EXHIBIT 10
FIRST SUPPLEMENTAL TRUST INDENTURE
This FIRST SUPPLEMENTAL TRUST INDENTURE (the "First
Supplemental Indenture"), made and entered into as of the first
day of November, 1998, by and between the PARISH OF NATCHITOCHES,
STATE OF LOUISIANA, a political subdivision of the State of
Louisiana (the "Issuer"), and BANK ONE TRUST COMPANY, N.A.
(successor to The First National Bank of Shreveport), in the City
of Shreveport, Louisiana (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has issued its $10,000,000 Variable Rate
Demand Refunding Bonds (Trus Joist Corporation Project) Series
1988 dated September 14, 1988 (the "Bonds") for the purpose of
refunding all of the Issuer's Industrial Revenue Bonds (Trus
Joist Corporation Project) Series 1984, pursuant to a Trust
Indenture dated as of September 1, 1988 (the "Indenture"), by and
between the Issuer and Bank One Trust Company, N.A. (successor to
The First National Bank of Shreveport), as trustee (the
"Trustee"); and
WHEREAS, in connection with the issuance of the Bonds, the
Issuer has also entered into a Refunding Agreement dated as of
September 1, 1988 (the "Refunding Agreement") with TJ
International, Inc. (formerly Trus Joist Corporation), a Delaware
corporation (the "Corporation"); and
WHEREAS, Article XI of the Indenture allows the Issuer and
the Trustee to enter into an indenture or indentures supplemental
to the Indenture with the consent of the holders of all of the
outstanding Bonds; and
WHEREAS, the sole bondholder has consented in writing to the
execution and delivery by the Issuer and the Trustee of this
First Supplemental Indenture to extend the maturity of the Bonds
and make such other changes as may be necessary to effectuate the
delivery of the Alternate Credit Facility (as defined in the
Indenture), which consent is evidenced by its execution of the
"Consent" attached to this First Supplemental Indenture; and
WHEREAS, the Corporation has consented to the terms,
conditions and other details of this First Supplemental
Indenture, which consent is evidenced by its execution of the
"Consent" attached to this First Supplemental Indenture; and
WHEREAS, the Corporation is also providing for the delivery
of an Alternate Credit Facility (as defined in the Indenture) to
be issued by Wachovia Bank, N.A. (the "Credit Bank"), and in
connection therewith it is necessary to make certain changes
which have been consented to by the sole bondholder and the
Credit Bank (such consent is also attached hereto); and
WHEREAS, the Issuer, the Corporation and the Trustee wish to
amend the Indenture and the Bonds issued thereunder in order to
extend the maturity date of the Bonds as set forth herein, and
provide for other matters as set forth herein; and
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration and of the mutual benefits,
covenants and agreements herein expressed, the Issuer and the
Trustee hereby agree as follows:
SECTION 1. All terms used herein, except otherwise noted,
shall have the same meanings assigned to them in the Indenture.
SECTION 2. Section 101 of the Indenture is hereby amended
by amending the definitions of Business Day and Pledged Bonds to
read as follows:
"Business Day" means a day (a) other than a Saturday or
Sunday or a day on which banks located in the city in which the
principal office of the Trustee or the office of the Credit Bank
at which drawing documents are required to be presented under the
Letter of Credit are required or authorized to close and (b) on
which the New York Stock Exchange is not closed."
"Pledged Bonds" means Bonds purchased pursuant to a
drawing under the Letter of Credit, which Bonds are pledged by
the Company to the Credit Bank and in which Bonds the Company has
granted to the Credit Bank a security interest provided for in
the Reimbursement Agreement, but not including Bonds released
from such pledge and security interest under the terms of the
Reimbursement Agreement."
SECTION 3. Section 201 of the Indenture is hereby amended
to read as follows:
"SECTION 201. Limitation on Issuance of Bonds. No
Bonds may be issued under the provisions of this Indenture except
in accordance with the provisions of this Article. There is
hereby created for issuance under this Indenture a series of
bonds designated "Parish of Natchitoches, State of Louisiana
Variable Rate Demand Refunding Bonds (Trus Joist Corporation
Project) Series 1988" in the aggregate principal amount of Ten
Million Dollars ($10,000,000), maturing on October 1, 2005
(subject to prior redemption upon the terms and conditions
hereinafter set forth), and numbered consecutively from R-1
upwards. The Bonds shall be dated the date of delivery thereof
to the initial purchasers, and shall bear interest as hereinafter
set forth, and each Bond shall rank on a parity with all other
Bonds issued hereunder with respect to all matters of security
provided for herein."
SECTION 4. The maturity date listed in Exhibit A of the
Indenture on the Form of Bond is hereby amended to October 1,
2005 and the Form of Bond shall be as attached hereto as Exhibit
A.
SECTION 5. Upon execution and delivery of this First
Supplemental Indenture, the bondholder agrees to deliver the
Bonds to the Trustee and the Trustee agrees to deliver a new Bond
or Bonds to the Bondholder or its designee bearing the changes
set forth in the Form of Bond attached hereto as Exhibit A.
SECTION 6. Reference is made to the Indenture, the terms of
which are incorporated herein by reference, and the Indenture,
other than as modified hereby, is hereby ratified and confirmed
in its entirety.
IN WITNESS WHEREOF, the Issuer has caused this First
Supplemental Trust Indenture to be executed in its name and its
seal to be hereunto affixed and attested by its duly authorized
officer, all as of the date first above written but actually
executed on this 1st day of December, 1998.
PARISH OF NATCHITOCHES, STATE
OF LOUISIANA
By: \s\ Joe Mitchell, Jr.
-----------------------------
- -------------------------------- President
ATTEST:
By: \s\ Bobby W. Deen
---------------------------
Parish Administrator
(SEAL)
WITNESSES:
\s\ W. T. O'Donnell
- --------------------------------
\s\ Sadie Metoyer
- --------------------------------
\s\ Linda Cockrell
-----------------------------------
Notary Public
IN WITNESS WHEREOF, the Trustee has caused this First
Supplemental Trust Indenture, to be executed in its name and its
seal to be hereunto affixed and attested by its duly authorized
officer, all as of the date first above written but actually
executed on this 1st day of December, 1998.
BANK ONE TRUST COMPANY, N.A.
By: \s\ Brenda W. Lupo
------------------------------
Trust Officer
(SEAL)
WITNESSES:
\s\ Hazel L. Fincher
- --------------------------------
\s\ Rosie B. Mays
- --------------------------------
\s\ Gwen Russell
-----------------------------------
Notary Public
EXHIBIT A
(FORM OF BOND)
No. R- 189 Principal Amount:
$10,000,000
UNITED STATES OF AMERICA
PARISH OF NATCHITOCHES,
STATE OF LOUISIANA
VARIABLE RATE DEMAND REFUNDING BOND
(TRUS JOIST CORPORATION PROJECT) SERIES 1988
Maturity Date: Bond Date: CUSIP:
--------------- ----------- -------
October 1, 2005 September 14, 1988 63204E AA 9
The Parish of Natchitoches, State of Louisiana (the
"Issuer"), a political subdivision of the State of Louisiana, for
value received, hereby promises to pay, to
CHASE BANK - DTC
TO CREDIT ACCOUNT OF CEDE & CO.
solely from the sources provided therefor as hereinafter set
forth, to the Registered Owner set forth above or registered
assigns or legal representative, the Principal Amount set forth
above on the Maturity Date set forth above (or earlier as
hereinafter set forth), upon presentation and surrender hereof at
the principal corporate trust office of The First National Bank
of Shreveport, in the City of Shreveport, Louisiana, as paying
agent, or its successor as paying agent (the "Paying Agent").
The Issuer also promises to pay, but solely from the sources
described herein, interest from the Interest Payment Date next
preceding the date on which this Bond is authenticated, unless it
is authenticated on an Interest Payment Date, in which event it
shall bear interest from such date, or if it is authenticated
prior to December 1, 1988, in which event it shall bear interest
from the Bond Date set forth above, payable on the dates and at
the rates per annum determined as hereinafter set forth until the
Principal Amount hereof is paid.
Subject to the hereinafter described redemption provisions,
prior to the Conversion Date (hereinafter defined) interest on
this Bond is payable on the first Business Day (as defined in the
Indenture) of each March, June, September and December,
commencing the first Business Day of December, 1988; after the
Conversion Date, interest on this Bond is payable on the first
Business Day of January and July of each year; and the final
interest payment on this Bond is payable on the final maturity or
redemption date of the Bonds (collectively, the "Interest Payment
Dates"). The interest so payable and punctually paid or duly
provided for on any Interest Pavment Date, will, as provided in
the Indenture (hereinafter defined), be paid to the person in
whose name this Bond is registered as Registered Owner as of the
close of business on the Regular Record Date for such interest
payment, which prior to the Conversion Date, shall be the
Business Day immediately preceding theand after the Conversion
Date shall be the fifteenth day of the calendar month immediately
preceding such Interest Payment Date, whether or not such day is
a Business Day. Such payment of interest shall be by check or
draft mailed to the Registered Owner at his address as it appears
on the bond registration books maintained by the Paying Agent;
provided, however, that with respect to Bonds in the denomination
of $1,000,000 or more, at the option of the Registered Owner
thereof, interest may be paid by wire transfer in immediately
available funds to the bank and account designated in writing by
such Registered Owner to the Paying Agent at least seven (7) days
prior to the first payment date as to which such election shall
be effective. The principal of and redemption premium, if any,
on all Bonds shall be payable at the principal corporate trust
office of the Paying Agent, upon the presentation and surrender
of such Bonds as the same shall become due and payable or are
redeemed. The interest rates borne by this Bond are described on
the reverse hereof.
This Bond is authorized pursuant to the laws of the State of
Louisiana, particularly Chapter 14-A of Title 39 of the Louisiana
Revised Statutes of 1950, as amended (collectively, the "Act").
This Bond and the interest and
redemption premium, if any, hereon shall not be deemed to
constitute or to create in any manner an obligation, general or
special, debt, liability or moral obligation of the State of
Louisiana, the Parish of Natchitoches or of any political
subdivision of either thereof or a pledge of the faith and credit
of the State of Louisiana, the Parish of Natchitoches or any
political subdivision thereof within the meaning of any
constitutional or statutory provision whatsoever, but shall be a
limited obligation of the Issuer payable solely from the revenues
and other funds pledged therefor under the Indenture and shall
not be payable from any assets or funds of the Issuer other than
the revenues and other funds pledged therefor, and neither the
faith and credit nor the taxing power of the State of Louisiana,
the Parish of Natchitoches or any political subdivision of either
thereof is pledged to the payment of the principal of or the
interest or redemption premium, if any, on this Bond.
This Bond is one of a duly authorized series of variable
rate demand bonds of the Issuer in the aggregate principal amount
of $10,000,000, designated "Parish of Natchitoches, State of
Louisiana Variable Rate Demand Refunding Bonds (Trus Joist
Corporation Project) Series 1988" (the said bonds are herein
referred to as the "Bonds"). All of the Bonds are issued under
and pursuant to the Trust Indenture dated as of September 1, 1988
(said Trust Indenture, together with all such supplements and
amendments thereto as therein permitted, being herein called the
"Indenture") between the Issuer and The First National Bank of
Shreveport, of Shreveport, Louisiana, as trustee (said trustee
and any successor trustee under the Indenture being herein called
the "Trustee"). An executed counterpart of the Indenture is on
file at the principal corporate trust office of the Trustee.
Reference is hereby he provisions, among others, with respect to
the custody and application of the proceeds of the Bonds, the
collection and disposition of revenues, a description of the
funds charged with and pledged to the payment of the principal of
and redemption premium, if any, and interest on the Bonds, the
nature and extent of the security, the terms and conditions under
which the Bonds are issued, the rights, duties and obligations of
the Issuer and of the Trustee and the rights of the Registered
Owners of the Bonds, and, by the acceptance of this Bond, the
Registered Owner hereof assents to all of the provisions of the
Indenture. All terms used herein and not otherwise defined shall
have the same meaning as set forth in the Indenture.
