that is
one week or one, two, three or six months thereafter, as selected by the
Company in its Notice of Borrowing or Notice of Conversion/Continuation, as the
case may be; (b) with respect to any CD Rate Committed Loan, the period
commencing on the Business Day the CD Rate Committed Loan is disbursed or on
the Conversion/Continuation Date on which the Loan is converted into or
continued as a CD Rate Committed Loan and ending 30, 60, 90 or 180 days
thereafter, as selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation; (c) with respect to any LIBOR Bid Loan, the period
commencing on the Business Day the Loan is disbursed and ending on the date
one, two, three, six, or twelve months thereafter, as selected by the Company
in the applicable Competitive Bid Request; and (d) with respect to any Absolute
Rate Bid Loan, a period not less than 7 days and not more than 365/366 days, as
applicable, as selected by the Company in the applicable Competitive Bid
Request;
provided that:
(i) if any Interest Period would otherwise end on a day
which is not a Business Day, that Interest Period shall be extended to
the next succeeding Business Day unless, in the case of an Offshore
Rate Loan, the result of such extension would be to carry such
Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period pertaining to an Offshore Rate
Loan that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period for any Loan shall extend beyond
the Maturity Date.
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"Invitation for Competitive Bids" means a solicitation for Competitive
Bids, substantially in the form of Exhibit H.
"Investment Policy" means the Corporate Investment Policy of the
Company, as it existed on April 5, 1993 and as attached hereto as Schedule 1.01
(without giving effect to any later amendments thereto).
"Investments" has the meaning specified in Section 8.04.
"Issuance Date" has the meaning specified in subsection 3.01(a)."
"Issue" means, with respect to any Letter of Credit, to incorporate
the Existing ABN Letters of Credit into this Agreement, or to issue or to
extend the expiry of, or to renew or increase the amount of, such Letter of
Credit; and the terms "Issued," "Issuing" and "Issuance" have corresponding
meanings.
"Issuing Bank" means each of BofA and ABN in its capacity as issuer of
one or more Letters of Credit hereunder, together with any replacement letter
of credit issuer arising under subsection 10.01(b) or Section 10.09.
"Joint Venture" means a partnership, joint venture or other similar
legal arrangement (whether created pursuant to contract or conducted through a
separate legal entity) now or hereafter formed by the Company or any of its
Restricted Subsidiaries with another Person in order to conduct a common
venture or enterprise with such Person.
"L/C Advance" means each Bank's participation in any L/C Borrowing in
accordance with its Commitment Percentage.
"L/C Amendment Application" means an application form for amendment of
outstanding standby letters of credit as shall at any time be in use at an
Issuing Bank, as such Issuing Bank shall request.
"L/C Application" means an application form for issuances of standby
letters of credit as shall at any time be in use at an Issuing Bank, as such
Issuing Bank shall request.
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"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the date
when made nor converted into a Borrowing of Committed Loans under subsection
3.03(d).
"L/C Commitment" means the commitment of the Issuing Banks to Issue,
and the commitment of the Banks severally to participate in, Letters of Credit
(including the Existing ABN Letters of Credit) from time to time Issued or
outstanding under Article III, in an aggregate amount not to exceed on any date
five million dollars $5,000,000, minus the L/C Obligations under and as defined
in the Facility B Credit Agreement, as the same shall be reduced as a result of
a reduction in the L/C Commitment pursuant to Section 2.07; provided that the
L/C Commitment is a part of the Aggregate Commitment, rather than a separate,
independent commitment.
"L/C Obligations" means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the amount
of all unreimbursed drawings under all Letters of Credit, including all
outstanding L/C Borrowings.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document relating to
any Letter of Credit, including any Issuing Bank's standard form documents for
letter of credit issuances.
"Lending Office" means, with respect to any Bank, the office or
offices of the Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, opposite its name on
the applicable signature page hereto, or such other office or offices of the
Bank as it may from time to time notify the Company and the Agent.
"Letters of Credit" means the Existing ABN Letters of Credit and any
standby letters of credit Issued by the Issuing Banks pursuant to Article III.
"Letter of Credit Rate" means, for any period, a rate per annum equal
to the Applicable Margin with respect to Offshore Rate Committed Loans in
effect for such period. The Letter of Credit Rate shall be adjusted
automatically as to all Letters of Credit then outstanding as of the effective
date of any change in the Letter of Credit Rate.
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"LIBO Rate" means, for any Interest Period with respect to a LIBOR Bid
Loan, the rate of interest per annum determined by the Agent to be the
arithmetic mean (rounded upward to the nearest 1/16th of 1%) of the rates of
interest per annum notified to the Agent by BofA as the rate of interest at
which dollar deposits in the approximate amount of the LIBOR Bid Loans to be
borrowed in such Bid Loan Borrowing, and having a maturity comparable to such
Interest Period, would be offered to major banks in the London interbank market
at their request at approximately 11:00 a.m. (London Time) two Business Days
prior to the commencement of such Interest Period.
"LIBOR Auction" means a solicitation of Competitive Bids setting forth
a LIBOR Bid Margin pursuant to Section 2.06.
"LIBOR Bid Loan" means any Bid Loan that bears interest at a rate
based upon the LIBO Rate.
"LIBOR Bid Margin" has the meaning specified in subsection
2.06(c)(ii)(C).
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien, preference or priority or charge of any kind (including any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code of any
jurisdiction).
"Loan" means an extension of credit by a Bank to the Company under
Article II or Article III, and may be a Committed Loan, a Bid Loan or an L/C
Advance.
"Loan Documents" means this Agreement, the L/C-Related Documents, and
all documents delivered to the Agent in connection herewith and therewith.
"Majority Banks" means (a) at any time prior to the Revolving
Termination Date, or after the Revolving Termination Date if no Loans are then
outstanding, Banks then holding at least 66-2/3% of the Commitments, and (b)
otherwise, Banks then holding at least 66-2/3% of the then aggregate unpaid
principal amount of the Loans.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the Federal Reserve Board.
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"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, any of the operations, business, properties,
condition (financial or otherwise) or prospects of the Company or the Company
and its Subsidiaries taken as a whole or as to any Restricted Subsidiary; (b) a
material impairment of the ability of the Company to perform under any Loan
Document and avoid any Event of Default; or (c) a material adverse effect upon
the legality, validity, binding effect or enforceability of any Loan Document.
"Material Default" means any continuing Default as to which a written
notice of such Default (which notice has not been rescinded) shall have been
received by the Company or the General Partner from the Agent or any Bank, or
any continuing Event of Default.
"Maturity Date" means October 31, 1999.
"Maximum Pro Forma Annual Interest Charges" means, as of any date, the
highest total amount payable during any period of four consecutive fiscal
quarters, commencing with the fiscal quarter in which such date occurs and
ending with the fiscal quarter in which the Maturity Date occurs, by the
Company and its Restricted Subsidiaries on a combined basis, after eliminating
all intercompany transactions, in respect of interest charges ((a) including
amortization of debt discount and expense and imputed interest on Capital Lease
Obligations and on other obligations included in Indebtedness which do not have
stated interest, (b) assuming, in the case of fluctuating interest rates which
cannot be determined in advance, that the rate in effect on such date will
remain in effect throughout such period, and (c) treating the principal amount
of all Indebtedness outstanding as of such date under a revolving credit or
similar agreement as maturing and becoming due and payable on the scheduled
maturity date thereof, without regard to any provision permitting such maturity
date to be extended) on all Indebtedness of the Company and its Restricted
Subsidiaries outstanding on such date (excluding the Guarantee and the
guarantees of the Facilities Subsidiary's Facility and the Facilities
Subsidiary's Revolving Credit Facility but including, to the extent not already
included, all other Indebtedness outstanding on such date which is guaranteed
or in effect guaranteed by the Company or any Restricted Subsidiaries), after
giving effect to any Indebtedness proposed to be created on such date and to
the concurrent retirement of any other Indebtedness.
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"MMBF" means one million Board Feet.
"Mortgage Note Agreements" means the Note Agreements, dated as of May
31, 1989, providing for the issuance and sale by the Facilities Subsidiary of
its 11 1/8% First Mortgage Notes to the purchasers listed in the schedule of
purchasers attached thereto, as amended by (a) those certain Mortgage Note
Agreement Amendment, Consent and Waivers dated as of January 1, 1991, (b) that
certain letter agreement dated April 22, 1993, (c) that certain Mortgage Note
Agreement Amendment dated as of September 1, 1993, and (d) that certain
Mortgage Note Agreement Amendment dated as of May 20, 1994.
"Mortgage Notes" means the 11 1/8% First Mortgage Notes of the
Facilities Subsidiary issued and sold pursuant to the Mortgage Note Agreements.
"Multiemployer Plan" means a "multiemployer plan" (within the meaning
of Section 4001(a)(3) of ERISA) and to which any ERISA Affiliate makes, is
making, or is obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make, contributions.
"Net Proceeds" means proceeds in cash as and when received by the
Person making a sale of Property, net of: (a) the direct costs relating to such
sale excluding amounts payable to the Company or any Affiliate of the Company,
(b) sale, use or other transaction taxes paid or payable as a result thereof,
and (c) amounts required to be applied to repay principal, interest and
prepayment premiums and penalties on Indebtedness secured by a Lien on the
asset which is the subject of such disposition.
"1994 Notes" means the 8.73% Senior Notes due August 1, 2009 in the
aggregate principal amount of $150,000,000 issued and sold pursuant to the 1994
Senior Note Agreements.
"1994 Senior Note Agreements" means those certain Senior Note
Agreements dated as of August 1, 1994 providing for the issuance and sale by
the Company of the 1994 Senior Notes to the purchasers listed in the schedule
of purchasers attached thereto.
"Notes" means those certain senior promissory notes in the aggregate
principal amount of $165,000,000 issued and sold pursuant to the Note
Agreements.
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"Note Agreements" means those certain Note Agreements dated as of May
31, 1989, providing for the issuance and sale by the Company of the Notes to
the purchasers listed in the schedule of purchasers attached thereto, as
amended by (a) those certain Senior Note Agreement Amendment, Consent and
Waivers dated as of January 1, 1991, (b) that certain letter agreement dated
April 22, 1993, (c) that certain Senior Note Agreement Amendment dated as of
September 1, 1993, and (d) that certain Senior Note Agreement Amendment dated
as of May 20, 1994.
"Notice of Borrowing" means a notice given by the Company to the Agent
pursuant to Section 2.03, in substantially the form of Exhibit A.
"Notice of Conversion/Continuation" means a notice given by the
Company to the Agent pursuant to Section 2.04, in substantially the form of
Exhibit B.
"Notice of Lien" means any "notice of lien" or similar document
intended to be filed or recorded with any court, registry, recorder's office,
central filing office or other Governmental Authority for the purpose of
evidencing, creating, perfecting or preserving the priority of a Lien securing
obligations owing to a Governmental Authority.
"Obligations" means all Loans, and other Indebtedness, advances,
debts, liabilities, obligations, covenants and duties owing by the Company to
any Bank, the Agent, the Co-Agent, the Issuing Banks, or any other Person
required to be indemnified, that arises under any Loan Document, whether or not
for the payment of money, whether arising by reason of an extension of credit,
loan, guaranty, indemnification or in any other manner, whether direct or
indirect (including those acquired by assignment), absolute or contingent, due
or to become due, now existing or hereafter arising and however acquired.
"Offshore Lending Office" means with respect to each Bank, the office
of such Bank designated as such in the signature pages hereto or such other
office of such Bank as such Bank may from time to time specify to the Company
and the Agent.
"Offshore Rate" means, for each Interest Period in respect of Offshore
Rate Committed Loans comprising part of the same Borrowing, an interest rate
per annum
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(rounded upward to the nearest 1/16th of 1%) determined pursuant to the
following formula:
Offshore Rate = IBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any
Interest Period the reserve percentage (expressed as a decimal,
rounded upward to the nearest 1/100th of 1%) in effect for such day
under regulations issued from time to time by the Federal Reserve
Board for determining the reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities") having a term comparable to such Interest
Period; and
"IBOR" means the rate of interest per annum determined by the
Agent as the rate at which dollar deposits in the approximate amount
of BofA's Offshore Rate Committed Loan and having a maturity
comparable to such Interest Period would be offered by BofA's Grand
Cayman Branch, Grand Cayman B.W.I. (or such other office as may be
designated for such purpose by BofA), to major banks in the offshore
dollar interbank market upon request of such banks at approximately
11:00 a.m. (New York City time) two Business Days prior to the
commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Committed Loans then outstanding as of the effective date of any change in
the Eurodollar Reserve Percentage.
"Offshore Rate Committed Loan" means any Committed Loan that bears
interest based on the Offshore Rate.
"Offshore Rate Loan" means any LIBOR Bid Loan or any Offshore Rate
Committed Loan.
"Operating Lease" means, as applied to any Person, any lease of
Property which is not a Capital Lease.
"Ordinary Course of Business" means, in respect of any transaction
involving the Company or any Subsidiary of the Company, the ordinary course of
such Person's business, as conducted by any such Person in accordance
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with past practice and undertaken by such Person in good faith and not for
purposes of evading any covenant or restriction in any Loan Document.
"Organization Documents" means, for any corporation, the certificate
or articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such
corporation, any shareholder rights agreement, and all applicable resolutions
of the board of directors (or any committee thereof) of such corporation; and,
for any limited partnership, the certificate of limited partnership, the
limited partnership agreement, and all applicable partnership resolutions.
"Original Credit Agreement" has the meaning specified in the Recitals
hereto.
"Other Taxes" has the meaning specified in subsection 4.01(b).
"Participant" has the meaning specified in subsection 11.08(d).
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of the Company, as in effect on the Closing Date, and as
the same may, from time to time, be amended, modified or supplemented in
accordance with the terms thereof.
"Partner Entities" means the General Partner, the PCMC General Partner
and the PC Advisory General Partner.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any of its principal functions under ERISA.
"PC Advisory General Partner" means PC Advisory Corp. I, a Delaware
corporation, the managing general partner of the PCMC General Partner, and any
successor managing general partner of the PCMC General Partner.
"PCMC General Partner" means PC Advisory Partners I, L.P., a Delaware
limited partnership, the managing general partner of the General Partner, and
any successor managing general partner of the General Partner.
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"Permitted Business" means any business engaged in by the Company or
the Facilities Subsidiary on the Closing Date, and any business substantially
similar or related to any such business, which shall not include pulp or paper
manufacturing.
"Permitted Liens" has the meaning specified in Section 8.01.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture or
Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which the Company or any ERISA Affiliate sponsors or maintains or to
which the Company or any ERISA Affiliate makes, is making or is obligated to
make contributions, and includes any Multiemployer Plan or Qualified Plan.
"Pro Forma Free Cash Flow" as of any date means (i) net income of the
Company and its Restricted Subsidiaries on a pro forma combined basis
(excluding (a) gain on the sale of any Capital Asset, (b) non-cash items of
income, and (c) any distributions or other income received from, or equity of
the Company or any Restricted Subsidiary in the earnings of, any entity which
is not a Restricted Subsidiary) for the period of four consecutive fiscal
quarters immediately prior to such date determined in accordance with GAAP plus
depreciation, depletion, amortization and other noncash charges, interest
expense on Indebtedness and provision for income taxes, minus (ii) capital
expenditures made by the Company and its Restricted Subsidiaries during such
period of four consecutive fiscal quarters to maintain their respective
operations.
"Property" means any estate or interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or intangible.
"Qualified Debt" means, as to the Company, as of any date of
determination, without duplication, all outstanding indebtedness of the Company
for borrowed money, including Indebtedness represented by the Notes, the 1994
Senior Notes and this Agreement (including L/C Borrowings and Loans used to
repay L/C Borrowings, but excluding L/C Obligations with respect to undrawn
Letters of Credit).
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"Qualified Plan" means a pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the Code and which
any ERISA Affiliate sponsors, maintains, or to which it makes, is making or is
obligated to make contributions, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding period covering at least five (5) plan years,
but excluding any Multiemployer Plan.
"Rate Contracts" means swap agreements (as such term is defined in
Section 101 of the Bankruptcy Code) and any other agreements or arrangements
designed to provide protection against fluctuations in interest or currency
exchange rates.
"Reportable Event" means, as to any Plan, (a) any of the events set
forth in Section 4043(b) of ERISA or the regulations thereunder, other than any
such event for which the 30-day notice requirement under ERISA has been waived
in regulations issued by the PBGC, (b) a withdrawal from a Plan described in
Section 4063 of ERISA, or (c) a cessation of operations described in Section
4062(e) of ERISA.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person
or any of its property or to which the Person or any of its property is
subject.
"Responsible Officer" means the chief executive officer, the president
or any vice president of the General Partner, or any other officer having
substantially the same authority and responsibility; or, with respect to
compliance with financial covenants, the chief financial officer or the
treasurer of the General Partner, or any other officer having substantially the
same authority and responsibility.
"Responsible Representatives" means (a) in the case of any transaction
in which the value of any assets disposed of or received have a value of less
than $5,000,000 or in which payments made are less than $5,000,000, the chief
executive officer, chief financial officer or chief operating officer of the
Company, and (b) in the case of any other transaction, the Board of Directors
of the PC Advisory General Partner.
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"Restricted Payment" means (a) any payment or other distribution,
direct or indirect, in respect of any partnership interest in the Company,
except a distribution payable solely in additional partnership interests in the
Company, and (b) any payment, direct or indirect, on account of the redemption,
retirement, purchase or other acquisition of any partnership interest in the
Company including, without limitation, any Designated Repurchases; or, if the
Company is at any time reorganized as or changed (by merger, sale of assets or
otherwise) into a corporation, (i) any dividend or other distribution, direct
or indirect, on account of any shares of any class of stock of the Company now
or hereafter outstanding, except a dividend payable solely in shares of stock
of the Company, and (ii) any redemption, retirement, purchase or other
acquisition, direct or indirect, of any shares of any class of stock of the
Company, now or hereafter outstanding, or of any warrants, rights or options to
acquire any such shares, except to the extent that the consideration therefor
consists of shares of stock of the Company.
"Restricted Subsidiary" means any Wholly-Owned Subsidiary other than
(a) any Designated Immaterial Subsidiary and (b) the Facilities Subsidiary or
any Subsidiary directly or indirectly owned by the Facilities Subsidiary,
provided that after the Mortgage Notes shall have been paid in full and
retired, the Facilities Subsidiary and its Subsidiaries shall become and be
Restricted Subsidiaries.
"Revolving Credit Facility" means any facility pursuant to which the
Company may obtain revolving credit, take-down credit, the issuance of standby
and payment letters of credit and back-up for the issuance of commercial paper,
other than that established pursuant to this Agreement.
"Revolving Termination Date" means the earlier to occur of:
(a) the Maturity Date; and
(b) the date on which the Aggregate Commitment shall
terminate in accordance with the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any entity
succeeding to any of its principal functions.
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"Solvent" means, as to any Person at any time, that (a) (i) in the
case of a Person that is not a partnership, the fair value of the Property of
such Person is greater than the amount of such Person's liabilities (including
disputed, contingent and unliquidated liabilities), and (ii) in the case of a
Person that is a partnership, the sum of (A) the fair value of the Property of
such Person plus (B) the sum of the excess of the fair value of each general
partner's non-partnership Property over such partner's non-partnership debts
(together, the "Applicable Property") is greater than the amount of such
Person's liabilities (including disputed, contingent and unliquidated
liabilities), as such value for purposes of both clauses (i) and (ii) is
established and liabilities evaluated for purposes of Section 101(31) of the
Bankruptcy Code and, in the alternative, for purposes of the Uniform Fraudulent
Transfer Act; (b) the present fair saleable value of the Property of such
Person (or, in the case of a partnership, the Applicable Property for such
Person) is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured; (c)
such Person is able to realize upon its Property and pay its debts and other
liabilities (including disputed, contingent and unliquidated liabilities) as
they mature in the normal course of business; (d) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature; and (e) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's Property would constitute
unreasonably small capital.
"Subsidiary" of a Person means any corporation, partnership or other
entity a majority of (i) the total combined voting power of all classes of
Voting Stock of which or (ii) the outstanding equity interests of which shall,
at the time of which any determination is being made, be owned by the Company
either directly or through Subsidiaries.
"Taxes" has the meaning specified in subsection 4.01(a).
"Timber" means standing trees not yet harvested.
"Timberlands" means the timberlands owned by the Company as of the
Closing Date and any timberlands acquired by the Company or any Subsidiary
after the Closing Date.
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"Transferee" has the meaning specified in subsection 11.08(e).
"Type" has the meaning specified in the definition of "Committed Loan."
"UCC" means the Uniform Commercial Code as in effect in the State of
California.
"UCP" has the meaning specified in Section 3.09.
"Unfunded Pension Liabilities" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used by the Plan's
actuaries for funding the Plan pursuant to section 412 for the applicable plan
year.
"United States" and "U.S." each means the United States of America.
"Voting Stock" means, with respect to any corporation or other entity,
any shares of stock or other ownership interests of such corporation or entity
whose holders are entitled under ordinary circumstances to vote for the
election of directors of such corporation or to manage any such other entity
(irrespective of whether at the time stock or ownership interests of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
"Wholly-Owned Subsidiary" means any Subsidiary organized under the
laws of any state of the United States which conducts the major portion of its
business in the United States, and all of the stock or other ownership
interests of every class of which, except director's qualifying shares, and
except in the case of the Facilities Subsidiary not more than 5% of the
outstanding Voting Stock shall, at the time as of which any determination is
being made, be owned by the Company either directly or through Wholly-Owned
Subsidiaries.
"Withdrawal Liabilities" means, as of any determination date, the
aggregate amount of the liabilities, if any, pursuant to Section 4201 of ERISA
if the Controlled Group made a complete withdrawal from all Multiemployer Plans
and any increase in contributions pursuant to Section 4243 of ERISA.
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1.02 Other Interpretive Provisions.
(a) Defined Terms. Unless otherwise specified herein or
therein, all terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto. The meaning of defined terms shall be equally applicable to the
singular and plural forms of the defined terms. Terms (including uncapitalized
terms) not otherwise defined herein and that are defined in the UCC shall have
the meanings therein described.
(b) The Agreement. The words "hereof", "herein",
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, section, schedule and exhibit references are to this
Agreement unless otherwise specified.
(c) Certain Common Terms.
(i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices
and other writings, however evidenced.
(ii) The term "including" is not limiting and
means "including without limitation."
(d) Performance; Time. Whenever any performance
obligation hereunder (other than a payment obligation) shall be stated to be
due or required to be satisfied on a day other than a Business Day, such
performance shall be made or satisfied on the next succeeding Business Day. In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including"; the words "to" and "until"
each mean "to but excluding", and the word "through" means "to and including".
If any provision of this Agreement refers to any action taken or to be taken by
any Person, or which such Person is prohibited from taking, such provision
shall be interpreted to encompass any and all means, direct or indirect, of
taking, or not taking, such action.
(e) Contracts. Unless otherwise expressly provided
herein, references to agreements and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document.
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(f) Laws. References to any statute or regulation are to
be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute
or regulation.
(g) Captions. The captions and headings of this
Agreement are for convenience of reference only and shall not affect the
interpretation of this Agreement.
(h) Independence of Provisions. The parties acknowledge
that this Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters, and
that such limitations, tests and measurements are cumulative and must each be
performed, except as expressly stated to the contrary in this Agreement.
(i) Interpretation. This Agreement is the result of
negotiations among and has been reviewed by counsel to the Agent, the Company
and other parties, and is the product of all parties hereto. Accordingly, this
Agreement and the other Loan Documents shall not be construed against the
Banks, the Co-Agent or the Agent merely because of the Agent's, the Co-Agent's
or Banks' involvement in the preparation of such documents and agreements.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. Each Bank severally agrees, on
the terms and conditions hereinafter set forth, to make loans to the Company
(each such loan, a "Committed Loan") from time to time on any Business Day
during the period from the Closing Date to the Revolving Termination Date, in
an aggregate amount not to exceed at any time outstanding the amount set forth
opposite the Bank's name in Schedule 2.01 under the heading "Commitment" (such
amount as the same may be reduced pursuant to
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Section 2.07 or Section 2.09, or as a result of one or more assignments
pursuant to Section 11.08, the Bank's "Commitment"); provided, however, that,
after giving effect to any Committed Borrowings, the Effective Amount of all
Committed Loans and Bid Loans and the Effective Amount of all L/C Obligations
shall not at any time exceed the Aggregate Commitment and provided, further,
that the Effective Amount of the Committed Loans of any Bank plus such Bank's
Commitment Percentage of the Effective Amount of all L/C Obligations shall not
at any time exceed such Bank's Commitment. Within the limits of each Bank's
Commitment, and subject to the other terms and conditions hereof, the Company
may borrow under this Section 2.01, prepay pursuant to Section 2.08 and
reborrow pursuant to this Section 2.01. The amendment and restatement of the
Original Credit Agreement shall not be deemed a repayment, satisfaction,
cancellation, or novation of the loans outstanding thereunder or any other
obligations of the Company under the Original Credit Agreement or any of the
Loan Documents (as defined therein), which shall instead continue and
constitute Obligations hereunder and under the other Loan Documents, provided,
however, that upon the Closing Date, all outstanding Loans under the Original
Credit Agreement, subject to Section 4.04 thereof, shall be prepaid in full
with the proceeds of Loans hereunder.
2.02 Loan Accounts. The Loans made by each Bank and the Letters of
Credit Issued by an Issuing Bank shall be evidenced by one or more loan
accounts maintained by such Bank or Issuing Bank, as the case may be, in the
ordinary course of business. The loan accounts or records maintained by the
Agent, the Co-Agent, each Issuing Bank and each Bank shall be conclusive absent
manifest error of the amount of the Loans made by the Banks to the Company and
the Letters of Credit issued for the account of the Company, and the interest
and payments thereon. Any failure so to record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Company hereunder
to pay any amount owing with respect to the Loans or any Letter of Credit.
2.03 Procedure for Committed Borrowing.
(a) Each Committed Borrowing shall be made upon the
Company's irrevocable written notice delivered to the Agent in accordance with
Section 11.02 in the form of a Notice of Borrowing (which notice must be
received by the Agent prior to 9:00 a.m. (San Francisco time)) (i) three
Business Days prior to the requested Borrowing date, in the case of Offshore
Rate Committed Loans; (ii) three Business Days prior to the requested Borrowing
date, in the case of
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CD Rate Committed Loans, and (iii) on the requested Borrowing date, in the case
of Base Rate Committed Loans, specifying:
(A) the amount of the Committed Borrowing, which
shall be in an aggregate minimum principal amount of three million
dollars ($3,000,000) except in the case of Offshore Rate Committed
Loans with a proposed Interest Period of one week in which case the
aggregate minimum principal amount shall be twelve million dollars
($12,000,000), or, in either case, any multiple of five hundred
thousand dollars ($500,000) in excess thereof;
(B) the requested Committed Borrowing date, which
shall be a Business Day;
(C) whether the Committed Borrowing is to be
comprised of Offshore Rate Committed Loans, CD Rate Committed Loans or
Base Rate Committed Loans;
(D) the duration of the Interest Period
applicable to such Committed Loans included in such notice. If the
Notice of Borrowing shall fail to specify the duration of the Interest
Period for any Committed Borrowing comprised of CD Rate Committed
Loans or Offshore Rate Committed Loans, such Interest Period shall be
90 days or three months, respectively.
(b) Upon receipt of the Notice of Borrowing, the Agent
will promptly notify each Bank thereof and of the amount of such Bank's
Commitment Percentage of the Committed Borrowing.
(c) Each Bank will make the amount of its Commitment
Percentage of the Committed Borrowing available to the Agent for the account of
the Company at the Agent's Payment Office by 12:00 noon (San Francisco time) on
the Committed Borrowing date requested by the Company in funds immediately
available to the Agent. The proceeds of all such Committed Loans will then be
made available to the Company by the Agent at such office by crediting the
account of the Company on the books of BofA with the aggregate of the amounts
made available to the Agent by the Banks and in like funds as received by the
Agent, unless on the date of the Borrowing all or any portion of the proceeds
thereof shall then be required to be applied to the reimbursement of any
outstanding drawings under Letters of Credit pursuant to
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Section 3.03, in which case such proceeds or portion thereof shall be applied
to the reimbursement of such Letter of Credit drawings.
(d) Unless the Majority Banks shall otherwise agree,
during the existence of a Default or Event of Default, the Company may not
elect to have a Committed Loan be made as, or converted into or continued as,
an Offshore Rate Committed Loan or a CD Rate Committed Loan.
(e) After giving effect to any Committed Borrowing, there
shall not be more than six different Interest Periods in effect in respect of
all Committed Loans and Bid Loans together then outstanding.
2.04 Conversion and Continuation Elections for Committed Borrowings.
(a) The Company may upon irrevocable written notice to
the Agent in accordance with subsection 2.04(b):
(i) elect to convert on any Business Day, any
Base Rate Committed Loans (or any part thereof in an amount not less
than $3,000,000 except in the case of a conversion into an Offshore
Rate Committed Loan for an Interest Period of one week which shall be
in an amount not less than $12,000,000, or that is in an integral
multiple of $500,000 in excess thereof) into Offshore Rate Committed
Loans or CD Rate Committed Loans;
(ii) elect to convert on the last day of the
applicable Interest Period any Offshore Rate Committed Loans having
Interest Periods maturing on such day (or any part thereof in an
amount not less than $3,000,000, or that is in an integral multiple of
$500,000 in excess thereof) into CD Rate Committed Loans or Base Rate
Committed Loans;
(iii) elect to convert on the last day of the
applicable Interest Period any CD Rate Committed Loans having Interest
Periods maturing on such day (or any part thereof in an amount not
less than $3,000,000 except in the case of a conversion into an
Offshore Rate Committed Loan for an Interest Period of one week which
shall be in an amount not less than $12,000,000, or that is in an
integral multiple of $500,000 in excess thereof) into Offshore Rate
Committed Loans or Base Rate Committed Loans; or
(iv) elect to continue on the last day of the
applicable Interest Period any Offshore Rate Committed
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Loans or CD Rate Committed Loans having Interest Periods maturing on
such day (or any part thereof in an amount not less than $3,000,000
except in the case of a continuation of an Offshore Rate Committed
Loan for an Interest Period of one week which shall be in an amount
not less than $12,000,000, or that is in an integral multiple of
$500,000 in excess thereof);
provided, that if the aggregate amount of CD Rate Committed Loans or Offshore
Rate Committed Loans in respect of any Committed Borrowing shall have been
reduced, by payment, prepayment, or conversion of part thereof to be less than
$500,000, such CD Rate Committed Loans or Offshore Rate Committed Loans shall
automatically convert into Base Rate Committed Loans, and on and after such
date the right of the Company to continue such Committed Loans as, and convert
such Committed Loans into, Offshore Rate Committed Loans or CD Rate Committed
Loans, as the case may be, shall terminate.
(b) The Company shall deliver a Notice of
Conversion/Continuation in accordance with Section 11.02 to be received by the
Agent not later than 9:00 a.m. (San Francisco time) (i) at least three Business
Days in advance of the Conversion/Continuation Date, if the Committed Loans are
to be converted into or continued as Offshore Rate Committed Loans; (ii) at
least three Business Days in advance of the Conversion/Continuation Date, if
the Committed Loans are to be converted into or continued as CD Rate Committed
Loans; and (iii) on the Conversion/Continuation Date, if the Committed Loans
are to be converted into Base Rate Committed Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Committed Loans to be
converted or continued;
(C) the nature of the proposed conversion or
continuation; and
(D) other than in the case of Base Rate Committed
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to CD Rate Committed Loans or Offshore Rate Committed Loans, the
Company has failed to select timely a new Interest Period to be applicable to
such CD Rate Committed Loans or Offshore Rate Committed Loans, as the case may
be, or if any Default or Event of Default shall
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then exist, the Company shall be deemed to have elected to convert such CD Rate
Committed Loans or Offshore Rate Committed Loans into Base Rate Committed Loans
effective as of the expiration date of such current Interest Period.
