EXHIBIT 10.19
PARENT GUARANTY
THIS PARENT GUARANTY (the "Guaranty"), dated as of July 22, 1999, is
made by GEORGIA-PACIFIC CORPORATION, a Georgia corporation (the "Guarantor"), in
favor of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national
banking association, as administrative agent (in such capacity, the "Agent"),
and each of the financial institutions from time to time party to the Credit
Agreement (as hereinafter defined) (collectively, the "Lenders").
RECITALS:
A. Pursuant to the Credit Agreement, dated as of July 22, 1999 (together
with all amendments, supplements, and other modifications, if any, from
time to time thereafter made thereto, the "Credit Agreement"), among
North American Timber Corp., a Delaware corporation ("NAT"), as
borrower, the Lenders, the Agent, Commerzbank AG, New York Branch, as
Documentation Agent, and The Chase Manhattan Bank and Citibank, N.A. as
Co-Syndication Agents, the Lenders have extended commitments (the
"Commitments") to make loans (the "Loans") to NAT, and to extend other
financial accommodations to or for the account of NAT, which Loans and
other financial accommodations are to be unconditionally guaranteed by
Guarantor.
B. As a condition precedent to the initial Loan under the Credit
Agreement, Guarantor is required to execute and deliver this Guaranty.
C. Guarantor has duly authorized the execution, delivery, and performance
of this Guaranty.
D. It is in the best interests of Guarantor to execute this Guaranty
inasmuch as NAT is a wholly-owned subsidiary of Guarantor.
In consideration of the foregoing, and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, and in
order to induce the Lenders to make the Loans (including the initial Loans) to
NAT pursuant to the Credit Agreement, Guarantor agrees, for the benefit of each
Lender, as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise defined herein or the context otherwise requires,
terms used in this Guaranty have the meanings provided in the Credit Agreement.
ARTICLE 2
GUARANTY PROVISIONS
SECTION 2.1 Guaranty. Guarantor hereby absolutely, unconditionally,
and irrevocably:
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand, or otherwise, of all Obligations of NAT now or hereafter
existing under the Credit Agreement and each other Loan Document to
which it is or may become a party, whether for principal, interest,
fees, expenses, or
otherwise (including all such amounts which would become due but for
the operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C. 362(a)), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C. 502(b) and 506(b) (the "Guaranteed Obligations"); and
(b) indemnifies and holds harmless the Agent and each Lender
for any and all out-of-pocket costs and expenses (including the
out-of-pocket expenses and reasonable fees of counsel and the allocated
cost of in-house counsel retained by the Agent or such Lender) incurred
by the Agent or such Lender in preserving and enforcing any rights
under this Guaranty.
This Guaranty constitutes a guaranty of payment when due and not of collection
or of performance, and Guarantor specifically agrees that it shall not be
necessary or required that the Agent or any Lender exercise any right, assert
any claim or demand, or enforce any remedy whatsoever against NAT or any other
Person before or as a condition to the obligations of Guarantor hereunder.
SECTION 2.2 Acceleration of Guaranty. Guarantor agrees that, in the
event of the occurrence and continuance of an Event of Default and the
acceleration of the Obligations in accordance with the terms of the Credit
Agreement, Guarantor will pay to the Agent and the Lenders forthwith the full
amount of the Obligations.