The Bonds have been issued for the purpose of providing a
portion of the funds necessary to refund all of the Issuer's
outstanding Industrial Revenue Bonds (Trus Joist Corporation
Project) series 1984 (the "Prior Bonds). The Prior Bonds were
issued to finance the cost of the acquisition, construction and
renovation of an industrial plant building and the equipping of
such building for use as a wood laminating facility, in the
Parish of Natchitoches, Louisiana (the "Project"). The Issuer
has entered into a Refunding Agreement dated as of September 1,
1988 (the "Agreement") with Trus Joist Corporation, a corporation
organized and existing under the laws of the State of Delaware
and qualified to do business in the State of Louisiana (herein,
together with any successor permitted under the Agreement, called
the "Company"), under which the Issuer has agreed to make
available to the Company the proceeds of the Bonds for the
aforesaid purpose and the Company has agreed to repay such
amounts. The Agreement provides that the Company will make
payments in such amounts and at such times as are required to
provide for timely payment of the principal of, premium, if any,
and interest on the Bonds. The Agreement provides that the
Company is to make the payments directly to tnt of the Issuer.
The Agreement also provides for the payment by the Company of
certain fees and expenses of the Issuer, the Trustee, the Credit
Bank (hereinafter defined) and the Paying Agent.
Pursuant to the Indenture the Issuer has, for the benefit of
the Registered Owners of the Bonds, assigned the Issuer's rights
under the Agreement, including all its rights, title and interest
therein and its right to receive payments thereunder (subject to
the reservation of certain rights of the Issuer, including its
rights to notices, payment of certain expenses and indemnity), to
the Trustee. The Indenture further provides that the payments
made pursuant to the Agreement are to be deposited with the
Trustee to the credit of a special fund designated "Parish of
Natchitoches, State of Louisiana Bond Fund - Trus Joist
Corporation Project" (herein referred to as the "Bond Fund"),
which fund is equally and ratably pledged to and charged with the
payment of the principal of, redemption premium, if any, and
interest on all Bonds issued under the Indenture, subject to
certain rights of the Credit Bank which are more fully described
in the Indenture.
The Company has caused to be delivered to the Paying Agent
an Irrevocable Letter of Credit (the "Letter of Credit") issued
by National Westminster Bank PLC, San Francisco Overseas Branch
the principal office of which is located in the City of San
Francisco, California (the "Credit Bank"), in the initial amount
of $10,407,671 (an amount equal to the sum of the aggregate
principal amount of and 124 days' interest on the Bonds at a rate
of 12% per annum) for the purpose of providing for the payment of
the principal (by reason of maturity, acceleration or redemption)
and purchase price of, and interest on the Bonds which have not
been converted to a Fixed Rate, as hereinafter described. The
Initial Letter of Credit expires on September 14, 1993 (the
"Expiration Date") unless earlier terminated in accordance with
the terms thereof, and is subject to extension at the option of
the Company and the Credit Bank. Subject to the limitations and
conditions contained in the Indenture, the Company may, at its
option, provide for the delivery to the Paying Agent of an
Alternate Credit Facility (as defined in the Indenture) but only
on the dates and under the conditions provided in the Indenture.
The Bonds are further secured by a Collateral Mortgage
affecting the Project, which Collateral Mortgage is held by the
Trustee pursuant to a Collateral Pledge Agreement dated as of
September 1, 1988, as security for (i) the Company's obligations
under the Agreement, and (ii) the Reimbursement Agreement, dated
as of September 1, 1988 between the Company and the Credit Bank
(the "Reimbursement Agreement") which relates to the Letter of
Credit.
Prior to issued in denominations of $100,000 or any integral
multiple thereof; after the Conversion Date, the Bonds shall be
issued in denominations of $5,000 or any integral multiple
thereof. At the principal corporate trust office of the Paying
Agent, in the manner and subject to the limitations, conditions
and charges provided in the Indenture, Bonds may be exchanged for
an equal aggregate principal amount of Bonds, of other authorized
denominations and bearing interest at the same rate.
This Bond shall bear interest initially at the Floating
Interest Rate, as described below, from and including the date of
original issuance, except that the interest rate on this Bond may
be converted to a Fixed Rate as more fully provided herein. The
date on which the interest rate on the Bonds is effectively
converted to a Fixed Rate shall be known as the "Conversion
Date".
I. Floating Interest Rates.
(a) Determination of Floating Interest Rates. The Floating
Interest Rates to be applicable to the Bonds prior to the
Conversion Date shall be determined by the herein defined
Remarketing Agent under the Remarketing Agreement (the
"Remarketing Agreement") on the Business Day next preceding the
commencement of each Rate Period (a "Determination Date") and
notice thereof shall be given as follows:
(i) Notice of each such Floating Interest Rate shall
be made available, on the Business Day immediately succeeding
each Determination Date, by the Paying Agent to the holders of
Bonds to which such rates will be applicable.
(ii) The Floating Interest Rate so to be determined
shall be determined by the Remarketing Agent as that rate which,
if borne by the Bonds, would, in the sole judgement of the
Remarketing Agent exercised with due regard for prevailing
financial market conditions, be the interest rate necessary, but
which would not exceed the interest rate necessary, to enable the
Remarketing Agent to sell the Bonds at the principal amount
thereof (plus accrued interest); provided that (A) if the
Remarketing Agent shall fail to determine the Floating Interest
Rate on the Determination Date, then the Floating Interest Rate
for such Rate Period shall be the Floating Interest Rate for the
immediately preceding Rate Period; and (B) in no event shall the
Floating Interest Rate for any Rate Period exceed the Maximum
Rate.
(iii) All determinations of Floating Interest Rates
pursuant to the Indenture shall be conclusive and binding upon
the Registered Owners of the Bonds to which such rates are
applicable. The Issuer, the Company, the Trustee, the Paying
Agent and the Re marketing Agent shall not be liable to any
Bondholder for failure to give any notice required above.
(b) Rate Periods. A Floating Interest Rate shall be
determined weekly for each Rate Period as follows:
(i) Rate Periods shall commence on the date of
issuance of the Bonds and thereafter on Wednesday of each week,
and shall end on Tuesday of the following week.
(ii) The Floating Interest Rate for each Rate Period
shall be effective from and including the commencement date of
such Rate Period and shall remain in effect through and including
the last day thereof. Each such Floating Interest Rate shall be
determined not later than 1:00 p.m., San Francisco time, on the
applicable Determination Date. Notice of each such Floating
Interest Rate shall be given in accordance with the provisions of
(a)(i) above.
II. Fixed Rate Conversion at Option of Company. At the
option of the Company, with the prior written approval of the
Credit Bank in certain circumstances, the Bonds shall be
converted by the Issuer to bear interest at a Fixed Rate as
hereinafter provided. Any such conversion shall be made as
follows:
(a) The Conversion Date shall be a Business Day.
(b) No more than two Business Days after receipt of notice
by the Company of its election to convert the interest rate on
the Bonds to a Fixed Rate, which notice must be received by the
Issuer not less than 30 days prior to the Conversion Date, the
Paying Agent shall mall a notice of the proposed conversion to
all affected Bondholders. Such notice shall inform the affected
Bondholders of (i) the proposed Conversion Date and the fact that
the Fixed Rate conversion may be cancelled under the
circumstances described below in III(d); (ii) the dates on which
the Remarketing Agent will determine and the Paying Agent will
notify the Bondholders of the Fixed Rate pursuant to (c) below;
(iii) that all Bonds for which no notice of election to retain
such Bonds has been received by the Paying Agent in accordance
with Section 215(a) of the Indenture shall be deemed tendered and
shall be purchased on the Conversion Date; (iv) the redemption
provisions applicable to the Bonds from and after the Conversion
Date; and (v) the procedure for electing to retain Bonds on the
Conversion Date.
(c) Not later than 1:00 p.m., San Francisco such 15th day
is not a Business Day) the Remarketing Agent shall determine the
Fixed Rate as follows: the Fixed Rate shall be the lowest rate
which, in the judgment of the Remarketing Agent as of the date of
determination and under prevailing market conditions, would cause
the Bonds (taking into account the credit quality of the Bonds)
to have a market value in a secondary market transaction equal to
the principal amount thereof, plus accrued interest.
III. Mandatory Fixed Rate Conversion. (a) The Bonds shall
be subject to mandatory conversion to a Fixed Rate (each a
"Mandatory Conversion Date"):
(i) On the Interest Payment Date immediately preceding
the Expiration Date of the Letter of Credit, or the first
business day thereafter, provided that no such conversion shall
be required if the initial Letter of Credit is renewed prior to
the Expiration Date, as provided in the Reimbursement Agreement,
or an Alternate Credit Facility is provided to the Paying Agent,
until the Interest Payment Date immediately preceding the
extended Expiration Date.
(ii) On a Business Day not later than sixty (60) days
after the institution of bankruptcy, insolvency, liquidation or
other similar proceedings by or against the Credit Bank, unless
other appropriate actions permitted by the Indenture are taken
prior to such date in order
to prevent such a default or proceedings from becoming an Event
of Default under the Indenture, provided that no such conversion
shall be required if an Alternate Credit Facility is provided to
the Paying Agent.
(b) Not later than fifteen (15) days prior to the Mandatory
Conversion Date, the Paying Agent shall mail a written notice of
the conversion to the holders of all Bonds, which notice shall
(i) specify the Mandatory Conversion Date, (ii) specify the event
requiring the conversion pursuant to subsection (a) above and the
circumstances under which the conversion will not be required as
of the Mandatory Conversion Date pursuant to such subsection,
(iii) specify the dates on which the Remarketing Agent will
determine and the Paying Agent will notify the Bondholders of the
Fixed Rate for the Bonds, and (iv) set forth the procedure for
electing to retain Bonds on the Conversion Date.
(c) Not later than 1:00 p.m., San Francisco time, on the
10th day immediately preceding the Conversion Date (or the
immediately succeeding Business Day, if such 10th day is not a
Business Day), the Remarketing Agent shall determine the Fixed
Rate, in the manner described with respect to Fixed Rate
conversions at the option of the Company not later than 1:00
p.m., San Francisco time. On the immediately succeeding Business
Day, the Paying Agent shall give notice of such rate by
telephone, telegram, telecopy, telex or other similar
communication to all Bondholders who have elected to retain their
Bonds.
Notwithstanding the foregoing provisions to the contrary
with respect to the payment of interest, the interest rate borne
by the Bonds shall not at any time exceed the lower of (i) the
maximum interest rate permitted under the laws of the State or
(ii) prior to the Conversion Date, 12% per annum, or such higher
rate which shall be permitted if the Letter of Credit has been
increased to provide for interest payments on the Bonds at the
higher rate.
(d) A conversion of the Bonds to a Fixed Rate shall be
cancelled, and shall be of no effect whatsoever, upon the
occurrence of any of the following events:
(i) Election by the Company upon notice to the
Trustee, the Remarketing Agent, the Credit Bank and the Paying
Agent no less than sixteen (16) days prior to a proposed Fixed
Rate Conversion Date, to cancel the conversion; or
(ii) In the event that, for any reason including
failure of the Remarketing Agent to remarket the Bonds or failure
of the Paying Agent to receive the proceeds of such remarketing,
the Paying Agent shall not have received moneys sufficient to pay
the Purchase Price of the Bonds to be converted by 7:00 a.m., San
Francisco time, on the proposed Conversion Date.
(iii) The opinion of Bond Counsel required by the
Indenture is not confirmed on the Conversion Date.
Upon the occurrence of a failed Fixed Rate Conversion, as
described above, the Bonds shall continue to bear interest from
the proposed Conversion Date at the same Floating Interest Rate
as was applicable to the Bonds before the proposed Conversion
Date (provided, however, that no Rate Period may exceed the
remaining term of the Initial Letter of Credit or an Alternate
Letter of Credit), however the Remarketing Agent shall determine
an interest rate to be borne by such Bonds for the next Rate
Period as soon as practicable, such rate to be the rate which, in
the judgment of the Remarketing Agent, would cause the Bonds to
have a market value in a secondary market transaction equal to
the principal amount thereof, plus accrued interest. Upon the
occurrence of a failed Fixed Rate conversion, as described above,
all Bonds (including any Bonds for which owners have elected to
retain) shall be deemed tendered to the Paying Agent on the
proposed Conversion Date, and shall be remarketed by the
Remarketing Agent. Except as provided in this paragraph,
conversion of the Bonds to a Fixed Rate shall become effective on
the Conversion Date.
From and after the Conversion Date for the Bonds, the annual
rate of interest payable on the Bonds shall be permanently fixed
and all provisions of
the Bonds stated to be applicable only prior to the Conversion
Date shall be of no further force and effect. From and after the
Conversion Date, Owners of such Bonds will no longer have the
right to tender such Bonds to the Paying Agent for purchase.