(d) Upon receipt of a Notice of Conversion/ Continuation,
the Agent will promptly notify each Bank thereof, or, if no timely notice is
provided by the Company, the Agent will promptly notify each Bank of the
details of any automatic conversion. All conversions and continuations shall
be made pro rata according to the respective outstanding principal amounts of
the Committed Loans with respect to which the notice was given held by each
Bank.
(e) Unless the Majority Banks shall otherwise agree,
during the existence of a Default or Event of Default, the Company may not
elect to have a Committed Loan converted into or continued as an Offshore Rate
Committed Loan or a CD Rate Committed Loan.
(f) Notwithstanding any other provision contained in this
Agreement, after giving effect to any conversion or continuation of any
Committed Loans, there shall not be more than six different Interest Periods in
effect in respect of all Committed Loans and Bid Loans, together then
outstanding.
2.05 Bid Borrowings. In addition to Committed Borrowings pursuant to
Section 2.03, each Bank severally agrees that the Company may, as set forth in
Section 2.06, from time to time request the Banks prior to the Revolving
Termination Date to submit offers to make Bid Loans to the Company; provided,
however, that the Banks may, but shall have no obligation to, submit such
offers and the Company may, but shall have no obligation to, accept any such
offers; and provided, further, that at no time shall (a) the Effective Amount
of all Committed Loans, Bid Loans and L/C Obligations exceed the Aggregate
Commitment; or (b) the number of Interest Periods for Bid Loans then
outstanding plus the number of Interest Periods for Committed Loans then
outstanding exceed six different Interest Periods.
2.06 Procedure for Bid Borrowings.
(a) When the Company wishes to request the Banks to
submit offers to make Bid Loans hereunder, it shall transmit to the Agent by
telephone call followed promptly by facsimile transmission, delivered in
accordance with Section 11.02, a notice in substantially the form of Exhibit G
(a "Competitive Bid Request") so as to be received no later than 7:00 a.m. (San
Francisco time) (x) four
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Business Days prior to the date of a proposed Bid Borrowing in the case of a
LIBOR Auction, or (y) two Business Days prior to the date of a proposed Bid
Borrowing in the case of an Absolute Rate Auction, specifying:
(i) the date of such proposed Bid Borrowing,
which shall be a Business Day;
(ii) the aggregate amount of such proposed Bid
Borrowing, which shall be in an aggregate minimum principal amount of
$5,000,000 or any multiple of $1,000,000 in excess thereof;
(iii) whether the Competitive Bids requested are to
be for LIBOR Bid Loans or Absolute Rate Bid Loans or both; and
(iv) the duration of the Interest Period
applicable thereto, subject to the provisions of the definition of "Interest
Period" herein.
Subject to subsection 2.06(c), the Company may not request
Competitive Bids for more than three Interest Periods in a single Competitive
Bid Request and may not request Competitive Bids more than once in any period
of five consecutive Business Days.
(b) Upon receipt of a Competitive Bid Request, the Agent
will promptly send to the Banks by facsimile transmission an Invitation for
Competitive Bids, which shall constitute an invitation by the Company to each
Bank to submit Competitive Bids offering to make the Bid Loans to which such
Competitive Bid Request relates in accordance with this Section 2.06.
(c) (i) Each Bank may at its discretion submit a
Competitive Bid maintaining an offer or offers to make Bid Loans in response to
any Invitation for Competitive Bids. Each Competitive Bid must comply with the
requirements of this subsection 2.06(c) and must be submitted to the Agent by
facsimile transmission at the Agent's office for notices set forth on the
signature pages hereto not later than (A) 6:30 a.m. (San Francisco time) three
Business Days prior to the proposed date of Borrowing, in the case of a LIBOR
Auction, or (B) 6:30 a.m. (San Francisco time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction; provided that Competitive
Bids submitted by the Agent (or any Affiliate of the Agent) in the capacity of
a Bank may be submitted, and may only be submitted, if the Agent or such
Affiliate notifies the Company of the terms of the offer or offers contained
therein not later than
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(A) 6:15 a.m. (San Francisco time) three Business Days prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (B) 6:15 a.m. (San
Francisco time) on the proposed date of Borrowing, in the case of an Absolute
Rate Auction.
(ii) Each Competitive Bid shall be in
substantially the form of Exhibit I, specifying therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid
Loan for which such Competitive Bid is being made, which principal
amount (x) may be equal to, greater than or less than the Commitment
of the quoting Bank, (y) shall be in an aggregate minimum principal
amount of $5,000,000 or any multiple of $1,000,000 in excess thereof,
and (z) may not exceed the principal amount of Bid Loans for which
Competitive Bids were requested;
(C) in case the Company elects a LIBOR
Auction, the margin above or below LIBOR (the "LIBOR Bid Margin")
offered for each such Bid Loan, expressed as a percentage (rounded to
the nearest 1/16th of 1%) to be added to or subtracted from the
applicable LIBOR and the Interest Period applicable thereto;
(D) in case the Company elects an
Absolute Rate Auction, the rate of interest per annum (rounded upward
to the nearest 1/100th of 1%) (the "Absolute Rate") offered for each
such Bid Loan; and
(E) the identity of the quoting Bank.
A Competitive Bid may contain up to three separate offers by the quoting Bank
with respect to each Interest Period specified in the related Invitation for
Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if
it:
(A) is not substantially in conformity
with Exhibit I or does not specify all of the information required by
subsection (c)(ii) of this Section;
(B) contains qualifying, conditional or
similar language;
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(C) proposes terms other than or in
addition to those set forth in the applicable Invitation for
Competitive Bids; or
(D) arrives after the time set forth in
subsection (c)(i).
(d) Promptly on receipt and not later than 7:00 a.m. (San
Francisco time) three Business Days prior to the proposed date of Borrowing in
the case of a LIBOR Auction, or 7:00 a.m. (San Francisco time) on the proposed
date of Borrowing, in the case of an Absolute Rate Auction, the Agent will
notify the Company of the terms (i) of any Competitive Bid submitted by a Bank
that is in accordance with subsection 2.06(c), and (ii) of any Competitive Bid
that amends, modifies or is otherwise inconsistent with a previous Competitive
Bid submitted by such Bank with respect to the same Competitive Bid Request.
Any such subsequent Competitive Bid shall be disregarded by the Agent unless
such subsequent Competitive Bid is submitted solely to correct a manifest error
in such former Competitive Bid and only if received within the times set forth
in subsection 2.06(c). The Agent's notice to the Company shall specify (1) the
aggregate principal amount of Bid Loans for which offers have been received for
each Interest Period specified in the related Competitive Bid Request; and (2)
the respective principal amounts and LIBOR Bid Margins or Absolute Rates, as
the case may be, so offered. Subject only to the provisions of Sections 4.02,
4.05 and 5.02 hereof and the provisions of this subsection (d), any Competitive
Bid shall be irrevocable except with the written consent of the Agent given on
the written instructions of the Company.
(e) Not later than 7:30 a.m. (San Francisco time) three
Business Days prior to the proposed date of Borrowing, in the case of a LIBOR
Auction, or 7:30 a.m. (San Francisco time) on the proposed date of Borrowing,
in the case of an Absolute Rate Auction, the Company shall notify the Agent of
its acceptance or non-acceptance of the offers so notified to it pursuant to
subsection 2.06(d). The Company shall be under no obligation to accept any
offer and may choose to reject all offers. In the case of acceptance, such
notice shall specify the aggregate principal amount of offers for each Interest
Period that is accepted. The Company may accept any Competitive Bid in whole
or in part; provided that:
(i) the aggregate principal amount of each Bid
Borrowing may not exceed the applicable amount set forth in the related
Competitive Bid Request;
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(ii) the principal amount of each Bid Borrowing
must be an amount not less than $5,000,000 or any multiple of $1,000,000 in
excess thereof and the principal amount of each Bid Loan shall be an integral
multiple of $1,000,000;
(iii) acceptance of offers may only be made on the
basis of ascending LIBOR Bid Margins or Absolute Rates within each Interest
Period, as the case may be; and
(iv) the Company may not accept any offer that is
described in subsection 2.06(c)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(f) If offers are made by two or more Banks with the same
LIBOR Bid Margins or Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which such offers are
accepted for the related Interest Period, the principal amount of Bid Loans in
respect of which such offers are accepted shall be allocated by the Agent among
such Banks as nearly as possible (in such integral multiples of $1,000,000 as
the Agent may deem appropriate) in proportion to the aggregate principal
amounts of such offers. Determination by the Agent of the amounts of Bid Loans
shall be conclusive in the absence of manifest error.
(g) (i) The Agent will promptly notify each Bank
having submitted a Competitive Bid if its offer has been accepted and, if its
offer has been accepted, of the amount of the Bid Loan or Bid Loans to be made
by it on the date of the Bid Borrowing.
(ii) If, on or before the proposed date of Bid
Borrowing, the Commitments have not been terminated and if, on such proposed
date of Borrowing all applicable conditions to funding referenced in Sections
4.02, 4.05 and 5.02 hereof are satisfied, each Bank that has received notice
pursuant to subsection 2.06(g)(i) that its Competitive Bid has been accepted
shall make the amounts of such Bid Loans available to the Agent for the account
of the Company at the Agent's Payment Office in immediately available funds by
11:00 a.m. (San Francisco time) on such date of Bid Borrowing.
(iii) Promptly following each Bid Borrowing, the
Agent shall notify each Bank of the ranges of bids submitted and the highest
and lowest Bids accepted for each Interest Period requested by the Company and
the aggregate amount borrowed pursuant to such Bid Borrowing.
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(iv) From time to time, the Company and the Banks
shall furnish such information to the Agent as the Agent may request relating
to the making of Bid Loans, including the amounts, interest rates, dates of
borrowings and maturities thereof, for purposes of the allocation of amounts
received from the Company for payment of all amounts owing hereunder.
2.07 Voluntary Termination or Reduction of Commitments. The Company
may, upon not less than five Business Days prior notice to the Agent, terminate
the Aggregate Commitment or permanently reduce the Aggregate Commitment by an
aggregate minimum amount of $5,000,000 or any multiple of $5,000,000 in excess
thereof; provided that no such reduction or termination shall be permitted if,
after giving effect thereto and to any prepayments of the Committed Loans made
on the effective date thereof, the Effective Amount of Committed Loans, Bid
Loans and L/C Obligations would exceed the amount of the Aggregate Commitment
then in effect. Once reduced in accordance with this Section 2.07, the
Aggregate Commitment may not be increased. Any reduction of the Aggregate
Commitment shall be applied to each Bank's Commitment in accordance with such
Bank's Commitment Percentage. All accrued commitment fees to the effective
date of any reduction or termination of Commitments shall be paid on the
effective date of such reduction or termination.
2.08 Optional Prepayments.
(a) Subject to Section 4.04, the Company may, at any time
or from time to time, by written notice delivered to the Agent (i) at least
three Business Days prior to the proposed prepayment date in the case of
Offshore Rate Committed Loans and CD Rate Committed Loans, and (ii) on the
proposed prepayment date (which notice must be received by the Agent not later
than 9:00 a.m. (San Francisco time)) in the case of Base Rate Committed Loans,
ratably prepay Committed Loans in whole or in part, in minimum principal
amounts of $3,000,000 or any multiple of $1,000,000 in excess thereof. Such
notice of prepayment shall specify the date and amount of such prepayment and
whether such prepayment is of Base Rate Committed Loans, CD Rate Committed
Loans or Offshore Rate Committed Loans, or any combination thereof. Such
notice shall not thereafter be revocable by the Company and the Agent will
promptly notify each Bank thereof and of such Bank's Commitment Percentage of
such prepayment. If such notice is given by the Company, the Company shall
make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein, together with accrued interest
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to each such date on the amount prepaid and any amounts required pursuant to
Section 4.04.
(b) Bid Loans may not be voluntarily prepaid.
2.09 Mandatory Prepayments of Loans; Mandatory Commitment
Reductions.
(a) Mandatory Prepayments.
(i) Asset Dispositions. If the Company or any of
its Restricted Subsidiaries shall at any time or from time to time make or
agree to make a sale of Properties permitted by subsection 8.02(i), or harvest
excess Timber permitted by Section 8.03, then (A) the Net Proceeds of such sale
shall either be paid pro-rata by the Company as a prepayment of Loans or
reinvested in accordance with the provisions of subsection 8.02(i), or (B) the
Net Proceeds from such excess harvest shall either be paid pro-rata by the
Company as a prepayment of Loans or reinvested in accordance with the
provisions of Section 8.03, each as applicable.
(ii) L/C Obligations. If on any date the
Effective Amount of L/C Obligations exceeds the L/C Commitment, the Company
shall Cash Collateralize on such date the outstanding Letters of Credit in an
amount equal to the excess of the maximum amount then available to be drawn
under the Letters of Credit over the aggregate L/C Commitment. The Company
hereby grants to the Agent, for the benefit of the Agent, the Issuing Banks and
the Banks, a security interest in all such cash and deposit account balances
used to Cash Collateralize such L/C Obligations. Subject to Section 4.04, if
on any date after giving effect to any Cash Collateralization made on such date
pursuant to the preceding sentence, the Effective Amount of all Loans then
outstanding plus the Effective Amount of all L/C Obligations exceeds the
Aggregate Commitments, the Company shall immediately, and without notice or
demand, prepay the outstanding principal amount of the Loans and L/C Advances
by an amount equal to the applicable excess.
(iii) Bid Loans. If any mandatory prepayments
pursuant to subsections 2.09(a)(i) or (ii) would otherwise require prepayment
of Bid Loans in accordance with subsection 2.09(c), the Company shall Cash
Collateralize the outstanding Bid Loans in an amount equal to the prepayment
amount applicable to Bid Loans, which amount shall be applied by the Agent to
Bid Loans when such Loans mature. The Company hereby grants to the Agent, for
the benefit of the Agent and the Bid Loan Lenders, a security interest in
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all such cash and deposit account balances used to Cash Collateralize such
prepayment of Bid Loans.
(b) Mandatory Commitment Reductions.
(i) The Aggregate Commitment shall be reduced
from time to time by the amount of any mandatory prepayment required by
subsection 2.09(a)(i).
(ii) No reduction in the Aggregate Commitment
pursuant to Section 2.07 or subsection 2.09(b)(i) shall reduce the L/C
Commitment unless and until the combined Commitment has been reduced to
$5,000,000; thereafter, any reduction in the combined Commitment pursuant to
Section 2.07 shall equally reduce the L/C Commitment.
(c) General. Any prepayments pursuant to subsections
2.09(i) or (ii) shall be applied first to any Base Rate Committed Loans then
outstanding, second, at the Company's option, to Cash Collateralize or to
prepay in the inverse order of their stated maturity CD Rate Committed Loans
and Offshore Rate Committed Loans, and third to Bid Loans as provided in
Section 2.09(a)(iii). The Company hereby grants to the Agent for the benefit
of the Agent and the Banks, a security interest in all such cash and deposit
account balances used to Cash Collateralize Loans to be prepaid pursuant to
this subsection 2.09(c). The Company shall pay, together with each prepayment
under this Section 2.09, accrued interest on the amount prepaid and any amounts
required pursuant to Section 4.04.
(d) Reduction of Commitment. Upon the making of any
mandatory prepayment under subsection 2.09(a)(i), the Commitment of each Bank
shall automatically be reduced by an amount equal to such Bank's ratable share
of the aggregate of principal repaid, effective as of the earlier of the date
that such prepayment is made or the date by which such prepayment is due and
payable hereunder. All accrued commitment fees to, but not including the
effective date of any reduction or termination of Commitments, shall be paid on
the effective date of such reduction or termination.
2.10 Repayment.
(a) The Company shall repay to the Banks in full on the
Revolving Termination Date the aggregate principal amount of the Loans
outstanding on the Revolving Termination Date.
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(b) The Company shall repay each Bid Loan on the last day
of the relevant Interest Period.
2.11 Interest.
(a) Subject to subsection 2.11(c), each Committed Loan
shall bear interest on the outstanding principal amount thereof from the date
when made until it becomes due at a rate per annum equal to the CD Rate, the
Offshore Rate or the Base Rate, as the case may be, plus the Applicable Margin.
Each Bid Loan shall bear interest on the outstanding principal amount thereof
from the date when made until it becomes due at a rate per annum equal to the
LIBO Rate plus (or minus) the LIBOR Bid Margin, or at the Absolute Rate, as the
case may be.
(b) Interest on each Loan shall be paid in arrears on
each Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Committed Loans pursuant to Section 2.08 and 2.09 for the portion
of the Loans so prepaid and upon payment (including prepayment) in full thereof
and, during the existence of any Event of Default, interest shall be paid on
demand of the Agent at the request or with the consent of the Majority Banks.
(c) While any Event of Default exists or after
acceleration, the Company shall pay interest (after as well as before entry of
judgment thereon to the extent permitted by law) on the principal amount of all
Obligations due and unpaid, at a rate per annum that is determined, in the case
of Loans other than Base Rate Committed Loans, by adding 2% per annum to the
Applicable Margin then in effect for such Loans and, in the case of other
Obligations, at a rate equal to the Base Rate plus 2%.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company hereunder shall be subject to the limitation that
payments of interest shall not be required, for any period for which interest
is computed hereunder, to the extent (but only to the extent) that contracting
for or receiving such payment by the respective Bank would be contrary to the
provisions of any law applicable to such Bank limiting the highest rate of
interest which may be lawfully contracted for, charged or received by such
Bank, and in such event the Company shall pay such Bank interest at the highest
rate permitted by applicable law.
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2.12 Fees. In addition to certain fees described in Section 3.08:
(a) Agency and Participation Fees. The Company shall pay
to BofA for BofA's own account fees in the amounts and at the times set forth
in a letter agreement between the Company, BofA and the Arranger dated August
29, 1994 and the term sheet attached thereto. The Company shall pay to the
Agent on the Closing Date for the account of each Bank a participation fee in
an amount equal to the product of (i) 0.075% times (ii) such Bank's Commitment
as set forth in Schedule 2.01 hereof. The foregoing fees shall be
non-refundable.
(b) Commitment Fees. On or before the Closing Date, the
Company shall pay to BofA as agent under the Original Credit Agreement for the
account of each Bank and the Departing Bank in accordance with their respective
Commitment Percentage (as defined in the Original Credit Agreement) all
commitment fees accrued until the Closing Date under Section 2.10(b) of the
Original Credit Agreement. The Company shall pay to the Agent for the account
of each Bank a commitment fee on the average daily unused portion of such
Bank's Commitment, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based upon the daily utilization for that
quarter as calculated by the Agent, equal to the Commitment Fee Percentage.
For purposes of calculating utilization under this subsection, (i) the
Aggregate Commitment shall be deemed used to the extent of the Effective Amount
of Committed Loans then outstanding, plus the Effective Amount of L/C
Obligations then outstanding and (ii) with respect to the Commitment of each
Bid Loan Lender, the making of any Bid Loan shall not be considered a use of a
portion of such Bid Loan Lender's Commitment. Such commitment fee shall accrue
from the Closing Date to the Revolving Termination Date and shall be due and
payable quarterly in arrears on the last Business Day of each calendar quarter,
commencing on the first such day after this Agreement is executed by the
Company through the Revolving Termination Date, with the final payment to be
made on the Revolving Termination Date; provided that, in connection with any
reduction or termination of Commitments pursuant to Section 2.07 or Section
2.09, the accrued commitment fee calculated for the period ending on such date
shall also be paid on the date of such reduction or termination, with the next
succeeding quarterly payment being calculated on the basis of the period from
the reduction or termination date to such quarterly payment date. The
commitment fees provided in this subsection shall accrue at all times after the
above-mentioned commencement date, including at any time during which one or
more conditions in Article V are not met.
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(c) Bid Loan Fee. The Company shall pay to the Agent for
its own account a Bid Loan fee for each Competitive Bid Request submitted by
the Company in the amounts set forth in the letter agreement between the
Company, BofA and the Arranger dated August 29, 1994 and the term sheet
attached thereto. Such Bid Loan fee shall be due and payable on each date the
Company submits a Competitive Bid Request.
2.13 Computation of Fees and Interest.
(a) All computations of interest payable in respect of
Base Rate Committed Loans at all times as the Base Rate is determined by BofA's
"reference rate" shall be made on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed. All other computations of fees and
interest under this Agreement shall be made on the basis of a 360-day year and
actual days elapsed, which results in more interest being paid than if computed
on the basis of a 365-day year. Interest and fees shall accrue during each
period during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) The Agent will, with reasonable promptness, notify
the Company and the Banks of each determination of an Offshore Rate, LIBO Rate
or of a CD Rate; provided that any failure to do so shall not relieve the
Company of any liability hereunder or provide the basis for any claim against
the Agent. Any change in the interest rate on a Committed Loan resulting from
a change in the Applicable Margin, Reserve Percentage, Eurocurrency Reserve
Percentage, or the Assessment Rate shall become effective as of the opening of
business on the day on which such change in the Applicable Margin, Reserve
Percentage, Eurocurrency Reserve Percentage, or the Assessment Rate becomes
effective. The Agent will with reasonable promptness notify the Company and
the Banks of the effective date and the amount of each such change, provided
that any failure to do so shall not relieve the Company of any liability
hereunder or provide the basis for any claim against the Agent.
(c) Each determination of an interest rate by the Agent
pursuant hereto shall be conclusive and binding on the Company and the Banks in
the absence of manifest error.
2.14 Payments by the Company.
(a) All payments (including prepayments) to be made by
the Company on account of principal, interest, fees and other amounts required
hereunder shall be made without set-off, recoupment or counterclaim; shall,
except as
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otherwise expressly provided herein, be made to the Agent for the ratable
account of the Banks at the Agent's Payment Office, and shall be made in
dollars and in immediately available funds, no later than 10:00 a.m. (San
Francisco time) on the date specified herein. The Agent will promptly
distribute to each Bank its Commitment Percentage (or other applicable share as
expressly provided herein) of such principal, interest, fees or other amounts,
in like funds as received. Any payment which is received by the Agent later
than 10:00 a.m. (San Francisco time) shall be deemed to have been received on
the immediately succeeding Business Day and any applicable interest or fee
shall continue to accrue.
(b) Whenever any payment hereunder shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or fees, as the case may be; subject to
the provisions set forth in the definition of "Interest Period" herein.
(c) Unless the Agent shall have received notice from the
Company prior to the date on which any payment is due to the Banks hereunder
that the Company will not make such payment in full as and when required
hereunder, the Agent may assume that the Company has made such payment in full
to the Agent on such date in immediately available funds and the Agent may (but
shall not be so required), in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then
due such Bank. If and to the extent the Company shall not have made such
payment in full to the Agent, each Bank shall repay to the Agent on demand such
amount distributed to such Bank, together with interest thereon for each day
from the date such amount is distributed to such Bank until the date such Bank
repays such amount to the Agent, at the Federal Funds Rate as in effect for
each such day.
2.15 Payments by the Banks to the Agent.
(a) Unless the Agent shall have received notice from a
Bank on the Closing Date or, with respect to each Borrowing after the Closing
Date, at least one Business Day prior to the date of any proposed Committed
Borrowing, that such Bank will not make available to the Agent as and when
required hereunder for the account of the Company the amount of that Bank's
Commitment Percentage of the Committed Borrowing, the Agent may assume that
each Bank has made such amount available to the Agent in immediately available
funds on the Committed Borrowing date and the Agent may (but shall not be so
required), in reliance upon such assumption, make
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available to the Company on such date a corresponding amount. If and to the
extent any Bank shall not have made its full amount available to the Agent in
immediately available funds and the Agent in such circumstances has made
available to the Company such amount, that Bank shall on the next Business Day
following the date of such Committed Borrowing make such amount available to
the Agent, together with interest at the Federal Funds Rate for and determined
as of each day during such period. A notice of the Agent submitted to any Bank
with respect to amounts owing under this subsection 2.15(a) shall be
conclusive, absent manifest error. If such amount is so made available, such
payment to the Agent shall constitute such Bank's Loan on the date of such
Committed Borrowing for all purposes of this Agreement. If such amount is not
made available to the Agent on the next Business Day following the date of such
Committed Borrowing, the Agent shall notify the Company of such failure to fund
and, upon demand by the Agent, the Company shall pay such amount to the Agent
for the Agent's account, together with interest thereon for each day elapsed
since the date of such Committed Borrowing, at a rate per annum equal to the
interest rate applicable at the time to the Committed Loans comprising such
Committed Borrowing.
(b) The failure of any Bank to make any Committed Loan on
any date of borrowing shall not relieve any other Bank of any obligation
hereunder to make a Committed Loan on the date of such borrowing, but no Bank
shall be responsible for the failure of any other Bank to make the Committed
Loan to be made by such other Bank on the date of any borrowing.
2.16 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Committed Loans made
by it any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Commitment Percentage of
payments on account of the Committed Loans obtained by all the Banks, such Bank
shall forthwith (a) notify the Agent of such fact, and (b) purchase from the
other Banks such participations in the Committed Loans made by them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Bank, such purchase shall
to that extent be rescinded and each other Bank shall repay to the purchasing
Bank the purchase price paid therefor, together with an amount equal to such
paying Bank's proportionate share (according to the proportion of (i) the
amount of such paying Bank's required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid or
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payable by the purchasing Bank in respect of the total amount so recovered.
The Company agrees that any Bank so purchasing a participation from another
Bank pursuant to this Section 2.16 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 11.09) with respect to such participation as fully as if such Bank
were the direct creditor of the Company in the amount of such participation.
The Agent will keep records (which shall be conclusive and binding in the
absence of manifest error) of participations purchased pursuant to this Section
2.16 and will in each case notify the Banks following any such purchases or
repayments. Any Bank having outstanding both Committed Loans and Bid Loans at
any time a right of set-off is exercised by such Bank shall apply the proceeds
of such set-off first to such Bank's Committed Loans, until its Committed Loans
are reduced to zero, and thereafter to its Bid Loans.
2.17 Effect of Limitations in Facility B Credit Agreement. Unless
otherwise stated herein to the contrary, the limitations imposed in Article II
and III hereof on the minimum principal amount of each Credit Extension, the
number of Interest Periods in effect and the frequency of Borrowings shall
operate independently of any such limitations imposed on Credit Extensions as
defined in and pursuant to the Facility B Credit Agreement and shall not be
affected by or combined with any such limitations therein.
ARTICLE III
THE LETTERS OF CREDIT
3.01 The Letter of Credit Facility.
(a) On the terms and conditions set forth herein, (i)
each Issuing Bank agrees, (A) from time to time on any Business Day during the
period from the Closing Date until 30 days before the Revolving Termination
Date to issue Letters of Credit for the account of the Company or the
Facilities Subsidiary, and to amend or renew Letters of Credit previously
issued by it, in accordance with subsections 3.02(c) and 3.02(d), and (B) to
honor drafts under the Letters of Credit; and (ii) the Banks severally agree to
participate in Letters of Credit Issued for the account of the Company or the
Facilities Subsidiary; provided, that the Issuing Banks shall not be obligated
to Issue, and no Bank shall be obligated to participate in, any Letter of
Credit if as of the date of Issuance of such Letter of Credit (the "Issuance
Date") (1) the Effective
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Amount of all L/C Obligations plus the Effective Amount of all Committed Loans
and Bid Loans exceeds the Aggregate Commitment, (2) the participation of any
Bank in the Effective Amount of all L/C Obligations plus the Effective Amount
of the Committed Loans of such Bank exceeds such Bank's Commitment, or (3) the
Effective Amount of L/C Obligations exceeds the L/C Commitment. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Company's ability to obtain Letters of Credit shall be fully revolving, and,
accordingly, the Company may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit which have expired or which have been drawn
upon and reimbursed. The Company shall be primarily liable for all obligations
hereunder and under the L/C-Related Documents with respect to any Letter of
Credit Issued for the account of the Facilities Subsidiary.
(b) Each of the Issuing Banks is under no obligation to
Issue any Letter of Credit if:
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport to enjoin or
restrain such Issuing Bank from Issuing such Letter of Credit, or any
Requirement of Law applicable to such Issuing Bank or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over such Issuing Bank shall prohibit, or request that such
Issuing Bank refrain from, the Issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon such Issuing Bank with
respect to such Letter of Credit any restriction, reserve or capital
requirement (for which such Issuing Bank is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon such Issuing
Bank any unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which such Issuing Bank in good faith deems material to it;
(ii) such Issuing Bank has received written notice
from any Bank, the Agent or the Company, on or prior to the Business Day prior
to the requested date of Issuance of such Letter of Credit, that one or more of
the applicable conditions contained in Article V is not then satisfied;
(iii) the expiry date of any requested Letter of
Credit is (A) more than one year after the date of Issuance, unless the
Majority Banks have approved such expiry date in writing, or (B) less than 30
days prior to the Revolving Termination Date, unless all of the Banks have
approved such expiry date in writing;
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(iv) the expiry date of any requested Letter of
Credit is prior to the maturity date of any financial obligation to be
supported by the requested Letter of Credit, unless such Letter of Credit is
issued in connection with worker's compensation or to secure self-insurance
deductibles or certain payments required in connection with export log yards,
or all of the Banks have approved such expiry date in writing;
(v) any requested Letter of Credit does not
provide for drafts, or is not otherwise in form and substance reasonably
acceptable to such Issuing Bank, or the Issuance of a Letter of Credit may
violate any policies of such Issuing Bank applicable to customers and credits
of a type similar to the Company and the transactions contemplated by this
Agreement;
(vi) any standby Letter of Credit is for the
purpose of supporting the issuance of any letter of credit by any other Person;
(vii) such Letter of Credit is in a face amount
less than $100,000 or to be denominated in a currency other than Dollars; or
(viii) the requested Letter of Credit provides for
payment thereunder sooner than the Business Day following the presentation to
such Issuing Bank of the documentation required thereunder.
3.02 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the
irrevocable written request of the Company (or, if such Letter of Credit is to
be for the account of the Facilities Subsidiary, the joint and several
irrevocable written request of the Company and the applicable Facilities
Subsidiary) received by an Issuing Bank (with a copy sent by the Company to the
Agent) at least five days (or such shorter time as such Issuing Bank may agree
in a particular instance in its sole discretion) prior to the proposed date of
issuance. Each such request for issuance of a Letter of Credit shall be made
by an original writing or by facsimile, confirmed immediately in an original
writing, in the form of an L/C Application, and shall specify in form and
detail satisfactory to such Issuing Bank:
(i) the proposed date of issuance of the Letter
of Credit (which shall be a Business Day);
(ii) the face amount of the Letter of Credit;
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(iii) the expiry date of the Letter of Credit;
(iv) the name and address of the beneficiary
thereof;
(v) the documents to be presented by the
beneficiary of the Letter of Credit in case of any drawing thereunder;
(vi) the full text of any certificate to be
presented by the beneficiary in case of any drawing thereunder; and
(vii) such other usual and customary matters as the
Issuing Bank may require.