SECTION 2.3 Guaranty Absolute, etc. This Guaranty shall in all respects
be a continuing, absolute, unconditional, and irrevocable guaranty of payment,
and shall remain in full force and effect until all Guaranteed Obligations have
been paid in cash in full, and all Commitments shall have terminated. Guarantor
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Credit Agreement and each other Loan Document under which
they arise, regardless of any law, regulation, or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Lender with respect thereto. The liability of Guarantor under this
Guaranty shall be absolute, unconditional, and irrevocable irrespective of:
(a) any lack of validity, legality, or enforceability of the
Credit Agreement or any other Loan Document;
(b) the failure of the Agent or any Lender:
(i) to assert any claim or demand or to enforce any right
or remedy against NAT, any other Loan Party, or any other
Person (including any other guarantor) under the provisions of
the Credit Agreement, any other Loan Document, or otherwise;
or
(ii) to exercise any right or remedy against any other
guarantor of, or any collateral securing, any Guaranteed
Obligations;
(c) any change in the time, manner, or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other extension, compromise, or renewal of any Guaranteed Obligations;
(d) any reduction, limitation, impairment, or termination of
the Guaranteed Obligations for any reason, including any claim of
waiver, release, surrender, alteration, or compromise, and shall not be
subject to (and Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment, or termination whatsoever
by reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other
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event or occurrence affecting, the Guaranteed Obligations or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
the Credit Agreement or any other Loan Document;
(f) any addition, exchange, release, surrender, or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by the Agent or any Lender securing any of the
Guaranteed Obligations; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, NAT, any
surety, or any guarantor.
SECTION 2.4 Reinstatement, etc. Guarantor agrees that this Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded or
must otherwise be restored by the Agent or any Lender, upon the insolvency,
bankruptcy, or reorganization of NAT or otherwise, all as though such payment
had not been made.
SECTION 2.5 Waiver, etc. Guarantor hereby waives promptness, diligence,
notice of acceptance, and any other notice with respect to any of the Guaranteed
Obligations or any other Loan Party and this Guaranty and any requirement that
the Agent or any Lender protect, secure, perfect, or insure any security
interest or lien, or any property subject thereto, or exhaust any right or take
any action against NAT, any other Loan Party, or any other Person or any
collateral securing the Guaranteed Obligations, as the case may be.
SECTION 2.6 Subordination. Until such time as the Guaranteed
Obligations have been paid and performed in full and the period of time has
expired during which any payment made by NAT, Guarantor, or any other guarantor
of the Guaranteed Obligations to Agent may be subsequently invalidated, declared
to be fraudulent or preferential, set aside, or required to be repaid by Agent
or paid over to a trustee, receiver, or any other entity, whether under any
bankruptcy act or otherwise (any such payment being hereinafter referred to as a
"Preferential Payment"), any claim or other rights which Guarantor may now have
or hereafter acquire against NAT or such other guarantor that arises from the
existence or performance of Guarantor's obligations under this Guaranty or any
other agreement (all such claims and rights being hereinafter referred to as
"Guarantor's Conditional Rights"), including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, or indemnification, any
right to participate in any claim or remedy of Agent or such other guarantor or
any collateral which Agent now has or hereafter acquires, whether or not such
claim, remedy or right arises in equity or under contract, statute, or common
law, by any payment made hereunder or otherwise, including, without limitation,
the right to take or receive from NAT or such other guarantor, directly or
indirectly, in cash or other property or by setoff or in any other manner,
payment, or security on account of such claim or other rights, shall be
subordinate to Agent's right to full payment and performance of the Guaranteed
Obligations, and Guarantor shall not enforce Guarantor's Conditional Rights
until such time as the Guaranteed Obligations have been paid and performed in
full and the period of time has expired during which any payment made by NAT or
Guarantor to Agent may be determined to be a Preferential Payment.
SECTION 2.7 Successors, Transferees and Assigns; Transfers of Loans,
etc. This Guaranty shall:
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(a) be binding upon Guarantor and its successors, transferees, and
assigns; and
(b) inure to the benefit of and be enforceable by the Agent and each
Lender.
Without limiting the generality of subsection (b), any Lender may assign or
otherwise transfer (in whole or in part) any Loan held by it to any other
Person, and such other Person shall thereupon become vested with all rights and
benefits in respect thereof granted to such Lender under any Loan Document
(including this Guaranty) or otherwise, subject, however, to any contrary
provisions in such assignment or transfer, and to the provisions of Article 11
and Section 12.08 of the Credit Agreement.