From and after the Conversion Date, such Bonds may not have the
benefit of the Letter of Credit. From and after the Conversion
Date, the Trustee shall perform the duties of the Paying Agent
set forth in the Indenture.
IV. Tenders During Floating Interest Rate Period.
(a) Purchase Dates. Prior to the portions thereof in
amounts equal to the lowest denomination then authorized or whole
multiples of such lowest denomination) purchased at a purchase
price equal to 100% of the principal amount of such Bonds (or
portions thereof), plus accrued interest (if the purchase date is
other than an Interest Payment Date), on any Business Day prior
to the Conversion Date, upon delivery of a written notice of
tender to the Paying Agent and Remarketing Agent not later than
12:00 noon, San Francisco time, on a Business Day not less than
seven (7) days prior to the purchase date, unless such seventh
day is not a Business Day, in which case such notice may specify
the next preceding Business Day.
(b) Notice of Tender. Each notice of tender:
(i) shall be delivered to the Paying Agent and the
Remarketing Agent in writing at its principal corporate trust
office and be in the form attached to the Indenture and
satisfactory to the Paying Agent;
(ii) shall state (A) the principal amount and number of
the Bond to which the notice relates, (B) that the Bondholder
irrevocably demands purchase of such Bond or a specified portion
thereof in an amount equal to the lowest denomination then
authorized or a whole multiple of such lowest denomination, and
(C) the date on which such Bond or portion thereof is to be
purchased; and
(iii) shall automatically constitute (A) an
irrevocable offer to sell the Bond (or portion thereof) to which
the notice relates on the purchase date to any purchaser selected
by the Remarketing Agent, at a price equal to the principal
amount of such Bond (or portion thereof) plus any interest
thereon accrued and unpaid as of the purchase date, (B) an
irrevocable authorization and instruction to the Paying Agent to
effect transfer of such Bond (or portion thereof) upon payment of
such price to the Paying Agent on the purchase date, (C) an
irrevocable authorization and instruction to the Paying Agent to
effect the exchange of the Bond to be purchased in whole or in
part for other Bonds in an equal aggregate principal amount so as
to facilitate the sale of such Bond (or portion thereof to be
purchased), and (D) an acknowledgment that such Bondholder will
have no further rights with respect to such Bond (or portion
thereof) upon payment of the purchase price thereof to the Paying
Agent on the purchase date, except for the right of such holder
to receive such purchase price upon surrender of such Bond to the
Paying Agent.
The determination of the Paying Agent as to whether a notice
of tender has been properly delivered pursuant to the foregoing
shall be conclusive and binding upon the holder.
(c) Payments of Purchase Price. By the close of business on
the date set for purchase of tendered Bonds, and upon receipt by
the Paying Agent of 100% of the aggregate purchase price of the
tendered Bonds, the Paying Agent shall pay the purchase price of
such Bonds to the holders thereof at its principal corporate
trust office or by bank wire transfer. Such payments shall be
made in immediately available funds.
(d) Delivery of Bonds; Effect of Failure to Surrender
Bonds. All Bonds to be purchased on any date shall be required
to be delivered by 7:00 a.m. San Francisco time on the date of
purchase to the principal corporate trust office of the Paying
Agent, prior to payment therefor, in order for the Bondholder to
be entitled to payment on such date, except that such delivery
shall not be
required in the case of the Bonds of any holder which have been
resold by the Remarketing Agent to the same holder. If the
holder of any Bond (or portion thereof) that is subject to
purchase fails to deliver such Bond to the Paying Agent for
purchase on the purchase date, and if the Paying Agent is in
receipt of the purchase price there for, such Bond (or portion
thereof) shall nevertheless be deemed purchased on the day fixed
for purchase thereof and ownership of such Bond (or portion
thereof) shall be transferred to the purchaser thereof. Any
Bondholder who fails to deliver a Bond for purchase as required
above shall have no further rights thereunder except the right to
receive the purchase price thereof upon presentation and
surrender of said Bond to the Paying Agent.
V. Mandatory Tender Upon Fixed Rate Conversion, Delivery
of Alternate Credit Facility or Expiration Date.
(a) Mandatory Tenders. Any Bonds to be converted to bear
interequal to the principal amount thereof, plus accrued
interest, except Bonds which have been retained as described
herein. The Bonds are also subject to mandatory tender for
purchase at a purchase price equal to the principal amount
thereof plus any accrued interest on the Interest Payment Date
immediately preceding the Expiration Date of the Letter of Credit
or the effective date of any substitution of an Alternate Credit
Facility. Notwithstanding the foregoing, the holders of any such
Bonds may elect to retain their Bonds by delivering a written
notice of such election to the Paying Agent at its principal
corporate trust office not later than 1:00 p.m., San Francisco
time, on the date of determination of the Fixed Rate for the
Bonds in the case of tenders on a Conversion Date or on a
Business Day which is not less than seven (7) days prior to the
purchase date (in the case of a tender by reason of the
Expiration Date or the substitution of an Alternate Credit
Facility). Such written notice shall (i) state that the person
delivering the same is a Bondholder (specifying the numbers and
denominations of the Bonds of such holder), (ii) state that the
Bondholder is aware of the fact that, after the Conversion Date,
the Bonds will no longer be subject to tender at the option of
the holder, (iii) state, in the case of a substitution of an
Alternate Credit Facility, that the Bondholder is aware of the
fact that on and after the date of the substitution, the rating
or ratings, if any, assigned to the Bonds may be lowered or
withdrawn, (iv) state, in the case of the Conversion Date, that
the Bondholder is aware that after the Conversion Date the Bonds
will not be entitled to the benefits of a Letter of Credit and
that after the Conversion Date the ratings, if any, on the Bonds
may be lowered or withdrawn, and (v) direct the Paying Agent not
to purchase the Bonds of such holder. Any notice delivered to
the Paying Agent pursuant to this subsection shall be irrevocable
and binding upon the holder delivering the same and all
subsequent holders of the Bonds to be retained, including any
Bonds issued in exchange therefor or upon transfer thereof.
(b) Payments of Purchase Price. All payments to tendering
Bondholders shall be made as provided above with respect to
tenders prior to the Conversion Date, provided that all such
payments shall be made in immediately available funds.
(c) Delivery of Bonds; Effect of Failure to Surrender
Bonds. All Bonds to be purchased on any date shall be required
to be delivered to the principal corporate trust office of the
Paying Agent in the manner provided above with respect to tenders
during Floating Interest Rate Period. If the holder of any Bond
(or portion thereof) that is subject to purchase fails to deliver
such Bond to the Paying Agent for purchase on the purchase date,
and if the Paying Agent is in receipt of the purchase price
therefor, such Bond (or portion thereof) shall nevertheless be
deemed purchased on the day fixed for purchase thereof and
ownership of such Bond (or portion thereof) shall be transferred
to the purchaser thereof. Any Bondholder who fails to deliver a
Bond for purchase as required above shall have no further rights
hereunder except the right to receive the purchase price hereof
upon presentation and surrender of said Bond to the Paying Agent.
The Issuer has appointed The First National Bank of
Shreveport, of Shreveport, Louisiana, as Paying Agent under the
Indenture. The Paying Agent may be removed and replaced in
accordance with the provisions of the Indenture. The principal
office of the Paying Agent is 400 Texas Street, Shreveport,
Louisiana 71154, or such other address designated in writing by
the Paying Agent to the Trustee.
The Issuer has appointed Piper, Jaffray & Hopwood, Inc., of
Seattle, Washington, as Remarketing Agent under the Indenture.
The Remarketing Agent may be removed and replaced in accordance
with the provisions of the Indenture. The principal office of
the Remarketing Agent is 1600 IBM Building, Seattle, Washington
98124-1920, or such other address designated in writing by the
Remarketing Agent to the Trustee.
VI. Redemption of Bonds. The Bonds shall not be subject to
prior redemption except as follows:
(a) Optional Redemption. Prior to the Conversion Date, the
Bonds are subject to redemption prior to their scheduled
maturity, at the option of the Company, on any Interest Payment
Date on or after September 1, 1989, at a redemption price of 100%
of the principal amount thereof, without premium. After the
Conversion Date, the Bonds are subject to redemption prior to
their scheduled maturity, at the option of the Company, in whole
or in part on an Interest Payment Date occurring on and after the
fifth year after the Conversion Date at a redemption price of
100% of the principal amount thereof, without premium.
In respect of any optional redemption provided for above, if
less than all of the Bonds shall be called for redemption, the
particular Bonds or portions of Bonds to be redeemed shall be
selected by the Trustee by lot, provided, however, that Pledged
Bonds, if any, shall be called for redemption, in the same
manner, prior to any other Bonds.
(b) Extraordinary Optional Redemption. All Bonds are
subject to redemption in whole or in part, whether prior or
subsequent to the Conversion Date, at the option of the Company,
at a redemption price equal to the principal amount thereof,
without premium, plus accrued interest to the redemption date
upon the occurrence of any of the following events:
(i) all or any part of the Project is damaged,
destroyed, or condemned or title to all or any part of the
Project shall have been lost, or
(ii) changes in the Constitution of the United States
of America or of the State or of legislative or administrative
action, or failure of administrative action by the United States
or the State or any agency or political subdivision of either
thereof, or by reason of any judicial decision,
in either event, to such extent that in the opinion of the
Company and an independent engineer or management consultant not
objected to by the Credit Bank, the Agreement is impossible to
perform without unreasonable delay or unreasonable burdens or
excessive liabilities being imposed on the Company.
(c) Mandatory Redemption. The Bonds are subject to
redemption in whole at any time, whether prior or subsequent to
the Conversion Date, at a redemption price equal to the principal
amount thereof, without premium, plus accrued interest to the
redemption date, upon the occurrence of a "Determination of
Taxability" as described in Section 9.2 of the Agreement.
(d) Extraordinary Mandatory Redemption. Bonds shall be
deemed redeemed prior to maturity upon delivery of such Bonds by
the Credit Bank or the Company to the Paying Agent for
cancellation.
VII. Notice of Redemption. At least 30 days before the
redemption date of any Bonds (or portions thereof) the Trustee
shall cause a notice of any such redemption, signed by the
Trustee on behalf of the Issuer, to be mailed by first-class
mail, postage prepaid, to all Registered Owners whose Bonds shall
have been called for redemption, but failure to mail any such
notice to one or more Registered Owners shall not affect the
validity of the proceedings for such redemption with respect to
the Registered Owners to whom notice was duly mailed hereunder.
No notice of redemption shall be required to be given with
respect to an Extraordinary Mandatory Redemption pursuant to
VI(d) above. Each such notice shall set forth the date fixed for
redemption, the redemption price to be paid and, if less than all
of the Bonds then outstanding shall be called for redemption, the
numbers of such Bonds to be redeemed and, in the case of Bonds to
be redeemed in part only, the portion of the principal amount
thereof to be redeemed. In case any Bond is to be redeemed in
part only, the notice of redemption which relates to such Bond
shall state also that on or after the redemption date, upon
surrender of such Bond, a new Bond in principal amount equal to
the unredeemed portion of such Bond will be issued. The Trustee
shall not be required to mail any notice of redemption unless its
Administrative Expenses (as defined in the Agreement) shall have
been paid in full by the Company up to and including the date
fixed for redemption. On the date so designated for redemption,
notice having been given in the manner and under the conditions
provided in the Indenture, the Bonds, or portions of Bonds, so
called for redemption shall become and be due and payable at the
redemption price provided for redemption of such Bonds or
portions of Bonds on such date and, if Available Moneys (as
defined in the Indenture) or moneys drawn on the Letter of Credit
for payment of the redemption price and accrued interest shall be
held by the Trustee in trust for the Registered Owners of the
Bonds or portions thereof to be redeemed, all as provided in the
Indenture, interest on the Bonds or portions of Bonds called for
redemption shall cease to accrue, such Bonds or portion cease to
be entitled to any benefit or security under the Indenture, and
the Registered Owners of such Bonds or portions of Bonds shall
have no rights in respect thereof except to receive payment of
the redemption price thereof and accrued interest so held by the
Trustee and, to the extent provided in the Indenture, to receive
Bonds for any unredeemed portion of Bonds.
VIII. Miscellaneous.
The Indenture provides that in the event of certain
defaults, the Bonds will not be remarketed expect in certain
instances.
The Registered Owner of this Bond shall have no right to
enforce the provisions of the Indenture or to institute action to
enforce the covenants therein, or to take any action with respect
to any Event of Default under the Indenture, or to institute,
appear in or defend any suit or other proceeding with respect
thereto, except as provided in the Indenture.