(b) At least three Business Days prior to the Issuance of
any Letter of Credit or any amendment or renewal of a Letter of Credit, the
Issuing Bank issuing such Letter of Credit will confirm with the Agent (by
telephone or in writing) that the Agent has received a copy of the L/C
Application or L/C Amendment Application from the Company and, if not, such
Issuing Bank will provide the Agent with a copy thereof. Unless such Issuing
Bank has received notice on or before the Business Day immediately preceding
the date such Issuing Bank is to issue, amend or renew a requested Letter of
Credit from the Agent (A) directing such Issuing Bank not to issue, amend or
renew such Letter of Credit because such issuance amendment or renewal is not
then permitted under subsection 3.01(a) as a result of the limitations set
forth in clauses (1) through (3) thereof or subsection 3.01(b)(ii); or (B) that
one or more conditions specified in Article V are not then satisfied; then,
subject to the terms and conditions hereof, such Issuing Bank shall, on the
requested date, issue a Letter of Credit for the account of the Company or
amend or renew a Letter of Credit, as the case may be, in accordance with such
Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Revolving Termination Date, an Issuing Bank will,
upon the written request of the Company received by such Issuing Bank (with a
copy sent by the Company to the Agent) at least five days (or such shorter time
as such Issuing Bank may agree in a particular instance in its sole discretion)
prior to the proposed date of amendment, amend any Letter of Credit issued by
it. Each such request for amendment of a Letter of Credit shall be made by an
original writing or by facsimile, confirmed immediately in an original writing,
made in the form of an
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L/C Amendment Application and shall specify in form and detail satisfactory to
such Issuing Bank:
(i) the Letter of Credit to be amended;
(ii) the proposed date of amendment of the Letter
of Credit (which shall be a Business Day);
(iii) the nature of the proposed amendment; and
(iv) such other usual and customary matters as
such Issuing Bank may require.
Such Issuing Bank shall be under no obligation to amend any Letter of Credit
if: (A) such Issuing Bank would have no obligation at such time to issue such
Letter of Credit in its amended form under the terms of this Agreement; or (B)
the beneficiary of any such letter of Credit does not accept the proposed
amendment to the Letter of Credit. The Agent will promptly notify the Banks of
the receipt by it of any L/C Application or L/C Amendment Application.
(d) Each Issuing Bank and the Banks agree that, while a
Letter of Credit is outstanding and prior to the Revolving Termination Date, at
the option of the Company and upon the written request of the Company received
by an Issuing Bank (with a copy sent by the Company to the Agent) at least five
days (or such shorter time as such Issuing Bank may agree in a particular
instance in its sole discretion) prior to the proposed date of notification of
renewal, such Issuing Bank shall be entitled to authorize the automatic renewal
of any Letter of Credit issued by it. Each such request for renewal of a
Letter of Credit shall be made by an original writing or by facsimile,
confirmed immediately in an original writing, in the form of an L/C Amendment
Application, and shall specify in form and detail satisfactory to such Issuing
Bank:
(i) the Letter of Credit to be renewed;
(ii) the proposed date of notification of renewal
of the Letter of Credit (which shall be a Business Day);
(iii) the revised expiry date of the Letter of
Credit; and
(iv) such other usual and customary matters as the
Issuing Bank may require.
Such Issuing Bank shall be under no obligation so to renew any Letter of Credit
if: (A) such Issuing Bank would have no
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obligation at such time to issue or amend such Letter of Credit in its renewed
form under the terms of this Agreement; or (B) the beneficiary of any such
Letter of Credit does not accept the proposed renewal of the Letter of Credit.
If any outstanding Letter of Credit shall provide that it shall be
automatically renewed unless the beneficiary thereof receives notice from such
Issuing Bank that such Letter of Credit shall not be renewed, and if at the
time of renewal such Issuing Bank would be entitled to authorize the automatic
renewal of such Letter of Credit in accordance with this subsection 3.02(d)
upon the request of the Company but such Issuing Bank shall not have received
any L/C Amendment Application from the Company with respect to such renewal or
other written direction by the Company with respect thereto, such Issuing Bank
shall nonetheless be permitted to allow such Letter of Credit to renew, and the
Company and the Banks hereby authorize such renewal, and, accordingly, such
Issuing Bank shall be deemed to have received an L/C Amendment Application from
the Company requesting such renewal.
(e) In connection with Letters of Credit that
automatically renew or extend their expiry date, each Issuing Bank may, at its
election (or as required by the Agent at the direction of the Majority Banks),
deliver any notices of termination or other communications to any Letter of
Credit beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be a date not later than the Revolving
Termination Date.
(f) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of Credit).
(g) Each Issuing Bank will also deliver to the Agent,
concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or
amendment to or renewal of a Letter of Credit.
(h) Each Issuing Bank shall deliver to the Agent such
reports with respect to the Letters of Credit as the Agent may reasonably
request from time to time.
3.03 Existing ABN Letters of Credit; Risk Participations, Drawings
and Reimbursements.
(a) On and after the Closing Date, the Existing ABN
Letters of Credit shall be deemed for all purposes,
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including for purposes of the fees to be collected pursuant to subsections
3.08(a) and 3.08(c), and reimbursement of costs and expenses to the extent
provided herein, Letters of Credit outstanding under this Agreement and
entitled to the benefits of this Agreement and the other Loan Documents, and
shall be governed by the applications and agreements pertaining thereto (which
shall be deemed L/C Related Documents) and by this Agreement (which, as between
the Company, the Issuing Banks, the Agent and the Banks, shall control in the
event of a conflict). Each Bank shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from ABN as the Issuing Bank on the Closing
Date a participation in each such Letter of Credit and each drawing thereunder
in an amount equal to the product of (i) such Bank's Commitment Percentage
times (ii) the maximum amount available to be drawn under such Letter of Credit
and the amount of such drawing, respectively. For purposes of subsection 2.01
and subsection 2.12, the Existing ABN Letters of Credit shall be deemed to
utilize pro rata the Commitment of each Bank. The Company hereby assumes all
obligations of the Facilities Subsidiary with respect to Existing ABN Letters
of Credit Issued for the account of the Facilities Subsidiary.
(b) Immediately upon the Issuance of each Letter of
Credit, each Bank shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank issuing such Letter
of Credit a participation in such Letter of Credit and each drawing thereunder
in an amount equal to the product of (i) the Commitment Percentage of such
Bank, times (ii) the maximum amount available to be drawn under such Letter of
Credit and the amount of such drawing, respectively. For purposes of Section
2.01, each Issuance of a Letter of Credit shall be deemed to utilize the
Commitment of each Bank by an amount equal to the amount of such participation.
(c) In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the Issuing Bank
which issued such Letter of Credit will promptly notify the Company. The
Company shall reimburse such Issuing Bank, directly or with the proceeds of a
Loan, prior to 10:00 a.m. (San Francisco time), on each date that any amount is
paid by such Issuing Bank under any Letter of Credit (each such date, an "Honor
Date"), in an amount equal to the amount so paid by such Issuing Bank. If the
Company fails to reimburse such Issuing Bank for the full amount of any drawing
under any Letter of Credit by 10:00 a.m. (San Francisco time) on the Honor
Date, such Issuing Bank will promptly notify the Agent and the Agent will
promptly notify each Bank thereof, and the Company shall be deemed to have
requested that Base Rate Committed
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Loans be made by the Banks to be disbursed on the Honor Date under such Letter
of Credit, subject to the amount of the unutilized portion of the Commitment
and subject to the conditions set forth in Section 5.02. Any notice given by
such Issuing Bank or the Agent pursuant to this subsection 3.03(c) may be oral
if immediately confirmed in writing (including by facsimile); provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(d) Each Bank shall upon any notice pursuant to
subsection 3.03(c) make available to the Agent for the account of the relevant
Issuing Bank an amount in Dollars and in immediately available funds equal to
its Commitment Percentage of the amount of the drawing, whereupon the
participating Banks shall (subject to subsection 3.03(e)) each be deemed to
have made a Loan consisting of a Base Rate Committed Loan to the Company in
that amount. If any Bank so notified fails to make available to the Agent for
the account of such Issuing Bank the amount of such Bank's Commitment
Percentage of the amount of the drawing by no later than 12:00 noon (San
Francisco time) on the Honor Date, then interest shall accrue on such Bank's
obligation to make such payment, from the Honor Date to the date such Bank
makes such payment, at a rate per annum equal to the Federal Funds Rate in
effect from time to time during such period. The Agent will promptly give
notice of the occurrence of the Honor Date, but failure of the Agent to give
any such notice on the Honor Date or in sufficient time to enable any Bank to
effect such payment on such date shall not relieve such Bank from its
obligations under this Section 3.03.
(e) With respect to any unreimbursed drawing that is not
converted into Loans consisting of Base Rate Committed Loans to the Company in
whole or in part, because of the Company's failure to satisfy the conditions
set forth in Section 5.02 or for any other reason, the Company shall be deemed
to have incurred from the relevant Issuing Bank an L/C Borrowing in the amount
of such drawing, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at a rate per annum equal to
the Base Rate plus 2% per annum, and each Bank's payment to such Issuing Bank
pursuant to subsection 3.03(d) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from
such Bank in satisfaction of its participation obligation under this Section
3.03.
(f) Each Bank's obligation in accordance with this
Agreement to make the Loans or L/C Advances, as contemplated by this Section
3.03, as a result of a drawing under a
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Letter of Credit, shall be absolute and unconditional and without recourse to
the relevant Issuing Bank and shall not be affected by any circumstance,
including (i) any set-off, counterclaim, recoupment, defense or other right
which such Bank may have against such Issuing Bank, the Company or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default, an Event of Default or a Material Adverse Effect; or (iii) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing; provided, however, that each Bank's obligation to make Committed
Loans under this Section 3.03 is subject to the conditions set forth in Section
5.02.
3.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the Agent for the
account of an Issuing Bank of immediately available funds from the Company (i)
in reimbursement of any payment made by such Issuing Bank under the Letter of
Credit with respect to which any Bank has paid the Agent for the account of
such Issuing Bank for such Bank's participation in the Letter of Credit
pursuant to Section 3.03 or (ii) in payment of interest thereon, the Agent will
pay to each Bank, in the same funds as those received by the Agent for the
account of such Issuing Bank, the amount of such Bank's Commitment Percentage
of such funds, and such Issuing Bank shall receive the amount of the Commitment
Percentage of such funds of any Bank that did not so pay the Agent for the
account of such Issuing Bank.
(b) If the Agent or an Issuing Bank is required at any
time to return to the Company, or to a trustee, receiver, liquidator,
custodian, or any official in any Insolvency Proceeding, any portion of the
payments made by the Company to the Agent for the account of such Issuing Bank
pursuant to subsection 3.04(a) in reimbursement of a payment made under the
Letter of Credit or interest or fee thereon, each Bank shall, on demand of the
Agent, forthwith return to the Agent or such Issuing Bank the amount of its
Commitment Percentage of any amounts so returned by the Agent or such Issuing
Bank plus interest thereon from the date such demand is made to the date such
amounts are returned by such Bank to the Agent or such Issuing Bank, at a rate
per annum equal to the Federal Funds Rate in effect from time to time.
3.05 Role of the Issuing Bank.
(a) Each Bank and the Company agree that, in paying any
drawing under a Letter of Credit, each of the Issuing Banks shall not have any
responsibility to obtain any document (other than any sight draft and
certificates
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expressly required by the Letter of Credit) or to ascertain or inquire as to
the validity or accuracy of any such document or the authority of the Person
executing or delivering any such document.
(b) No Agent-Related Person, ABN, nor any of the
respective correspondents, participants or assignees of the Issuing Banks shall
be liable to any Bank for: (i) any action taken or omitted in connection
herewith at the request or with the approval of the Banks (including the
Majority Banks, as applicable); (ii) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to,
and shall not, preclude the Company's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. No Agent-Related Person, ABN, nor any of the respective
correspondents, participants or assignees of an Issuing Bank, shall be liable
or responsible for any of the matters described in clauses (i) through (vii) of
Section 3.06; provided, however, anything in such clauses to the contrary
notwithstanding, that the Company may have a claim against an Issuing Bank, and
such Issuing Bank may be liable to the Company, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Company which the Company proves were caused by such Issuing
Bank's willful misconduct or gross negligence or such Issuing Bank's willful or
grossly negligent failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing: (i) each Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) such Issuing Bank shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.
3.06 Obligations Absolute. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse each Issuing Bank for a
drawing under a Letter of
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Credit, and to repay any L/C Borrowing and any drawing under a Letter of Credit
converted into Loans shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement and each such other
L/C-Related Document under all circumstances, including the following:
(i) any lack of validity or enforceability of this
Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the obligations of the Company in
respect of any Letter of Credit or any other amendment or waiver of or any
consent to departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the Issuing Banks or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or by the L/C-Related Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any Letter
of Credit;
(v) any payment by an Issuing Bank under any Letter of
Credit against presentation of a draft or certificate that does not strictly
comply with the terms of any Letter of Credit; or any payment made by such
Issuing Bank under any Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of any Letter of Credit, including any arising in
connection with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to departure
from any other guarantee, for all or any of the obligations of the Company in
respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing,
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including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or a guarantor.
3.07 Cash Collateral Pledge. Upon (i) the request of the Agent, (A)
if an Issuing Bank has honored any full or partial drawing request on any
Letter of Credit and such drawing has resulted in an L/C Borrowing hereunder,
or (B) if, as of the Revolving Termination Date, any Letters of Credit may for
any reason remain outstanding and partially or wholly undrawn, or (ii) the
occurrence of the circumstances described in subsection 2.09 requiring the
Company to Cash Collateralize Letters of Credit, then, the Company shall
immediately Cash Collateralize the L/C Obligations in an amount equal to the
L/C Obligations. The Company hereby grants to the Agent, for the benefit of
the Agent, the Issuing Banks and the Banks, a security interest in all such
cash and deposit account balances used to Cash Collateralize the Company's
obligations hereunder.
3.08 Letter of Credit Fees.
(a) The Company shall pay to the Agent for the account of
each of the Banks a letter of credit fee with respect to the Letters of Credit
on the average daily maximum amount available to be drawn of the outstanding
Letters of Credit, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based upon Letters of Credit outstanding
for that quarter as calculated by the Agent, equal to the Letter of Credit
Rate. Such letter of credit fees shall be due and payable quarterly in arrears
on the last Business Day of each calendar quarter during which Letters of
Credit are outstanding, commencing on the first such quarterly date to occur
after the Closing Date, through the Revolving Termination Date (or such later
date upon which the outstanding Letters of Credit shall expire), with the final
payment to be made on the Revolving Termination Date (or such later expiration
date).
(b) The Company shall pay to the Agent for the account of
each Issuing Bank a letter of credit fronting fee per annum with respect to the
outstanding Letters of Credit issued by such Issuing Bank equal to 0.125% per
annum of the average daily maximum amount available to be drawn under such
outstanding Letters of Credit, computed on a quarterly basis in arrears on the
last Business Day of each calendar quarter based upon Letters of Credit issued
by such Issuing Bank outstanding for that quarter as calculated by the Agent.
Such fronting fees shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter during which Letters of Credit are
outstanding, commencing on the first such quarterly date to
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occur after the Closing Date, through the Revolving Termination Date (or such
later date upon which the outstanding Letters of Credit shall expire), with the
final payment to be made on the Revolving Termination Date (or such later
expiration date).
(c) The Company shall pay to each Issuing Bank from time
to time on demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of such Issuing Bank
relating to letters of credit as from time to time in effect.
3.09 Uniform Customs and Practice. The Uniform Customs and Practice
for Documentary Credits as published by the International Chamber of Commerce
("UCP") most recently at the time of issuance of any Letter of Credit shall
(unless otherwise expressly provided in the Letters of Credit) apply to the
Letters of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
(a) Subject to subsection 4.01(g), any and all payments
by the Company to each Bank or the Agent under this Agreement shall be made
free and clear of, and without deduction or withholding for, any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding, in the case of each Bank
and the Agent, such taxes (including income taxes or franchise taxes) as are
imposed on or measured by each Bank's net income by the jurisdiction under the
laws of which such Bank or the Agent, as the case may be, is organized or
maintains a Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes").
(b) In addition, the Company shall pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Documents (hereinafter referred to as "Other
Taxes").
(c) Subject to subsection 4.01(g), the Company shall
indemnify and hold harmless each Bank and the Agent for the full amount of
Taxes or Other Taxes (including any
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Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 4.01) paid by the Bank or the Agent and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Payment under this indemnification shall be made within 30
days from the date the Bank or the Agent makes written demand therefor.
(d) If the Company shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, then, subject to subsection 4.01(g):
(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
4.01) such Bank or the Agent, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been
made;
(ii) the Company shall make such deductions; and
(iii) the Company shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(e) Within 30 days after the date of any payment by the
Company of Taxes or Other Taxes, the Company shall furnish to the Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Agent.
(f) Each Bank which is a foreign person (i.e., a person
other than a United States person for United States Federal income tax
purposes) agrees that:
(i) it shall, no later than the Closing Date
(or, in the case of a Bank which becomes a party hereto pursuant to
Section 11.08 after the Closing Date, the date upon which the Bank
becomes a party hereto) deliver to the Company through the Agent two
accurate and complete signed originals of Internal Revenue Service
Form 4224 or any successor thereto ("Form 4224"), or two accurate and
complete signed originals of Internal Revenue Service Form 1001 or any
successor thereto ("Form 1001"), as appropriate, in each case
indicating that the Bank is on the date of delivery thereof entitled
to receive payments of principal, interest and fees under this
Agreement free from withholding of United States Federal income tax;
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(ii) if at any time the Bank makes any changes
necessitating a new Form 4224 or Form 1001, it shall with reasonable
promptness deliver to the Company through the Agent in replacement
for, or in addition to, the forms previously delivered by it
hereunder, two accurate and complete signed originals of Form 4224;
or two accurate and complete signed originals of Form 1001, as
appropriate, in each case indicating that the Bank is on the date of
delivery thereof entitled to receive payments of principal, interest
and fees under this Agreement free from withholding of United States
Federal income tax;
(iii) it shall, before or promptly after the
occurrence of any event (including the passing of time but excluding
any event mentioned in (ii) above) requiring a change in or renewal
of the most recent Form 4224 or Form 1001 previously delivered by
such Bank, deliver to the Company through the Agent two accurate and
complete original signed copies of Form 4224 or Form 1001 in
replacement for the forms previously delivered by the Bank; and
(iv) it shall, promptly upon the Company's or the
Agent's reasonable request to that effect, deliver to the Company or
the Agent (as the case may be) such other forms or similar
documentation as may be required from time to time by any applicable
law, treaty, rule or regulation in order to establish such Bank's tax
status for withholding purposes.
(g) The Company will not be required to pay any
additional amounts in respect of United States Federal income tax pursuant to
subsection 4.01(d) to any Bank for the account of any Lending Office of such
Bank:
(i) if the obligation to pay such additional
amounts would not have arisen but for a failure by such Bank to
comply with its obligations under subsection 4.01(f) in respect of
such Lending Office;
(ii) if such Bank shall have delivered to the
Company a Form 4224 in respect of such Lending Office pursuant to
subsection 4.01(f), and such Bank shall not at any time be entitled
to exemption from deduction or withholding of United States Federal
income tax in respect of payments by the Company hereunder for the
account of such Lending Office for any reason other than a change in
United States law or regulations or in the official interpretation of
such law or regulations by any governmental authority charged with the
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interpretation or administration thereof (whether or not having
the force of law) after the date of delivery of such Form 4224; or
(iii) if the Bank shall have delivered to the Company a Form
1001 in respect of such Lending Office pursuant to subsection 4.01(f),
and such Bank shall not at any time be entitled to exemption from
deduction or withholding of United States Federal income tax in
respect of payments by the Company hereunder for the account of such
Lending Office for any reason other than a change in United States law
or regulations or any applicable tax treaty or regulations or in the
official interpretation of any such law, treaty or regulations by any
governmental authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form 1001.
(h) If, at any time, the Company requests any Bank to
deliver any forms or other documentation pursuant to subsection 4.01(f)(iv),
then the Company shall, on demand of such Bank through the Agent, reimburse
such Bank for any costs and expenses (including Attorney Costs) reasonably
incurred by such Bank in the preparation or delivery of such forms or other
documentation.
(i) If the Company is required to pay additional amounts
to any Bank or the Agent pursuant to subsection 4.01(d), then such Bank shall
use its reasonable best efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Company which may thereafter
accrue if such change in the judgment of such Bank is not otherwise
disadvantageous to such Bank.
4.02 Illegality.
(a) If any Bank shall determine that the introduction of
any Requirement of Law, or any change in any Requirement of Law or in the
interpretation or administration thereof, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for any Bank or its Lending Office to make Offshore Rate Loans, then, on notice
thereof by the Bank to the Company through the Agent, the obligation of that
Bank to make Offshore Rate Loans (including in respect of any LIBOR Bid Loan as
to which the Company has accepted such Bank's Competitive Bid, but as to which
the borrowing date thereof has not arrived) shall be suspended until the
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Bank shall have notified the Agent and the Company that the circumstances
giving rise to such determination no longer exist.
(b) If a Bank shall determine that it is unlawful to
maintain any Offshore Rate Loan, the Company shall prepay in full all Offshore
Rate Loans of that Bank then outstanding, together with interest accrued
thereon, either on the last day of the Interest Period thereof if the Bank may
lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if the Bank may not lawfully continue to maintain such Offshore
Rate Loans, together with any amounts required to be paid in connection
therewith pursuant to Section 4.04. If the Company is required to so prepay
any Offshore Rate Committed Loan, then concurrently with such prepayment, the
Company may borrow from the affected Bank, in the amount of such repayment, a
Base Rate Committed Loan.
(c) If the obligation of any Bank to make or maintain
Offshore Rate Committed Loans has been so terminated or suspended, the Company
may elect, by giving notice to the Bank through the Agent that all Loans which
would otherwise be made by the Bank as Offshore Rate Committed Loans shall be
instead Base Rate Committed Loans.
(d) Before giving any notice to the Agent under this
Section, the affected Bank shall designate a different Lending Office with
respect to its Offshore Rate Loans if such designation will avoid the need for
giving such notice or making such demand and will not, in the judgment of the
Bank, be illegal or otherwise disadvantageous to the Bank.
4.03 Increased Costs and Reduction of Return.
(a) If any Bank shall determine that, due to either (i)
the introduction of or any change after the date hereof (other than any change
by way of imposition of or increase in reserve requirements included in the
calculation of the CD Rate or the Offshore Rate or in respect of the assessment
rate payable by any Bank to the FDIC for insuring U.S. deposits) in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to such Bank of agreeing to make or making, funding or maintaining any
Offshore Rate Loans or CD Rate Committed Loans or participating in Letters of
Credit, or, in the case of an Issuing Bank, any increase in the cost to such
Issuing Bank of agreeing to issue, issuing or maintaining any Letter of Credit
or of agreeing
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to make or making, funding or maintaining any unpaid drawing under any Letter
of Credit, then the Company shall be liable for, and shall from time to time,
upon demand therefor by such Bank (with a copy of such demand to the Agent),
pay to the Agent for the account of such Bank, additional amounts as are
sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation after the date hereof, (ii) any
change in any Capital Adequacy Regulation after the date hereof, (iii) any
change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority charged with the
interpretation or administration thereof after the date hereof, or (iv)
compliance by the Bank (or its Lending Office) or any corporation controlling
the Bank, with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by the Bank or any
corporation controlling the Bank and (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy and such Bank's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Commitment, loans, credits or obligations
under this Agreement, then, upon demand of such Bank (with a copy to the
Agent), the Company shall upon demand pay to the Bank, from time to time as
specified by the Bank, additional amounts sufficient to compensate the Bank for
such increase.
4.04 Funding Losses. The Company agrees to reimburse each Bank and to
hold each Bank harmless from any loss or expense which the Bank may sustain or
incur as a consequence of:
(a) the failure of the Company to make any payment or
mandatory prepayment of principal of any Offshore Rate Loan or CD Rate
Committed Loan (including payments made after any acceleration thereof);
(b) the failure of the Company to borrow, continue or
convert a Loan after the Company has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion/Continuation;
(c) the failure of the Company to make any prepayment of
any Committed Loan after the Company has given a notice in accordance with
Section 2.08;
(d) the prepayment (including pursuant to Section 2.08 or
2.09) of an Offshore Rate Loan, CD Rate
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Committed Loan or Absolute Rate Bid Loan on a day which is not the last day of
the Interest Period with respect thereto;
(e) the conversion pursuant to Section 2.04 of (i) any
Offshore Rate Committed Loan to a CD Rate Committed Loan or a Base Rate
Committed Loan, or (ii) any CD Rate Committed Loan to an Offshore Rate
Committed Loan or Base Rate Committed Loan, on a day that is not the last day
of the respective Interest Period; or
(f) the failure of the Company to borrow any Bid Loan
after having accepted a Competitive Bid therefor;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or CD Rate
Committed Loans or Absolute Rate Bid Loan hereunder or from fees payable to
terminate the deposits from which such funds were obtained.
4.05 Inability to Determine Rates. If the Majority Banks shall have
determined that for any reason adequate and reasonable means do not exist for
ascertaining the Offshore Rate, LIBO Rate or the CD Rate for any requested
Interest Period with respect to a proposed Offshore Rate Loan or CD Rate
Committed Loan or that the Offshore Rate, LIBO Rate or the CD Rate applicable
pursuant to subsection 2.11(a) for any requested Interest Period with respect
to a proposed Offshore Rate Loan or CD Rate Committed Loan does not adequately
and fairly reflect the cost to such Banks of funding such Loan, the Agent will
forthwith give notice of such determination to the Company and each Bank.
Thereafter, the obligation of the Banks to make or maintain CD Rate Committed
Loans or Offshore Rate Loans, as the case may be, hereunder shall be suspended
until the Agent upon the instruction of the Majority Banks revokes such notice
in writing. Upon receipt of such notice, the Company may revoke any Notice of
Borrowing or Notice of Conversion/Continuation then submitted by it. If the
Company does not revoke such notice, the Banks shall make, convert or continue
the Loans, as proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Loans shall be made,
converted or continued as Base Rate Committed Loans instead of CD Rate
Committed Loans or Offshore Rate Committed Loans, as the case may be.
4.06 Certificate of Bank. Each Bank, if claiming reimbursement or
compensation pursuant to this Article IV, shall deliver to the Company, a
certificate setting forth in reasonable detail the amount payable to such Bank
hereunder
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and such certificate shall be conclusive and binding on the Company in the
absence of manifest error.
4.07 Survival. The covenants, agreements and obligations of the
Company in this Article IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions of Initial Credit Extensions. The obligation of each
Bank to make its initial Credit Extension hereunder is subject to the condition
that the Agent shall have received on or before the Closing Date all of the
following, in form and substance satisfactory to the Agent and, as to the items
referenced in subsection 5.01(h) and (i), the Majority Banks, and in sufficient
copies for each Bank:
(a) Credit Agreement. This Agreement executed by the
Company, the Agent, the Co-Agent and each of the Banks;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of
directors of the PC Advisory General Partner, as general partner of
the PCMC General Partner, as general partner of the General Partner,
as general partner of the Company, approving and authorizing the
execution, delivery and performance by such entities on behalf of
the Company of this Agreement and the other Loan Documents to be
delivered hereunder, and authorizing the borrowing of the Loans,
certified as of the Closing Date by the Secretary or an Assistant
Secretary of the PC Advisory General Partner; and
(ii) A certificate of the Secretary or Assistant
Secretary of the PC Advisory General Partner certifying the names and
true signatures of the duly authorized officers of the General
Partner, as general partner of the Company, authorized to execute,
deliver and perform, as applicable, this Agreement on behalf of the
Company, and all other Loan Documents to be delivered hereunder;
(c) Articles of Incorporation; By-laws; Partnership
Documents and Good Standing. Each of the following documents:
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(i) the partnership certificate of each of the
Company, the General Partner, and the PCMC General Partner as in
effect on the Closing Date, certified by the Secretary of State (or
similar, applicable Governmental Authority) of the state of formation
of such entities as of a recent date and by the Secretary or
Assistant Secretary of the PC Advisory General Partner as of the
Closing Date, and the partnership agreement of each of the Company,
the General Partner, and the PCMC General Partner as in effect
on the Closing Date, certified by the Secretary or Assistant
Secretary of the PC Advisory General Partner as of the Closing Date;
(ii) the articles or certificate of incorporation
of the PC Advisory General Partner as in effect on the Closing Date,
certified by the Secretary of State (or similar, applicable
Governmental Authority) of the state of incorporation of the PC
Advisory General Partner as of a recent date and by the Secretary
or Assistant Secretary of the PC Advisory General Partner as of the
Closing Date, and the bylaws of the PC Advisory General Partner as
in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of the PC Advisory General Partner as of the
Closing Date; and
(iii) a good standing certificate for each of the
Company, the General Partner, the PCMC General Partner, and the PC
Advisory General Partner from the Secretary of State (or similar,
applicable Governmental Authority) of its state of incorporation or
formation, as applicable and each state where the Company is
qualified to do business as a foreign corporation or limited
partnership, as applicable, as of a recent date, together with a
bring down certificate by facsimile, dated the Closing Date,
provided, however, that if the Company is unable to deliver on the
Closing Date any such bring down certificate (other than the bring
down certificate from the state of incorporation or formation of such
Person) because bring down certificates are not readily provided by
the applicable Secretary of State, the Company shall not be required
to deliver such bring down certificate on the Closing Date but
instead shall deliver it to the Agent within five days of the
Closing Date;
(d) Legal Opinions. An opinion of (i) James A. Kraft,
Vice President, Law and Corporate Affairs of the Company and (ii) Perkins Coie,
counsel to the Company, each addressed to the Agent and the Banks and
substantially in
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the form of Exhibits C-1 and C-2, respectively;
(e) Payment of Fees. The Company shall have paid all
accrued and unpaid fees, costs and expenses to the extent then due and payable
on the Closing Date, together with Attorney Costs of BofA to the extent
invoiced prior to or on the Closing Date, together with such additional amounts
of Attorney Costs as shall constitute BofA's reasonable estimate of Attorney
Costs incurred or to be incurred through the closing proceedings, provided that
such estimate shall not thereafter preclude final settling of accounts between
the Company and BofA; including any such costs, fees and expenses arising under
or referenced in Sections 2.12, 4.01 and 11.04;
(f) Certificate. A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that:
(i) the representations and warranties contained
in Article VI are true and correct on and as of such date, as though made on
and as of such date;
(ii) no Default or Event of Default exists or
would result from the initial Credit Extension; and
(iii) there has occurred since December 31, 1993,
no event or circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect;
(g) Financial Statements. A copy certified by the chief
financial officer of the Company of the financial statements of the Company and
its Subsidiaries referred to in Section 6.11;
(h) Credit Agreements. Copies certified by a Responsible
Officer of the Note Agreements, as amended, the Mortgage Note Agreements, as
amended, and the 1994 Senior Note Agreements;
(i) Other Documents. Such other approvals, opinions,
documents or materials as the Agent or the Majority Banks may request;
(j) Facility B Credit Agreement. All conditions
precedent to the initial extension of credit under the Facility B Credit
Agreement shall have occurred prior to or simultaneously with the Closing;
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(k) Consent to Amendment and Restatement. A Consent to
Amendment and Restatement executed by the Departing Bank, substantially in the
form of Exhibit J; and
(l) Termination of Existing ABN Credit Facilities. On or
before the Closing Date, the Company shall have terminated (i) that certain
$15,000,000 Revolving Credit Agreement dated as of May 1, 1993 between the
Company, ABN, as agent, and the banks party thereto, as amended, and (ii) that
certain $20,000,000 Revolving Credit Agreement dated as of May 1, 1993 between
the Facilities Subsidiary, ABN, as agent, and the banks party thereto, as
amended.