SECTION 2.8 Payments Free and Clear of Taxes, etc. Guarantor hereby
agrees that:
(a) Subject to paragraph (e) below, any and all payments made
by Guarantor hereunder to or for the account of the Agent or any Lender
(other than on account of a Bid Loan, except to the extent otherwise
specified as being applicable to any such Bid Loan) shall be made in
accordance with Section 3.03 of the Credit Agreement 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 (i) such taxes (including
income taxes or franchise taxes or branch profit taxes) as are imposed
on or measured by the Agent's or such Lender's net income and (ii) such
taxes as are imposed by a jurisdiction other than the United States of
America or any political subdivision thereof and that would not have
been imposed but for the existence of a connection between the Agent or
such Lender and the jurisdiction imposing such taxes (other than a
connection arising principally by reason of the Credit Agreement or
this Guaranty) (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter
referred to as "Taxes"). If Guarantor shall be required ----- by law to
deduct or withhold any Taxes from or in respect of any sum payable
hereunder to the Agent or any Lender:
(i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 2.8) the Agent or such Lender receives an amount equal
to the sum it would have received had no such deductions been
made;
(ii) Guarantor shall make such deductions; and
(iii) Guarantor shall pay the full amount deducted to the
relevant taxation authority or other governmental authority in
accordance with applicable law.
(b) Guarantor shall pay any present or future stamp or
documentary taxes or any other sales, 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 Guaranty (other than on account of a Bid Loan, except
to the extent otherwise specified as being applicable to such Bid Loan)
(hereinafter referred to as "Other Taxes").
(c) Subject to subsection (e) below, Guarantor hereby
indemnifies and holds harmless the Agent and each Lender for the full
amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.8)
paid by the Agent or such Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted; provided, however, that the Agent and each Lender
agree to contest
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in good faith any Taxes or Other Taxes that the Agent or such Lender,
in its sole discretion, believes have been incorrectly asserted. A
certificate as to the amount demanded by the Agent or any Lender, or
the Agent on behalf of any Lender, absent manifest error, shall be
binding and conclusive.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes, Guarantor shall furnish to the Agent the original or a
certified copy of a receipt evidencing payment thereof or other
evidence of payment reasonably satisfactory to the Agent.
(e) Each Lender shall, promptly upon the request of Guarantor
to that effect, deliver to the Agent and Guarantor such accurate and
complete forms or similar documentation as may be required from time to
time by any applicable law, treaty, rule or regulation in order to
establish (if appropriate) such Lender's tax status for withholding
purposes or may otherwise be appropriate to eliminate or minimize any
Taxes on payments under this Guaranty. The provisions of Sections
4.05(f), (g), (h), and (i) of the Credit Agreement are hereby
incorporated by reference into this Guaranty as if fully stated herein,
except that each reference to the "Company" contained therein shall be
deemed to be a reference to the "Guarantor" for purposes of this
Guaranty.
(f) Without prejudice to the survival of any other agreement
of Guarantor hereunder, the agreements and obligations of Guarantor
contained in this Section 2.8 shall survive the payment in full of the
principal of and interest on the Loans.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties. Guarantor hereby makes each
of the representations and warranties made by NAT in the Credit Agreement.
ARTICLE 4
COVENANTS, ETC.
SECTION 4.1 Affirmative Covenants. Guarantor covenants and agrees that,
so long as any portion of the Obligations shall remain unpaid or any Lender
shall have any outstanding Commitment, Guarantor will, unless the Required
Lenders shall otherwise consent in writing, cause NAT to duly keep, perform, and
observe for the benefit of the Agent and the Lenders each and every covenant set
forth in Article 8 of the Credit Agreement (all of which covenants, together
with related definitions and ancillary provisions, are hereby incorporated
herein by reference as if such terms were set forth herein in full), without
regard to any termination of the Credit Agreement.