In certain events, on the conditions, in the manner and with
the effect set forth in the Indenture, the principal of all the
Bonds then outstanding under the Indenture may become or may be
declared due and payable before the stated maturities thereof,
together with the interest accrued thereon.
Modifications or alterations of the Agreement and the
Indenture, and any supplement or amendment thereto, may be made
only to the extent and in the circumstances permitted by the
Indenture, and may be made in certain cases without the consent
of all of the Owners of the Bonds.
The transfer of this Bond may be registered by the
Registered Owner hereof in person or by his attorney or legal
representative at the principal corporate trust office of the
Paying Agent, but only in the manner and subject to the
limitations and conditions provided in the Indenture and payment
of certain charges upon surrender and cancellation of this Bond.
Upon any such registration of transfer, the Issuer shall execute
and the Paying Agent shall authenticate and deliver in exchange
for this Bond a new Bond registered in the name of the
transferee, of authorized denominations, in aggregate principal
amount equal to the principal amount of this Bond, of the same
series and maturity and bearing interest at the same rate.
This Bond shall be governed by and construed in accordance
with the laws of the State of Louisiana.
All acts, conditions and things required to happen, exist
and be performed precedent to and in the issuance of this Bond
and the execution of the Indenture have happened, exist and have
been performed as so required. No recourse under, or upon any
statement, obligation, covenant, or agreement contained in the
Indenture or in any Bond thereby secured or in the Agreement
or in any document or certification whatsoever or under any
judgment obtained against the Issuer or by the enforcement of any
assessment or by any legal or equitable proceeding by virtue of
any constitution or statute or otherwise or under any
circumstance shall ever be had against any member, director,
agent, employee or officer, as such, of the Issuer, either
directly or through the Issuer, or otherwise, for the payment
for, or to, the Issuer or any receiver thereof, or for, or to,
the owner of any Bond may be due and unpaid by the Issuer upon
any such Bond. Any and all personal liability of every nature,
whether at law or in equity, or by statute or by constitution or
otherwise, of any such member, director, agent, employee or
officer, as such, to respond by reason of any act or omission on
his or her part or otherwise for the payment for, or to, the
Issuer or any receiver thereof, or for, or to the owner of any
Bond issued thereunder or otherwise, of any sum that may remain
due and unpaid upon the Bonds thereby secured or any of them, is
hereby expressly waived and released as an express condition of,
and in consideration for, the purchase of this Bond.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any benefit or security under the
Indenture until it shall have been authenticated by the execution
by the Paying Agent of the certificate of authentication endorsed
hereon.
IN WITNESS WHEREOF, the Issuer has caused this Bond to be
executed with the facsimile signature of the President of the
Police Jury of Natchitoches Parish and a facsimile of its
official seal to be imprinted hereon and attested to by the
facsimile signature of the Parish Administrator of the Police
Jury of Natchitoches Parish.
PARISH OF NATCHITOCHES,
STATE OF LOUISIANA
By:
------------------------------
President
Police Jury Natchitoches
Parish
ATTEST:
By:
------------------------------
Parish Administrator
Police Jury Natchitoches Parish
(SEAL)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds referred to in the
within-mentioned Trust Indenture.
THE FIRST NATIONAL BANK
OF SHREVEPORT,
400 Texas Street
Shreveport, Louisiana 71154
as Paying Agent
By:
------------------------------
Authorized Signature
Date of Authentication:
- ------------------------------------
FIRST SUPPLEMENTAL REFUNDING AGREEMENT
This FIRST SUPPLEMENTAL REFUNDING AGREEMENT (the "First
Supplemental Agreement"), made and entered into as of the first
day of November, 1998, by and between the PARISH OF NATCHITOCHES,
STATE OF LOUISIANA, a political subdivision of the State of
Louisiana (the "Issuer") and TJ INTERNATIONAL, INC. (formerly
known as Trus Joist Corporation), a corporation organized and
existing under the laws of the State of Delaware (the
"Corporation").
W I T N E S S E T H:
WHEREAS, the Issuer has issued its $10,000,000 Variable Rate
Demand Refunding Bonds (Trus Joist Corporation Project) Series
1988 dated September 14, 1988 (the "Bonds") for the purpose of
refunding all of the Issuer's Industrial Revenue Bonds (Trus
Joist Corporation Project) Series 1984, pursuant to a Trust
Indenture dated as of September 1, 1988 (the "Indenture"), by and
between the Issuer and Bank One Trust Company, N.A. (successor to
The First National Bank of Shreveport), as trustee (the
"Trustee"); and
WHEREAS, in connection with the issuance of the Bonds, the
Issuer has also entered into a Refunding Agreement dated as of
September 1, 1988 (the "Refunding Agreement") with TJ
International, Inc. (formerly Trus Joist Corporation), a Delaware
corporation (the "Corporation"); and
WHEREAS, the Issuer and the Trustee have entered into a
First Supplemental Trust Indenture dated as of November 1, 1998
(the "First Supplemental Indenture"), in order to extend the
maturity date of the Bonds from October 1, 2000 to October 1,
2005 and the Corporation has consented to the delivery of the
First Supplemental Indenture; and
WHEREAS, the Corporation is also providing for the delivery
of an Alternate Credit Facility (as defined in the Indenture) to
be issued by Wachovia Bank, N.A. (the "Credit Bank"), and in
connection therewith it is necessary to make certain changes
which shall not materially and adversely affect the interest of
the bondowners and which, in the judgement of the Trustee, will
not prejudice the interests of the Trustee, as permitted by
Article XI of the Indenture; and
WHEREAS, the Credit Bank has consented to the execution and
delivery of this First Supplemental Agreement; and
WHEREAS, the Trustee has accepted the Alternate Credit
Facility;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration and of the mutual benefits,
covenants and agreements herein expressed, the Issuer and the
Corporation hereby agree as follows:
SECTION 1. All terms used herein shall have the same
meanings assigned to them in the Indenture and the Agreement, as
amended from time to time.
SECTION 2. The Company hereby reaffirms its obligation to
make payments under the Refunding Agreement in order to provide
timely payment of the Bonds in accordance with the Indenture, as
amended by the First Supplemental Indenture.
SECTION 3. The definition of Pledge and Security Agreement
in Article I of the Agreement is hereby amended in its entirety
to read as follows:
""Pledge and Security Agreement" means the Pledge and
Security Agreement dated as of September 1, 1988 by and among the
Company, the Credit Bank and the Paying Agent, and any other
pledge agreement entered into in connection with an Alternate
Credit Facility, including, in connection with the delivery of
the Alternate Credit Facility delivered by Wachovia Bank, N.A.,
as the Credit Bank, the Reimbursement and Security Agreement
dated as of November 1, 1998 by and among the Company, Trus Joist
MacMillan a Limited Partnership and the Credit Bank."
SECTION 4. Reference is made to the Agreement, the terms of
which are incorporated herein by reference, and the Agreement,
other than as modified hereby, is hereby ratified and confirmed
in its entirety.
IN WITNESS WHEREOF, the Issuer has caused this First
Supplemental Refunding Agreement to be executed in its name and
its seal to be hereunto affixed and attested by its duly
authorized officer, all as of the date first above written but
actually executed on this 1st day of December, 1998.
PARISH OF NATCHITOCHES, STATE OF
LOUISIANA
By: \s\ Joe Mitchell, Jr.
------------------------------
President
ATTEST:
By: \s\ Bobby W. Deen
------------------------------
Parish Administrator
(SEAL)
WITNESSES:
\s\ W. T. O'Donnell
- ------------------------------------
\s\ Sadie Metoyer
- ------------------------------------
\s\ Linda Cockrell
-----------------------------------
Notary Public
IN WITNESS WHEREOF, the Corporation has caused this First
Supplemental Refunding Agreement to be executed in its name, all
as of the date first above written but actually executed on this
1st day of December, 1998.
TJ INTERNATIONAL, INC.
By: \s\ Richard B. Drury
------------------------------
Title: Corporate Secretary &
Treasurer
WITNESSES:
\s\ Paul M. Boyd
- ------------------------------------
\s\ J. Lacey Townley
- ------------------------------------
\s\ Dana Bassett
-----------------------------------
Notary Public
REIMBURSEMENT AND SECURITY AGREEMENT
among
TJ INTERNATIONAL, INC.,
TRUS JOIST MACMILLAN A LIMITED PARTNERSHIP
and
WACHOVIA BANK, N.A.
Dated as of November 1, 1998
$10,000,000
Parish of Natchitoches,
State of Louisiana
Variable Rate Demand Refunding Bonds
(Trus Joist Corporation Project)
Series 1988
TABLE OF CONTENTS
Page
- ----
ARTICLE I. DEFINITIONS -1-
ARTICLE II. THE LETTER OF CREDIT -8-
Section 2.1. Agreement to Issue Letter of Credit -8-
Section 2.2. Term of Letter of Credit; Extensions of the Term -8-
Section 2.3. Reduction and Reinstatement of Stated Amount -9-
Section 2.4. Fees Relating to Letter of Credit -10-
Section 2.5. Reimbursement of Drawings under Letter of Credit -11-
Section 2.6. Tender Advances, Prepayments, Interest
Computations and Notices -12-
Section 2.7. Form and Place of Payments; Computation of Interest -13-
Section 2.8. Conditions Precedent to Issuance of Letter of Credit -13-
ARTICLE III. OBLIGATIONS ABSOLUTE -15-
Section 3.1. Obligations Absolute, Unconditional and Irrevocable -15-
ARTICLE IV. REPRESENTATIONS AND WARRANTIES -16-
Section 4.1. Organization and Existence -16-
Section 4.2. Authority; No Conflict -16-
Section 4.3. Binding Effect -16-
Section 4.4. Governmental Approval -17-
Section 4.5. Litigation -17-
Section 4.6. Compliance with ERISA -17-
Section 4.7. Official Statement -17-
Section 4.8. Financial Information -17-
Section 4.9. Material Liabilities -17-
Section 4.10. Taxes -18-
Section 4.11. Representations and Warranties True -18-
Section 4.12. Environmental Matters -18-
Section 4.13. No Default -18-
Section 4.14. Margin Stock -18-
Section 4.15. Investment Company -19-
Section 4.16. Public Utility Holding Company -19-
Section 4.17. Full Disclosure -19-
Section 4.18. Year 2000 Compliance -19-
Section 4.19. Compliance with Laws -19-
ARTICLE V. COVENANTS -19-
ARTICLE VI. EVENTS OF DEFAULT; REMEDIES -20-
Section 6.1. Events of Default -20-
Section 6.2. Remedies -22-
ARTICLE VII. PLEDGED BONDS -22-
Section 7.1. The Pledge -23-
Section 7.2. Remedies Upon Default -23-
Section 7.3. Valid Perfected First Lien -24-
Section 7.4. Release of Pledged Bonds -24-
ARTICLE VIII. MISCELLANEOUS -24-
Section 8.1. Notices -24-
Section 8.2. Amendments, Consents and Waivers -25-
Section 8.3. No Waiver; Remedies -25-
Section 8.4. Indemnification -25-
Section 8.5. Continuing Obligations -25-
Section 8.6. Waiver of Right of Set-Off;
Limitation on Collateral -26-
Section 8.7. Limited Liability of the Bank -26-
Section 8.8. Costs, Expenses and Taxes -27-
Section 8.9. Severability -27-
Section 8.10. Governing Law -27-
Section 8.11. Consent to Jurisdiction -27-
Section 8.12. Headings -27-
- ----------------------------------
ANNEX I - IRREVOCABLE LETTER OF CREDIT
ANNEX II - PROMISSORY NOTE
ANNEX III - GUARANTY AGREEMENT
REIMBURSEMENT AND SECURITY AGREEMENT
THIS REIMBURSEMENT AND SECURITY AGREEMENT, dated as of
November 1, 1998 among TJ INTERNATIONAL, INC., a corporation
organized and existing under the laws of the State of Delaware
(the "Applicant"), TRUS JOIST MACMILLAN A LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Operator"), and WACHOVIA BANK,
N.A., a national banking association organized and existing under
the laws of the United States of America (together with its
successors and assigns, the "Bank").