5.02 Conditions to All Credit Extensions. The obligation of each Bank
to make any Committed Loan to be made by it, or any Bid Loan as to which the
Company has accepted the relevant Competitive Bid (including its initial Loan)
or to continue or convert any Committed Loan pursuant to Section 2.04, and the
obligation of each Issuing Bank to Issue any Letter of Credit (including the
initial Letter of Credit) is subject to the satisfaction of the following
conditions precedent on the relevant date of Borrowing, Conversion/Continuation
Date or Issuance Date:
(a) Notice, Application. As to any Committed Loan, the
Agent shall have received (with, in the case of the initial Loan only, a copy
for each Bank) a Notice of Borrowing or a Notice of Conversion/Continuation, as
applicable, or in the case of any Issuance of any Letter of Credit, the
relevant Issuing Bank and the Agent shall have received an L/C Application or
L/C Amendment Application, as required under Section 3.02;
(b) Continuation of Representations and Warranties. The
representations and warranties made by the Company contained in Article VI
shall be true and correct on and as of such date of Borrowing or
Conversion/Continuation Date with the same effect as if made on and as of such
date of Borrowing or Conversion/Continuation Date (except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they shall be true and correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default
shall exist or shall result from such Credit Extension.
Each Notice of Borrowing, Notice of Conversion/Continuation, Competitive Bid
Request and L/C Application or L/C Amendment Application submitted by the
Company hereunder shall constitute a representation and warranty by the Company
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hereunder, as of the date of each such notice, request or application and as of
the date of each Borrowing, each Conversion/Continuation Date, or Issuance
Date, as applicable, that the conditions in Section 5.02 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
6.01 Corporate Existence and Power.
(a) The Company, each of its Subsidiaries, and each of
the Partner Entities:
(i) is a limited partnership or corporation, duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation;
(ii) is duly qualified as a foreign partnership or
corporation, as applicable, and licensed and in good standing, under the laws
of each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification or license; and
(iii) is in compliance with all Requirements of Law
except where failure to so comply would not reasonably be expected to have a
Material Adverse Effect.
(b) The Company and each of its Subsidiaries has the
power and authority and all governmental licenses, authorizations, consents and
approvals to own its assets and carry on its business; and the Company and each
of the Partner Entities has the power and authority and all governmental
licenses, authorizations, consents and approvals to execute, deliver, and
perform its obligations under, the Loan Documents.
6.02 Authorization; No Contravention. The execution, delivery and
performance by the Company of this Agreement, and any other Loan Document to
which the Company is party, have been duly authorized by all necessary
corporate and partnership action on behalf of the PC Advisory General Partner,
as general partner of the PCMC General Partner, as general partner of the
General Partner, as general partner of the Company, and by all necessary
partnership action on behalf of the Company, and do not and will not:
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(a) contravene the terms of the Organization Documents of
any of the Company or the Partner Entities;
(b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document evidencing
any Contractual Obligation to which such Person is a party or any order,
injunction, writ or decree of any Governmental Authority to which such Person
or its Property is subject; or
(c) violate any Requirement of Law.
6.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company, the
Partner Entities or any of their Subsidiaries of the Agreement or any other
Loan Document.
6.04 Binding Effect. This Agreement and each other Loan Document to
which the Company is a party constitute the legal, valid and binding
obligations of the Company and the Partner Entities, enforceable against the
Company and the Partner Entities in accordance with their respective terms
except as enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditor's rights generally or by
equitable principles relating to enforceability.
6.05 Litigation. There are no actions, suits, proceedings, claims or
disputes pending, or to the Company's Knowledge and to the knowledge of the
Partner Entities, threatened or contemplated, at law, in equity, in arbitration
or before any Governmental Authority, against the Company, the Partner Entities
or their Subsidiaries or any of their respective Properties which:
(a) purport to affect or pertain to this Agreement or any
other Loan Document, or any of the transactions contemplated hereby or thereby;
or
(b) have a reasonable probability of success on the
merits and which, if determined adversely to the Company, the Partner Entities
or their Subsidiaries, would reasonably be expected to have a Material Adverse
Effect. No injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions
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provided for herein or therein not be consummated as herein or therein
provided.
6.06 No Default. No Default or Event of Default exists or would
result from the incurring of any Obligations by the Company. Neither the
Company, the Partner Entities, nor any of their Subsidiaries is in default
under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, would reasonably be expected
to have a Material Adverse Effect or that would, if such default had occurred
after the Closing date, create an Event of Default under subsection 9.01(f).
6.07 ERISA Compliance.
(a) Schedule 6.07 lists all Plans and separately
identifies Plans intended to be Qualified Plans and Multiemployer Plans. All
written descriptions thereof provided to the Agent are true and complete in all
material respects.
(b) Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other Federal or state
law, including all requirements under the Code or ERISA for filing reports
(which are true and correct in all material respects as of the date filed), and
benefits have been paid in accordance with the provisions of the Plan.
(c) Except as specifically disclosed in Schedule 6.07,
each Qualified Plan has been determined by the IRS to qualify under Section 401
of the Code, and the trusts created thereunder have been determined to be
exempt from tax under the provisions of Section 501 of the Code, and to the
Company's Knowledge nothing has occurred which would cause the loss of such
qualification or tax-exempt status.
(d) Except as specifically disclosed in Schedule 6.07,
there is no outstanding liability under Title IV of ERISA with respect to any
Plan maintained or sponsored by the Company or any ERISA Affiliate, nor with
respect to any Plan to which the Company or any ERISA Affiliate contributes or
is obligated to contribute.
(e) Except as specifically disclosed in Schedule 6.07, no
Plan subject to Title IV of ERISA has any Unfunded Pension Liability.
(f) Except as specifically disclosed in Schedule 6.07, no
member of the Controlled Group has ever represented, promised or contracted
(whether in oral or
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written form) to any current or former employee (either individually or to
employees as a group) that such current or former employee(s) would be
provided, at any cost to any member of the Controlled Group, with life
insurance or employee welfare plan benefits (within the meaning of section 3(1)
of ERISA) following retirement or termination of employment. To the extent
that any member of the Controlled Group has made any such representation,
promise or contract, such member has expressly reserved the right to amend or
terminate such life insurance or employee welfare plan benefits with respect to
claims not yet incurred.
(g) Members of the Controlled Group have complied in all
material respects with the notice and continuation coverage requirements of
Section 4980B of the Code.
(h) Except as specifically disclosed in Schedule 6.07, no
ERISA Event has occurred or, to the Company's Knowledge is reasonably expected
to occur with respect to any Plan.
(i) There are no pending or, to the Company's Knowledge,
threatened claims, actions or lawsuits, other than routine claims for benefits
in the usual and ordinary course, asserted or instituted against (i) any Plan
maintained or sponsored by the Company or its assets, (ii) any member of the
Controlled Group with respect to any Qualified Plan, or (iii) any fiduciary
with respect to any Plan for which the Company may be directly or indirectly
liable, through indemnification obligations or otherwise. This representation
is not made with respect to any Multiemployer Plan.
(j) Except as specifically disclosed in Schedule 6.07,
neither the Company nor any ERISA Affiliate has incurred nor, to the Company's
Knowledge, reasonably expects to incur (i) any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan or (ii) any liability under Title IV of ERISA (other than
premiums due and not delinquent under Section 4007 of ERISA) with respect to a
Plan.
(k) Except as specifically disclosed in Schedule 6.07,
neither the Company nor any ERISA Affiliate has transferred any Unfunded
Pension Liability to a Person other than the Company or an ERISA Affiliate or
otherwise engaged in a transaction that could be subject to Section 4069 or
4212(c) of ERISA.
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(l) The Company has not engaged, directly or indirectly,
in a non-exempt prohibited transaction (as defined in Section 4975 of the Code
or Section 406 of ERISA) in connection with any Plan which would reasonably be
expected to have a Material Adverse Effect.
6.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans
are intended to be and shall be used solely for the purposes set forth in and
permitted by Section 7.11, and are intended to be and shall be used in
compliance with Section 8.07. Neither the Company, the Partner Entities, nor
any of their Subsidiaries is generally engaged in the business of purchasing or
selling Margin Stock or extending credit for the purpose of purchasing or
carrying Margin Stock.
6.09 Title to Properties. The Company and each of its Subsidiaries
have good record and marketable title in fee simple to, or valid leasehold
interests in, all real Property necessary or used in the ordinary conduct of
their respective businesses, except for such defects in title as would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect. As of the Closing Date, the Property of the Company and its
Subsidiaries is subject to no Liens, other than Permitted Liens.
6.10 Taxes. The Company, the Partner Entities and their Subsidiaries
have filed all Federal and other material tax returns and reports required to
be filed, and have paid all Federal and other material taxes, assessments, fees
and other governmental charges levied or imposed upon them or their Properties,
income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP and no Notice of Lien has
been filed or recorded. There is no proposed tax assessment against the
Company, the Partner Entities or any of their Subsidiaries which would, if the
assessment were made, have a Material Adverse Effect.
6.11 Financial Condition.
(a) The audited combined financial statements of
financial condition of the Company and its Subsidiaries dated December 31,
1993, and the related combined statements of income and combined statement of
cash flows for the fiscal year ended on that date:
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein;
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(ii) fairly present the financial condition of the
Company and its Subsidiaries as of the date thereof and results of operations
for the period covered thereby; and
(iii) show all material Indebtedness and other
liabilities, direct or contingent of the Company and its combined Subsidiaries
as of the date thereof, including liabilities for taxes and material
commitments.
(b) Since December 31, 1993, there has been no Material
Adverse Effect.
6.12 Environmental Matters.
(a) Except as specifically disclosed in Schedule 6.12,
the on-going operations of the Company, the Partner Entities and each of their
Subsidiaries comply in all respects with all Environmental Laws, except such
non-compliance which would not (if enforced in accordance with applicable law)
result in liability in excess of $25,000,000 in the aggregate.
(b) Except as specifically disclosed in Schedule 6.12,
the Company, the Partner Entities and each of their Subsidiaries have obtained
all licenses, permits, authorizations and registrations required under any
Environmental Law ("Environmental Permits") and necessary for their respective
ordinary course operations, all such Environmental Permits are in good
standing, and the Company, the Partner Entities and each of their Subsidiaries
are in compliance with all terms and conditions of such Environmental Permits
except where the failure to obtain, maintain in good standing or comply with
such Environmental Permits would not reasonably be expected to have a Material
Adverse Effect.
(c) Except as specifically disclosed in Schedule 6.12,
none of the Company, the Partner Entities, any of their Subsidiaries or any of
their respective present Property or operations, is subject to any outstanding
written order from or agreement with any Governmental Authority, nor subject to
any judicial or docketed administrative proceeding, respecting any
Environmental Law, Environmental Claim or Hazardous Material arising out of a
violation or alleged violation of any Environmental Law.
(d) Except as specifically disclosed in Schedule 6.12,
there are no Hazardous Materials or other conditions or circumstances existing
with respect to any Property, or arising from operations prior to the Closing
Date, of the Company, the Partner Entities, or any of their
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Subsidiaries that would reasonably be expected to give rise to Environmental
Claims with a potential liability of the Company and its Subsidiaries in excess
of $25,000,000 in the aggregate for any such condition, circumstance or
Property. In addition, (i) neither the Company, the Partner Entities nor any
of their Subsidiaries has any underground storage tanks (x) that are not
properly registered or permitted under applicable Environmental Laws, or (y)
that are leaking or disposing of Hazardous Materials off-site, and (ii) the
Company, the Partner Entities and their Subsidiaries have notified all of their
employees of the existence, if any, of any health hazard arising from the
conditions of their employment and have met all notification requirements under
Title III of CERCLA and all other Environmental Laws.
6.13 Regulated Entities. None of the Company, the Partner Entities,
any Person controlling the Company or the Partner Entities, or any Subsidiary
of the Company or the Partner Entities, is (a) an "Investment Company" within
the meaning of the Investment Company Act of 1940; or (b) subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act,
the Interstate Commerce Act, any state public utilities code, or any other
Federal or state statute or regulation limiting its ability to incur
Indebtedness.
6.14 No Burdensome Restrictions. Neither the Company nor any of its
Subsidiaries is a party to or bound by any Contractual Obligation, or subject
to any charter or corporate restriction, or any Requirement of Law, which would
reasonably be expected to have a Material Adverse Effect.
6.15 Solvency. The Company, the General Partner, the Facilities
Subsidiary, and the Restricted Subsidiaries are each Solvent.
6.16 Labor Relations. There are no material strikes, lockouts or
other labor disputes against the Company or any of its Subsidiaries, or, to the
Company's Knowledge, threatened against or affecting the Company or any of its
Subsidiaries, and no significant unfair labor practice complaint is pending
against the Company or any of its Subsidiaries or, to the Company's Knowledge,
threatened against any of them before any Governmental Authority.
6.17 Copyrights, Patents, Trademarks and Licenses, Etc. The Company
or its Subsidiaries own or are licensed or otherwise have the right to use all
of the patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their
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respective businesses, without conflict with the rights of any other Person.
To the Company's Knowledge, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Company or any of its Subsidiaries
infringes upon any rights held by any other Person; except as specifically
disclosed in Schedule 6.05, no claim or litigation regarding any of the
foregoing is pending or, to the Company's Knowledge, threatened, and no patent,
invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the Company's Knowledge,
proposed, which, in either case, would reasonably be expected to have a
Material Adverse Effect.
6.18 Subsidiaries. The Company has no Subsidiaries other than those
specifically disclosed in part (a) of Schedule 6.18 hereto and has no equity
investments in any other corporation or entity other than those specifically
disclosed in part (b) of Schedule 6.18. Except as disclosed in part (a) of
Schedule 6.18, the Company owns 100% of the ownership interests of its
Subsidiaries. The Facilities Subsidiary has issued no rights, warrants or
options to acquire or instruments convertible into or exchangeable for any
equity interest in the Facilities Subsidiary.
6.19 Partnership Interests. The only general partner of the Company
is the General Partner, which on the Closing Date will own a 2% interest in the
Company. The only general partners of the General Partner are (i) the PCMC
General Partner, which is the managing general partner of the General Partner,
and (ii) Sub Advisory Corp. I, a Delaware corporation. The only general
partner of the PCMC General Partner is the PC Advisory General Partner.
6.20 Broker's, Transaction Fees. Neither the Company nor any of its
Subsidiaries has any obligation to any Person in respect of any finder's,
broker's or investment banker's fee in connection with the transactions
contemplated hereby.
6.21 Insurance. The Properties of the Company and its Subsidiaries
are insured with financially sound and reputable insurance companies not
Affiliates of the Company, in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar
businesses and owning similar Properties in localities where the Company or
such Subsidiary operates.
6.22 Timber Harvest. The Company and its Restricted Subsidiaries
harvested 1,663 MMBF of its fee Timber during the calendar years 1989
(including harvest by the Company's predecessor prior to closing under the Note
Agreements)
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through 1991, 469 MMBF of its fee Timber during calendar year 1992 and 458 MMBF
of its fee Timber during calendar year 1993.
6.23 Full Disclosure. None of the representations or warranties made
by the Company, the General Partners, or any of their Subsidiaries in the Loan
Documents as of the date such representations and warranties are made or deemed
made, and none of the statements contained in each exhibit, report, written
statement or certificate furnished by or on behalf of the Company or any of its
Subsidiaries in connection with the Loan Documents, contains any untrue
statement of a material fact or omits any material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading as of the time when
made or delivered.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, so long as any Bank shall have
any Commitment hereunder, or any Loan or other Obligation shall remain unpaid
or unsatisfied, or any Letter of Credit remains outstanding, unless the
Majority Banks waive compliance in writing:
7.01 Financial Statements. The Company shall deliver to the Agent in
form and detail satisfactory to the Agent and the Majority Banks, with
sufficient copies for each Bank:
(a) as soon as available, but not later than 90 days
after the end of each fiscal year, a copy of the audited combined balance sheet
of the Company as at the end of such year and the related combined statements
of income and statements of cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, and
accompanied by the opinion of Coopers & Lybrand, or another
nationally-recognized independent public accounting firm ("Independent
Auditor") which report shall state that such combined financial statements
present fairly the financial position for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years. Such opinion shall
not be qualified or limited because of a restricted or limited examination by
Independent Auditor of any material portion of the Company's or any
Subsidiary's records and shall be delivered to the Agent pursuant to a reliance
agreement in favor of the Agent and Banks by such Independent Auditor in
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form and substance satisfactory to the Agent and the Majority Banks;
(b) as soon as available, but not later than 120 days
after the end of each fiscal year, a copy of an audited combining balance sheet
of the Company and each of its Subsidiaries as at the end of such fiscal year
and the related combining statements of income and statement of cash flows for
such fiscal year, all in reasonable detail certified by an appropriate
Responsible Officer as having been used in connection with the preparation of
the financial statements referred to in subsection (a) of this Section 7.01;
(c) as soon as available, but not later than 45 days
after the end of each fiscal quarter of each year, a copy of the unaudited
combined balance sheet of the Company and its combined Subsidiaries as of the
end of such quarter and the related combined statements of income and statement
of cash flows for the period commencing on the first day and ending on the last
day of such quarter, and certified by an appropriate Responsible Officer as
being complete and correct and fairly presenting, in accordance with GAAP, the
financial position and the results of operations of the Company and the
Subsidiaries;
(d) as soon as available, but not later than 45 days
after the end of each fiscal quarter of each year, a copy of the unaudited
combining balance sheets of the Company and each of its Subsidiaries, and the
related combining statements of income and statement of cash flows for such
quarter, all certified by an appropriate Responsible Officer of the Company as
having been used in connection with the preparation of the financial statements
referred to in subsection (c) of this Section 7.01;
(e) as soon as available, but not later than September 30
of each year, a business plan which shall include five years' pro-forma
projections of the Company accompanied by appropriate assumptions on which such
projections are based.
7.02 Certificates; Other Information. The Company shall furnish to
the Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.01(a) above, a certificate of the
Independent Auditor stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except as
specified in such certificate;
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(b) concurrently with the delivery of the financial
statements referred to in subsections 7.01(a) through (d) above, a certificate
of a Responsible Officer substantially in the form of Exhibit D (i) stating
that, to the best of such officer's knowledge, the Company, during such period,
has observed and performed all of its covenants and other agreements, and
satisfied every condition contained in this Agreement to be observed, performed
or satisfied by it, and that such officer has obtained no knowledge of any
Default or Event of Default except as specified (by applicable subsection
reference) in such certificate, (ii) stating the Applicable Margin to be in
effect for the immediately following fiscal quarter, and (iii) showing in
detail the calculations supporting such statement in respect of subsection
8.02(h), Section 8.03, subsection 8.04(i), Section 8.05 and Section 8.13, and
supporting the computation of the Fixed Charge Coverage Ratio;
(c) promptly after the same are sent, copies of all
financial statements and reports which the Company sends to its limited
partners (excluding the Form K-1s); and promptly after the same are filed,
copies of all financial statements and regular, periodical or special reports
which the Company may make to, or file with, the SEC or any successor or
similar Governmental Authority; and
(d) promptly, such additional business, financial,
corporate affairs and other information as the Agent, at the request of any
Bank, may from time to time reasonably request.
7.03 Notices. The Company shall promptly upon becoming aware thereof
notify the Agent and each Bank:
(a) (i) of the occurrence of any Default or Event of
Default, (ii) of the occurrence or existence of any event or circumstance that
foreseeably will become a Default or Event of Default, and (iii) of the
occurrence or existence of any event or circumstance that would cause the
condition to Credit Extension set forth in subsection 5.02(b) not to be
satisfied if a Credit Extension were requested on or after the date of such
event or circumstance;
(b) of (i) any breach or non-performance of, or any
default under, any Contractual Obligation of the Company, the Partner Entities,
or any of their Subsidiaries which could result in a Material Adverse Effect;
and (ii) any dispute, litigation, investigation, proceeding or suspension which
may exist at any time between the Company, the Partner Entities, or any of
their Subsidiaries and any
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Governmental Authority which, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(c) of the commencement of, or any material development
in, any litigation or proceeding affecting the Company or any Subsidiary (i)
which, if adversely determined, would reasonably be expected to have a Material
Adverse Effect, or (ii) in which the relief sought is an injunction or other
stay of the performance of this Agreement or any Loan Document;
(d) upon, but in no event later than 10 days after,
becoming aware of (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened against
the Company or any of its Subsidiaries or any of their respective Properties
pursuant to any applicable Environmental Laws where, if adversely determined,
the potential liability or expense relating thereto could exceed $25,000,000 or
the potential remedy with respect thereto would otherwise reasonably be
expected to have a Material Adverse Effect, (ii) all other Environmental Claims
which allege liability in excess of $25,000,000 or have the possibility of
remedies that would, if adversely determined, otherwise reasonably be expected
to constitute a Material Adverse Effect, and (iii) any environmental or similar
condition on any real property adjoining or in the vicinity of the property of
the Company or any Subsidiary that would reasonably be anticipated to cause
such property or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of such property under any
Environmental Laws where the net book value of such property exceeds
$25,000,000;
(e) of any other litigation or proceeding affecting the
Company or any of its Subsidiaries which the Company would be required to
report to the SEC pursuant to the Exchange Act, within four days after
reporting the same to the SEC;
(f) of any of the following ERISA events affecting the
Company or any member of its Controlled Group (but in no event more than 10
days after such event), together with a copy of any notice with respect to such
event that may be required to be filed with a Governmental Authority and any
notice delivered by a Governmental Authority to the Company or any member or
its Controlled Group with respect to such event:
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(i) an ERISA Event;
(ii) the adoption of any new Plan that is subject
to Title IV of ERISA or section 412 of the Code by any member of the Controlled
Group;
(iii) the adoption of any amendment to a Plan that
is subject to Title IV of ERISA or section 412 of the Code, if such amendment
results in a material increase in benefits or unfunded liabilities; or
(iv) the commencement of contributions by any
member of the Controlled Group to any Plan that is subject to Title IV of ERISA
or section 412 of the Code;
(g) any Material Adverse Effect subsequent to the date of
the most recent audited financial statements of the Company delivered to the
Banks pursuant to subsection 7.01(a) or 5.01(g); and
(h) of any material labor controversy resulting in or
threatening to result in any strike, work stoppage, boycott, shutdown or other
labor disruption against or involving the Company or any of its Subsidiaries.
Each notice pursuant to this Section shall be accompanied by a
written statement by a Responsible Officer of the Company setting forth details
of the occurrence referred to therein, and stating what action the Company
proposes to take with respect thereto and at what time. Each notice under
subsection 7.03(a) shall describe with particularity any and all clauses or
provisions of this Agreement or other Loan Document that have been breached or
violated.
7.04 Preservation of Corporate Existence, Etc. The Company shall,
except as permitted by Section 8.02, and shall cause each of its Subsidiaries
to:
(a) preserve and maintain in full force and effect its
partnership or corporate existence and good standing under the laws of its
state or jurisdiction of formation or incorporation;
(b) preserve and maintain in full force and effect all
rights, privileges, qualifications, permits, licenses and franchises necessary
in the normal conduct of its business;
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(c) use its reasonable efforts, in the Ordinary Course of
Business, to preserve its business organization and preserve the goodwill and
business of the customers, suppliers and others having material business
relations with it; and
(d) preserve or renew all of its registered trademarks,
trade names and service marks, the non-preservation of which would reasonably
be expected to have a Material Adverse Effect.
7.05 Maintenance of Property. The Company shall maintain, and shall
cause each of its Subsidiaries to maintain, and preserve all its Property which
is used or useful in its business in good working order and condition, ordinary
wear and tear excepted.
7.06 Insurance. The Company shall maintain, and shall cause each of
its Subsidiaries to maintain, with financially sound and reputable independent
insurers, insurance with respect to its Properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons.
7.07 Payment of Obligations. The Company shall, and shall cause its
Subsidiaries to, pay and discharge as the same shall become due and payable,
all their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings and adequate reserves
in accordance with GAAP are being maintained by the Company or such Subsidiary;
and
(b) all Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.
7.08 Compliance with Laws. The Company shall comply, and shall cause
each of its Subsidiaries to comply with all Requirements of Law of any
Governmental Authority having jurisdiction over it or its business (including
the Federal Fair Labor Standards Act) the non-compliance with which would
reasonably be expected to have a Material Adverse Effect, except such as may be
contested in good faith or as to which a bona fide dispute may exist.
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7.09 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each of its Subsidiaries to maintain proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Company and such Subsidiaries.
The Company shall permit, and shall cause each of its Subsidiaries to permit,
representatives and independent contractors of the Agent or any Bank to visit
and inspect any of their respective Properties, to examine their respective
corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and independent public
accountants, all at the expense of the Company and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company; provided, however, when an Event of
Default exists the Agent or any Bank may do any of the foregoing at the expense
of the Company such Properties at any time during normal business hours and
without advance notice.
7.10 Environmental Laws.
(a) The Company shall, and shall cause each of its
Subsidiaries to, conduct its operations and keep and maintain its Property in
compliance with all Environmental Laws, the non-compliance with which would
reasonably be expected to have a Material Adverse Effect.
(b) Upon the written request of the Agent or any Bank,
the Company shall submit and cause each of its Subsidiaries to submit, to the
Agent and with sufficient copies for each Bank, at the Company's sole cost and
expense, at reasonable intervals, a report providing an update of the status of
any environmental, health or safety compliance, hazard or liability issue
identified in any notice or report required pursuant to subsection 7.03(d),
that could, individually or in the aggregate, result in liability in excess of
$25,000,000.
7.11 Use of Proceeds. The Company shall use the proceeds of the Loans
solely as follows: (a) to refinance existing Indebtedness, and (b) for working
capital and other general corporate purposes not in contravention of any
Requirement of Law or of any Loan Document.
7.12 Solvency. The Company shall at all times be, and shall cause
each of its Restricted Subsidiaries to be, Solvent.
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ARTICLE VIII
NEGATIVE COVENANTS
The Company hereby covenants and agrees that, so long as any Bank
shall have any Commitment hereunder, or any Loan or other Obligation shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
unless the Majority Banks waive compliance in writing:
8.01 Limitation on Liens. The Company shall not, and shall not suffer
or permit any of its Restricted Subsidiaries to, directly or indirectly, make,
create, incur, assume or suffer to exist any Lien upon or with respect to any
part of its Property, whether now owned or hereafter acquired, other than the
following ("Permitted Liens"):
(a) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable without
penalty, or to the extent that non-payment thereof is permitted by Section
7.07, provided that no Notice of Lien has been filed or recorded under the
Code;
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the Ordinary
Course of Business which are not delinquent or remain payable without penalty
or unless such lien is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and if such accrual or other
appropriate provision, if any, as shall be required by GAAP shall have been
made therefor;
(c) Liens (other than any Lien imposed by ERISA) incurred
or deposits made incidental to the conduct of its business or the ownership of
its Property including (i) pledges or deposits in connection with worker's
compensation, unemployment insurance and other social security legislation,
(ii) deposits to secure insurance, the performance of bids, tenders, contracts,
leases, licenses, franchises and statutory obligations, each in the Ordinary
Course of Business, and (iii) other obligations which were not incurred or made
in connection with the borrowing of money, the obtaining of advances or credit
or the payment of the deferred purchase price of property and which do not in
the aggregate materially detract from the value of its Property or materially
impair the use of such Property in the operation of its business;
(d) any attachment or judgment Lien, unless the judgment
it secures shall not, within 45 days after the
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entry thereof, have been discharged or execution thereof stayed pending appeal,
or shall not have been discharged within 45 days after expiration of any such
stay;
(e) easements, rights-of-way, restrictions and other
similar charges or encumbrances incurred in the Ordinary Course of Business
which, in each case, and in the aggregate, do not materially interfere with the
ordinary conduct of the business of the Company or any Restricted Subsidiary;
(f) Liens on Property of any Restricted Subsidiary
securing obligations of such Restricted Subsidiary owing to the Company or
another Restricted Subsidiary;
(g) any Lien existing prior to the time of acquisition
upon any Property acquired by the Company or any Restricted Subsidiary after
the Closing Date through purchase, merger or consolidation or otherwise,
whether or not assumed by the Company or such Subsidiary, or placed upon
Property at (or within 30 days after) the later of the time of acquisition or
the completion of construction by the Company or any Restricted Subsidiary to
secure all or a portion of (or to secure Indebtedness incurred to pay all or a
portion of) the purchase price thereof, provided that (i) any such Lien does
not encumber any other property of the Company or such Restricted Subsidiary,
(ii) the Indebtedness secured by such Lien is not prohibited by the provisions
of Section 8.05, (iii) the aggregate principal amount of the Indebtedness
secured by such Lien at no time exceeds 80% of the cost to the Company and its
Restricted Subsidiaries of the Property subject to such Lien, and (iv) the
aggregate outstanding principal amount (without duplication) of the
Indebtedness secured by all such Liens and the Indebtedness of all Restricted
Subsidiaries at no time (a) from May 31, 1994 to May 31, 1999, exceeds
$25,000,000, and (b) from May 31, 1999 to the Maturity Date, exceeds
$50,000,000;
(h) Liens on the accounts, rights to payment for goods
sold or services rendered that are evidenced by chattel paper or instruments,
and rights against persons who guarantee payment or collection of the
foregoing, and on the Company's inventory and on the proceeds (as defined in
the UCC in any applicable jurisdiction) thereof securing the obligations of the
Company under the Revolving Credit Facility (and any extension, renewal,
refunding or refinancing thereof) permitted by subsection 8.05(d);
(i) any Lien existing on the Property of the Company or
its Restricted Subsidiaries on the Closing Date
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and set forth in Schedule 8.01 securing Indebtedness outstanding on such date;
and
(j) any Lien renewing, extending, refunding or
refinancing any Lien permitted by subsection (i) of this Section, provided that
the principal amount secured is not increased and the Lien is not extended to
other Property and further provided, that the maturity of the Lien is not
extended beyond the maturity date of the Indebtedness which, at the time the
Lien was initially placed upon the Property secured thereby, Responsible
Representatives declare would have been the maturity date of Indebtedness
customary for the type of Property being financed.
