Exhibit 10 n (A)
FIRST AMENDMENT TO TERM LOAN AGREEMENT
--------------------------------------
THIS FIRST AMENDMENT TO TERM LOAN AGREEMENT (this "AMENDMENT"), is made and
entered into as of January 31, 2008, by and among GPW TIMBERLANDS, LLC, a
Delaware limited liability company (the "Borrower"), P.H. GLATFELTER COMPANY, a
Maryland corporation (the "PARENT"), the several banks and other financial
institutions from time to time party to the Term Loan Agreement referenced below
(the "Lenders"), and SUNTRUST BANK, in its capacity as Administrative Agent for
the Lenders (in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties
to a certain Term Loan Agreement, dated as of March 21, 2003 (as amended,
restated, supplemented or otherwise modified from time to time, the "TERM LOAN
AGREEMENT"; capitalized terms used herein and not otherwise defined shall have
the meanings assigned to such terms in the Term Loan Agreement), pursuant to
which the Lenders have made a certain Term Loan to the Borrower;
WHEREAS, the Borrower has requested that the Lenders and the Administrative
Agent amend certain provisions of the Term Loan Agreement to extend the Maturity
Date of the Term Loan from March 26, 2008 to March 26, 2013 and to modify the
interest rate applicable to the Term Loan, and subject to the terms and
conditions hereof, the Lenders and the Administrative Agent are willing to do
so;
NOW, THEREFORE, for good and valuable consideration, the sufficiency and
receipt of all of which are acknowledged, the Borrower, the Parent, the Lenders
and the Administrative Agent agree as follows:
1. AMENDMENTS.
----------
(a) Section 1.1 of the Term Loan Agreement is hereby amended by replacing
the definition of "Maturity Date" in its entirety with the following definition:
""MATURITY DATE" shall mean the earlier of (i) March 26, 2013, or (ii)
the date on which the outstanding principal amount of the Term Loan has
been declared, or automatically has become, due and payable (whether by
acceleration or otherwise)."
(b) Section 2.5 of the Term Loan Agreement is hereby amended by replacing
subsection (a) thereof in its entirety with the following subsection (a):
Signature Page to First Amendment to Term Loan Agreement
"(a) Subject to subsections (b) and (c) of this Section 2.5, to but excluding
the date that is five (5) days after the fifth (5th) anniversary of the Closing
Date, the Borrower shall pay interest on the Term Loan at the rate of 3.82% per
annum. Thereafter, the Borrower shall pay interest on the Term Loan at a per
annum rate (fixed for the remaining term of the Term Loan) equal to LIBOR plus
0.50%. As used herein "LIBOR" shall mean, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBOR01
Page (or any successor page) as the London interbank offered rate for deposits
in Dollars at approximately 11:00 a.m. (London, England time) as of two Business
Days prior to the fifth (5th) anniversary of the Closing Date for a term of
three months.
2. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. Notwithstanding any other
provision of this Amendment and without affecting in any manner the rights of
the Lenders or the Administrative Agent under the Term Loan Agreement, this
Amendment shall not become effective, and the Borrower shall have no rights
under this Amendment, until each of the following conditions have been satisfied
to the satisfaction of the Administrative Agent:
(a) the Administrative Agent shall have received executed counterparts
to this Amendment from the Borrower and the Lenders;
(b) the Administrative Agent shall have received an amendment to the
Conservation Fund Letter of Credit, in form and substance satisfactory to the
Administrative Agent, which amendment shall extend the stated expiration date of
the Conservation Fund Letter of Credit from July 5, 2008 to July 5, 2013;
(c) the Administrative Agent shall have received a written
reaffirmation by Sustainable Conservation, Inc. of the Consent, Waiver and
Agreement, which written reaffirmation shall be in form and substance
satisfactory to the Administrative Agent;
(d) the Administrative Agent shall have received a written opinion of
outside counsel to the Parent and the Borrower with respect to this Amendment
and such other matters as the Administrative Agent shall request;
(e) all of the representations and warranties of the Parent and the
Borrower set forth in the Term Loan Agreement and the other Loan Documents shall
be true and correct as of the date hereof;
(f) no Default or Event of Default shall have occurred and be
continuing as of the date hereof; and
(g) the Administrative Agent shall have received payment from the
Borrower of an extension fee in the amount of $50,000.