W I T N E S S E T H:
WHEREAS, the Parish of Natchitoches, State of Louisiana
(the "Issuer"), has issued its Variable Rate Demand Refunding
Bonds (Trus Joist Corporation Project) Series 1988 in the
aggregate principal amount of $10,000,000 (the "Bonds") pursuant
to a Trust Indenture dated as of September 1, 1988 (as amended
and supplemented, the "Indenture"), between the Issuer and The
First National Bank of Shreveport, as trustee (now Bank One Trust
Company, N. A. and hereinafter referred to as the "Trustee"); and
WHEREAS, pursuant to a Refunding Agreement dated as of
September 1, 1988 (as amended, the "Refunding Agreement") between
the Issuer and Trus Joist Corporation (now the Applicant), the
proceeds derived from the issuance of the Bonds were applied to
refund the Prior Bonds (as defined in the Indenture) which were
issued to finance the cost of acquisition, construction,
renovation and installation of the Project (as defined in the
Indenture); and
WHEREAS, to provide additional security for the payment of
the Bonds, the Applicant has requested the Bank to issue its
letter of credit in favor of the Trustee, substantially in the
form of Annex I attached hereto and by this reference made a part
hereof (the "Letter of Credit"); and
WHEREAS, the Operator is assignee of Trus Joist Corporation
and its rights and obligations under the Refunding Agreement and
the other agreements and instruments executed in connection with
the issuance of the Bonds; and
WHEREAS, the Operator is a wholly-owned Subsidiary of the
Applicant and, as such, the Applicant expects to derive
substantial and direct benefits from the issuance of the Letter
of Credit by the Bank;
NOW THEREFORE, in consideration of the premises and the
promises herein contained, and in order to induce the Bank to
issue the Letter of Credit, the parties hereto hereby agree as
follows:
ARTICLE I. DEFINITIONS.
In addition to the words and terms defined above, the
following terms when used herein shall have the following
respective meanings:
"A Drawing" shall have the meaning specified in the Letter
of Credit.
"Agreement" means this Reimbursement and Security Agreement,
as the same may be amended, supplemented or modified from time to
time.
"B Drawing" shall have the meaning specified in the Letter
of Credit.
"Business Day" means a day (a) other than a Saturday or
Sunday or a day on which banks located in the city in which the
principal office of the Trustee or the office of the Bank at
which drawing documents are required to be presented under the
Letter of Credit are required or authorized to close and (b) on
which the New York Stock Exchange is not closed.
"C Drawing" shall have the meaning specified in the Letter
of Credit.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Information System established
pursuant to CERCLA.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor Federal tax code. Any
reference to any provision of the Code shall also include the
income tax regulations promulgated thereunder, whether final,
temporary or proposed.
"Collateral" has the meaning set forth in Section 7.1
hereof.
"Consolidated Subsidiary" means at any date any Subsidiary
or other entity the accounts of which, in accordance with GAAP,
would be consolidated with those of the Applicant in its
consolidated financial statements as of such date; provided,
however, that for purposes of this Agreement and notwithstanding
any provision of GAAP to the contrary, the term "Consolidated
Subsidiary" shall include the Operator and its Subsidiaries.
"Controlled Group" means all members of a controlled group
of corporations and all trades or businesses (whether or not
incorporated) under common control, which, together with the
Applicant, are treated as a single employer under Section 414(b)
or 414(c) of the Code.
"Credit Agreement" means the $100,000,000 Amended and
Restated Credit Agreement dated as of May 31, 1995 among the
Applicant, the Credit Banks, and Wachovia Bank of Georgia, N.A.,
as Agent (the "Agent"), as amended by a First Amendment to Credit
Agreement dated as of December 8, 1995, as further amended by a
Second Amendment to Credit Agreement dated as of November 15,
1996, and as such agreement may be further amended, supplemented
or restated from time to time. References to the Credit
Agreement shall be effective regardless of any termination of the
Credit Agreement and without regard to whether any Loans are
outstanding thereunder or any Commitment is in effect thereunder.
"Credit Banks" means all banks listed on the signature pages
of the Credit Agreement, and their successors and assigns.
"Date of Issuance" means December 1, 1998.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of property or
services, except trade accounts payable and salary and other
normal accruals (other than interest accruals) arising in the
ordinary course of business, (iv) all obligations of such Person
as lessee under capital leases, (v) all obligations of such
Person, contingent or otherwise, to reimburse any bank or other
Person in respect of amounts payable under a bankers' acceptance,
(vi) all Redeemable Preferred Stock of such Person (in the event
such Person is a corporation), (vii) all obligations of such
Person, contingent or otherwise, to reimburse any bank or other
Person in respect of the face amount of any outstanding letter of
credit or similar instrument, (viii) all Debt of others secured
by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person, (ix) all Debt of others Guaranteed by
such Person, and (x) all obligations of such Person to purchase
securities which arise out of or in connection with the sale of
the same or substantially similar securities.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or the lapse
of time or both would, unless cured or waived, become an Event of
Default.
"Default Rate" means a per annum interest rate equal to the
lesser of (a) the Prime Rate plus two percent (2%), or (b) the
maximum rate permitted by applicable law.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous
substances or wastes into the environment, including, without
limitation, ambient air, surface water, groundwater or land, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes
or the clean-up or other remediation thereof.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way
associated with any Environmental Requirements.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to
the Applicant or the Properties, including but not limited to any
such requirement under CERCLA or similar state legislation.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time. Any reference to any
provision of ERISA shall also be deemed to be a reference to any
successor provision or provisions thereof.
"Event of Default" means any one or more of the events
specified in Section 6.1 hereof.
"Expiration Date" means the Initial Expiration Date or, if
the term of the Letter of Credit is extended as contemplated in
Section 2.2(b) hereof, the last day of each Successive Extension
Period.
"Fee Percentage" means (a) on and prior to the first
anniversary of the Date of Issuance, the Fee Percentage set forth
in the chart below opposite the Applicant's applicable ratio of
Consolidated Cash Flow to Consolidated Funded Debt for the
immediately preceding four (4) Fiscal Quarters calculated in
accordance with the Credit Agreement (provided that in the event
that the Credit Agreement is amended subsequent to the Date of
Issuance to change the Applicable Margin (as defined in the
Credit Agreement) with respect to LIBOR Loans (as defined in the
Credit Agreement) and/or to change the per annum percentage at
which the Facility Fee (as defined in the Credit Agreement) is
calculated, the Fee Percentage set forth below will automatically
be adjusted so as to equal the sum of the Applicable Margin (as
defined in the Credit Agreement) and the per annum percentage at
which the Facility Fee (as defined in the Credit Agreement) is
calculated, after giving effect to such amendment), and (b) after
the first anniversary of the Date of Issuance, either (i) the Fee
Percentage determined in accordance with clause (a) above, or
(ii) in the event that the Bank has adjusted the Fee Percentage
pursuant to Section 2.4(b) hereof, that figure to which the Fee
Percentage has been so adjusted.
Ratio Fee Percentage
----- --------------
Greater than 0.60 to 1.0 0.375%
Greater than 0.45 to 1.0 but equal to 0.45%
or less than 0.60 to 1.0
Greater than 0.30 to 1.0 but equal to 0.55%
or less than 0.45 to 1.0
Equal to or less than 0.30 to 1.0 0.80%
"Fiscal Year" means the fiscal year of the Applicant.
"GAAP" means generally accepted accounting principles as in
effect from time to time, consistently applied.
"Governmental Authority" means any nation or government, any
state, department, agency or other political subdivision thereof,
and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any
government, and any corporation or other entity owned or
controlled (through stock or capital ownership or otherwise) by
any of the foregoing.
"Guarantee" by any Person means any obligation, contingent
or otherwise, of such Person directly or indirectly guaranteeing
any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct
or indirect, contingent or otherwise, of such Person (i) to
secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether
arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to
provide collateral security, to take-or-pay, or to maintain
financial statement conditions or otherwise), or (ii) entered
into for the purpose of assuring in any other manner the obligee
of such Debt or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantors" means, individually and collectively, (a) the
Operator, (b) Norco Windows, Inc., a Wisconsin corporation, (c)
Trus Joist MacMillan Limited, a British Columbia corporation, (d)
Trus-Joist (Western) Ltd., a Province of New Brunswick
corporation, (e) Trus Joist Corporation, a Delaware corporation,
(f) TJM Facilities Corporation, a Delaware corporation and (g)
any other Person delivering a Guaranty to the Bank, together with
each of their successors and permitted assigns.
"Guaranty" means, individually and collectively, (i) that
certain Guaranty Agreement, substantially in the form of Annex
III hereto, executed by each of the Guarantors, jointly and
severally, for the benefit of the Bank, together with all
amendments and modifications thereto, guaranteeing payment of the
obligations of the Applicant under this Agreement and the
Reimbursement Note and (ii) any other guaranty agreement
delivered to the Bank, each substantially in the form of Annex
III hereto, for the purpose of providing a Guarantee of any of
the Applicant's or the Guarantors' obligations under this
Agreement or any of the Related Documents, together with all
amendments and modifications thereto.
"Hazardous Materials" includes, without limitation, (a)
solid or hazardous waste, as defined in the Resource Conservation
and Recovery Act of 1980, or in any applicable state or local law
or regulation, (b) hazardous substances, as defined in CERCLA, or
in any applicable state or local law or regulation, (c) gasoline,
or any other petroleum product or by-product, (d) toxic
substances, as defined in the Toxic Substances Control Act of
1976, or in any applicable state or local law or regulation or
(e) insecticides, fungicides, or rodenticides, as defined in the
Federal Insecticide, Fungicide, and Rodenticide Act of 1975, or
in any applicable state or local law or regulation, as each such
Act, statute or regulation may be amended from time to time.
"Initial Expiration Date" means December 5, 2001.
"Lien" means any interest in property securing an obligation
owed to, or a claim by, a Person other than the owner of the
property, whether such interest is based on the common law,
statute or contract, and including but not limited to the lien or
security interest arising from a mortgage, encumbrance, pledge,
security agreement, conditional sale or trust receipt or a lease,
consignment or bailment for security purposes. The term "Lien"
shall include reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases and
other title exceptions and encumbrances affecting property. For
the purposes of this Agreement, the Applicant shall be deemed to
be the owner of any property which it has acquired or holds
subject to a conditional sale agreement, financing lease, or
other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security
purposes.
"Limited Partnership Agreement" means the Limited
Partnership Agreement dated as of September 30, 1991, between TJ
International, Inc. and MacMillan Bloedel of America Inc., as
amended from time to time.
"Loan Documents" has the meaning given such term in the
Credit Agreement.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any
adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), whether singly or in
conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or
not related, a material adverse change in, or a material adverse
effect upon, any of (a) the current or future financial
condition, operations, business, or properties of the Applicant
and its Consolidated Subsidiaries taken as a whole, (b) the
ability of the Applicant to perform its obligations under this
Agreement, the Credit Agreement, or the Related Documents or the
Loan Documents to which it is a party, as applicable, or (c) the
legality, validity or enforceability of (including the rights and
remedies of the Bank, the Agent and the Credit Banks under) this
Agreement, the Credit Agreement, or any of the Related Documents
or the Loan Documents.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Notice of Non-Extension" means a written notice delivered
by the Bank to the Applicant and the Trustee to the effect that
the Letter of Credit will not be extended for a Successive
Extension Period.
"Obligations" has the meaning set forth in Section 7.1
hereof.
"Official Statement" means the Final Offering Memorandum
dated September 14, 1988 with respect to the initial offering and
sale of the Bonds, as amended, supplemented or modified from time
to time through the date of issuance.
"Operator" means Trus Joist MacMillan a Limited Partnership,
a Delaware limited partnership and its successors and permitted
assigns.
"Payment Date" means the fifteenth day of each February,
May, August and November of each year, commencing February 15,
1999.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means any individual, joint venture, corporation,
company, voluntary association, partnership, trust, joint stock
company, unincorporated organization, association, government, or
any agency, instrumentality, or political subdivision thereof, or
any other form of entity.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Code and is either (a)
maintained by the Applicant or any member of the Controlled Group
for employees of the Applicant or any member of the Controlled
Group or (b) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more than one
employer makes contributions and to which the Applicant or any
member of the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding five
(5) plan years made contributions.
"Pledged Bonds" means those Bonds which have been purchased
from monies drawn under the Letter of Credit pursuant to the
Indenture and not remarketed by the Remarketing Agent pursuant to
the Indenture.
"Prime Rate" means that rate of interest so denominated and
set by the Bank from time to time as an interest rate basis for
borrowings. The Prime Rate is but one of several interest rate
bases used by the Bank, which lends at rates above and below the
Prime Rate. For purposes of calculating any interest rate
hereunder which is based on the Prime Rate, such interest rate
shall be adjusted automatically on the effective date of any
change in the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Applicant or any Subsidiary,
wherever located, including, without limitation, the Project.