8.02 Merger; Disposition of Assets. The Company shall not, and shall
not suffer or permit any of its Restricted Subsidiaries to, merge or
consolidate with any Person or, directly or indirectly, sell, lease or transfer
or otherwise dispose of (whether in one or a series of transactions) any
Property (including accounts and notes receivable, with or without recourse) or
enter into any agreement to do any of the foregoing, except that:
(a) any Restricted Subsidiary of the Company may merge
with the Company (provided that the Company shall be the continuing or
surviving corporation) or with any one or more other Restricted Subsidiaries;
(b) any Restricted Subsidiary of the Company may sell,
lease, transfer or otherwise dispose of any of its assets to the Company or a
Restricted Subsidiary;
(c) any Restricted Subsidiary may merge or consolidate
with any other entity, provided that, immediately after giving effect to such
merger or consolidation (i) the continuing or surviving entity of such merger
or consolidation shall constitute a Restricted Subsidiary, (ii) no Event of
Default or Material Default shall exist, and (iii) following the merger, the
entity surviving the merger is not engaged in any business other than a
Permitted Business;
(d) the Company may merge or consolidate with, or sell or
dispose of all or substantially all of its assets to, any other entity,
provided that (i) either (x) the Company shall be the continuing or surviving
entity (in the case of such merger) or (y) the successor or acquiring entity
shall be a solvent corporation or partnership organized under the laws of any
state of the United States and shall expressly assume in writing all of the
obligations of the Company under this Agreement, the Facility B Credit
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Agreement, the Note Agreements, the 1994 Senior Note Agreements and the
Mortgage Note Agreements, including all covenants herein and therein contained,
and such successor or acquiring corporation or partnership shall succeed to and
be substituted for the Company with the same effect as if it had been named
herein as a party hereto, provided, however, that no such sale shall release
the Company from any of its obligations and liabilities under this Agreement,
the Facility B Credit Agreement, the Note Agreements, the 1994 Senior Note
Agreements and the Mortgage Note Agreements unless such sale is followed by the
complete liquidation of the Company and substantially all the assets of the
Company immediately following such sale are distributed in such liquidation,
and (ii) immediately after such merger or consolidation or such sale or other
disposition, (x) no Event of Default or Material Default shall exist, (y) the
Company could incur at least $1 of additional Funded Debt pursuant to
subsection 8.05(i), and (z) the entity surviving the merger or consolidation or
to which such assets have been transferred is not engaged in any business other
than a Permitted Business;
(e) the Company or any Restricted Subsidiary may make
dispositions of inventory in the Ordinary Course of Business;
(f) the Company or any Restricted Subsidiary may sell
Designated Acres (or notes receivable arising from the sale of Designated
Acres) for the fair value thereof as reasonably determined in good faith by
Responsible Representatives;
(g) the Company and its Restricted Subsidiaries may
exchange Timberlands with other Persons in the Ordinary Course of Business,
provided that (i) the fair value of the Timberlands plus any Net Proceeds
received in such exchange is, in the good faith judgment of the Responsible
Representatives, not less than the fair value of Timberlands exchanged plus any
other consideration paid, (ii) such exchange would not materially and adversely
affect the business, Property, condition or results of operations of the
Company and its Restricted Subsidiaries on a combined basis or of the
Facilities Subsidiary or impair the ability of the Company to perform its
obligations hereunder and under the Facility B Credit Agreement, the Note
Agreements, the 1994 Senior Note Agreements and the Mortgage Note Agreements,
and (iii) any Properties shall be deemed sold to the extent of Net Proceeds
received and such sales shall be allowed only to the extent otherwise permitted
by this Section 8.02;
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(h) the Company and its Restricted Subsidiaries may sell
Properties for cash for not less than the fair value thereof as determined in
good faith by the Responsible Representatives, provided that the aggregate Net
Proceeds of such sales in any calendar year do not exceed an amount (the
"Permitted Amount") equal to (i) in calendar year 1994, $3,210,000 and (ii) in
each calendar year thereafter, the sum of (x) the Permitted Amount for the
preceding calendar year plus (y) an increase equal to the percentage increase,
if any, in the consumer price index for goods and services in the United
States, as published by the U.S. Bureau of Labor Statistics, or successor
publication, for such preceding calendar year, times such permitted amount; and
(i) the Company and its Restricted Subsidiaries may
otherwise sell Properties for cash in an amount not less than the fair value
thereof as determined in good faith by the Responsible Representatives, if and
only if (i) immediately after giving effect to such proposed sale, no condition
or event shall exist which constitutes an Event of Default or Material Default,
(ii) the Net Proceeds of any such sale (x) are applied, within 180 days after
such sale, pro rata (based on the then outstanding principal of all Qualified
Debt) to the holders of all Qualified Debt, or (y) are applied, within 180 days
after such sale, to the purchase of productive assets in the same line of
business, provided, that the Company shall have notified the Agent promptly
after its determination to so apply the Net Proceeds, (iii) if the Net Proceeds
of (x) any such sale exceed $25,000,000, the entire amount of such Net Proceeds
are placed immediately upon receipt thereof in an escrow or cash collateral
account or accounts, pursuant to an agreement or agreements in form and
substance reasonably satisfactory to holders of 66-2/3% of the outstanding
principal balance of the Qualified Debt, for the purpose of application in
accordance with clause (ii) above, and (y) all such sales which are not then
held in escrow or cash collateral accounts pursuant to subclause (iii)(x) and
which have not been applied to the purchase of productive assets in the same
line of business or distributed to the holders of all Qualified Debt for
application to the repayment of such Qualified Debt exceed $50,000,000 in the
aggregate at any time, all such Net Proceeds in excess of $50,000,000 are
placed immediately upon receipt thereof in an escrow or cash collateral account
or accounts, pursuant to an agreement or agreements in form and substance
reasonably satisfactory to holders of 66-2/3% of the outstanding principal
balance of the Qualified Debt, for the purpose of application in accordance
with clause (ii) above, and (iv) immediately after giving effect to such sale
(giving effect on a pro forma basis to any proposed retirement of Qualified
Debt out of proceeds thereof), the Company could incur $1 of
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additional Funded Debt pursuant to subsection 8.05(i); provided, however, that
the Company and its Restricted Subsidiaries may not sell properties that
constitute the Company's Columbia River Unit unless the Note Agreements shall
have been amended so as (A) to delete paragraph 6B(5)(viii) thereof as set
forth in that certain Senior Note Agreement Amendment dated as of September 1,
1993 and (B) to provide for the application of Net Proceeds of the sale of
properties that constitute the Columbia River Unit substantially as provided in
this subsection 8.02(i).
8.03 Harvesting Restrictions. The Company shall not, and shall not
suffer or permit any of its Restricted Subsidiaries to, in any calendar year,
harvest Timber on the Timberlands then owned by the Company in excess of the
amount set forth for such calendar year in the following table:
Maximum MMBF
to be
Calendar Year Harvested
------------- ------------
1994 (including 735 MMBF
of prior years
cumulative carryover
harvest) 1435 MMBF
1995 through 1996 700 MMBF
1997 through 2000 675 MMBF
2001 625 MMBF
plus, in each year, the amount, if any, by which the cumulative amount set
forth in the table above for the preceding years exceeds the cumulative amount
actually harvested in such years;
unless (a) the Net Proceeds from such excess harvest are either (i) applied,
within 180 days after any such excess harvest, pro rata (based on the then
outstanding principal of all Qualified Debt) to the holders of all Qualified
Debt, or (ii) applied, within 180 days after any such excess harvest, to
purchase Timber (including Timber on Timberlands purchased) having a fair value
(in the good faith judgment of the Responsible Representatives) not less than
the fair value of the Timber subject to such excess harvest, provided, that the
Company shall have notified the Agent promptly after its determination to so
apply the Net Proceeds.
8.04 Loans and Investments. The Company shall not suffer or permit
any of its Restricted Subsidiaries to make
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or commit to make or permit to remain outstanding any loan or advance to, or
guarantee, endorse or otherwise be or become contingently liable, directly or
indirectly, in connection with the obligations, stock or dividends of, or own,
purchase or acquire (or commit to own, purchase or acquire) any stock,
obligations or securities of, or any other interest in (including, without
limitation, the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person), or make or commit to make
any capital contribution to, any Person (all of the foregoing (but excluding
any Designated Repurchases permitted by Section 8.13 hereof) being referred to
herein as "Investments"), except that the Company or any Restricted Subsidiary
may:
(a) make Investments in the Facilities Subsidiary,
provided that the Company will not make or permit any Restricted Subsidiary to
make any such Investment (including any guaranty of obligations of the
Facilities Subsidiary otherwise permitted by this Section 8.04) unless (i)
immediately after giving effect to such Investment, no Event of Default or
Default, or "Default" or "Event of Default" as defined in the Mortgage Note
Agreements, shall exist, (ii) immediately prior to giving effect to such
Investment, no Default or Event of Default (other than an "Event of Default" as
defined in the Mortgage Note Agreements) shall exist, and (iii) immediately
after giving effect to such Investment, the ratio of Pro Forma Free Cash Flow
to Maximum Pro Forma Annual Interest Charges is not less than 2.5 to 1.0.
(b) own, purchase or acquire real or personal property to
be used in the Ordinary Course of Business;
(c) own, purchase or acquire investments of the type
specified in, and in accordance with the requirements and limitations of, the
Investment Policy;
(d) continue to own Investments owned on the Closing Date
as set forth on Schedule 8.04;
(e) endorse negotiable instruments for collection in the
Ordinary Course of Business;
(f) become and be obligated under the Guarantee and under
the guarantees permitted by subsections 8.05(f) and (h), and acquire and own
subordinated subrogation rights upon performance of such guarantees;
(g) make advances in the Ordinary Course of Business of
the Company or any Restricted Subsidiary,
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including deposits permitted under subsection 8.01(c), advances to employees
for travel, relocation and other employment related expenses, advances to
contractors performing services for the Company or such Restricted Subsidiary,
advances to owners of timber or timber properties to acquire rights to harvest
timber and other similar advances;
(h) make Investments in Restricted Subsidiaries, or any
entity which immediately after such Investment will be a Restricted Subsidiary;
and
(i) make Investments not otherwise permitted by this
Section 8.04 in entities engaged solely in a Permitted Business, provided that
the cumulative aggregate amount of such Investments at original cost (including
the principal amount of any obligations guaranteed to the extent such
guarantees are not otherwise permitted by this Section 8.04) made pursuant to
this subsection (i) between the closing date of the Note Agreements and any
date thereafter shall not exceed the greater of $30,000,000 or 60% of the
average annual Pro Forma Free Cash Flow for the two fiscal years preceding such
date.
8.05 Limitation on Indebtedness. The Company shall not, and shall not
suffer or permit any of its Restricted Subsidiaries to, create, incur, assume,
suffer to exist, or otherwise become or remain directly or indirectly liable
with respect to, any Indebtedness, except:
(a) Funded Debt represented by the Notes and the 1994
Notes and any refinancing thereof so long as such refinancing does not increase
the principal amount thereof and is on terms no less favorable to the Company,
and to the rights of the Agent and the Banks hereunder, than those contained on
the Closing Date in the Notes and the 1994 Notes and the documentation relating
thereto;
(b) Funded Debt which is unsecured and is incurred by the
Company to finance the making of capital improvements, expansions and additions
to the Company's property (including Timberlands), plant and equipment,
provided that the aggregate outstanding principal amount of such Funded Debt
shall at no time exceed $20,000,000;
(c) Indebtedness of any Restricted Subsidiary owing to
the Company or to a Restricted Subsidiary;
(d) Indebtedness incurred by the Company pursuant to the
Revolving Credit Facility (and any extension, renewal, refunding or refinancing
thereof, including any
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refunding or refinancing in an amount in excess of the principal amount then
outstanding under the Revolving Credit Facility), or any other Indebtedness
pursuant to a bank credit facility which is unsecured or is secured by Liens
permitted by subsection 8.01(h), not in excess of an aggregate principal amount
of $15,000,000 at any time outstanding, provided that the Company shall not
suffer to exist any Indebtedness permitted by this subsection (d) on any day
unless there shall have been a period of at least 45 consecutive days within
the 12 months immediately preceding such day during which the Company shall
have been free from all Indebtedness permitted by this subsection (d);
(e) Indebtedness represented by the Guarantee and any
refinancing thereof so long as such refinancing does not increase the principal
amount thereof and is on terms no less favorable to the Company, and to the
rights of the Agent and the Banks hereunder, than those contained on the
Closing Date in the Guarantee and the documentation relating thereto;
(f) the Company's guarantee of obligations incurred by
the Facilities Subsidiary pursuant to the Facilities Subsidiary's Revolving
Credit Facility (and any extension, renewal, refunding or refinancing thereof
permitted by clause (iv) of paragraph 6B(2) of the Mortgage Note Agreements),
provided that the aggregate outstanding principal amount of such Indebtedness
shall at no time exceed $20,000,000, and provided further that such guarantee
shall be subordinated to the Notes by subordination provisions substantially
the same as those contained in paragraph 7I of the Mortgage Note Agreements;
(g) the Company's guarantee of Funded Debt (and related
obligations not constituting Indebtedness) incurred by the Facilities
Subsidiary to finance the making of capital improvements, expansions and
additions to the Facilities Subsidiaries' Properties pursuant to the Facilities
Subsidiary's Facility, provided that such guarantee shall be subordinated to
the Notes by subordination provisions substantially the same as those contained
in paragraph 7I of the Mortgage Note Agreements, and provided, further, that
the aggregate outstanding principal amount of such Funded Debt shall at no time
exceed $20,000,000;
(h) Funded Debt of the Company or any Restricted
Subsidiary secured by a Lien permitted by subsection 8.01(g), provided that
immediately after the acquisition of the Property subject to such Lien or upon
which such Lien is placed (or, if later, the incurrence of
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the Indebtedness secured by such Lien), the Company could incur at least $1 of
additional Funded Debt pursuant to subsection (i) below;
(i) Funded Debt of the Company (other than Funded Debt
owing to a Restricted Subsidiary) in addition to that otherwise permitted by
the foregoing subsections of this Section 8.05, including guarantees of
Indebtedness to the extent permitted by Section 8.04 and not otherwise
permitted by the foregoing subsections of this Section 8.05, provided that, on
the date the Company becomes liable with respect to any such additional Funded
Debt and immediately after giving effect thereto and to the concurrent
retirement of any other Funded Debt, the ratio of Pro Forma Free Cash Flow to
Maximum Pro Forma Annual Interest Charges is not less than 2.25 to 1.00; and
provided, further, that the aggregate outstanding principal amount of such
additional Funded Debt (but not including Funded Debt incurred under this
Agreement or the Facility B Credit Agreement) shall not exceed $400,000,000;
(j) from and after the time that the Facilities
Subsidiary becomes a Restricted Subsidiary, Indebtedness incurred by the
Facilities Subsidiary pursuant to the Facilities Subsidiary's Revolving Credit
Facility (and any extension, renewal, refunding or refinancing thereof,
including any refunding or refinancing in an amount in excess of the principal
amount then outstanding under the Facilities Subsidiary's Revolving Credit
Facility) or any other Indebtedness incurred by the Facilities Subsidiary
pursuant to a bank credit facility which is unsecured or is secured by Liens
permitted by subsection 8.01(h), not in excess of an aggregate principal amount
of $20,000,000 at any time outstanding, provided that to the extent that the
Facilities Subsidiary is a Restricted Subsidiary, the Facilities Subsidiary
shall not suffer to exist any Indebtedness permitted by this subsection (j) on
any day unless there shall have been a period of at least 45 consecutive days
within the 12 months immediately preceding such day during which the Facilities
Subsidiary shall have been free from all Indebtedness permitted by this
subsection (j); and
(k) from and after the time that the Facilities
Subsidiary or any Designated Immaterial Subsidiary becomes a Restricted
Subsidiary, Indebtedness of the Facilities Subsidiary or any such Designated
Immaterial Subsidiary outstanding at the time the Facilities Subsidiary or
such Designated Immaterial Subsidiary becomes a Restricted Subsidiary,
provided that (i) immediately after the Facilities Subsidiary or any such
Designated Immaterial
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Subsidiary becomes a Restricted Subsidiary, the Company could incur at least $1
of additional Funded Debt pursuant to subsection (i) above (the Facilities
Subsidiary or any such Designated Immaterial Subsidiary shall be deemed to be a
Restricted Subsidiary for the four consecutive fiscal quarters immediately
prior to its becoming a Restricted Subsidiary for purposes of determining Pro
Forma Free Cash Flow), and (ii) the aggregate amount (without duplication) of
such Indebtedness and all other Indebtedness, in each case, secured by Liens
permitted by subsection 8.01(g) does not violate subclause (iv) to the proviso
to such subsection (g).
8.06 Transactions with Affiliates. The Company shall not, and shall
not suffer or permit any of its Restricted Subsidiaries to directly or
indirectly engage in any transaction (including, without limitation, the
purchase, sale or exchange of assets or the rendering of any service), with any
Affiliate of the Company or of any such Restricted Subsidiary, except in the
Ordinary Course of Business and pursuant to the reasonable requirements of the
business of the Company or such Restricted Subsidiary and upon fair and
reasonable terms that are no less favorable to the Company or such Restricted
Subsidiary, as the case may be, than those which might be obtained in an
arm's-length transaction at the time from Persons not an Affiliate of the
Company or such Restricted Subsidiary.
8.07 Use of Proceeds.
(a) The Company shall not and shall not suffer or permit
any of its Subsidiaries to use any portion of the proceeds of the Loans or
other Credit Extension, directly or indirectly, (i) to purchase or carry Margin
Stock, (ii) to repay or otherwise refinance indebtedness of the Company or
others incurred to purchase or carry Margin Stock, (iii) to extend credit for
the purpose of purchasing or carrying any Margin Stock, or (iv) to acquire any
security in any transaction that is subject to Section 13 or 14 of the Exchange
Act.
(b) The Company shall not and shall not suffer or permit
any of its Subsidiaries to use any portion of the proceed of the Loans or other
Credit Extension, directly or indirectly, (i) knowingly to purchase Ineligible
Securities from a Section 20 Subsidiary during any period in which such Section
20 Subsidiary makes a market in such Ineligible Securities, (ii) knowingly to
purchase during the underwriting or placement period Ineligible Securities
being underwritten or privately placed by a Section 20 Subsidiary, or (iii) to
make payments of principal or interest on
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Ineligible Securities underwritten or privately placed by a Section 20
Subsidiary and issued by or for the benefit of the Company or any Affiliate of
the Company. As used in this Section, "Section 20 Subsidiary" means the
Subsidiary of the bank holding company controlling any Bank, which Subsidiary
has been granted authority by the Federal Reserve Board to underwrite and deal
in certain Ineligible Securities; and "Ineligible Securities" means securities
which may not be underwritten or dealt in by member banks of the Federal
Reserve System under Section 16 of the Banking Act of 1933 (as U.S.C. Section
24, Seventh), as amended.
8.08 Sale of Stock and Indebtedness of Subsidiaries. The Company
shall not, and shall not suffer or permit any of its Restricted Subsidiaries
to, sell or otherwise dispose of, or part with control of, any shares of stock
or Indebtedness of any Subsidiary, except to the Company or a Restricted
Subsidiary, and except that all shares of stock and Indebtedness of any
Subsidiary (other than the Facilities Subsidiary) at the time owned by or owed
to the Company and its Restricted Subsidiaries may be sold as an entirety for a
cash consideration which represents the fair value (as determined in good faith
by the Responsible Representatives of the PC Advisory General Partner) at the
time of sale of the shares of stock and Indebtedness so sold, provided that the
assets of such Subsidiary do not include any assets which could not be disposed
of pursuant to the provisions of Section 8.02 unless the conditions to the sale
of such assets set forth in Section 8.02 are complied with, and further
provided that, at the time of such sale, such Subsidiary shall not own,
directly or indirectly, any shares of stock or Indebtedness of any other
Subsidiary (unless all of the shares of stock and Indebtedness of such other
Subsidiary owned, directly or indirectly, by the Company and its Subsidiaries
are simultaneously being sold as permitted by this Section 8.08).
8.09 Certain Contracts. The Company shall not, and shall not suffer
or permit any of its Restricted Subsidiaries to enter into or be a party to:
(a) any contract providing for the making of loans,
advances or capital contributions to any Person, or for the purchase of any
Property from any Person, in each case in order primarily to enable such Person
to maintain working capital, net worth or any other balance sheet condition or
to pay debts, dividends or expenses; or
(b) any contract for the purchase of materials, supplies
or other property or services if such contract (or
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any related document) requires that payment for such materials, supplies or
other property or services shall be made regardless of whether or not delivery
of such materials, supplies or other property or services is ever made or
tendered, provided that nothing in this subsection (b) shall prevent the
Company from (i) entering into take-or-pay contracts in the Ordinary Course of
Business with the United States Forest Service, the Bureau of Land Management,
the Bureau of Indian Affairs, the Washington Department of Natural Resources or
similar state or federal governmental agencies, or (ii) making payments in
satisfaction of contracts with such Persons which contracts are deemed by the
Responsible Representatives to be disadvantageous to perform; or
(c) any contract to rent or lease (as lessee) any real or
personal property if such contract (or any related document) provides that the
obligation to make payments thereunder is absolute and unconditional under
conditions not customarily found in commercial leases then in general use or
requires that the lessee purchase or otherwise acquire securities or
obligations of the lessor; or
(d) any contract for the sale or use of materials,
supplies or other property, or the rendering of services, if such contract (or
any related document) requires that payment for such materials, supplies or
other property, or the use thereof, or payment for such services, shall be
subordinated to any indebtedness (of the purchaser or user of such materials,
supplies or other property or the Person entitled to the benefit of such
services) owed or to be owed to any Person; or
(e) any other contract which in economic effect, is
substantially equivalent to a guarantee,
except as permitted by the provisions of subsection 8.04(a), (e), (f), (g), (h)
or (i).
8.10 Joint Ventures. The Company shall not, and shall not suffer or
permit any of its Restricted Subsidiaries to enter into any Joint Venture,
other than in Permitted Businesses and so long as any such Joint Venture is not
entered into for the purposes of evading any covenant or restriction in any
Loan Documents.
8.11 Compliance with ERISA. The Company shall not, and shall not
suffer or permit any of its Subsidiaries to, without the consent of the
Majority Banks, (i) terminate any Plan subject to Title IV of ERISA so as to
result in any material (in the opinion of the Majority Banks) liability to
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the Company or any ERISA Affiliate, (ii) permit to exist any ERISA Event or any
other event or condition with respect to any Plan other than a Multiemployer
Plan, which presents the risk of a material (in the opinion of the Majority
Banks) liability to the Company, (iii) make a complete or partial withdrawal
(within the meaning of ERISA Section 4201) from any Multiemployer Plan so as to
result in any material (in the opinion of the Majority Banks) liability to the
Company or any ERISA Affiliate, (iv) enter into any new Plan or modify any
existing Plan so as to increase its obligations thereunder which could result
in any material (in the opinion of the Majority Banks) liability to any member
of the Controlled Group, or (v) permit the present value of all nonforfeitable
accrued benefits under any Plan (using the actuarial assumptions utilized by
the PBGC upon termination of a Plan) materially (in the opinion of the Majority
Banks) to exceed the fair market value of Plan assets allocable to such
benefits, all determined as of the most recent valuation date for each such
Plan.
8.12 Sale and Leaseback. The Company shall not, and shall not suffer
or permit any of its Restricted Subsidiaries to, enter into any arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by the Company or any Restricted Subsidiary of real
or personal property which has been or is to be sold or transferred by the
Company or any Restricted Subsidiary to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
on the security of such property or rental obligations of the Company or any
Restricted Subsidiary, provided that this Section 8.12 shall not apply to any
property sold pursuant to subsection 8.02(h).
8.13 Restricted Payments. The Company shall not and shall not permit
or suffer any Subsidiary to directly or indirectly pay, declare, order, make or
set apart any sum for any Restricted Payment, except that the Company may make,
pay or set apart during each calendar quarter one or more Restricted Payments
if:
(a) such Restricted Payments are in an aggregate amount
not exceeding the amount by which Available Cash with respect to the
immediately preceding calendar quarter exceeds any amount contributed to
Available Cash with respect to such immediately preceding calendar quarter by
any Subsidiary if and to the extent that the payment of such amount as a
dividend or distribution to the Company has not been made and is not at the
time permitted by the terms of such Subsidiary's charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
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regulation applicable to such Subsidiary, provided that in determining
Available Cash with respect to such immediately preceding calendar quarter, the
Company will include in the amount of reserves established during such quarter
pursuant to clause (ii)(d) of the definition of Available Cash an amount not
less than (i) 50% of the aggregate amount of all interest in respect of the
Notes and the 1994 Notes to be paid on the interest date immediately following
such immediately preceding calendar quarter, (ii) 100% of the aggregate amount
of all interest in respect of the Loans and the "Loans" as defined in the
Facility B Credit Agreement to be paid on the respective Interest Payment Dates
for such Loans and such "Loans" during the calendar quarter immediately
following such immediately preceding calendar quarter, (iii) 25% of the
aggregate amount of all principal in respect of the Notes and the 1994 Notes
scheduled to be paid (determined in accordance with the proviso in clause (ii)
of the definition of "Fixed Charge Coverage Ratio") during the 12 calendar
months immediately following such immediately preceding calendar quarter, and
(iv) 25% of the aggregate amount of payments required to be made on account of
any scheduled reductions (determined in accordance with the proviso in clause
(ii) of the definition of "Fixed Charge Coverage Ratio") in the Commitments and
the "Commitments" as defined in the Facility B Credit Agreement during the 12
calendar months immediately following such immediately preceding calendar
quarter, and the Company will not reduce the amount of the reserves so
included, in determining Available Cash for any calendar quarter subsequent to
such immediately preceding calendar quarter pursuant to clause (i)(c) of the
definition of Available Cash, unless and until (A) the amount of interest or
principal in respect of which such amount has been reserved has in fact been
paid and (B) in the case of clause (iv) of this subsection 8.13(a), the amount
of the reserves so included exceeds fifty percent (50%) of the aggregate amount
of payments required to be made on account of the Commitments and the
"Commitments" as defined in the Facility B Credit Agreement during the 12
calendar months immediately following such immediately preceding calendar
quarter; and
(b) immediately after giving effect to any such proposed
action no condition or event shall exist which constitutes an Event of Default
or Material Default.
The Company will not, in any event, directly or indirectly declare, order, pay
or make any Restricted Payment except in cash.
8.14 Change in Business. The Company shall not, and shall not permit
any of its Subsidiaries to, engage in any business other than a Permitted
Business.
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8.15 Issuance of Stock by Subsidiaries. The Company covenants that it
will not permit any Subsidiary to (either directly, or indirectly by the
issuance of rights or options for, or securities convertible into, such shares)
issue, sell or otherwise dispose of any shares of any class of its stock or
partnership or other ownership interests (other than directors' qualifying
shares) except to the Company or a Restricted Subsidiary, and except to the
extent that holders of minority interests may be entitled to purchase stock by
reason of preemptive rights.
8.16 Amendments. The Company shall not, and shall not suffer or
permit any of its Subsidiaries to amend, modify, supplement, waive or otherwise
modify any provision of any agreement evidencing Funded Debt in excess of
$35,000,000 which amendment, modification, supplement or waiver would
reasonably be expected to affect the Agent's or the Banks' rights hereunder or
the ability of the Company to perform its obligations under any Loan Document.
8.17 Available Cash. The Company shall not at any time permit
Available Cash to be less than zero. For purposes of this Section 8.17, in
determining Available Cash with respect to the immediately preceding calendar
quarter, the Company will include in the amount of reserves established during
such quarter pursuant to clause (ii)(d)(1) (with respect to principal on
Indebtedness) and clause (ii)(d)(4) of the definition of "Available Cash" an
amount not less than (a) 50% of the aggregate amount of all interest in respect
of the Notes and the 1994 Notes to be paid on the interest date immediately
following such immediately preceding calendar quarter, (b) 100% of the
aggregate amount of all interest in respect of the Loans and the "Loans" as
defined in the Facility B Credit Agreement to be paid on the respective
Interest Payment Dates for such Loans and such "Loans" during the calendar
quarter immediately following such immediately preceding calendar quarter, (c)
25% of the aggregate amount of all principal in respect of the Notes and the
1994 Notes scheduled to be paid (determined in accordance with the proviso in
clause (ii) of the definition of "Fixed Charge Coverage Ratio") during the 12
calendar months immediately following such immediately preceding calendar
quarter, and (d) 25% of the aggregate amount of payments required to be made on
account of any scheduled reductions (determined in accordance with the proviso
in clause (ii) of the definition of "Fixed Charge Coverage Ratio") in the
Commitments and the "Commitments" as defined in the Facility B Credit Agreement
during the 12 calendar months immediately following such immediately preceding
calendar quarter, and the Company will not reduce the amount
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of the reserves so included in determining Available Cash for any calendar
quarter subsequent to such immediately preceding calendar quarter pursuant to
clause (i)(c) of the definition of Available Cash, unless and until (i) the
amount of interest or principal in respect of which such amount has been
reserved has in fact been paid and (ii) in the case of clause (d) of this
Section 8.17, the amount of the reserves so included exceeds fifty percent
(50%) of the aggregate amount of payments required to be made on account of the
Commitments and the "Commitments" as defined in the Facility B Credit Agreement
during the 12 calendar months immediately following such immediately preceding
calendar quarter.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. The Company fails to pay, (i) when and
as required to be paid herein, any amount of principal of any Loan or of any
L/C Obligation, or any amount of interest on any Bid Loan, or (ii) within 5
days after the same shall become due, any interest (other than interest on Bid
Loans), fee or any other amount payable hereunder or pursuant to any other Loan
Document; or
(b) Representation or Warranty. Any representation or
warranty by the Company or any of its Subsidiaries made or deemed made herein,
in any Loan Document, or which is contained in any certificate, document or
financial or other statement by the Company, its Responsible Representatives,
any of its Subsidiaries, or their respective Responsible Officers, furnished at
any time under this Agreement, or in or under any Loan Document, shall prove to
have been incorrect in any material respect on or as of the date made or deemed
made; or
(c) Specific Defaults. The Company fails to perform or
observe any term, covenant or agreement contained in Sections 7.03 or 7.09 or
Article VIII; or
(d) Other Defaults. The Company fails to perform or
observe any other term or covenant contained in this Agreement or any Loan
Document, and such default shall continue unremedied for a period of 20 days
after the earlier of (i) the date upon which a Responsible Officer or
Responsible Representative of the Company knew or should
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have known of such failure or (ii) the date upon which written notice thereof
is given to the Company by the Agent or any Bank; or
(e) Facility B Credit Agreement Cross-Default. An Event
of Default shall have occurred as that term is defined in the Facility B Credit
Agreement; or
(f) Cross-Default. The Company or any of its
Subsidiaries (i) fails to make any payment in respect of any Indebtedness
having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $5,000,000 when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise);
or (ii) fails to perform or observe any other condition or covenant, or any
other event shall occur or condition exist, under any agreement or instrument
relating to any such Indebtedness, if the effect of such failure, event or
condition is to cause, or to permit the holder or holders of such Indebtedness
or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its stated maturity,
or with respect to any contingent obligations, to become payable or cash
collateral in respect thereof to be demanded; or
(g) Insolvency; Voluntary Proceedings. The Company, any
of its Subsidiaries, or any Partner Entity (i) ceases or fails to be Solvent,
or generally fails to pay, or admits in writing its inability to pay, its debts
as they become due, subject to applicable grace periods, if any, whether at
stated maturity or otherwise; (ii) voluntarily ceases to conduct its business
in the ordinary course; (iii) commences any Insolvency Proceeding with respect
to itself; or (iv) takes any action to effectuate or authorize any of the
foregoing; or
(h) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company, the Facilities
Subsidiary, any Restricted Subsidiary of the Company, or any Partner Entity, or
any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Company's, any of its
Restricted Subsidiaries', any Partner Entities' or the Facilities Subsidiaries'
Properties, and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not
be released, vacated
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or fully bonded within 60 days after commencement, filing or levy; (ii) the
Company, any Partner Entity, the Facilities Subsidiary, or any of the Company's
Restricted Subsidiaries admits the material allegations of a petition against
it in any Insolvency Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) the Company,
any Partner Entity, any of the Company's Restricted Subsidiaries, or the
Facilities Subsidiary acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of its
Property or business; or
(i) ERISA. (i) A member of the Controlled Group shall
fail to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under a
Multiemployer Plan; (ii) the Company or an ERISA Affiliate shall fail to
satisfy its contribution requirements under Section 412(c)(11) of the Code,
whether or not it has sought a waiver under Section 412(d) of the Code; (iii)
in the case of an ERISA Event involving the withdrawal from a Plan of a
"substantial employer" (as defined in Section 4001(a)(2) or Section 4062(e) of
ERISA), the withdrawing employer's proportionate share of that Plan's Unfunded
Pension Liabilities is more than $10,000,000; (iv) in the case of an ERISA
Event involving the complete or partial withdrawal from a Multiemployer Plan,
the withdrawing employer has incurred a withdrawal liability in an aggregate
amount exceeding $10,000,000; (v) in the case of an ERISA Event not described
in clause (iii) or (iv), the Unfunded Pension Liabilities of the relevant Plan
or Plans exceed $10,000,000; (vi) a Plan that is intended to be qualified under
Section 401(a) of the Code shall lose its qualification, and the loss can
reasonably be expected to impose on members of the Controlled Group liability
(for additional taxes, to Plan participants, or otherwise) in the aggregate
amount of $10,000,000 or more; (vii) the commencement or increase of
contributions to, or the adoption of or the amendment of a Plan by, a member of
the Controlled Group shall result in a net increase in unfunded liabilities to
the Controlled Group in excess of $10,000,000; (viii) any member of the
Controlled Group engages in or otherwise becomes liable for a non-exempt
prohibited transaction and the initial tax or additional tax under section 4975
of the Code relating thereto might reasonably be expected to exceed
$10,000,000; (ix) a violation of section 404 or 405 of ERISA or the exclusive
benefit rule under section 401(a) of the Code if such violation might
reasonably be expected to expose a member or
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members of the Controlled Group to monetary liability in excess of $10,000,000;
(x) any member of the Controlled Group is assessed a tax under section 4980B of
the Code in excess of $10,000,000; or (xi) the occurrence of any combination of
events listed in clauses (iii) through (x) that involves a potential liability,
net increase in aggregate Unfunded Pension Liabilities, unfunded liabilities,
or any combination thereof, in excess of $10,000,000; or
(j) Monetary Judgments. One or more non-interlocutory
judgments, orders or decrees shall be entered against the Company or any of its
Subsidiaries involving in the aggregate a liability (not fully covered by
independent third-party insurance) as to any single or related series of
transactions, incidents or conditions, of $25,000,000 or more, and the same
shall remain unsatisfied, unvacated and unstayed pending appeal for a period of
30 days after the entry thereof; or
(k) Non-Monetary Judgments. Any non-monetary judgment,
order or decree shall be rendered against the Company or any of its
Subsidiaries which does or would reasonably be expected to have a Material
Adverse Effect, and there shall be any period of 10 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(l) Auditors. The Agent or any Bank shall receive notice
from the Independent Auditor that the Agent and the Banks should no longer use
or rely upon any audit report or other financial data provided by the
Independent Auditor; or
(m) Adverse Change. There shall occur (i) a material
adverse change in, or a material adverse effect upon, any of the operations,
business, properties, or condition (financial or otherwise) of the Company or
the Company and its Subsidiaries taken as a whole or as to any Restricted
Subsidiary which materially impairs the ability of the Company to perform under
any Loan Document and avoid any Event of Default, or (ii) a material adverse
effect upon the legality, validity, binding effect or enforceability of any
Loan Document.