3. REPRESENTATIONS AND WARRANTIES. To induce the Lenders and the
Administrative Agent to enter into this Amendment, the Borrower hereby
represents and warrants to the Lenders and the Administrative Agent that:
(h) The Borrower (i) is validly existing limited liability company
under the laws of the State of Delaware, and (ii) has all requisite limited
liability company power and authority to carry on its business as now conducted
and to own its properties and other assets.
(i) The execution, delivery and performance by the Borrower of this
Amendment are within the Borrower's legal organizational powers and have been
duly authorized by all necessary action. This Amendment has been duly executed
and delivered by the Borrower, and constitutes the valid and binding obligation
of the Borrower, enforceable against it in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
or similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
(j) The execution, delivery and performance by the Borrower of this
Amendment (a) do not require any consent or approval of, registration or filing
with, or action by, any Governmental Authority, (b) will not violate any
applicable law, rule or regulation or the certificate of formation or limited
liability company agreement of the Borrower or any judgment, order or ruling of
any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or instrument binding on the Borrower or any of its
assets or give rise to a right thereunder to require any payment to be made by
the Borrower and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower, except Liens (if any) created under the Loan
Documents.
(k) As of the date hereof the Borrower has no outstanding Indebtedness
other than the Indebtedness created pursuant to the Term Loan Agreement and the
other Loan Documents.
(l) No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authority is pending against or, to the knowledge of
the Borrower, threatened against or affecting the Borrower.
(m) The Borrower is in compliance with (a) all applicable laws, rules,
regulations, judgments and orders of any Governmental Authority, and (b) all
indentures, agreements or other instruments binding upon it or its properties.
(n) The Borrower has timely filed or caused to be filed all Federal
income tax returns and all other material tax returns that are required to be
filed by it, and has paid all taxes shown to be due and payable on such returns
or on any assessments made against it or its property and all other taxes, fees
or other charges imposed on it or any of its property by any Governmental
Authority.
(o) None of the proceeds of the Term Loan have been or will be used in
any manner that violates any rule or regulation of the Board of Governors of the
Federal Reserve System, including Regulations T, U or X.
(p) The Borrower has good title to all of its property, free and clear
of any Liens except Permitted Liens.
(q) After giving effect to this Amendment, the representations and
warranties contained in the Term Loan Agreement and the other Loan Documents are
true and correct, and no Default or Event of Default has occurred and is
continuing as of the date hereof.
4. REAFFIRMATION OF GUARANTY AND INDEMNIFICATION AGREEMENT. The Parent
hereby consents to the execution and delivery by the Borrower of this Amendment,
ratifies and confirms each of the terms of the Guaranty and Indemnification
Agreement, and agrees that each of its representations, warranties, covenants
and other obligations under the Guaranty and Indemnification Agreement shall
remain in full force and effect and shall not be diminished or impaired in any
manner or respect by the execution and delivery of this Amendment, the extension
of the Maturity Date pursuant hereto, or the modification of the interest rate
applicable to the Term Loan as provided herein. Without limitation to the
foregoing, the Parent hereby acknowledges and confirms that, notwithstanding
anything to the contrary contained in this Amendment or any other Loan Document
or otherwise, or any actions now or hereafter taken by the Lenders or the
Administrative Agent with respect to the Term Loan, the Guaranty and
Indemnification Agreement (i) is and shall continue to be a primary obligation
of the Parent, (ii) is and shall continue to be an absolute, unconditional,
continuing and irrevocable guaranty of payment, and (iii) is and shall continue
to be in full force and effect in accordance with its terms. Nothing contained
in this Amendment shall release, discharge, modify, change or affect the terms
and provisions of the Guaranty and Indemnification Agreement or the obligations
and liability of the Parent thereunder. The Parent hereby restates each of the
representations and warranties set forth in Section 3 of the Guaranty and
Indemnification Agreement as if fully set forth herein, and hereby confirms that
each of such representations and warranties set forth in Section 3 of the
Guaranty and Indemnification Agreement are true and correct as of the date
hereof.