"Purchase Price" shall have the meaning specified in Article
I of the Indenture.
"Redeemable Preferred Stock" of any Person means any
preferred stock issued by such Person which is at any time prior
to the Termination Date either (i) mandatorily redeemable (by
sinking fund or similar payments or otherwise) or (ii) redeemable
at the option of the holder thereof.
"Reimbursement Note" means the promissory note dated as of
even date herewith from the Applicant to the Bank evidencing the
Tender Advances, if any, to be made under this Agreement, which
promissory note shall be substantially in the form of Annex II
attached hereto and by this reference made a part hereof.
"Reimbursement Obligations" means any one or more of the
obligations of the Applicant to the Bank under Section 2.5 of
this Agreement.
"Related Documents" means the Refunding Agreement, the
Indenture, the Reimbursement Note and any other agreement or
instrument relating thereto or otherwise executed and delivered
in connection with the issuance of the Bonds or the Letter of
Credit.
"Remarketing Agent" means Piper Jaffray Inc. and its
successors appointed and serving in such capacity under the
Indenture.
"Reportable Event" means a Reportable Event as defined in
Section 4043(b) of ERISA and in any regulations promulgated
thereunder.
"Stated Amount" shall have the meaning specified in the
Letter of Credit.
"Subsidiary" means any corporation, partnership or other
entity of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at
the time directly or indirectly owned by the Applicant or a
Subsidiary of the Applicant and, in any event, shall include the
Operator.
"Successive Extension Period" has the meaning set forth in
Section 2.2(b) hereof.
"Tender Advance" has the meaning ascribed thereto in Section
2.5(b)(i) hereof.
"Tender Drawing" means an A Drawing under the Letter of
Credit to pay the portion of the Purchase Price corresponding to
principal of the Bonds.
"Termination Date" has the meaning assigned to that term in
the Letter of Credit.
Y2K Plan has the meaning set forth in Section 4.18.
ARTICLE II. THE LETTER OF CREDIT
Section 2.1. Agreement to Issue Letter of Credit. Subject
to the terms and conditions hereinafter set forth, the Bank
hereby agrees to issue the Letter of Credit on the Date of
Issuance. The Letter of Credit shall be issued in an amount
equal to the sum of (a) the aggregate principal amount of the
Bonds, plus (b) an amount equal to one hundred twenty-four (124)
days' interest on the Bonds, computed as though the Bonds bore
interest at the rate of twelve percent (12%) per annum
notwithstanding the actual rate borne by the Bonds from time to
time and based on a 365/366-day year for the actual days elapsed.
Section 2.2. Term of Letter of Credit; Extensions of the
Term.
(a) The term of the Letter of Credit shall end on the
Termination Date.
(b) The initial term of the Letter of Credit is stated to
expire, subject to earlier termination, on the Initial Expiration
Date. In the event that the Bank has not delivered a Notice
of Non-Extension prior to the first anniversary of the Date of
Issuance, or, in the event that the Initial Expiration Date shall
have been automatically extended in accordance with this
paragraph, prior to any subsequent anniversary of the Date of
Issuance, the Expiration Date shall be automatically extended on
each such anniversary of the Date of Issuance for successive
additional periods of one calendar year each ("Successive
Extension Periods"). Upon the delivery by the Bank to the
Applicant and the Trustee of a Notice of Non-Extension prior to
any anniversary of the Date of Issuance, the Expiration Date
shall no longer be extended and shall be the date which is two
years following the anniversary date of the Date of Issuance next
following the date of delivery of such Notice of Non-Extension.
The Bank's decision to deliver a Notice of Non-Extension shall be
made in its sole and absolute discretion and no course of dealing
or other circumstance shall require the Bank to refrain from
delivering a Notice of Non-Extension.
(c) The Letter of Credit may be canceled or replaced
at any time (to the extent permitted under the Indenture) without
penalty or premium at the request of the Applicant upon
satisfaction of all conditions specified in subsections (i), (ii)
and (iii) hereof:
(i) the Applicant shall have given not less than
forty-five (45) days prior written notice to the Bank that the
Applicant desires to cancel or replace the Letter of Credit;
(ii) all Reimbursement Obligations (including all
Letter of Credit fees) shall have been paid in full; and
(iii) the Letter of Credit shall have been returned
to the Bank for cancellation.
Upon the cancellation or replacement of the Letter of
Credit in accordance with this Section 2.2(c), the Bank will
within ten (10) days of the effective date of such cancellation
or replacement refund to the Applicant any unearned portion of
the letter of credit fee previously paid by the Applicant to the
Bank pursuant to Section 2.4(a).
Section 2.3. Reduction and Reinstatement of Stated Amount.
The Stated Amount of the Letter of Credit shall be reduced and
reinstated as provided in the Letter of Credit. Without limiting
the provisions of the Letter of Credit, the portion of the Stated
Amount allocated to interest shall be reduced in an amount equal
to each draw for interest on the Bonds, but shall be reinstated
automatically ten (10) Business Days after drawing unless the
Bank shall have notified the Trustee that an Event of Default has
occurred and is continuing. In addition, and without limiting
the provisions of the Letter of Credit, the portion of the Stated
Amount allocated to principal shall be reduced in an amount equal
to any draw thereunder for principal of the Bonds, but with
respect to any Tender Drawing, will be reinstated upon receipt by
the Trustee of notice from the Bank that the Tender Advance
applicable thereto has been repaid.
Section 2.4. Fees Relating to Letter of Credit.
(a) The Applicant hereby agrees to pay to the Bank
quarterly in advance commencing on the Date of Issuance and
thereafter on each Payment Date a letter of credit fee in an
amount equal to one-quarter of the product of the Stated Amount
(determined without taking into account any reductions pursuant
to Section 2.3 hereof of the portion of the Stated Amount
allocated to interest) in effect on the date of such payment
multiplied by the Fee Percentage in effect on such date. The
letter of credit fee shall be computed on the basis of actual
days elapsed and a 365-day year.
(b) The Bank shall have the right from time to time,
by written notice delivered to the Applicant no less than sixty
(60) days prior to the first anniversary of the Date of Issuance
or prior to each successive anniversary of the Date of Issuance
(each a "Notice of Adjustment"), to adjust the Fee Percentage.
Any such adjustment of the Fee Percentage shall become effective
beginning on the anniversary of the Date of Issuance immediately
succeeding the date on which the related Notice of Adjustment
was delivered and shall continue to be effective until a
subsequent Notice of Adjustment is delivered and becomes
effective in accordance with this subsection.
(c) If after the date hereof any change shall occur in
any law or regulation or in the interpretation thereof by any
court or administrative or Governmental Authority charged with
the administration thereof, or in GAAP, which change shall either
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against letters of credit issued
by, or assets held by, or deposits in or for the account of, the
Bank or (ii) impose on the Bank any other condition relating,
directly or indirectly, to this Agreement, the Reimbursement Note
or the Letter of Credit and the result of any event referred to
in clause (i) or (ii) of this subsection shall be to increase the
cost to the Bank of issuing or maintaining the Letter of Credit
by an amount deemed by the Bank to be material, then the
Applicant shall pay to the Bank, within 15 days following demand
therefor by the Bank, such additional amounts as the Bank shall
reasonably determine are necessary to compensate the Bank for
such increased cost together with interest on each such amount
from the date such amount is due until payment in full at the
Default Rate. With each demand for payment under this
subsection, the Bank shall deliver to the Applicant a certificate
as to such increased cost incurred by the Bank as a result of any
event mentioned in this subsection shall be submitted by the Bank
to the Applicant and shall be conclusive (absent manifest error)
as to the amount thereof. The effect of any such increased cost
which is imposed on the Bank, will be fairly allocated to the
Letter of Credit in relation to similar obligations subject to
similar charges.
(d) If after the date hereof, the Bank shall have
determined that the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or
any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance
by the Bank with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on the
Bank's capital as a consequence of its obligations under the
Letter of Credit to a level below that which the Bank
could have achieved but for such adoption, change or compliance
(taking into consideration the Bank's policies with respect to
capital adequacy) by an amount deemed by the Bank to be material,
then the Applicant shall pay to the Bank, within 15 days
following notice of such change by the Bank by submission to the
Applicant of the certificate hereinafter described, such
additional amount or amounts as will compensate the Bank for such
reduction. All payments pursuant to this subsection (d) shall
bear interest thereon from the date such amount is due until
payment in full at the Default Rate. With each demand for
payment under this subsection, the Bank shall deliver to the
Applicant a certificate of the Bank claiming compensation under
this subsection (d) and setting forth the additional amount or
amounts to be paid hereunder and setting forth in reasonable
detail the basis therefor and the manner of calculation thereof.
Such certificate shall be conclusive in the absence of manifest
error. The effect of any such increased cost which is imposed on
the Bank, will be fairly allocated to the Letter of Credit in
relation to similar obligations subject to similar charges.
(e) The Applicant hereby agrees to pay to the Bank
upon each drawing under the Letter of Credit in accordance with
its terms a drawing fee equal to $100.00 per drawing. Such fee
is due and payable on the date each drawing under the Letter of
Credit is made.
Section 2.5. Reimbursement of Drawings under Letter of
Credit.
(a) The Applicant hereby agrees to pay to the Bank:
(i) except as set forth in subsection (b) below
applicable to Tender Drawings and except to the extent that any
drawing under the Letter of Credit is to be paid from the
proceeds of a Tender Advance made pursuant to Section 2.6 below,
immediately after (and on the same Business Day as) any amount is
honored under the Letter of Credit, a sum (and interest on such
amount as provided in subsection (c) below) equal to the amount
so drawn; and
(ii) any and all expenses incurred by the Bank in
enforcing any rights under this Agreement.
(b) (i) Unless an Event of Default or Default shall
have occurred and be continuing, the proceeds of the amount of
each Tender Drawing (other than a Tender Drawing upon conversion
of the interest rate on the Bonds to a Fixed Rate (as defined in
the Indenture)) shall, as provided in Section 2.6 below,
constitute an advance made by the Bank to the Applicant on the
date and in the amount of said drawing, each such advance being
hereinafter referred to as a "Tender Advance." Each Tender
Advance shall be treated as a reimbursement of the amount of the
related Tender Drawing pursuant to Section 2.5(a) above. Any
amounts drawn to pay the portion of the Purchase Price of the
Bonds constituting interest shall be reimbursed as provided in
Section 2.5(a) above.
(ii) Each Tender Drawing under the Letter of
Credit shall constitute a representation and warranty by the
Applicant that the representations
and warranties contained in Section 4.1 hereof are true and
correct on and as of the date of such Tender Drawing as if made
on and as of such date.
(c) The Applicant shall pay to the Bank upon demand
interest at the Default Rate on any and all amounts unpaid by the
Applicant when due hereunder (in the case of amounts in respect
of interest, to the maximum extent permitted by law) for each day
from the date such amounts became due until payment in full.
Section 2.6. Tender Advances, Prepayments, Interest
Computations and Notices.
(a) The Bank agrees, on the terms and conditions of
this Agreement, to make Tender Advances to the Applicant for the
purpose of paying Tender Drawings arising from time to time. The
Bank agrees that upon any Tender Drawing under the Letter of
Credit the Bank shall, without any notice or other action on the
part of the Applicant but subject to the satisfaction of the
conditions precedent set forth in subsections (b) and (c) of
Section 2.8 hereof, make a Tender Advance in an amount equal to
such Tender Drawing, the proceeds of which shall automatically be
applied by the Bank to the payment in full of the Tender Drawing.
The Applicant hereby agrees to pay to the Bank the aggregate
unpaid principal amount of the Tender Advances together with all
accrued and unpaid interest thereon on the Termination Date. The
Tender Advances shall be made against and evidenced by and
repayable as provided in the Reimbursement Note. The Applicant
hereby authorizes the Bank to endorse on the schedule attached to
the Reimbursement Note (or any continuation thereof) the amount
of each Tender Advance made by the Bank to the Applicant
hereunder, the date such Tender Advance is made and the amount of
each payment or prepayment of principal of such Tender Advance
received by the Bank; provided, however, that any failure by the
Bank to make, or any error in making, any such endorsement shall
not limit, modify or affect the obligations of the Applicant
hereunder or under the Reimbursement Note in respect of such
Tender Advances.