9.02 Remedies. If any Event of Default occurs, the Agent shall, at
the request of, or may, with the consent of, the Majority Banks,
(a) declare the Commitment of each Bank to make Committed
Loans and any obligation of the Issuing Banks to
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issue Letters of Credit to be terminated, whereupon such Commitments and
obligations shall forthwith be terminated;
(b) declare an amount equal to the maximum aggregate
amount that is or at any time thereafter may become available for drawing under
any outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately due
and payable, and declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable;
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights
and remedies available to it and the Banks under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of any event specified in paragraph
(g) or (h) of Section 9.01 above (in the case of clause (i) of paragraph (h)
upon the expiration of the 60-day period mentioned therein), the obligation of
each Bank to make Loans and any obligation of the Issuing Banks to Issue
Letters of Credit shall automatically terminate and the unpaid principal amount
of all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Agent, the
Issuing Banks, or any Bank.
9.03 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE X
THE AGENT
10.01 Appointment and Authorization.
(a) Each Bank and each Issuing Bank hereby irrevocably
appoints, designates and authorizes the Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to
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it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto, including, without
limitation, to enter into Cash Collateral Account Agreements from time to time
in accordance with this Agreement, and to release funds to the Company in
accordance with Section 1(b) of the Cash Collateral Account Agreement and, if
applicable, pursuant to an Officer's Certificate substantially in the form
attached thereto as Exhibit A. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any fiduciary
relationship with any Bank or any Issuing Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Agent.
(b) Each Issuing Bank shall act on behalf of the Banks
with respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Agent may agree at the
request of the Majority Banks to act for such Issuing Bank with respect
thereto; provided, however, that each Issuing Bank shall have all of the
benefits and immunities (i) provided to the Agent in this Article X with
respect to any acts taken or omissions suffered by such Issuing Bank in
connection with Letters of Credit Issued by it or proposed to be Issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Agent", as used in this Article X,
included such Issuing Bank with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to the Issuing Banks.
10.02 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
10.03 Liability of Agent. None of the Agent-Related Persons shall (i)
be liable for any action taken or omitted to be taken by any of them under or
in connection with this Agreement or any other Loan Document (except for its
own gross negligence or willful misconduct), or (ii) be responsible in any
manner to any of the Banks for any recital, statement, representation or
warranty made by the
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Company or any Subsidiary or Affiliate of the Company, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
for any failure of the Company or any other party to any Loan Document to
perform its obligations hereunder or thereunder. No Agent-Related Person shall
be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the Properties,
books or records of the Company or any of the Company's Subsidiaries or
Affiliates.
10.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Company), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Banks as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in accordance with
a request or consent of the Majority Banks and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of the
Banks.
(b) For purposes of determining compliance with the
conditions specified in Section 5.01, each Bank that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter either sent or made available by
the Agent to such Bank for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Bank, unless an officer of the Agent responsible for the
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transactions contemplated by the Loan Documents shall have received notice from
the Bank prior to the initial Credit Extension specifying its objection thereto
and either such objection shall not have been withdrawn by notice to the Agent
to that effect or the Bank shall not have made available to the Agent the
Bank's ratable portion of such Credit Extension.
10.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Agent for the account of the Banks, unless the Agent
shall have received written notice from a Bank or the Company referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall give prompt notice thereof to the Banks. The Agent
shall take such action with respect to such Default or Event of Default as
shall be requested by the Majority Banks in accordance with Article IX;
provided, however, that unless and until the Agent shall have received any such
request, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Banks.
10.06 Credit Decision. Each Bank expressly acknowledges that none of
the Agent-Related Persons has made any representation or warranty to it and
that no act by the Agent hereinafter taken, including any review of the affairs
of the Company and its Subsidiaries shall be deemed to constitute any
representation or warranty by any of the Agent-Related Persons to any Bank.
Each Bank represents to the Agent that it has, independently and without
reliance upon any of the Agent-Related Persons and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company and its Subsidiaries, and
all applicable bank regulatory laws relating to the transactions contemplated
thereby, and made its own decision to enter into this Agreement and extend
credit to the Company hereunder. Each Bank also represents that it will,
independently and without reliance upon any of the Agent-Related Persons and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to
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the business, prospects, operations, property, financial and other condition
and creditworthiness of the Company. Except for notices, reports and other
documents expressly herein required to be furnished to the Banks by the Agent,
the Agent shall not have any duty or responsibility to provide any Bank with
any credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of the Company
which may come into the possession of any of the Agent-Related Persons.
10.07 Indemnification. Whether or not the transactions contemplated
hereby shall be consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), ratably
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements of any
kind whatsoever which may at any time (including at any time following the
termination of the Letters of Credit, the repayment of the Loans and the
termination or resignation of the Agent) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this
Agreement, the Original Credit Agreement, or any document contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by any such Person under or in
connection with any of the foregoing; provided, however, that no Bank shall be
liable for the payment to the Agent-Related Persons of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from such Person's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Bank shall reimburse the Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including reasonable Attorney Costs) incurred
by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
the Original Credit Agreement, or any document contemplated by or referred to
herein to the extent that the Agent is not reimbursed for such expenses by or
on behalf of the Company. Without limiting the generality of the foregoing, if
the Internal Revenue Service or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Bank hereunder or
under the Original
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Credit Agreement (because the appropriate form was not delivered, was not
properly executed, or because such Bank failed to notify the Agent of a change
in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Bank shall indemnify
the Agent fully for all amounts paid, directly or indirectly, by the Agent as
tax or otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to the Agent under this
Section, together with all costs and expenses and attorneys' fees (including
reasonable Attorney Costs). The obligation of the Banks in this Section shall
survive the payment of all Obligations hereunder.
10.08 Agent in Individual Capacity. BofA and ABN and their Affiliates
may make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory or other business with the Company and its
Subsidiaries and Affiliates as though neither BofA nor ABN was the Agent and
the Co-Agent, respectively, or an Issuing Bank hereunder and without notice to
or consent of the Banks. With respect to its Loans and participation in
Letters of Credit, each of BofA and ABN shall have the same rights and powers
under this Agreement as any other Bank and may exercise the same as though it
were not the Agent or the Co-Agent, as the case may be, and the terms "Bank"
and "Banks" shall include each of BofA and ABN in its individual capacity.
10.09 Successor Agent. The Agent may, and at the request of the
Majority Banks shall, resign as Agent upon 30 days notice to the Banks. If the
Agent shall resign as Agent under this Agreement, the Majority Banks shall
appoint from among the Banks a successor agent for the Banks. If no successor
agent is appointed prior to the effective date of the resignation of the Agent,
the Agent may appoint, after consulting with the Banks and the Company, a
successor agent from among the Banks. Upon the acceptance of its appointment
as successor agent hereunder, such successor agent shall succeed to all the
rights, powers and duties of the retiring Agent and the term "Agent" shall mean
such successor agent and the retiring Agent's appointment, powers and duties as
Agent shall be terminated. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article X and Sections 11.04 and 11.05 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is 30 days following a retiring Agent's
notice of resignation, the retiring Agent's resignation shall
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nevertheless thereupon become effective and the Banks shall perform all of the
duties of the Agent hereunder until such time, if any, as the Majority Banks
appoint a successor agent as provided for above. Notwithstanding the
foregoing, however, BofA may not be removed as the Agent at the request of the
Majority Banks unless BofA shall also simultaneously be replaced as an "Issuing
Bank" hereunder pursuant to documentation in form and substance satisfactory to
BofA.
10.10 Co-Agent. None of the Banks identified on the facing page or
signature pages of this Agreement as a "co-agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Banks as such. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect to
any departure by the Company therefrom, shall be effective unless the same
shall be in writing and signed by the Majority Banks, the Company and
acknowledged by the Agent, and then such waiver shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no such waiver, amendment, or consent shall, unless in writing
and signed by all the Banks, the Company and acknowledged by the Agent, do any
of the following:
(a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to subsection 9.02(a)), including,
without limitation, any amendment to or waiver of subsection 2.09(b) or any
other provision providing for a mandatory commitment reduction, or subject any
Bank to any additional obligations;
(b) postpone or delay any date fixed for any payment of
principal, interest, fees or other amounts due to the Banks (or any of them)
hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or (subject to clause (iii) below) of any fees or
other amounts payable hereunder or under any other Loan Document;
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(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which shall be required for the
Banks or any of them to take any action hereunder; or
(e) amend this Section 11.01 or Section 2.16 or any
provision providing for consent or other action by all Banks;
and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing signed by the relevant Issuing Bank in addition to the Majority
Banks or all the Banks, as the case may be, affect the rights or duties of such
Issuing Bank under this Agreement or any L/C-Related Document relating to any
Letter of Credit Issued or to be Issued by it, (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Majority Banks or all the Banks, as the case may be, affect the rights or
duties of the Agent under this Agreement or any other Loan Document, and (iii)
the fee letter between the Company and BofA may be amended, or rights and
privileges thereunder waived, in a writing executed by the parties thereto.
11.02 Notices.
(a) All notices, requests and other communications
provided for hereunder shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by the Company by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number specified on the
applicable signature page hereof, and (ii) shall be followed promptly by a hard
copy original thereof) and mailed, faxed or delivered, to the address or
facsimile number specified for notices on the applicable signature page hereof;
or, as directed to the Company or the Agent, to such other address as shall be
designated by such party in a written notice to the other parties, and as
directed to each other party, at such other address as shall be designated by
such party in a written notice to the Company and the Agent.
(b) All such notices, requests and communications shall,
when transmitted by overnight delivery, or faxed, be effective when delivered
for overnight (next-day) delivery, or transmitted by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that,
notwithstanding the foregoing, notices pursuant to
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Article III to an Issuing Bank shall not be effective until actually received
by the Issuing Bank at the address specified for the "Issuing Bank" on the
signature page hereof, and notices to the Company or the Agent shall not be
effective until actually received by the Company or the Agent, respectively.
(c) The Company acknowledges and agrees that any
agreement of the Agent, the Issuing Banks, and the Banks at Article II and
Article III herein to receive certain notices by telephone and facsimile is
solely for the convenience and at the request of the Company. The Agent, the
Issuing Banks, and the Banks shall be entitled to rely on the authority of any
Person purporting to be a Person authorized by the Company to give such notice
and the Agent, the Issuing Banks and the Banks shall not have any liability to
the Company or other Person on account of any action taken or not taken by the
Agent, the Issuing Banks or the Banks in reliance upon such telephonic or
facsimile notice. The obligation of the Company to repay the Loans and L/C
Obligations shall not be affected in any way or to any extent by any failure by
the Agent, the Issuing Banks, and the Banks to receive written confirmation of
any telephonic or facsimile notice or the receipt by the Agent, the Issuing
Banks and the Banks of a confirmation which is at variance with the terms
understood by the Agent, the Issuing Banks, and the Banks to be contained in
the telephonic or facsimile notice.
11.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
11.04 Costs and Expenses. The Company shall, whether or not the
transactions contemplated hereby shall be consummated:
(a) pay or reimburse BofA (including in its capacity as
Agent) within five Business Days after demand (subject to subsection 5.01(e))
for all reasonable costs and expenses incurred by BofA (including in its
capacity as Agent) in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this Agreement, the
Original Credit Agreement, any Loan Document and any other
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documents prepared in connection herewith or therewith, and the consummation of
the transactions contemplated hereby and thereby, including the reasonable
Attorney Costs incurred by BofA (including in its capacity as Agent) with
respect thereto; provided, however, that this subsection (a) shall not apply to
any such costs and expenses incurred by BofA after any date that BofA is no
longer the Agent hereunder and after any such date any references in this
subsection (a) to BofA shall be deemed a reference to the successor Agent; and
(b) pay or reimburse each Bank, the Agent, and the
Arranger within five Business Days after demand (subject to subsection 5.01(e))
for all costs and expenses incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies (including in
connection with any "workout" or restructuring regarding the Loans, and
including in any Insolvency Proceeding or appellate proceeding) under this
Agreement, any other Loan Document, and any such other documents, including
Attorney Costs and appraisal (including the allocated cost of internal
appraisal services), audit, environmental inspection and review (including the
allocated cost of such internal services), and search and filing costs, fees
and expenses, incurred by the Agent, the Arranger and any Bank.
11.05 Indemnity. Whether or not the transactions contemplated hereby
shall be consummated: The Company shall pay, indemnify, and hold each Bank,
the Agent, BofA as agent under the Original Credit Agreement, and each of their
respective officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses or disbursements (including Attorney
Costs) of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
Original Credit Agreement, any Loan Documents, or the transactions contemplated
hereby and thereby, and with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding)
related to this Agreement, the Original Credit Agreement, or the Loans or the
Letters of Credit or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); provided, that the Company shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified Liabilities
arising from the gross negligence or willful misconduct of such Indemnified
Person. The
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agreements in this Section shall survive payment of all other Obligations.
11.06 Marshalling; Payments Set Aside. Neither the Agent nor the
Banks shall be under any obligation to marshall any assets in favor of the
Company or any other Person or against or in payment of any or all of the
Obligations. To the extent that the Company makes a payment or payments to the
Agent or the Banks, or the Agent or the Banks enforce their Liens or exercise
their rights of set-off, and such payment or payments or the proceeds of such
enforcement or set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Agent in its discretion) to be
repaid to a trustee, receiver or any other party in connection with any
Insolvency Proceeding, or otherwise, then (a) to the extent of such recovery
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or set-off had not occurred, and (b) each Bank
severally agrees to pay to the Agent upon demand its ratable share of the total
amount so recovered from or repaid by the Agent.
11.07 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the
prior written consent of the Agent and each Bank.
11.08 Assignments, Participations, Etc.
(a) Any Bank may, with the written consent of the Company
at all times other than during the existence of an Event of Default and the
Agent, which consents shall not be unreasonably withheld or delayed, at any
time assign and delegate to one or more Eligible Assignees (provided that no
written consent of the Company or the Agent shall be required in connection
with any assignment and delegation by a Bank to an Eligible Assignee that is an
Affiliate of such Bank) (each an "Assignee") all, or any ratable part of all,
of the Loans, the Commitments, the L/C Obligations and the other rights and
obligations of such Bank hereunder; provided, however, that (i) no assignment
shall in any event be less than $10,000,000 of the combined Commitments of the
assigning Bank under this Agreement and under and as defined in the Facility B
Credit Agreement unless as a result of such assignment the assigning Bank's
rights and obligations
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hereunder shall be reduced to zero; (ii) if a Bank assigns less than all of its
rights and obligations hereunder, such Bank's remaining Commitment plus such
Bank's Commitment under and as defined in the Facility B Credit Agreement,
after giving effect to such assignment, shall not be less than $10,000,000;
(iii) the Company and the Agent may continue to deal solely and directly with
such Bank in connection with the interest so assigned to an Assignee until (A)
written notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee, shall have been
given to the Company and the Agent by such Bank and the Assignee; (B) such Bank
and its Assignee shall have delivered to the Company and the Agent an
Assignment and Acceptance in the form of Exhibit F ("Assignment and
Acceptance") and (C) the assignor Bank or Assignee has paid to the Agent a
processing fee in the amount of $3,500; and (iv) no assignment of Committed
Loans shall be effective, and shall instead be void and of no effect, unless
performed simultaneously with an assignment of an identical percentage of the
rights and obligations of the assigning Bank in Committed Loans under and as
defined in the Facility B Credit Agreement.
(b) From and after the date that the Agent notifies the
assignor Bank that it has received (and provided its consent with respect to)
an executed Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Bank under the Loan Documents, and (ii) the assignor Bank shall, to the extent
that rights and obligations hereunder and under the other Loan Documents have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents.
(c) Immediately upon each Assignee's making its
processing fee payment under the Assignment and Acceptance, this Agreement
shall be deemed to be amended to the extent, but only to the extent, necessary
to reflect the addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each Assignee shall
reduce such Commitments of the assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company (a
"Participant") participating interests in any Loans, the Commitment of that
Bank and the other interests
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of that Bank (the "originating Bank") hereunder and under the other Loan
Documents; provided, however, that (i) the originating Bank's obligations under
this Agreement shall remain unchanged, (ii) the originating Bank shall remain
solely responsible for the performance of such obligations, (iii) the Company,
the Issuing Bank and the Agent shall continue to deal solely and directly with
the originating Bank in connection with the originating Bank's rights and
obligations under this Agreement and the other Loan Documents, (iv) no such
participation of Committed Loans shall be effective, and shall instead be void
and of no effect, unless performed simultaneously with a participation of an
identical percentage of the rights and obligations of the selling Bank in
Committed Loans under and as defined in the Facility B Credit Agreement, and
(v) no Bank shall transfer or grant any participating interest under which the
Participant shall have rights to approve any amendment to, or any consent or
waiver with respect to, this Agreement or any other Loan Document, except to
the extent such amendment, consent or waiver would require unanimous consent of
the Banks as described in the first proviso to Section 11.01, or the right to
grant subparticipations in Committed Loans except in strict compliance with the
immediately preceding clause (iv) applied mutatis mutandis to such
subparticipation. In the case of any such participation, the Participant shall
be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were
also a Bank hereunder, and if amounts outstanding under this Agreement are due
and unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of set-off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this
Agreement.
(e) Each Bank agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all
information identified as "confidential" by the Company and provided to it by
the Company or any Subsidiary of the Company, or by the Agent on such Company's
or Subsidiary's behalf, in connection with this Agreement, the Original Loan
Agreement, or any Loan Document, and neither it nor any of its Affiliates shall
use any such information for any purpose or in any manner other than pursuant
to the terms contemplated by this Agreement; provided, however, that any Bank
may disclose such information (A) to the extent that such information was or
becomes generally available to the public other than as a result of a
disclosure by the Bank; (B) to the extent such information was or becomes
available to such Bank to whom it
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was furnished on a non-confidential basis; (C) at the request or pursuant to
any requirement of any Governmental Authority to which the Bank is subject or
in connection with an examination of such Bank by any such authority; (D)
pursuant to subpoena or other court process; (E) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (F) to the
extent reasonably required in connection with any litigation or proceeding to
which the Agent, any Bank or their respective Affiliates may be party; (G) to
the extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (H) to such Bank's independent
auditors and other professional advisors and (I) to such Bank's Affiliates.
Notwithstanding the foregoing, the Company authorizes each Bank to disclose to
any Participant or Assignee (each, a "Transferee") and to any prospective
Transferee, such financial and other information in such Bank's possession
concerning the Company or its Subsidiaries which has been delivered to the
Agent or the Banks pursuant to this Agreement or which has been delivered to
the Agent or the Banks by the Company in connection with the Banks' credit
evaluation of the Company prior to entering into this Agreement; provided that,
unless otherwise agreed by the Company, such Transferee agrees in writing to
such Bank to keep such information confidential to the same extent required of
the Banks hereunder.
(f) Notwithstanding any other provision contained in this
Agreement or any other Loan Document to the contrary, any Bank may assign all
or any portion of the Loans held by it to any Federal Reserve Bank or the
United States Treasury as collateral security pursuant to Regulation A of the
Federal Reserve Board and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Loans made by the
Company to or for the account of the assigning or pledging Bank in accordance
with the terms of this Agreement shall satisfy the Company's obligations
hereunder in respect to such assigned Loans to the extent of such payment. No
such assignment shall release the assigning Bank from its obligations
hereunder.
11.09 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists, each Bank is authorized at any
time and from time to time, without prior notice to the Company, any such
notice being waived by the Company to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any time
owing to, such Bank to or for the credit or the account of the Company
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against any and all Obligations owing to such Bank, now or hereafter existing,
irrespective of whether or not the Agent or such Bank shall have made demand
under this Agreement or any Loan Document and although such Obligations may be
contingent or unmatured. Each Bank agrees promptly to notify the Company and
the Agent after any such set-off and application made by such Bank; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Bank under this Section 11.09
are in addition to the other rights and remedies (including other rights of
set-off) which the Bank may have.
11.10 Automatic Debits of Fees. With respect to any commitment fee,
facility fee, letter of credit fee or other fee, or any other cost or expense
(including Attorney Costs) due and payable to the Agent, the Issuing Banks or
BofA under the Loan Documents, the Company hereby irrevocably authorizes BofA
to debit any deposit account of the Company with BofA in an amount such that
the aggregate amount debited from all such deposit accounts does not exceed
such fee or other cost or expense. If there are insufficient funds in such
deposit accounts to cover the amount of the fee or other cost or expense then
due, such debits will be reversed (in whole or in part, in BofA's sole
discretion) and such amount not debited shall be deemed to be unpaid. No such
debit under this Section 11.10 shall be deemed a setoff.
11.11 Notification of Addresses, Lending Offices, Etc. Each Bank
shall notify the Agent in writing of any changes in the address to which
notices to the Bank should be directed, of addresses of its Offshore Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Agent shall
reasonably request.
11.12 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement in any number of separate counterparts, each of
which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Agent.
11.13 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
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11.14 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Banks, the
Issuing Banks, the Co-Agent and the Agent, and their permitted successors and
assigns, and no other Person shall be a direct or indirect legal beneficiary
of, or have any direct or indirect cause of action or claim in connection with,
this Agreement or any of the other Loan Documents. Neither the Agent, the
Co-Agent, the Issuing Banks nor any Bank shall have any obligation to any
Person not a party to this Agreement or other Loan Documents.
11.15 Time. Time is of the essence as to each term or provision of
this Agreement and each of the other Loan Documents.
11.16 Governing Law and Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA; PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
11.17 Arbitration; Reference.
(a) Mandatory Arbitration. Any controversy or claim between or
among the parties, including but not limited to those arising out of or
relating to this Agreement or any agreements or instruments relating hereto or
delivered in connection herewith and any claim based on or arising from an
alleged tort, shall at the request of any party be determined by arbitration.
The arbitration shall be conducted in accordance with the United States
Arbitration Act (Title 9, U.S. Code), notwithstanding any choice of law
provision in this Agreement, and under the Commercial Rules of the American
Arbitration Association ("AAA"). The arbitrator(s) shall give effect to
applicable statutes of limitation in determining any claim. Any controversy
concerning whether an issue is arbitrable shall be determined by the
arbitrator(s). Judgment upon the arbitration award may be entered in any court
having jurisdiction. The institution and maintenance of an action for judicial
relief or pursuit of a provisional or ancillary remedy shall not constitute a
waiver of the right of any party, including the plaintiff, to submit the
controversy or claim to arbitration if any other party contests such action for
judicial relief.
(b) Judicial Reference. At the request of any party a
controversy or claim which is not submitted to arbitration as provided and
limited in subparagraph (a) shall be determined by a reference in accordance
with California Code
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of Civil Procedure Section 638 et seq. If such an election is made, the parties
shall designate to the court a referee or referees selected under the auspices
of the AAA in the same manner as arbitrators are selected in AAA-sponsored
proceedings. The presiding referee of the panel, or the referee if there is a
single referee, shall be an active attorney or retired judge. Judgment upon the
award rendered by such referee or referees shall be entered in the court in
which such proceeding was commenced in accordance with California Code of Civil
Procedure Sections 644 and 645.
(c) Provisional Remedies, Self-Help and Foreclosure. No
provision of this paragraph shall limit the right of any party to this
Agreement to exercise self-help remedies such as setoff, foreclosure against or
sale of any real or personal property collateral or security, or obtaining
provisional or ancillary remedies from a court of competent jurisdiction
before, after, or during the pendency of any arbitration or other proceeding.
The exercise of a remedy does not waive the right of either party to resort to
arbitration or reference.
11.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Banks, the Issuing Banks, the Co-Agent and the Agent, and supersedes all
prior or contemporaneous Agreements and understandings of such Persons, verbal
or written, relating to the subject matter hereof and thereof; provided,
however, that (a) the fee letter referenced in subsections 2.12(a) and (c), (b)
any prior arrangements made with respect to the payment by the Company of (or
any indemnification for) any fees, costs or expenses payable to or incurred (or
to be incurred) by or on behalf of the Agent or the Banks, and (c) the
representations and warranties (as of the dates made and deemed made) and the
indemnities of the Company set forth in the Original Credit Agreement and the
Loan Documents (as
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defined therein) shall, in each case, survive the execution and delivery of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in San Francisco, California by their proper and
duly authorized officers as of the day and year first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By: /s/ Diane M. Irvine
------------------------------------------
Title: Vice President and CFO
---------------------------------
Address for notices:
999 Third Avenue, Suite 2300
Seattle, WA 98104
Attn: Chief Financial Officer
Facsimile: (206) 467-3797
Tel: (206) 467-3600
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
As Agent
By: /s/ Ivo Bakovic
---------------------------------------
Title: Vice President
-----------------------------------------
Address for notices:
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn: Agency Management
Services #5596
Facsimile: (415) 622-4894
Tel: (415) 622-1158
Attention: Shannon Collins
Address for payments:
Bank of America NT&SA
ABA 121-000-358
Attention: Agency Management
Services #5596
1850 Gateway Blvd.
Concord, CA 94520
for credit to Account No. 1233-6-14205
132
138
ABN AMRO BANK N.V.
as a Co-Agent
By: /s/ David McGinnis
------------------------------------------
Title: Vice President
---------------------------------------
By: /s/ Paul Calderon
------------------------------------------
Title: Vice President
---------------------------------------
Address for notices:
600 University Street
Suite 2323
Seattle, WA 98101
Attention: David McGinnis,
Vice President
Facsimile: (206) 682-5641
Tel: (206) 587-0342
Address for payments:
ABN AMRO Bank N.V., New York
ABA 026009580
for credit to ABN AMRO Seattle,
Account No. 651001085541
Reference: Plum Creek
133
139
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank and as an Issuing Bank
By: /s/ Michael J. Balok
------------------------------------------
Title: Vice President
---------------------------------------
Address for notices (BofA as a Bank):
San Francisco Credit Products (#3838)
555 California Street, 41st Floor
San Francisco, CA 94104
Attention: Michael J. Balok
Facsimile: (415) 622-4585
Tel: (415) 622-2018
Address for payments:
Bank of America National Trust
and Savings Association
Global Payment Operations
Customer Service Americas (#5693)
1850 Gateway Boulevard
Concord, CA 94520
Attention: Terry Peach
ABA 121-000-358 SF
Domestic and Offshore Lending Office:
Same as address for payments
Address for Notices (BofA as an Issuing Bank):
International Trade Banking Division #2621
333 S. Beaudry Ave., 19th Floor
Los Angeles, California 90017
Attention: Cybele Sierra
Telephone: (213) 345-6630
Facsimile: (213) 345-6684
134
140
ABN AMRO BANK N.V.
as a Bank and as an Issuing Bank
By: /s/ David McGinnis
-------------------------------------------
Title: Vice President
----------------------------------------
By: /s/ Paul Calderon
------------------------------------------
Title: Vice President
---------------------------------------
Address for notices:
600 University Street
Suite 2323
Seattle, WA 98101
Attention: David McGinnis,
Vice President
Facsimile: (206) 682-5641
Tel: (206) 587-0342
Address for payments:
ABN AMRO Bank N.V., New York
ABA 026009580
for credit to ABN AMRO Seattle,
Account No. 651001085541
Reference: Plum Creek
Domestic and Offshore Lending Offices:
Same as notice address
135
141
NATIONSBANK OF NORTH CAROLINA, N.A.
By: /s/ Michael O. Lincoln
------------------------------------------
Title: Sr. Vice President
---------------------------------------
Address for notices:
1 NationsBank Plaza
NC1-002-06-19
Charlotte, NC 28255
Attention: Kay Ostwalt
Facsimile: (704) 386-8694
Tel: (704) 386-1110
Address for payments:
NationsBank of North Carolina, N.A.
ABA 053-000-196
Specialized Loan Support
Account No. 13662122506
Domestic and Offshore Lending Office:
Forest Products
NationsBank Corporate Center, 8th Fl.
Charlotte, NC 28255
136
142
U.S. BANK OF WASHINGTON, N.A.
By: /s/ Peter G. Bentley
------------------------------------------
Title: Senior Vice President
---------------------------------------
Address for Notices:
U.S. Bank of Washington, N.A.
1420 Fifth Avenue WWH276
Seattle, WA 98101
Attention: Peter G. Bentley, Vice President
Facsimile: (206) 587-5259
Tel: (206) 587-5237
Address for payments:
U.S. Bank of Washington, N.A.
Commercial Note Department
Attention: Jackie Ainsworth
Reference: Plum Creek
Domestic and Offshore Lending Office:
Same as notice address
137
143
WELLS FARGO BANK, N.A.
By: /s/ Ralph Turner
------------------------------------------
Title: Vice President
---------------------------------------
Address for notices:
20 Montgomery St., 9th Floor
San Francisco, CA 94163
(for notices of Borrowings)
Attention: Joan Nitis
Facsimile: (415) 989-4319
Tel: (415) 396-4916
(for all other notices)
Attention: Ralph Turner
Facsimile: (415) 421-1352
Tel: (415) 396-4932
Address for payments:
Wells Fargo Bank, N.A.
ABA 121000248
Corporate Note Dept., SR 703
Account No. 2712-507201
Reference: Plum Creek Timber Company, L.P.