SECTION 4.2 Negative Covenants. Guarantor covenants and agrees that, so
long as any portion of the Obligations shall remain unpaid or any Lender shall
have any outstanding Commitment, Guarantor will, unless the Required Lenders
shall otherwise consent in writing, cause NAT to duly keep, perform, and observe
for the benefit of the Agent and the Lenders each and every covenant set forth
in Article 9 of the Credit Agreement (all of which covenants, together with
related definitions and ancillary provisions, are hereby incorporated herein by
reference as if such terms were set forth herein in full), without regard to any
termination of the Credit Agreement.
ARTICLE 5
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MISCELLANEOUS PROVISIONS
SECTION 5.1 Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof, including Article 12 of the Credit Agreement.
SECTION 5.2 Binding on Successors, Transferees and Assigns; Assignment.
In addition to, and not in limitation of, Section 2.8, this Guaranty shall be
binding upon Guarantor and its successors, transferees, and assigns and shall
inure to the benefit of and be enforceable by the Agent, each Lender, and their
respective successors, transferees, and assigns (to the full extent provided
pursuant to Section 2.8); provided, however, that Guarantor may not assign any
of its obligations hereunder.
SECTION 5.3 Amendment, etc. No amendment to or waiver of any provision
of this Guaranty, nor consent to any departure by Guarantor herefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Guarantor, the Agent and consented to by the Required Lenders (or, as provided
in Section 12.02(e) of the Credit Agreement, all Lenders), and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 5.4 Addresses for Notices to Guarantor. All notices and other
communications hereunder to Guarantor shall be in writing (including by
facsimile) and mailed by overnight delivery, transmitted by facsimile, or
delivered to it, addressed to it at the address set forth below its signature
hereto or at such other address as shall be designated by Guarantor in a written
notice to the Agent at the address specified in the Credit Agreement complying
as to delivery with the terms of this Section 5.4. All such notices and other
communications shall be effective, if transmitted by facsimile when transmitted
or, if mailed by overnight delivery or delivered, upon delivery, addressed as
aforesaid
SECTION 5.5 No Waiver; Remedies. In addition to, and not in limitation
of, Sections 2.3 and 2.6, no failure on the part of the Agent or any Lender to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 5.6 Section Captions. Section captions used in this Guaranty
are for convenience of reference only, and shall not affect the construction of
this Guaranty.
SECTION 5.7 Setoff. In addition to, and not limitation of, any rights
of the Agent or any Lender under applicable law, the Agent and each Lender
shall, upon the occurrence and during the continuance of any Event of Default,
have the right to appropriate and apply to the payment of the obligations of
Guarantor owing to it hereunder, whether or not then due, any and all balances,
credits, deposits, accounts or moneys of Guarantor then or thereafter maintained
with the Agent or such Lender; provided, however, that any such appropriation
and application shall be subject to the provisions of Section 4.06 of the Credit
Agreement. Each Lender agrees promptly to notify Guarantor after any such setoff
and application made by such party; provided, however, that the failure to give
such notice shall not affect the validity of such setoff and application. The
rights of the Agent and each Lender under this Section 5.7 are in addition to
any other right or remedy (including any other right of set off) which the Agent
or such Lender may have.
SECTION 5.8 Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this
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Guaranty shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty.
SECTION 5.9 Governing Law, etc. THIS GUARANTY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THIS GUARANTY AND
THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG
THE PARTIES TO THE LOAN DOCUMENTS WITH RESPECT TO THE SUBJECT MATTER THEREOF AND
SUPERSEDE ALL PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO, EXCEPT
FOR THE FEE LETTER AND ANY PRIOR ARRANGEMENT MADE WITH RESPECT TO THE PAYMENT BY
ANY LENDER 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 ANY LENDER.
SECTION 5.10 Waiver of Jury Trial. GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY EAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY. GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE CREDIT
AGREEMENT.
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
GEORGIA-PACIFIC CORPORATION
/s/Danny W. Huff
By: Danny W. Huff
Title: Vice President and Treasurer
Address: Georgia-Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, GA 30348-5605
Attn: Treasurer's Department
Facsimile: 404-230-5598
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