(b) The Applicant hereby promises to pay to the Bank
interest at a rate per annum equal to the Prime Rate on the
unpaid principal amount of each Tender Advance for the period
commencing on the date of such Tender Advance to, but excluding,
the date such Tender Advance is paid in full. Accrued interest
on each Tender Advance shall be payable (i) on each Payment Date,
(ii) upon the payment or prepayment thereof (but only on the
principal so paid or prepaid), and (iii) on the Termination Date.
(c) All Tender Advances may be prepaid (i) at any time
by the Applicant on one (1) Business Day's notice stating the
amount to be prepaid (which shall be $5,000, a whole number
multiple thereof), and (ii) at any time on behalf of the
Applicant on one (1) Business Day's notice from the Applicant
directing the Bank to release a specified principal amount of
Pledged Bonds held by the Bank or its designated pledge agent for
remarketing pursuant to the Indenture. Each such notice of
prepayment shall be irrevocable and shall specify the Tender
Advance to be prepaid and the amount of the Tender Advance to be
prepaid and the date of prepayment (which date shall be a
Business Day). Upon payment to the Bank of the amount to be
prepaid pursuant to clause (i) or (ii) above, together with
accrued interest, as set forth in Section 2.6(b)(ii) hereof, to
the date of such prepayment on the amount to be prepaid, the
outstanding obligations of the Applicant under the Reimbursement
Note shall be reduced by the
amount of such prepayment, interest shall cease to accrue on the
amount prepaid, and the Bank shall release from the pledge and
security interest created under Section 7.1 hereof a principal
amount of Pledged Bonds equal to the amount of such prepayment;
provided that prior to such release the Applicant shall have paid
to the Bank the amount owing in respect of Section 2.6(b)(ii)
hereof. Such Bonds shall be delivered to the Applicant, in the
event of a prepayment pursuant to clause (i) above, or to the
Paying Agent pursuant to the Indenture, in the event of a
prepayment pursuant to clause (ii) above, as appropriate.
Section 2.7. Form and Place of Payments; Computation of
Interest. All payments by the Applicant to the Bank hereunder
shall be made in lawful currency of the United States and in
immediately available funds at the Bank's office located at 191
Peachtree Street, N.E., Atlanta, Georgia 30303 or at such other
location of the Bank as the Bank directs in writing to the
Applicant. Payments may also be made by wire transfer of
immediately available funds to Wachovia Bank, N.A., ABA#
0531-00-494, Account #8726-800300, Attention: Standby L/C Unit.
Whenever any payment hereunder shall be due on a day which is not
a Business Day, the date for payment thereof shall be extended to
the next succeeding Business Day, and any interest payable
thereon shall be payable for such extended time at the specified
rate. All interest (including, without limitation, interest on
Tender Advances) and fees (excluding the letter of credit fee)
hereunder shall be computed on the basis of a 360 day year for
the actual number of days elapsed and shall include the first day
but exclude the last day of the relevant period.
Section 2.8. Conditions Precedent to Issuance of Letter of
Credit. Each of the following is a condition precedent to the
obligation of the Bank to issue the Letter of Credit.
(a) The Bank shall have received on or before the Date
of Issuance the following in form and substance satisfactory to
the Bank:
(i) the duly executed original Reimbursement
Note, together with a duly executed original counterpart of this
Agreement, the Guaranty and each of the other Related Documents;
(ii) the opinion of counsel to the Applicant and
the Guarantors dated the Date of Issuance, addressed to the Bank,
in form and substance satisfactory to the Bank;
(iii) the opinion of bond counsel, dated the
Date of Issuance, required pursuant to Section 505 of the
Indenture;
(iv) a copy of the resolutions of the Board of
Directors of the Applicant authorizing execution and delivery by
the Applicant of this Agreement and the Reimbursement Note,
certified by the Secretary of the Applicant;
(v) a certificate of good standing for the
Applicant from the state of its incorporation and a certificate
of authority to transact business as a foreign corporation from
the state in which the Project is located;
(vi) a certificate of incumbency of the Applicant,
signed by the Secretary of the Applicant, certifying as to the
names, true signatures and incumbency of the officer or officers
of the Applicant authorized to execute and deliver this Agreement
and the Reimbursement Note;
(vii) copies of (A) the certificate of
incorporation of the Applicant certified by the Secretary of
State of the state of the Applicant's incorporation, and (B) the
bylaws of the Applicant certified by the Secretary of the
Applicant;
(viii) copies of all documents which the Bank
may reasonably request relating to the existence of the
Guarantors, the corporate or partnership authority, as
applicable, for and the validity of the Guaranty and any other
matters relevant thereto, all in form and substance satisfactory
to the Bank, including, without limitation, a certificate of
incumbency of each of the Guarantors, signed by the Secretary or
an Assistant Secretary of each of the Guarantors or their general
partners, as applicable, certifying as to the names, true
signatures and incumbency of the officer or officers of the
Guarantors or their general partners, as applicable, authorized
to execute and deliver the Guaranty, and certified copies of the
following items, for each of the Guarantors: (i) Certificate or
Articles of Incorporation or partnership certificate, (ii) Bylaws
(if a corporation), (iii) a certificate of the Secretary of State
(or other appropriate issuer) of the state (or province) of
incorporation of each as to the good standing of each in that
state (or province) (if a corporation), and (iv) the action taken
by the Board of Directors authorizing the execution, delivery and
performance of the Guaranty;
(ix) certified copies of all approvals,
authorizations, or consents of, or notices to or registrations
with, any Governmental Authority required to be obtained, given
or effected by the Applicant with respect to the extension of the
maturity of the Bonds;
(x) a certificate, dated the Date of Issuance,
signed by authorized officers of the Applicant, to the effect
that this Agreement and the Reimbursement Note have been executed
by duly authorized officials, that the signatures appearing
thereon are true and that there is no action, suit, proceeding,
inquiry or investigation known to the Applicant before or by any
court, public board or body pending or threatened against or
affecting the Applicant wherein an unfavorable decision, ruling
or finding would have a Material Adverse Effect; and
(xi) such other certificates, documents,
instruments, approvals, consents or opinions as the Bank may
reasonably request.
(b) On or before the Date of Issuance and the date of
each Tender Advance the Bank shall be satisfied that (i) there
has been no material adverse change in the financial condition,
manner of operation, properties or prospects of the Applicant and
(ii) all information,
representations and materials submitted to the Bank by the
Applicant in connection with the issuance of the Letter of Credit
are accurate in all material respects;
(c) The following statements shall be true and correct
on the Date of Issuance and the date of each Tender Advance and
the Bank shall have received a certificate signed by a duly
authorized officer of the Applicant, dated the Date of Issuance,
stating that:
(i) the representations and warranties contained
in Article IV hereof are correct on and as of the Date of
Issuance as though made on and as of such date; and
(ii) no Default has occurred and is continuing or
would result from the execution and delivery of this Agreement or
the issuance of the Letter of Credit.
(d) On or before the Date of Issuance all requirements
relating to the issuance of the Letter of Credit as an "Alternate
Credit Facility" pursuant to the Indenture shall have been
satisfied.
ARTICLE III. OBLIGATIONS ABSOLUTE
Section 3.1. Obligations Absolute, Unconditional and
Irrevocable. The obligations of the Applicant under this
Agreement and the Related Documents shall be absolute,
unconditional and irrevocable, and shall be performed strictly in
accordance with the terms hereof and thereof, under all
circumstances whatsoever, irrespective of any of the following
circumstances:
(a) any lack of validity or enforceability of this
Agreement, the Letter of Credit, the Bonds or any of the Related
Documents;
(b) any amendment or waiver of or any consent to
departure from this Agreement, the Letter of Credit, the Bonds or
all or any of the Related Documents;
(c) the existence of any claim, setoff, defense or
other rights which the Applicant or any other Person may have at
any time against the Trustee, the Remarketing Agent, any
beneficiary or any transferee of the Letter of Credit (or any
Person for whom the Trustee, the Remarketing Agent, any such
beneficiary or any such transferee may be acting), the Bank, or
any Person other than the Bank, whether in connection with this
Agreement, the Letter of Credit, the Bonds or any of the Related
Documents or any unrelated transaction;
(d) any statement or any other document presented
under the Letter of Credit proving to be forged, fraudulent or
invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect whatsoever;
(e) payment by the Bank under the Letter of Credit
against presentation of a draft or certificate which does not
comply with the terms of such Letter of Credit; and
(f) any other circumstance or happening whatsoever
whether or not similar to any of the foregoing.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
The Applicant represents and warrants to the Bank as
follows:
Section 4.1. Organization and Existence. The Applicant is
a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation,
has the corporate power and legal authority to own its property
and to carry on its business as now being conducted, is duly
qualified to do business in every jurisdiction in which the
nature of its business or property makes such qualification
necessary and has all governmental licenses, authorizations,
consents and approvals required to carry on its business as now
conducted, except where noncompliance would not have a Material
Adverse Effect.
Section 4.2. Authority; No Conflict. The execution,
delivery and performance of this Agreement and each of the
Related Documents to which the Applicant is a party and the
consummation of the transactions contemplated hereby and thereby,
(i) are within the legal power and authority of the Applicant,
(ii) have been duly authorized by all requisite actions, (iii) do
not and will not conflict with, contravene or violate any
material provision of, or result in a material breach of or
default under, or require the waiver (not already obtained) of
any material provision of or the consent (not already given) of
any Person under the terms of, its articles of incorporation or
bylaws, or any material indenture, mortgage, deed of trust, loan
or credit agreement or other agreement or instrument to which the
Applicant is a party or by which it is bound or to which any of
its properties are subject; (iv) will not violate, conflict with,
give rise to any liability under, or constitute a default under
any law, regulation, order (including, without limitation, all
applicable state and federal securities laws) or any other
requirement of any court, tribunal, arbitrator, or Governmental
Authority; and (v) will not result in the creation, imposition,
or acceleration of any indebtedness or tax or any mortgage, Lien
(except as otherwise contemplated in this Agreement),
reservation, covenant, restriction, or other encumbrance of any
nature upon, or with respect to, the Applicant or any of its
properties which creation, imposition or acceleration would have
a material adverse impact upon the business operations or the
financial condition of the Applicant.
Section 4.3. Binding Effect. This Agreement constitutes,
and each Related Document to which the Applicant is a party when
executed and delivered by each of the other parties thereto will
constitute, the legal, valid and binding obligation of the
Applicant enforceable against the Applicant in accordance with
its terms except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws,
statutes or rules of general application affecting the
enforcement of creditors rights or general principles of equity.
Section 4.4. Governmental Approval. The execution,
delivery and performance by the Applicant of this Agreement and
the Related Documents to which the Applicant is a party and the
transactions contemplated hereby and thereby do not require any
further action, approval or consent of, or filing with, any
Governmental Authority by or with respect to the Applicant.
Section 4.5. Litigation. There is no action, suit, claim
or proceeding pending against or affecting the Applicant, nor to
the knowledge of the officers of the Applicant threatened, before
any court, commission, panel, board, bureau or arbitrator or
before or by any Governmental Authority and which, in any one
case or in the aggregate, if determined adversely to the
interests of the Applicant would (i) have a Material Adverse
Effect, (ii) materially and adversely affect the ability of the
Applicant to perform its obligations under this Agreement or any
Related Document to which the Applicant is a party, or (iii)
question the validity or enforceability of this Agreement or any
Related Document to which the Applicant is a party.
Section 4.6. Compliance with ERISA. (a) The Applicant and
each member of the Controlled Group has fulfilled its obligations
under the minimum funding standards of ERISA and the Code with
respect to each Plan and are in compliance in all material
respects with the presently applicable provisions of ERISA and
the Code, and have not incurred any liability to the PBGC (other
than premiums due and not delinquent under Section 4007 of ERISA)
or a Plan under Title IV of ERISA. The representations and
warranties set forth in this Section 4.6(a) (other than as to the
incurrence of any liability to a Plan under Title IV of ERISA)
are made to the best of the Applicant's knowledge to the extent
they apply to any Multiemployer Plan.
(b) Neither the Applicant nor any member of the
Controlled Group has incurred any withdrawal liability with
respect to any Multiemployer Plan under Title IV of ERISA, and no
such liability is expected to be incurred.
Section 4.7. Official Statement. The information relating
to the Applicant, the Operator or the Project, or any other
information supplied by the Applicant in writing, that is
contained in the Official Statement is true, correct and complete
in all material respects as of the Date of Issuance.