Attention: Joan Nitis
Domestic and Offshore Lending Office:
same as notice address
138
144
SEATTLE FIRST NATIONAL BANK
By: /s/ John Wilson
------------------------------------------
Title: Vice President
---------------------------------------
Address for notices:
701 Fifth Avenue, 12th Floor
Box 94010
Seattle, WA 98120-9410
Attention: John Wilson, Vice President,
Northwest National Division
Facsimile: (206) 358-3113
Tel: (206) 358-8945
Address for payments:
Seattle First National Bank
ABA 125000024
LSC Loans RC #94680
Reference: Plum Creek Timber Company,
L.P., AFS #7007143921
Domestic and Offshore Lending Office:
same as notice address
139
145
THE BANK OF TOKYO, LTD.
By: /s/ Stanley Lance
------------------------------------------
Title: Vice President
---------------------------------------
Address for notices:
1201 Third Avenue, Suite 1100
Seattle, WA 98101
Attention: Corey W. Kalbfleisch,
Corporate Banking Officer
Facsimile: (206) 382-6067
Tel: (206) 382-6021
Address for payments:
The Bank of Tokyo, Ltd.,
Seattle Branch
ABA 1250-0162-9
Reference: Plum Creek Timber Co. (CBD)
Domestic and Lending Offices:
Seattle Branch
1201 Third Avenue, Suite 1100
Seattle, WA 98101
140
146
THE BANK OF CALIFORNIA, N.A.
By: /s/ Kevin Sullivan
------------------------------------------
Title: Vice President
---------------------------------------
Address for notices:
400 California Street, 17th Fl.
San Francisco, CA 94104
Attention: Kevin Sullivan
Vice President
Facsimile: (415) 765-3146
Tel: (415) 765-3148
Address for payments:
The Bank of California, N.A.
ABA 1210-000-15
for credit to Corporate Banking
Note Dept., Bancontrol
Acct. #001060235
Attention: E. DeLeon
Reference: Plum creek
Domestic and Offshore Lending Offices:
Same as notice address
141
147
SCHEDULE 1.01
April 5, 1993
Page 1 of 2
CORPORATE INVESTMENT POLICY
I. OBJECTIVE
This policy provides guidelines for the management of the Company's
cash. It is essential that these assets be invested in a high quality
portfolio which:
o Preserves principal
o Meets liquidity needs
o Allows for appropriate diversification of investments
o Delivers good yield in relationship to the guidelines and
market conditions
The Company is adverse to incurring market risk or credit risk, and
will generally sacrifice yield in the interest of safety. Care must
always be taken to insure that the Company's reported financial
statements are never materially affected by decreases in the market
value of securities held.
II. MATURITY OR PUT
Within the constraints provided throughout this document, or by
addendum to this document, the maximum maturity or put of any
investment instrument will be within two years from the purchase
settlement date; however, the total portfolio must have an average
maturity of less than 12 months.
III. PERMISSIBLE INVESTMENTS
A. Investments will be made in U.S. dollars only.
B. The Company may own, purchase or acquire marketable direct
obligations in the following:
1. Obligations (fixed and floating rate) issued by, or
unconditionally guaranteed by the U.S. Treasury, or
any agency thereof, or issued by any political
subdivision of any state or public agency,
2. Commercial paper rated as A-1 or better by Standard &
Poor's, and P-1 or better by Moody's (or equivalent).
3. Floating rate and fixed rate obligations of
corporations, banks and agencies including: medium term
notes and bonds, deposit notes, and euro dollar/yankee
notes and bonds.
148
April 5, 1993
Page 2 of 2
4. Certificates of deposit, bankers acceptances and time
deposits of commercial banks, domestic or foreign,
whose short term credit ratings are A-1/P-1 (or
equivalent).
5. Repurchase agreements collateralized by U.S. Treasury
and agency securities.
6. Insurance company Funding Agreements, Investment
Contracts, or similar obligations.
7. Asset backed and mortgage backed securities.
8. Master Notes.
9. Taxable money market preferreds.
10. Tax exempt securities including municipal bonds/notes,
money market preferreds, and variable rate demand
notes.
C. Issuing institutions shall be Corporations, Trusts,
Partnerships, and Banks domiciled in the U.S., Canada, Japan
and Western Europe, or Insurance Companies domiciled in the U.S.
IV. CREDIT REQUIREMENTS
Safety shall always be a primary consideration in structuring the
Company's investment portfolio. Credit ratings should be tied to
duration as prescribed below in order to combine safety, liquidity
and acceptable market performance:
DURATION MINIMUM CREDIT RATING
-------- ---------------------
S&P MOODY'S
--- -------
6 months or less A- A3
6 - 18 months AA Aa2
18 months or more AAA Aaa
Original issue securities allowable under this policy with less than
twelve months to maturity may substitute the issuers short term credit
rating if that rating is A-1/P-1 or better.
V. DIVERSIFICATION
To diversiffy risk, no more than $2 million or 10% of the portfolio can
be invested with any one issuer. Exceptions are issues of the U.S.
Treasury or agency securities, insured or government collateralized
issues and daily money market funds.
149
SCHEDULE 2.01
COMMITMENTS
Commitment
Bank Commitment Percentage
- ---- --------------- ------------
Bank of America National Trust
and Savings Association $ 18,518,518.52 18.51851852%
ABN AMRO Bank N.V $ 18,518,518.52 18.51851852%
NationsBank of
North Carolina, N.A. $ 11,111,111.11 11.11111111%
U.S. Bank of Washington, N.A. $ 11,111,111.11 11.11111111%
Wells Fargo Bank, N.A. $ 11,111,111.11 11.11111111%
Seattle First National Bank $ 11,111,111.11 11.11111111%
The Bank of Tokyo, Ltd. $ 11,111,111.11 11.11111111%
The Bank of California, N.A. $ 7,407,407.41 7.40740741%
--------------- -------------
$100,000,000.00 100.00000000%
150
SCHEDULE 3.03
EXISTING ABN LETTERS OF CREDIT
PLUM CREEK TIMBER COMPANY
Letter of Number of Auto-renew
Credit Balance Expiry Notification Days Beneficiary
- --------- ------- ------ --------------------- -----------
IM60268 165,000 6/8/95 60 Home Indemnity Co.
IM60293 580,000 6/1/95 45 United Pacific Insurance Co.
IM60396 89,073 3/26/95 45 United Pacific Insurance Co.
IM60496 250,000 6/1/95 30 Federal Insurance Co.
PLUM CREEK MANUFACTURING, INC.
Letter of Number of Auto-renew
Credit Balance Expiry Notification Days Beneficiary
- --------- ------- ------ --------------------- -----------
IM60269 335,000 6/15/95 60 Home Indemnity Co.
IM60299 125,335 6/15/95 45 United Pacific Co.
151
PLUM CREEK TIMBER COMPANY, L.P.
SCHEDULE 6.05
LITIGATION
NONE
152
SCHEDULE 6.07
6.07(a)
QUALIFIED PLANS:
Plum Creek Pension Plan
Plum Creek Thrift and Profit Sharing Plan
Plum Creek Welfare Plan
- Component Documents listed in Appendix II, thereto
NON-QUALIFIED PLANS:
Plum Creek Management Company, L.P. Executive Unit Award Plan
Plum Creek Management Company, L.P. Key Employee Long Term Incentive Plan
Plum Creek Management Company, L.P. Long Term Incentive Plan
Plum Creek Management Company, L.P. Management Incentive Plan
Plum Creek Management Company, L.P. Key Employee Unit Award Plan
Plum Creek Management Company, L.P. Executive and Key Employee Salary and
Incentive Compensation Deferral Plan
Plum Creek Management Company, L.P. Executive Incentive Sharing Plan
Plum Creek Supplemental Benefits Plan
Plum Creek Timber Company, L.P. Key Employee Supplemental Pension Plan
PC Advisory Corp I Deferred Compensation Plan for Directors
MULTI-EMPLOYER PLANS: None
153
SCHEDULE 6.07 - CONTINUED
6.07(c)
A favorable determination letter from the IRS has been received for the Plum
Creek Thrift and Profit Sharing Plan.
The Plum Creek Pension Plan, adopted in March 1990, is intended to be a
qualified plan pursuant to Internal Revenue Code section 401(a) and the Trust
is intended to be tax exempt pursuant to Code section 501(a). The current plan
has not been submitted for a determination letter which will confirm it is
qualified. The Plum Creek Pension Plan will be submitted for a favorable
determination letter request no later than the last day of its plan year
(December 31, 1994) and the Company will adopt any appropriate amendments and
take any action requested by the Internal Revenue Service as a condition of
issuing a favorable determination letter on the Plum Creek Pension Plan.
6.07(d) and (e) None
6.07(f)
Retiree Life Insurance:
-- Insured plan
-- $10,000 coverage per salaried retiree
-- Approximately 50 retirees covered
-- Plan continues to be available to salaried retirees
Retiree Medical:
-- Liability to cover four retirees for life and two retirees to age 65
-- Plan continues to be available to salaried retirees at retiree-pay-all
basis
-- Liability to provide Mr. Leland and family with coverage until
Mr. Leland is no longer a Board member.
Active Medical
-- Liability to provide Mr. Sletten and family with continuing medical
coverage, under its "COBRA" coverage until December 31, 1995.
The Retiree Life, Retiree Medical, and Active Medical Communications contain
disclaimers regarding the rights of the Company to modify, amend or terminate
the Plans.
The Accumulated Post-retirement Benefit Obligation at December 31, 1993 was
$393,725.
6.07(h), (j), and (k) None
154
SCHEDULE 6.12
ENVIRONMENTAL MATTERS
6.12(a) None.
6.12(b) Plum Creek Manufacturing L.P. is in the process of applying for a
groundwater discharge permits at the Columbia Falls complex. It has
not been determined yet whether a Groundwater Discharge Permit will
be required at the Pablo or Ksanka facilities.
6.12(c) Consent Decrees:
Columbia Falls Veneer Dryers, May 21, 1990
Evergreen Veneer Dryers, May 26, 1991
Evergreen Boiler, May 19, 1992
Notice of Violation or Citation:
EPA NOV/Evergreen Veneer Dryers, February 21, 1991,
May 1, 1992
Montana Air Quality Bureau Citation/Columbia Falls Boiler,
April 25, 1994
Montana Air Quality Bureau Citation/Columbia Falls Boiler,
August 31, 1994
Environmental Claims related to:
EPA/North American Environmental Inc. (Clearfield, UT)
EPA/Evergreen Plywood glue pit
EPA/Somers site (Somers, MT)
DOE/Old Landsburg Mine Site (Ravensdale, WA)
6.12(d) None.
155
PLUM CREEK TIMBER COMPANY, L.P.
SCHEDULE 6.18
SUBSIDIARIES
6.18(a)
Plum Creek Timber Company, L.P., a Delaware limited partnership (the "Company")
has direct ownership in two subsidiaries, and indirect ownership of two
additional subsidiaries.
The Company owns 98% of Plum Creek Manufacturing, L.P., a Delaware limited
partnership. The remaining 2% of Plum Creek Manufacturing, L.P. is owned by
Plum Creek Management Company, L.P., a Delaware limited partnership, general
partner of the Company.
The Company owns 96% of the issued and outstanding stock of Plum Creek
Marketing, Inc., a Delaware corporation. The remaining 4% of the issued and
outstanding stock of Plum Creek Marketing, Inc. is owned by Plum Creek
Management Company, L.P., general partner of the Company.
Plum Creek Marketing, Inc. owns 100% of the issued and outstanding stock of
Plum Creek remanufacturing, Inc., a Washington corporation, and Plum Creek
Foreign Sales Corp., a Guam corporation. Plum Creek Foreign Sales Corp. is an
inactive corporation.
6.18(b): None
156
PLUM CREEK TIMBER COMPANY, L.P.
SCHEDULE 8.01
PERMITTED LIENS
NONE
157
SCHEDULE 8.04
PERMITTED INVESTMENTS
1. 98% interest in Plum Creek Manufacturing, L.P.
2. 96% interest in Plum Creek Marketing, Inc.
158
EXHIBIT A
NOTICE OF BORROWING
Date: __________________
To: Bank of America National Trust and Savings Association, as Agent for the
Banks parties to the Amended and Restated Credit Agreement dated as of
November 15, 1994 (as extended, renewed, amended or restated from time to
time, the "Amended and Restated Credit Agreement") among Plum Creek Timber
Company, L.P., certain Banks that are signatories thereto, ABN Amro Bank
N.V., as Co-Agent and an Issuing Bank, and Bank of America National Trust
and Savings Association, as Agent and an Issuing Bank.
Ladies and Gentlemen:
The undersigned, Plum Creek Timber Company, L.P, (the "Company"), refers to
the Amended and Restated Credit Agreement, the terms defined therein being used
herein as therein defined, and hereby gives you notice irrevocably, pursuant to
Section 2.03 of the Amended and Restated Credit Agreement, of the Borrowing
specified herein:
1. The aggregate amount of the proposed Committed Borrowing is
$_____________________.
2. The Business Day of the proposed Committed Borrowing is
_____________________________, 19___.
3. The Borrowing is to be comprised of $___________ of [CD Rate] [Offshore
Rate] [Base Rate] Committed Loans.
4. [If applicable] The duration of the Interest Period for the [CD Rate
Committed Loans] [Offshore Rate Committed Loans] included in the
Borrowing shall be [____________ days] [_________ months].
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed Committed
Borrowing, before and after giving effect thereto and to the application of the
proceeds therefrom:
1
159
(a) the representations and warranties of the Company contained in Article
VI of the Amended and Restated Credit Agreement are true and correct as though
made on and as of such date (except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true
and correct as of such earlier date);
(b) no Default or Event of Default exists; and
(c) the proposed Borrowing will not cause the Effective Amount of all
outstanding Committed Loans and Bid Loans plus the Effective Amount of all L/C
Obligations to exceed the Aggregate Commitment.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By: _________________________________
Title: ______________________________
2
160
EXHIBIT B
NOTICE OF CONVERSION/CONTINUATION
Date: __________________
To: Bank of America National Trust and Savings Association, as Agent for
the Banks parties to the Amended and Restated Credit Agreement dated
as of November 15, 1994 (as extended, renewed, amended or restated
from time to time, the "Amended and Restated Credit Agreement") among
Plum Creek Timber Company, L.P., certain Banks that are signatories
thereto, ABN Amro Bank N.V., as Co-Agent and an Issuing Bank and Bank
of America National Trust and Savings Association, as Agent and an
Issuing Bank.
Ladies and Gentlemen:
The undersigned, Plum Creek Timber Company, L.P. (the
"Company"), refers to the Amended and Restated Credit Agreement, the terms
defined therein being used herein as therein defined, and hereby gives you
notice irrevocably, pursuant to Section 2.04 of the Amended and Restated Credit
Agreement, of the [conversion] [continuation] of the Committed Loans specified
herein, that:
1. The date of the [conversion] [continuation] is
______________________, 19__.
2. The aggregate amount of the Committed Loans
[converted] [continued] is $______________.
3. The Committed Loans are to be [converted into]
[continued as] [CD Rate] [Offshore Rate] [Base Rate]
Committed Loans.
4. [If applicable] The duration of the Interest Period
for the Committed Loans included in the [conversion]
[continuation] shall be [____ days] [____ months].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the proposed
[conversion][continuation], before and after giving effect thereto and to the
application of the proceeds therefrom:
1
161
(a) the representations and warranties of the Company
contained in Article VI of the Amended and Restated Credit Agreement are true
and correct as though made on and as of such date (except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true and correct as of such earlier date);
(b) no Default or Event of Default exists; and
(c) the proposed [conversion] [continuation] will not
cause the Effective Amount of all outstanding Committed Loans and Bid Loans
plus the Effective Amount of all L/C Obligations to exceed the Aggregate
Commitment.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By: _________________________________
Title: ______________________________
2
162
EXHIBIT C-1
LEGAL OPINION OF COUNSEL FOR THE COMPANY
[Unless otherwise defined herein, capitalized terms used in this Exhibit C-1
have the meanings assigned to them in the Agreement.]
(a) Each of the Company, the General Partner, PCMC
General Partner and Plum Creek Manufacturing, L.P. is a limited partnership
duly formed under the laws of the State of Delaware, with a stated term beyond
the term of the Loan Documents (in those cases where the Loan Documents have a
fixed term) and is duly qualified and in good standing in each state in which
the failure to so qualify would have a Material Adverse Effect.
(b) Each of PC Advisory General Partner and Plum Creek
Marketing, Inc. is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is duly qualified and in
good standing in each state in which the failure to so qualify would have a
Material Adverse Effect.
(c) The Company and each of the Partner Entities have the
partnership or corporate, as applicable, power and authority to execute and
deliver, and to perform and observe the provisions of, the Loan Documents.
(d) The execution, delivery and performance by the
Company of the Loan Documents have been duly authorized by all necessary
corporate and partnership action on behalf of PC Advisory General Partner, as
general partner of PCMC General Partner, as general partner of the General
Partner, as general partner of the Company.
(e) The Loan Documents have been duly executed and
delivered by the Company.
(f) The Company and each of its Subsidiaries has the
power and authority and all governmental licenses, authorizations, consents and
approvals to own its assets and carry on its business, except for such
governmental licenses, authorizations, consents and approvals, the lack thereof
would not have a Material Adverse Effect.
(g) No registration with, consent or approval of, notice
to, or other action by, any Governmental Authority is
1
163
required on the part of the Company or the Partner Entities or any of their
Subsidiaries for the execution, delivery or performance by the Company of the
Loan Documents, or if required, such registration has been made, such consent
or approval has been obtained, such notice has been given or such other
appropriate action has been taken.
(h) The execution, delivery and performance of the Loan
Documents by the Company are not in violation of the partnership documents of
the Company, the General Partner or the PCMC General Partner or the Articles of
Incorporation and Bylaws of the PC Advisory General Partner.
(i) The execution, delivery and performance of the Loan
Documents by the Company will not violate or result in a breach of any of the
terms of or constitute a default under or result in a creation of any Lien on
any property or assets of the Company or any of the Partner Entities, pursuant
to the terms of any indenture, mortgage, deed of trust or other agreement to
which such Person is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Person or its property is subject.
(j) The execution, delivery and performance of the Loan
Documents will not conflict with or contravene any of Regulations G, T, U and X
promulgated by the Federal Reserve Board.
(k) Neither the Company, the Partner Entities, any Person
controlling the Company or the Partner Entities, or any Subsidiary of the
Company or the Partner Entities, is an "Investment Company" within the meaning
of the Investment Company Act of 1940, as amended, or subject to regulation
under the Public Utility Holding Company Act of 1935, as amended.
(l) There are no actions, suits, proceedings, claims or
disputes pending or, to the best of my knowledge, threatened against the
Company, the Partner Entities or any of their Subsidiaries or any of their
respective properties before any court, regulatory body, administrative agency,
at law, in equity, in arbitration or before any Governmental Authority which
(a) purport to affect or pertain to the Loan Documents, or any of the
transactions contemplated thereby, (b) have a reasonable probability of success
on the merits and which, if determined adversely to the Company, the Partner
Entities or their Subsidiaries, would reasonably be expected to have a Material
Adverse Effect.
2
164
EXHIBIT C-2
LEGAL OPINION OF PERKINS COIE
[Unless otherwise defined herein, capitalized terms used in this Exhibit C-2
have the meanings assigned to them in the Agreement.]
(a) The Agreement constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance with
its terms.
165
EXHIBIT D
PLUM CREEK TIMBER COMPANY, L.P.
COMPLIANCE CERTIFICATE
DATE: __________________
Reference is made to that certain Amended and Restated Credit Agreement
dated as of November 15, 1994 (the "Credit Agreement") among Plum Creek Timber
Company, L.P., a Delaware limited partnership (the "Company"), certain
financial institutions from time to time parties to the Amended and Restated
Credit Agreement (the "Banks"), ABN Amro Bank N.V., as co-agent and a letter of
credit issuing bank and Bank of America National Trust and Savings Association,
a national banking association, as agent for the Banks (in such capacity, the
"Agent") and as a letter of credit issuing bank. Unless otherwise defined
herein, capitalized terms used herein have the respective meanings assigned to
them in the Amended and Restated Credit Agreement.
The undersigned Responsible Officer of the Company, hereby certifies as of
the date hereof that he/she is the ____________________ of the Company, and
that, as such, he/she is authorized to execute and deliver this Certificate to
the Banks and the Agent on the behalf of the Company and its Subsidiaries and
not as an individual, and that:
[Use the following paragraph if this Certificate is delivered in connection
with the financial statements required by subsection 7.01(a) of the Amended and
Restated Credit Agreement.]
1. Attached as Schedule 1 hereto are (a) a true and correct copy of the
audited combined balance sheet of the Company as at the end of the fiscal year
ended December 31, ____ and (b) the related combined statements of income and
statement of cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, and accompanied by
the opinion of Coopers & Lybrand or another nationally-recognized certified
independent public accounting firm. Such opinion is not qualified or limited
because of a restricted or limited examination by such accountant of any
material portion of the Company's or any Subsidiary's records and is delivered
to the Agent pursuant to a reliance agreement
1
166
between the Agent and Banks and such accounting firm which you have advised us
is in form and substance satisfactory to the Agent and the Majority Banks;
or
[Use the following paragraph if this Certificate is delivered in connection
with the financial statements required by subsection 7.01(b) of the Amended and
Restated Credit Agreement.]
1. Attached as Schedule 1 hereto are (a) a true and correct copy of the
audited combining balance sheets of the Company and each of its Subsidiaries as
at the end of the fiscal year ended December 31, ____ and (b) the related
combining statements of income and statement of cash flows for such fiscal
year; which financial statements were used in connection with the preparation
of the audited combined balance sheet of the Company as of the end of such
fiscal year and the related combined statements of income and statement of cash
flows for such fiscal year.
or
[Use the following paragraph if this Certificate is delivered in connection
with the financial statements required by subsections 7.01(c) and (d) of the
Amended and Restated Credit Agreement.]
1. (a) Attached as Schedule 1A hereto is (i) a true and correct copy of
the unaudited combined balance sheet of the Company and its combined
Subsidiaries as of the end of the fiscal quarter ended __________ __, ____ and
(ii) the related combined statements of income and statement of cash flows of
the Company and its combined Subsidiaries for the period commencing on the
first day and ending on the last day of such quarter, setting forth in each
case in comparative form the figures for the previous year (subject to normal
year-end audit adjustments).
(b) Attach as Schedule 1B hereto is (i) a true and correct copy of the
unaudited combining balance sheets of the Company and each of its Subsidiaries
as of the end of the fiscal quarter ended __________ __, ____ and (ii) the
related combining statements of income and statement of cash flows for such
quarter, which financial statements were used in connection with the
preparation of the financial statements referred to in paragraph 1(a) above of
this Certificate.
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2. The undersigned has reviewed and is familiar with the terms of the Amended
and Restated Credit Agreement and has made, or has caused to be made under
his/her supervision, a detailed review of the transactions and conditions
(financial or otherwise) of the Company during the accounting period covered by
the attached financial statements.
3. The attached financial statements are complete and correct, and have
been prepared in accordance with GAAP on a basis consistent with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein).
4. The attached financial statements are certified by a Responsible Officer
of the Company and fairly state the financial position and results of
operations of the Company and its combined Subsidiaries.
5. To the best of the undersigned's knowledge, the Company, during such
period, has observed, performed or satisfied all of its covenants and other
agreements, and satisfied every condition in the Amended and Restated Credit
Agreement to be observed, performed or satisfied by the Company, and the
undersigned has no knowledge of any Default or Event of Default.
6. The financial covenant analyses and information set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this
Certificate.
7. For the fiscal quarter commencing ___________, the Applicable Margin is
(i) _____% in the case of Offshore Rate Committed Loans, (ii) _____% in the
case of CD Rate Committed Loans and (iii) 0.0000% in the case of Base Rate
Committed Loans.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
____________________, ____.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By: ________________________________
Title: _____________________________
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PLUM CREEK TIMBER COMPANY, L.P.
SCHEDULE 2
COMPLIANCE CERTIFICATE COMPUTATION STATEMENT
($ IN THOUSANDS)
Fixed Charge Coverage Ratio
(used for Applicable Margin and Commitment Fee Percentage)
EBITDA
Net Income
Plus:
DD&A
LIFO Adjustments
Accrued Income Taxes
-----
Total $0 (A)
-----
To:
4 Qtrs. Combined Interest Expense
plus: scheduled principal repayments
-----
Total $0 (B)
-----
"A" divided "B" 0.00 x
NEGATIVE COVENANTS
1) SECTION 8.02(H): ASSET SALES
Maximum Allowed calendar year ________ $0
Sales as of ________ $0
2) SECTION 8.03: HARVESTING RESTRICTIONS (MMBF)
199__ Maximum Allowable Harvest 0
Add: Prior year Cumulative Carryover Harvest 0
-----
Available to Harvest in 199__ 0
Actual 199__ Harvest 0
-----
199__ Carryover Harvest 0
=====
3) SECTION 8.04(I): INVESTMENTS NOT OTHERWISE PERMITTED:
The greater of $30 million or 60% of the
Average annual Pro Forma Free Cash
Flow from the two fiscal years preceding
2 Year Average Proforma Free Cash Flow $0
The greater of $30 million or Average (above) $0
Cumulative investments made through _________ $0
169
4) SECTION 8.05(b): FUNDED DEBT INCURRED TO FINANCE CAPITAL IMPROVEMENTS:
Maximum Allowed $20,000
Outstanding at ____________ $0
5) SECTION 8.05(d): INDEBTEDNESS INCURRED FOR THE REVOLVING CREDIT
FACILITY
Maximum Allowed $15,000
Outstanding at ____________ $0
6) SECTION 8.05(f): GUARANTEE OF FACILITIES SUBSIDIARY REVOLVING CREDIT
FACILITY:
Maximum Allowed $20,000
Outstanding at ____________ $0
7) SECTION 8.05(g): GUARANTEE OF FACILITY SUBSIDIARY CAPITAL IMPROVEMENT
FUNDED DEBT:
Maximum Allowed $20,000
Outstanding at ____________ $0
8) SECTION 8.05(h): AGGREGATE PRINCIPAL AMOUNT OF INDEBTEDNESS SECURED BY
LIENS:
Maximum Allowed $20,000
Outstanding at ____________ $0
9) SECTION 8.05(i): ADDITIONAL FUNDED DEBT:
Pro Forma Free Cash Flow $0
to
Maximum Pro Forma Annual Interest Charges $0
Ratio = 0.00 x
Amount Outstanding $0
Not to exceed $400 million $400,000
170
10) SECTION 8.13 (a): RESTRICTED PAYMENTS:
Available Cash means, with respect to any calendar quarter,
(i)(a) Net Income $0
(a) Excluding Gain on sale of any Capital Assets 0
Plus:
(b) DD&A 0
(b) Other non-cash charges (incl. LIFO inventory) 0
(c) Reduction in reserves of the types referred to in clause
(ii)(d) below,
Interest 0
Principal 0
(d) Proceeds received from the sale of Designated Acres 0
(e) Cash from Capital Transactions used to Refinance or
refund indebtedness 0
Less (ii) the sum of:
(a) All payments of Principal Indebtedness 0
(b) Capital Expenditures 0
(c) Capital Expenditures made in prior quarter, anticipated
to financed, but have not been refinanced 0
(d) Reserve for future Principal Payments:
Bank 0
Senior and First Mortgage Notes 0
(d) Reserve for future Capital Expenditures 0
(d) Reserve for additional Working Capital 0
(d) Reserve for future Distributions 0
(d) Reserve for future Interest Payments 0
(e) Other noncash credits 0
(f) The amount of any investments 0
(g) Any investments made in prior quarter anticipated to be
financed, but have not been refinanced 0
--
Available cash - __________ $0
==
General Partner 2% Interest 0
General Partner Incentive Distribution 0
Allocable to Unitholders - net 0
--
Total Distribution $0
==
171
EXHIBIT E
FORM OF CASH COLLATERAL ACCOUNT AGREEMENT
This CASH COLLATERAL ACCOUNT AGREEMENT ("Agreement") dated as
of ______________, 199_ is entered into by and between PLUM CREEK TIMBER
COMPANY, L.P., a Delaware limited partnership (the "Company"), and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent (solely in such
capacity, "Agent") for the financial institutions from time to time parties to
the Amended and Restated Credit Agreement referred to below (such entities,
together with their respective successors and assigns, being collectively
referred to as the "Banks").
RECITALS
A. The Company, Agent, ABN Amro Bank N.V., as co-agent
("Co-Agent") and the Banks have entered into an Amended and Restated Credit
Agreement dated as of November 15, 1994 (as the same may from time to time be
amended, amended and restated, modified, supplemented or renewed, the "Amended
and Restated Credit Agreement"). Capitalized terms used herein without
definition shall have the meanings given to them in the Amended and Restated
Credit Agreement.
[B. Pursuant to Section 3.07 or subsection 2.09(a)(ii) of
the Amended and Restated Credit Agreement, Agent has required that the Company
immediately Cash Collateralize all or a portion of the L/C Obligations as
provided in that Section or subsection in a cash collateral account at Bank of
America National Trust and Savings Association ("BofA").]
or
[B. In accordance with subsection 2.09(a)[(i)] [(ii)] and
subsection 2.09(c) of the Amended and Restated Credit Agreement, the Company is
required to prepay or Cash Collateralize [CD Rate Committed Loans] [and]
[Offshore Rate Committed Loans] in an amount equal to $ _____________ in a cash
collateral account at Bank of America National Trust and Savings Association
("BofA"). The Company has elected to Cash Collateralize such Committed Loans
which cash collateral amount shall be applied to repay [CD Rate Committed
Loans] [and] [Offshore Rate Committed Loans] at maturity thereof.]
or
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[B. In accordance with subsection 2.09(a)(iii) of the
Amended and Restated Credit Agreement, the Company is required to Cash
Collateralize Bid Loans in an amount equal to $ ___________ in a cash
collateral account at Bank of America National Trust and Savings Association
("BofA"), which amount shall be applied to Bid Loans at maturity thereof.]
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the Company and Agent hereby agree as
follows:
1. Cash Collateral Account.
a. Cash Collateral Account. For purposes of
[Section 3.07] [subsection 2.09(a)(ii)] [subsection 2.09(c)] [subsection
2.09(a)(iii)] of the Credit Agreement, the Company has established with BofA,
for the benefit of Agent on behalf of itself [IF WITH RESPECT TO SUBSECTION
2.09(c): and the Banks] [IF WITH RESPECT TO SECTION 3.07 OR SUBSECTION
2.09(a)(ii): the Issuing Banks and the Banks] [IF WITH RESPECT TO SUBSECTION
2.09(a)(iii): and the Bid Loan Lenders], a special purpose restricted deposit
account in the name of the Company, deposit account #__________ (together with
any successor account(s) that may be established from time to time in
replacement thereof, the "Cash Collateral Account"). Agent shall have
exclusive control over the Cash Collateral Account and the sole right of
withdrawal therefrom, except as expressly provided in Section 1(b) below. The
Company agrees that the Cash Collateral Account shall be a blocked account, and
upon the deposit of funds into the Cash Collateral Account by or at the
direction of the Company, such deposit shall become (except as expressly
provided in such Section 1(b) hereof) irrevocable and the Company shall have no
right to withdraw amounts contained therein or interest accrued thereon except
as provided in Section 1(b) hereof or upon the indefeasible payment in full of
the Obligations; and until such indefeasible payment in full of the Obligations
the Company waives (i) the right to make withdrawals from the Cash Collateral
Account and (ii) the right to instruct BofA to honor drafts drawn against the
Cash Collateral Account, except in each case as expressly provided in Section
1(b) hereof.