5. EFFECT OF AMENDMENT. Except as set forth expressly herein, all terms of
the Term Loan Agreement and the other Loan Documents shall be and remain in full
force and effect and shall constitute the legal, valid, binding and enforceable
obligations of the Borrower and the Parent, respectively, to the Lenders and the
Administrative Agent. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Lenders or the Administrative Agent, nor
constitute a waiver of any provision of the Term Loan Agreement or any other
Loan Document. This Amendment shall constitute a Loan Document.
6. GOVERNING LAW. (a) This Amendment shall be construed in accordance with
and shall be governed by the law (without giving effect to the conflict of law
principles thereof) of the State of Georgia.
(b) Each of the Borrower and the Parent hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of the United States District Court of the Northern District of
Georgia, and Superior Court of Fulton County, Georgia and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Amendment or any other Loan Document or the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be
heard and determined in such Georgia state court or, to the extent permitted by
applicable law, such Federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Amendment or any other Loan Document shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Amendment or any other Loan
Document against the Borrower or the Parent or any of their respective
properties in the courts of any jurisdiction.
(c) Each of the Borrower and the Parent irrevocably and unconditionally
waives any objection which it may now or hereafter have to the laying of venue
of any such suit, action or proceeding described in paragraph (b) of this
Section and brought in any court referred to in paragraph (b) of this Section.
Each of the parties hereto irrevocably waives, to the fullest extent permitted
by applicable law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(d) Each party to this Amendment irrevocably consents to the service of
process in the manner provided for notices in Section 9.1 of the Term Loan
Agreement and Section 12 of the Guaranty and Indemnification Agreement. Nothing
in this Amendment or in any other Loan Document will affect the right of any
party hereto to serve process in any other manner permitted by law.
7. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS
AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
8. NO NOVATION. This Amendment is not intended by the parties to be, and
shall not be construed to be, a novation of the Term Loan Agreement or an accord
and satisfaction in regard thereto.
9. COSTS AND EXPENSES. The Borrower agrees to pay on demand all costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment, including, without limitation, the
reasonable fees and out-of-pocket expenses of outside counsel for the
Administrative Agent with respect thereto.
10. COUNTERPARTS. This Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts, each of which shall be
deemed an original and all
of which, taken together, shall be deemed to constitute one and the same
instrument. Delivery of an executed counterpart of this Amendment by facsimile
transmission or by electronic mail in pdf form shall be as effective as delivery
of a manually executed counterpart hereof.
11. BINDING NATURE. This Amendment shall be binding upon and inure to the
benefit of the parties hereto, their respective successors,
successors-in-titles, and assigns.
12. ENTIRE UNDERSTANDING. This Amendment sets forth the entire
understanding of the parties with respect to the matters set forth herein, and
shall supersede any prior negotiations or agreements, whether written or oral,
with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal by their respective authorized officers as of the day
and year first above written.
GPW TIMBERLANDS, LLC
By /s/ George B. Amoss, Jr. (Seal)
-------------------------
Name: George B. Amoss, Jr.
Title: President
P.H. GLATFELTER COMPANY
By /s/ Jeffrey J. Norton (Seal)
-------------------------
Name: Jeffrey J. Norton
Title: Vice President, General Counsel &
Secretary
SUNTRUST BANK
AS ADMINISTRATIVE AGENT AND AS SOLE LENDER
By /s/ Mark A. Flatin (Seal)
-------------------------
Name: Mark A. Flatin
Title: Managing Director