[IF WITH RESPECT TO SECTION 3.07 AND SUBSECTION 2.09(a)(ii)]
[(b Application to Letters of Credit. Subject to
the prior application by Agent of amounts held hereunder pursuant to Section 2,
on the Honor Date of a Letter of Credit, Agent shall promptly apply any amounts
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remaining in the Cash Collateral Account to reimburse the Issuing Bank which
issued such Letter of Credit for the drawing on such Letter of Credit, and the
Company irrevocably directs Agent to apply such funds at such time to reimburse
such Issuing Bank in accordance with subsection 3.03(c) of the Amended and
Restated Credit Agreement. At any time that there are no outstanding L/C
Obligations and so long as no Default or Event of Default shall then exist,
Agent shall release and transfer to the Company any amounts remaining in the
Cash Collateral Account.]
[IF WITH RESPECT TO SUBSECTION 2.09(c)]
[(b) Application to Committed Loans. Subject to
the prior application by Agent of amounts held hereunder pursuant to Section 2,
on the maturity date of any Interest Period with respect to [a CD Rate
Committed Loan] [and] [an Offshore Rate Committed Loan], Agent shall apply any
amounts remaining in the Cash Collateral Account to repay such [CD Rate
Committed Loan] [or] [[Offshore Rate Committed Loan], and the Company
irrevocably directs Agent to apply such funds at such time to repay [CD Rate
Committed Loans] [or] [Offshore Rate Committed Loans].
[IF WITH RESPECT TO SUBSECTION 2.09(a)(iii)]
[(b) Application to Bid Loans. Subject to the
prior application by Agent of amounts held hereunder pursuant to Section 2, on
the maturity date of any Interest Period with respect to a Bid Loan, Agent
shall apply any amounts remaining in the Cash Collateral Account to repay such
Bid Loan, and the Company irrevocably directs Agent to apply such funds at such
time to repay Bid Loans.]
2. Lien. The Cash Collateral Account, all funds and
investments contained therein, all interest accrued thereon, and all proceeds
thereof shall be held by BofA for the benefit of Agent on behalf of itself [IF
RESPECT TO SUBSECTION 2.09(c): and the Banks] [IF WITH RESPECT TO SECTION 3.07
OR SUBSECTION 2.09(a)(ii): the Issuing Banks and the Banks] [IF WITH RESPECT TO
SUBSECTION 2.09(a)(iii): and the Bid Loan Lenders] as cash collateral to secure
the Company's Obligations. As security for the payment and performance of all
obligations of the Company hereunder and under the Amended and Restated Credit
Agreement, the Company hereby grants to Agent on behalf of itself [IF WITH
RESPECT TO SUBSECTION 2.09(c): and the Banks] [IF WITH RESPECT TO SECTION 3.07
OR SUBSECTION 2.09(a)(ii): the Issuing Banks and the Banks] [IF WITH RESPECT TO
SUBSECTION 2.09(a)(iii): and the Bid Loan Lenders] a first priority perfected
security interest in all of its rights, title and interest now existing or
hereafter arising in and to the Cash
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174
Collateral Account and any proceeds or products thereof. Agent and the Company
hereby notify BofA of the foregoing lien, and BofA, by its signature below,
acknowledges receipt of such notice.
The Company shall be deemed in default under this Agreement
upon the occurrence of an Event of Default, as that term is defined in the
Amended and Restated Credit Agreement. Upon the occurrence of any such Event
of Default, Agent may, at its option, and without notice to or demand on the
Company and in addition to all rights and remedies available to Agent under the
Amended and Restated Credit Agreement, do any one or more of the following:
(a) foreclose or otherwise enforce Agent's security interest in any manner
permitted by law, or provided for in this Agreement; (b) dispose of the Cash
Collateral Account on such terms and in such manner as Agent may determine; and
(c) recover from the Company all costs and expenses, including, without
limitation, Attorneys Costs, incurred or paid by Agent in exercising any right,
power or remedy provided by this Agreement, the Loan Documents, or by law.
3. Investments. Upon the Company's written instructions
as provided in Section 4 below, if no Default or Event of Default exists, Agent
shall invest the funds on deposit in the Cash Collateral Account in any of the
permitted investments described in the Investment Policy attached as Schedule
1.01 to the Amended and Restated Credit Agreement; provided that with respect
to any instruction to invest funds in any investment that does not constitute a
"deposit account" (as defined in Division 9 of the California Uniform
Commercial Code) maintained with BofA, Agent shall take no action to effect
such instructions to invest funds unless and until the Company has duly
executed and delivered such documents and instruments and caused to be
delivered such opinions of counsel as the Majority Lenders may reasonably deem
necessary or appropriate to perfect or to confirm the perfection and first
priority status of Agent's security interest in such investments.
4. Investment Direction. With respect to the investment
of funds on deposit in the Cash Collateral Account pursuant to Section 3 above,
Agent shall be entitled to rely upon the written instructions of those
individuals whose signatures appear in the spaces provided below, or
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175
such other individuals as may hereafter be designated in writing by the
Company:
-----------------------------------
-----------------------------------
-----------------------------------
5. Compensation. BofA shall be entitled to compensation
from the Company for the maintenance of and investment of funds contained in
the Cash Collateral Account in accordance with its standard fees for such
services in effect from time to time. Such compensation shall be payable upon
demand.
6. Notices, Etc. Any notice or other communication
herein required or permitted to be given shall be in writing and may be
delivered in person, with receipt acknowledged, or sent by telex, telecopy or
by United States mail, registered or certified, return receipt requested,
postage prepaid and addressed as set forth on the signature pages to this
Agreement or at such other address as may be substituted by notice given as
herein provided. The giving of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. All such notices and
communications shall be effective upon receipt. Failure or delay in delivering
copies of any notice, demand, request, consent, approval, declaration or other
communication to the persons designated above to receive copies shall in no
way adversely affect the effectiveness of such notice, demand, request,
consent, approval, declaration or other communication.
7. Termination. This Agreement shall terminate when
transfers of amounts in the Cash Collateral Account pursuant to Section 1
hereof shall have reduced the balance of the Cash Collateral Account to zero.
8. Successors and Assigns; Governing Law. This Agreement
shall be binding upon and inure to the benefit of
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176
the Company, Agent [and the Banks] [and the Bid Loan Lenders]1 and their
respective successors and assigns, except that the Company shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of Agent [and each Bank] [and each Bid Loan Lender]. Except as
otherwise expressly provided herein or in any of the other Loan Documents, in
all respects, including all matters of construction, validity and performance,
this Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of California applicable to contracts made and
performed in such state, without regard to the principles thereof regarding
conflict of laws, and any applicable laws of the United States of America.
9. Entire Agreement; Construction; Amendments and
Waivers.
a. Entire Agreement. This Agreement, the
Amended and Restated Credit Agreement and the other Loan Documents, taken
together, constitute and contain the entire agreement among the parties and
supersede any and all prior agreements, negotiations, correspondence,
understandings and communications among the parties, whether written or oral,
respecting the subject matter hereof.
b. Construction. This Agreement is the result
of negotiations between and has been reviewed by each of the Company, Agent
[and the Banks] [and the Bid Loan Lenders] and their respective counsel;
accordingly, this Agreement shall be deemed to be the product of the parties
hereto, and no ambiguity shall be construed in favor of or against the Company,
Agent [or the Banks] [or the Bid Loan Lenders]. The Company, Agent [and the
Banks] [and the Bid Loan Lenders] agree that they intend the literal words of
this Agreement and that no parol evidence shall be necessary or appropriate to
establish the Company's, Agent's [or any Bank's] [or any Bid Loan Lender's]
actual intentions.
c. Interpretation. The terms of this Agreement
shall be interpreted in accordance with the provisions of Article I of the
Amended and Restated Credit Agreement, provided, however, that (a) any
reference to a "Section" shall refer to the relevant Section to this Agreement,
unless specifically indicated to the contrary and (b) the words "herein,"
"hereof" and "hereunder" and other
____________________
* Bracketed references to Bid Loan Lenders shall be employed only
if the only Obligations secured hereby are Bid Loans. In other
circumstances, references to Banks and Majority Banks should be
employed.
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177
words of similar import (including, without limitation, in Article I of the
Amended and Restated Credit Agreement) shall refer to this Agreement as a
whole, as the same may from time to time be amended, amended and restated,
modified or supplemented, and not to any particular section, subsection or
clause contained in this Agreement.
d. Amendments; Waivers. No amendment,
modification, discharge or waiver of, or consent to any departure by the
Company from, any provision of this Agreement shall be effective unless the
same shall be in writing and signed by the Agent with the written consent of
[the Majority Banks] [the Bid Loan Lenders], and then such waiver shall be
effective only in the specific instance and for the specific purpose for which
given.
10. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be valid, legal and
enforceable under the applicable law of any jurisdiction. Without limiting the
generality of the foregoing sentence, in case any provision of this Agreement
shall be invalid, illegal or unenforceable under the applicable law of any
jurisdiction, the validity, legality and enforceability of the remaining
provisions, or of such provision in any other jurisdiction, shall not in any
way be affected or impaired thereby.
11. Headings. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive
effect.
12. No Third Parties Benefited. This Agreement is made and
entered into for the sole protection and legal benefit of the Company, Agent,
[the Banks] [the Bid Loan Lenders], and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with this
Agreement. Neither Agent [nor any Bank] [nor any Bid Loan Lender] shall have
any obligation to any Person not a party to this Agreement.
13. Counterparts. This Agreement and any amendments, waivers,
consents or supplements hereto may be executed in any number of counterparts,
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
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178
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the date first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By: ________________________________
Title: _____________________________
Notice to be sent to:
Plum Creek Timber Company, L.P.
999 Third Avenue, Suite 2300
Seattle, WA 98104
Attn: Chief Financial Officer
Tel: (206) 467-3600
Fax: (206) 467-3797
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Agent
By: _________________________________________
Printed Name:
Title:
Notice to be sent to:
Bank of America National Trust and Savings Association
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn: Shannon Collins
Agency Management Services #5596
Tel: (415) 622-1158
Fax: (415) 622-4894
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179
Notice of security interest acknowledged:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as depository
By: _____________________________
Printed Name:
Title:
Notice to be sent to:
Bank of America National Trust and Savings Association
555 California Street, 41st Floor
San Francisco, CA 94104
Attn: Michael J. Balok
Tel: (415) 622-2018
Fax: (415) 622-4585
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180
EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Agreement")
dated as of ____________________, ____ is made between ____________
_________________ (the "Assignor") and ______________________________ (the
"Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Amended and
Restated Credit Agreement dated as of November 15, 1994 among PLUM CREEK TIMBER
COMPANY, L.P., a Delaware limited partnership (the "Company"), the several
financial institutions from time to time party thereto (including the Assignor,
the "Banks"), ABN AMRO BANK N.V., as Co-Agent and as a letter of credit issuing
bank, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent and
as a letter of credit issuing bank (as from time to time amended, amended and
restated, modified, supplemented or renewed, the "Amended and Restated Credit
Agreement"). Any terms defined in the Amended and Restated Credit Agreement
and not defined in this Agreement are used herein as defined in the Amended and
Restated Credit Agreement;
WHEREAS, as provided under the Amended and Restated Credit
Agreement, the Assignor has committed to making committed loans (the "Committed
Loans") to the Company in an aggregate amount not to exceed $__________ (the
"Commitment") and has agreed to provide the Company with Bid Loans from time to
time in the Assignor's sole discretion;
WHEREAS, [the Assignor has made Committed Loans in the
aggregate principal amount of $__________[, and Bid Loans in the aggregate
principal amount of $_________] to the Company] [no Committed Loans are
outstanding under the Amended and Restated Credit Agreement] [no Bid Loans are
outstanding under the Amended and Restated Credit Agreement]; and
WHEREAS, [the Assignor has acquired a participation in an
Issuing Bank's liability under Letters of Credit in an aggregate principal
amount of $_________ (the "L/C Obligations")] [No Letters of Credit are
outstanding under the Amended and Restated Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part
of the] [all] rights and obligations of the
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Assignor under the Amended and Restated Credit Agreement in respect of (i) its
Commitment, [together with a corresponding portion of each of its outstanding
Committed Loans and L/C Obligations,] in an amount equal to $__________ (the
"Assigned Amount") and (ii) its outstanding Bid Loans in an amount equal to $
________, in each case on the terms and subject to the conditions set forth
herein and the Assignee wishes to accept assignment of such rights and to
assume such obligations from the Assignor on such terms and subject to such
conditions;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this
Agreement, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and
undertakes from the Assignor, without recourse and without
representation or warranty (except as provided in this Agreement) (A)
__% (the Assignee's Percentage Share") of the Commitment [and the
Committed Loans and the L/C Obligations] of the Assignor, (B) [$
____________ in principal amount of outstanding Bid Loans, and (C)]
all related rights, benefits, obligations, liabilities and indemnities
of the Assignor under and in connection with the Amended and Restated
Credit Agreement and the Loan Documents.
[If appropriate, add paragraph specifying payment to
Assignor by Assignee of outstanding principal of, accrued interest on,
and fees with respect to, Committed Loans, Bid Loans and L/C
Obligations assigned.]
(b) With effect on and after the Effective Date
(as defined herein), the Assignee shall be a party to the Amended and
Restated Credit Agreement and succeed to all of the rights and be
obligated to perform all of the obligations of a Bank under the
Amended and Restated Credit Agreement, including the requirements
concerning confidentiality, with a Commitment in an amount equal to
the Assigned Amount. The Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms
of the Amended and Restated Credit Agreement are required to be
performed by it as a Bank. It is the intent of the parties hereto
that the Commitment of the Assignor shall, as of the Effective Date,
be reduced by an amount equal to the Assigned Amount and the Assignor
shall relinquish its
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182
rights and be released from its obligations under the Amended and
Restated Credit Agreement to the extent such obligations have been
assumed by the Assignee.
(c) After giving effect to the assignment and
assumption, on the Effective Date the Assignee's Commitment will be
$__________.
(d) After giving effect to the assignment and
assumption, on the Effective Date the Assignor's Commitment will be
$_________.
2. Payments.
(a) As consideration for the sale, assignment and
transfer contemplated in Section 1, the Assignee shall pay to the
Assignor on the Effective Date in immediately available funds an
amount equal to $__________, representing the Assignee's Percentage
Share of the principal amount of all Committed Loans and $___________
of the principal amount of Bid Loans previously made, and currently
owed, by the Company to the Assignor under the Amended and Restated
Credit Agreement and outstanding on the Effective Date.
(b) The [Assignor] [Assignee] further agrees to
pay to the Agent a processing fee in the amount specified in Section
11.08(a) of the Amended and Restated Credit Agreement.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective
Date with respect to the Committed Loans, [Bid Loans,] and L/C Obligations and
the Commitment shall be for the account of the Assignor. Any interest, fees
and other payments accrued on and after the Effective Date with respect to the
Assigned Amount and Bid Loans assigned hereunder shall be for the account of
the Assignee. Each of the Assignor and the Assignee agrees that it will hold
in trust for the other party any interest, fees and other amounts which it may
receive to which the other party is entitled pursuant to the preceding sentence
and pay to the other party any such amounts which it may receive promptly upon
receipt.
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of
the Amended and Restated Credit Agreement and the Schedules and Exhibits
thereto, together with copies of the most recent financial statements referred
to in Section 7.01
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183
of the Amended and Restated Credit Agreement, and such other documents and
information as it has deemed appropriate to make its own credit and legal
analysis and decision to enter into this Agreement; and (b) agrees that it
will, independently and without reliance upon the Assignor, the Agent or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit and legal decisions in
taking or not taking action under the Amended and Restated Credit Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the
effective date for this Agreement shall be ______________ _____, (the
"Effective Date"); provided that the following conditions
precedent have been satisfied on or before the Effective Date:
(i) this Agreement shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Company and the
Agent required for an effective assignment of the Assigned Amount and
the Bid Loans assigned hereunder by the Assignor to the Assignee
under Section 11.08(a) of the Amended and Restated Credit Agreement
shall have been duly obtained and shall be in full force and effect as
of the Effective Date;
(iii) the Assignee shall pay to the
Assignor all amounts due to the Assignor under this Agreement;
(iv) the Assignee shall have complied
with Section 4.01(f) of the Amended and Restated Credit Agreement (if
applicable);
(v) the processing fee referred to in
Section 2(b) hereof and in Section 11.08(a) of the Amended and
Restated Credit Agreement shall have been paid to the Agent; and
(vi) the Assignor shall have assigned and
the Assignee shall have assumed a percentage equal to Assignee's
Percentage Share of the rights and obligations of the Assignor under,
and of the Assignor's Committed Loans and L/C Obligations under and as
defined in, the Facility B Credit Agreement.
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(b) Promptly following the execution of this
Agreement, the Assignor shall deliver to the Company and the Agent for
acknowledgement by the Agent, a Notice of Assignment in the form
attached hereto as Schedule 1.
[6. Agent. [INCLUDE ONLY IF ASSIGNOR IS AGENT]
(a) The Assignee hereby appoints and authorizes
the Assignor to take such action as agent on its behalf and to
exercise such powers under the Amended and Restated Credit Agreement
as are delegated to the Agent by the Banks pursuant to the terms of
the Amended and Restated Credit Agreement.
(b) The Assignee shall assume no duties or
obligations held by the Assignor in its capacity as Agent under the
Amended and Restated Agreement.]
7. Withholding Tax.
The Assignee agrees to comply with Section 4.01(f) of the
Amended and Restated Agreement (if applicable).
8. Representations and Warranties.
(a) The Assignor represents and warrants that (i)
it is the legal and beneficial owner of the interest being assigned by
it hereunder and that such interest is free and clear of any lien,
security interest or other adverse claim; (ii) it is duly organized
and existing and it has the full power and authority to take, and has
taken, all action necessary to execute and deliver this Agreement and
any other documents required or permitted to be executed or delivered
by it in connection with this Agreement and to fulfill its obligations
hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any person are required (other than any already given or
obtained) for its due execution, delivery and performance of this
Agreement, and apart from any agreements or undertakings or filings
required by the Amended and Restated Agreement, no further action by,
or notice to, or filing with, any person is required of it for such
execution, delivery or performance; and (iv) this Agreement has been
duly executed and delivered by it and constitutes the legal, valid and
binding obligation of the Assignor, enforceable against the Assignor
in accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of
general application relating to or affecting creditors' rights and to
general equitable principles.
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(b) The Assignor makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Amended and Restated Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the
Amended and Restated Credit Agreement or any other instrument or
document furnished pursuant thereto. The Assignor makes no
representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or
statements of the Company, or the performance or observance by the
Company, of any of its respective obligations under the Amended and
Restated Credit Agreement or any other instrument or document
furnished in connection therewith.
(c) The Assignee represents and warrants that (i)
it is duly organized and existing and it has full power and authority
to take, and has taken, all action necessary to execute and deliver
this Agreement and any other documents required or permitted to be
executed or delivered by it in connection with this Agreement, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any person are required (other than
any already given or obtained) for its due execution, delivery and
performance of this Agreement; and apart from any agreements or
undertakings or filings required by the Amended and Restated Credit
Agreement, no further action by, or notice to, or filing with, any
person is required of it for such execution, delivery or performance;
(iii) this Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignee,
enforceable against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or
affecting creditors' rights and to general equitable principles; and
(iv) it is an Eligible Assignee.
9. Further Assurances.
The Assignor and the Assignee each hereby agrees to execute
and deliver such other instruments, and take such other action, as either party
may reasonably request in connection with the transactions contemplated by this
Agreement, including the delivery of any notices or other documents or
instruments to the Company or the Agent, which may be required in connection
with the assignment and assumption contemplated hereby.
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10. Miscellaneous.
(a) Any amendment or waiver of any provision of
this Agreement shall be in writing and signed by the parties hereto.
No failure or delay by either party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof and any
waiver of any breach of the provisions of this Agreement shall be
without prejudice to any rights with respect to any other or further
breach thereof.
(b) All payments made hereunder shall be made
without any set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay
its own costs and expenses incurred in connection with the
negotiation, preparation, execution and performance of this Agreement.
(d) This Agreement may be executed in any number
of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF CALIFORNIA. The
Assignor and the Assignee each irrevocably submits to the
non-exclusive jurisdiction of any State or Federal court sitting in
California over any suit, action or proceeding arising out of or
relating to this Agreement and irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in
such California State or Federal court. Each party to this Agreement
hereby irrevocably waives, to the fullest extent it may effectively do
so, the defense of an inconvenient forum to the maintenance of such
action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, THE
AMENDED AND RESTATED CREDIT AGREEMENT, ANY RELATED DOCUMENTS AND
AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS
(WHETHER ORAL OR WRITTEN).
[Other provisions to be added as may be negotiated
between the Assignor and the Assignee, provided that such provisions
are not inconsistent with the Amended and Restated Credit Agreement.]
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IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Assignment and Acceptance Agreement to be executed and delivered by their
duly authorized officers as of the date first above written.
_____________________________________
Assignor
By: _________________________________
Title: ______________________________
Address: ____________________________
_____________________________________
Assignee
By: _________________________________
Title: ______________________________
Address: ____________________________
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SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______________, 19__
Bank of America National Trust
and Savings Association, as Agent
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn: Agency Management Services #5596
Plum Creek Timber Company, L.P.
999 Third Avenue, Suite 2300
Seattle, WA 98104
Attn: Chief Financial Officer
Ladies and Gentlemen:
We refer to the Amended and Restated Credit Agreement dated as of
November 15, 1994 (the "Amended and Restated Credit Agreement") among Plum
Creek Timber Company, L.P. (the "Company"), the Banks referred to therein, ABN
AMRO Bank N.V., as Co-Agent and as a letter of credit issuing bank, and Bank of
America National Trust and Savings Association, as Agent and as a letter of
credit issuing bank. Terms defined in the Amended and Restated Credit
Agreement are used herein as therein defined.
1. We hereby give you notice of, and request the consent of the
Company to, the assignment by __________________ (the "Assignor") to
_______________ (the "Assignee") of _____% of the right, title and interest of
the Assignor in and to the Amended and Restated Credit Agreement (including,
without limitation, the right, title and interest of the Assignor in and to the
Commitments of the Assignor and all outstanding Committed Loans made by the
Assignor and the Assignor's participation in Letters of Credit) and $__________
of outstanding Bid Loans made by the Assignor thereunder. Before giving effect
to such assignment the Assignor's Commitment is $ ___________, and the
aggregate amount of its outstanding Committed Loans is $_____________ and Bid
Loans is $ _____________, and its participation in L/C Obligations is
$_________.
2. The Assignee agrees that, upon receiving the consent of the
Company and the Agent to such assignment, the Assignee will be bound by the
terms of the Amended and
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Restated Credit Agreement as fully and to the same extent as if the Assignee
were the Bank originally holding such interest in the Amended and Restated
Credit Agreement.
3. The following administrative details apply to the Assignee:
(a) Notice Address:____________________________________
Assignee name:_____________________________________
Address:___________________________________________
___________________________________________
___________________________________________
Attention:_________________________________________
Telephone: (____)_________________________________
Telecopier: (____)_________________________________
Telex (answerback):________________________________
(b) Payment Instructions:
Account No.:_______________________________________
At:______________________________________________
______________________________________________
______________________________________________
Reference:_________________________________________
Attention:_________________________________________
(c) Domestic and Offshore Lending Office:
[same as notice address]
[or]
Address:__________________________________________
__________________________________________
__________________________________________
Attention:________________________________________
Telephone: (____)_______________________________
Telecopier: (____)_______________________________
Telex (answerback):_______________________________
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment Notice and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[Name of Assignor]
By:___________________________
Title:
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190
[Name of Assignee]
By:_______________________
Title:
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.
By:_________________________________
Its:________________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:__________________________________________
Vice President
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EXHIBIT G
COMPETITIVE BID REQUEST
Date: _______________
VIA FACSIMILE
To: Bank of America National Trust and Savings Association, as Agent for
the Banks parties to the Amended and Restated Credit Agreement, dated
as of November 15, 1994 (as extended, renewed, amended or restated
from time to time, the "Amended and Restated Credit Agreement"), among
Plum Creek Timber Company, L.P., certain Banks that are signatories
thereto, ABN Amro Bank N.V., as Co-Agent and an Issuing Bank and Bank
of America National Trust and Savings Association, as Agent and an
Issuing Bank.
Ladies and Gentlemen:
The undersigned, Plum Creek Timber Company, L.P. (the
"Company"), refers to the Amended and Restated Credit Agreement, the terms
defined therein being used herein as therein defined, and hereby gives you
notice that this is a Competitive Bid Request for Bid Loans pursuant to Section
2.06 of the Amended and Restated Credit Agreement as follows:
1. The Business Day of the proposed Bid Borrowing is
____________________, 199_.
2. The aggregate amount of the proposed Bid Borrowing is
$______________.
3. The proposed Bid Borrowing to be made pursuant to
Section 2.06 shall be comprised of [LIBOR] [Absolute Rate] Bid Loans.
4. The duration of the Interest Period[s] for the Bid
Loans comprised in the Borrowing shall be ____________________,
[____________________] and [____________________].
5. [If applicable] The Interest Payment Dates for the
Bid Loans comprised in the Borrowing shall be ____________________,
[____________________] and [____________________].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on
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the date of the proposed Bid Borrowing, before and after giving effect thereto
and to the application of the proceeds therefrom:
(a) the representations and warranties of the Company
contained in Article VI of the Amended and Restated Credit Agreement
are true and correct as though made on and as of such date (except to
the extent such representations and warranties specifically relate to
an earlier date, in which case they were true and correct as of such
earlier date);
(b) no Default or Event of Default exists; and
(c) the proposed Borrowing will not cause the Effective
Amount of all outstanding Committed Loans and Bid Loans, plus the
Effective Amount of all L/C Obligations, to exceed the Aggregate
Commitment.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By: ____________________________________________
Title: _________________________________________
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EXHIBIT H
INVITATION FOR COMPETITIVE BIDS
Date: _______________
VIA FACSIMILE
To: The Banks party to the Amended and Restated Credit Agreement referred
to below
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement
dated as of November 15, 1994 (as extended, renewed, amended or restated from
time to time, the "Amended and Restated Credit Agreement") among Plum Creek
Timber Company, L.P. (the "Company"), certain Banks that are signatories
thereto, ABN Amro Bank N.V., as Co-Agent and an Issuing Bank, and Bank of
America National Trust and Savings Association, as Agent and an Issuing Bank.
Capitalized terms used herein have the meanings specified in the Amended and
Restated Credit Agreement.
Pursuant to subsection 2.06(b) of the Amended and Restated
Credit Agreement, you are hereby invited to submit offers to make Bid Loans to
the Company based on the following specifications:
1. The Business Day of the proposed Bid Borrowing is
____________________,199_.
2. The aggregate amount of the proposed Bid Borrowing is
$______________.
3. The proposed Bid Borrowing to be made pursuant to
Section 2.06 shall be comprised of [LIBOR] [Absolute
Rate] Bid Loans.
4. The duration of the Interest Period[s] for the Bid
Loans comprised in the Borrowing shall be
____________________, [____________________] and
[____________________].
5. [If applicable] The Interest Payment Dates for the
Bid Loans comprised in the Borrowing shall be
____________________, [____________________] and
[____________________].
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All Competitive Bids must be in the form of Exhibit I to the
Amended and Restated Credit Agreement and must be received by the Agent no
later than 6:30 a.m. (or, in the case of a Competitive Bid by the Agent or an
Affiliate of the Agent in the capacity of a Bank, 6:15 a.m.) (San Francisco
time) on ____________________, 199_.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: ________________________________
Title: _____________________________
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195
EXHIBIT I
COMPETITIVE BID
Date: _______________
VIA FACSIMILE
Bank of America National Trust and
Savings Association, as Agent
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attention: Shannon Collins
Agency Management Services #5596
Facsimile: (415) 622-4894
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement
dated as of November 15, 1994 (as extended, renewed, amended or restated from
time to time, the "Amended and Restated Credit Agreement"), among Plum Creek
Timber Company, L.P. (the "Company"), certain Banks that are signatories
thereto, ABN Amro Bank N.V., as Co-Agent and an Issuing Bank and Bank of
America National Trust and Savings Association, as Agent and an Issuing Bank.
Capitalized terms used herein have the meanings specified in the Amended and
Restated Credit Agreement.
In response to the Competitive Bid Request of the Company,
dated ______________, 199_, and in accordance with subsection 2.06(c)(ii) of
the Amended and Restated Credit Agreement, the undersigned Bank offers to make
[a] Bid Loan[s] to the Company thereunder in the following principal amount[s]
at the following interest rates for the following Interest Period[s] [with the
following Interest Payment Dates]:
Date of Borrowing: ______________, 199_
Aggregate Maximum Bid Amount: $______________
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Principal Principal Principal
Amount (a) $____________________ Amount (a) $____________________ Amount (a) $___________________
(b) $____________________ (b) $____________________ (b) $___________________
(c) $____________________ (c) $____________________ (c) $___________________
Interest: Interest: Interest:
[Absolute [Absolute [Absolute
Rate (a) ____% Rate (a) ____% Rate (a) ____%
(b) ____% (b) ____% (b) ____%
(c) ____%] (c) ____%] (c) ____%]
[or]
[LIBOR Bid [LIBOR Bid [LIBOR Bid
Margin (a) +/- __% Margin (a) +/- __% Margin (a) +/- __%
(b) +/- __% (b) +/- __% (b) +/- __%
(c) +/- __%] (c) +/- __%] (c) +/- __%]
Interest Interest Interest
Period _________________________ Period _________________________ Period ________________________
[Interest Payment [Interest Payment [Interest Payment
Date _________________________] Date __________________________] Date _________________________]
[NAME OF BANK]
By: ________________________________
Title: _____________________________
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EXHIBIT J
CONSENT TO AMENDMENT AND RESTATEMENT
Date: _______________
Bank of America National Trust and
Savings Association, as Agent
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attention: Shannon Collins
Agency Management Services #5596
Facsimile: (415) 622-4894
Plum Creek Timber Company, L.P.
999 Third Avenue, Suite 2300
Seattle, WA 98104
Attention: Chief Financial Officer
Facsimile: (206) 467-3797
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of October
28, 1993 (the "Credit Agreement"), among Plum Creek Timber Company, L.P. (the
"Company"), the Banks signatories thereto and Bank of America National Trust
and Savings Association, as Agent. Capitalized terms used herein have the
meanings specified in the Credit Agreement.
The undersigned (the "Departing Bank") is a Bank under the
Credit Agreement. The Departing Bank hereby acknowledges notice of the
proposed amendment and restatement of the Credit Agreement in such form as may
be agreed among the parties thereto (the "Amended and Restated Credit
Agreement"). The Departing Bank hereby consents to, and agrees that the
Departing Bank shall not be a party to, the Amended and Restated Credit
Agreement subject to payment in full of all outstanding Loans, interest accrued
thereon, and fees owed to the Departing Bank on and as of the effective date of
the Amended and Restated Credit Agreement.
In consideration of the Departing Bank's consent to the
Amended and Restated Credit Agreement, the Company acknowledges and agrees that
the representations and warranties (as of the dates made and deemed made) and
the indemnities of the Company set forth in the Credit Agreement
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198
and the Loan Documents to or for the benefit of the Departing Bank shall, in
each case, survive the execution and delivery of the Amended and Restated
Credit Agreement and that the Departing Bank shall have no obligations under or
with respect to the Amended and Restated Credit Agreement.
[NAME OF BANK]
By: ________________________________
Title: _____________________________
Accepted and Agreed:
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By: __________________________________
Title: _______________________________
2