Section 4.8. Financial Information. The audited annual
financial statements of the Applicant for the most recently
completed fiscal year (such annual financial statements,
including the notes thereto, hereinafter collectively called the
"Financial Statements"), fairly reflect the financial condition
of the Applicant as of the dates and for the periods stated.
Since the dates of the Financial Statements, there has been no
material adverse change in the financial condition, the business
or operations of the Applicant from that set forth on the
Financial Statements.
Section 4.9. Material Liabilities. The Applicant has no
material liabilities, direct or contingent, except: (i) those
disclosed in the Financial Statements, and (ii) those arising in
the ordinary course of business since the date of the Financial
Statements which in the aggregate have no materially adverse
affect on the financial condition of the Applicant.
Section 4.10. Taxes. The Applicant has filed all required
federal, state and local tax returns and have paid all taxes as
shown on such returns or as assessed as such taxes have become
due (except as such taxes or assessments are being contested in
good faith by appropriate proceedings and for which reserves
consistent with GAAP have been established on the Applicant's
books). No claims have been assessed and are unpaid with respect
to such taxes except as shown in the Financial Statements. The
charges, accruals and reserves on the books of
the Applicant in respect of taxes and other governmental charges
are, in the opinion of the Applicant, adequate.
Section 4.11. Representations and Warranties True. None of
the representations or warranties made by the Applicant in this
Agreement or in any Related Document contains any untrue
statement of material fact or omits any material fact necessary
to make the statements made not misleading.
Section 4.12. Environmental Matters. (a) The Applicant is
not subject to any Environmental Liability which could have or
cause a Material Adverse Effect and the Applicant has not been
designated as a potentially responsible party under CERCLA or
under any state statute similar to CERCLA. None of the
Properties have been identified on any current or proposed (i)
National Priorities List under 40 C.F.R. Section 300, (ii)
CERCLIS list or (iii) any list arising from a state statute
similar to CERCLA.
(b) No Hazardous Materials have been or are being
used, produced, manufactured, processed, generated, stored,
disposed of, managed at, or shipped or transported to or from the
Properties or are otherwise present at, on, in or under the
Properties, or, to the best of the knowledge of the Applicant, at
or from any adjacent site or facility, except for Hazardous
Materials, such as cleaning solvents, pesticides and other
materials used, produced, manufactured, processed, generated,
stored, disposed of, and managed in the ordinary course of
business in compliance with all applicable Environmental
Requirements.
Section 4.13. No Default. The Applicant is not in default
under or in violation of any material agreement, instrument,
contract or other document to which the Applicant is a party or
by which any of its assets are bound.
Section 4.14. Margin Stock. The Applicant is not engaged
principally or as one of its important activities in the business
of extending credit for the purpose of purchasing or carrying
"margin stock" (as defined in Regulations T, U or X of the Board
of Governors of the Federal Reserve System, as in effect from
time to time, together with all official rulings and
interpretations issued thereunder). The execution, delivery and
performance of this Agreement and the use of the proceeds of the
Bonds or any extension of credit hereunder, do not and will not
constitute a violation of said Regulations.
Section 4.15. Investment Company. The Applicant is not an
"investment company" or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of
1940, as amended.
Section 4.16. Public Utility Holding Company. The
Applicant is not a "holding company," or a "subsidiary company"
of a "holding company," or an "affiliate" of a "holding company"
or a "subsidiary company" of a "holding company," within the
meaning of the Public Utility Holding Company Act of 1935, as
amended.
Section 4.17. Full Disclosure. All information heretofore
furnished by the Applicant to the Bank for purposes of or in
connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by the
Applicant to the Bank will be, true, accurate and complete in
every material respect or based on reasonable estimates on the
date as of which such information is stated or certified. The
Applicant has disclosed to the Bank in writing any and all facts
which (to the extent the Applicant can now reasonably foresee)
could have or cause a Material Adverse Effect.
Section 4.18. Year 2000 Compliance. The Applicant and each
Subsidiary has (a) initiated a review and assessment of all areas
within its and each of its Subsidiaries' business and operations
(including those affected by suppliers and vendors) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk
that computer applications used by the Applicant or any of its
Subsidiaries (or their respective suppliers and vendors) may be
unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31,
1999), (b) developed a plan and timeline for addressing the Year
2000 Problem on a timely basis, and as of the date of this
agreement is implementing that plan in accordance with that
timetable (the "Y2K Plan"). The Applicant and each Subsidiary
reasonably believes that all computer applications (including
those of its suppliers and vendors) that are material to its or
any of its Subsidiaries' business and operations will on a timely
basis be able to perform properly date-sensitive functions for
all dates before and after January 1, 2000, except to the extent
that a failure to do so could not reasonably be expected to have
a Material Adverse Effect.
Section 4.19. Compliance with Laws. The Applicant and its
Subsidiaries' are in compliance with all applicable laws,
including, without limitation, all Environmental Laws, except
where any failure to comply with any such laws would not, alone
or in the aggregate, have or cause a Material Adverse Effect.
ARTICLE V. COVENANTS
Section 5.1 Incorporation of Covenants. The Applicant
covenants and agrees that during the term of this Agreement,
unless the Bank otherwise consents in writing, the Applicant
shall comply with the covenants and agreements of the Applicant
set forth in Article V of the Credit Agreement as in effect on
the date of this Agreement, which covenants and agreements and,
for the sole purpose of giving meaning to such covenants and
agreements, the definitions of the terms used in such covenants
and agreements, are and shall be incorporated herein by this
reference and such covenants and agreements and definitions so
incorporated shall have the same force and effect as if they were
individually set forth in this Agreement. If the Credit
Agreement is amended subsequent to the date of this Agreement and
the Bank has voted in favor of such amendment(s), such
amendment(s) shall be deemed to modify the covenants and
agreements as incorporated herein and shall be binding upon the
Applicant and the Bank hereunder.
Section 5.2. Year 2000 Covenant. Within five (5) Business
Days after the Applicant becomes aware of any deviations from the
Y2K Plan which would cause compliance with the Y2K Plan to be
delayed or not achieved, the Applicant will deliver to the Bank a
statement of the chief executive officer, chief financial
officer, or chief technology officer of the Applicant setting
forth the details thereof and the action which the Applicant is
taking or proposes to take with respect thereto.
ARTICLE VI. EVENTS OF DEFAULT; REMEDIES
Section 6.1. Events of Default. Each of the following
shall constitute an Event of Default hereunder:
(a) The Applicant shall fail to pay (i) any amount
payable under Section 2.5(a)(i) or Section 2.6(a) of this
Agreement when due or (ii) any interest, fee or other amount
payable under this Agreement within 5 Business Days after such
interest, fee or other amount becomes due.
(b) The Applicant shall fail to observe or perform any
covenant or agreement contained in Sections 5.01, 5.02(ii), 5.03
to 5.15, inclusive, Sections 5.18, 5.19, 5.20, 5.22 through 5.23,
inclusive, of the Credit Agreement, which Sections, among others,
are incorporated by reference in this Agreement pursuant to
Article V of this Agreement.
(c) The Applicant shall fail to observe or perform any
covenant or agreement contained or incorporated by reference in
this Agreement (other than those covered by paragraph (a) or (b)
above) and such failure shall not have been cured within thirty
(30) days after the earlier to occur of (i) written notice
thereof has been given to the Applicant by the Bank or (ii) the
Applicant otherwise becomes aware of any such failure.
(d) Any representation, warranty, certification or
statement made by the Applicant in Article IV of this Agreement
or by any Guarantor in the Guaranty or by the Applicant or any
Guarantor in any certificate, financial statement or other
document delivered pursuant to this Agreement or the Guaranty
shall prove to have been incorrect or misleading in any material
respect when made (or deemed made).
(e) The Applicant or any Subsidiary shall fail to make
any payment in respect of Debt outstanding in an aggregate amount
equal to or exceeding $5,000,000 when due or within any
applicable grace period.
(f) Any event or condition shall occur which results
in the acceleration of the maturity of Debt outstanding in an
aggregate amount exceeding $10,000,000 of the Applicant or any
Subsidiary (including, without limitation, any mandatory
prepayment or "put" of such Debt to the Applicant or any
Subsidiary) or enables (or, with the giving of notice or lapse of
time or both, would enable) the holders of such Debt or any
Person acting on such holders' behalf to accelerate the maturity
thereof (including, without limitation, any mandatory prepayment
or "put" of such Debt to the Applicant or any Subsidiary).
(g) The Applicant or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its
reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any
such official in an involuntary case oar other proceeding
commenced against it, or shall make a general assignment
for the benefit of creditor, or shall a general assignment for
the benefit of creditor, or shall fail generally to pay its debts
as they become due, or shall take any corporate action to
authorize any of the foregoing.
(h) An involuntary case or other proceeding shall be
commenced against the Applicant or any Subsidiary seeking
liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of its or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and
unstayed for a period of sixty (60) days; or an order for relief
shall be entered against the Applicant or any Subsidiary under
the federal bankruptcy laws as now or hereafter in effect.
(i) One or more of the following events shall have
occurred and created a potential liability for the Applicant or
any member of the Controlled Group, singularly or in the
aggregate, in excess of $5,000,000: the Applicant or any member
of the Controlled Group shall fail to pay when due any material
amount which it shall have become liable to pay to the PBGC or to
a Plan under Title IV of ERISA; or notice of intent to terminate
a Plan or Plans pursuant to a distress termination under Section
4041(c) of ERISA shall be filed under Title IV of ERISA by the
Applicant, any member of the Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate
or to cause a trustee to be appointed to administer any such Plan
or Plans or a proceeding shall be instituted by a fiduciary of
any such Plan or Plans to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within
thirty (30) days thereafter; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree
adjudicating that any such Plan or Plans must be terminated.
(j) One or more judgments or orders for the payment of
money in an aggregate amount in excess of $5,000,000 shall be
rendered against the Applicant or any Subsidiary and such
judgment or order shall continue unsatisfied and unstayed for a
period of thirty (30) days.
(k) A federal tax lien shall be filed against the
Applicant under Section 6323 of the Code or a lien of the PBGC
shall be filed against the Applicant or any Subsidiary under
Section 4068 of ERISA and in either case such lien shall remain
undischarged for a period of twenty-five (25) days after the date
of filing.
(l) (i) Any Person or two or more Persons acting in
concert shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of fifty percent (50%)
or more of the outstanding shares of the voting stock of the
Applicant; or (ii) as of any date a majority of the Board of
Directors of the Applicant shall consist of individuals who were
not either (A) directors of the Applicant as of the corresponding
date of the previous year, (B) selected or nominated to become
directors by the Board of Directors of the Applicant of which a
majority consisted of individuals described in clause (A), or (C)
selected or nominated to become directors by the Board of
Directors of the Applicant of which a majority consisted of
individuals described in
clause (B); or (iii) the Applicant shall cease to serve as the
General Partner of Trus Joist MacMillan a Limited Partnership; or
(iv) the Applicant shall cease to beneficially own fifty-one
percent (51%) or more of the ownership interests of Trus Joist
MacMillan, a Limited Partnership.
(m) The occurrence of any event, act, occurrence, or
condition which the Bank determines either does or has a
reasonable probability of causing a Material Adverse Effect.
Section 6.2. Remedies. If an Event of Default occurs and
is continuing hereunder, the Bank may, in its sole discretion,
(a) declare all Tender Advances and all other amounts due
hereunder and all interest accrued thereon to be immediately due
and payable, and upon such declaration the same shall become and
be immediately due and payable, without presentment, protest or
other notice of any kind, all of which are hereby waived by the
Applicant, and (b) notify the Trustee of such occurrence and
thereby require the Trustee immediately to declare the principal
of all Bonds then outstanding and the interest accrued thereon
immediately due and payable pursuant to the Indenture and (c)
may pursue all remedies available to it at law, by contract, at
equity or otherwise.
No failure or delay by the Bank to exercise any right,
power or privilege hereunder shall operate as a waiver of any
such right, power or privilege nor shall any single or partial
exercise of any right, power or privilege preclude any other or
further exercise thereof. The rights and remedies herein
provided are cumulative and not exclusive of any rights or
remedies provided by law.
ARTICLE VII. PLEDGED BONDS
Section 7.1. The Pledge. The Applicant and the
Operator each hereby pledges, assigns, hypothecates, transfers,
and delivers to the Bank all of its right, title and interest to,
and hereby grant to the Bank a first lien on, and security
interest in, all right, title and interest of the Applicant and
the Operator in and to the following (hereinafter collectively
called the "Collateral"):
(a) all Pledged Bonds;
(b) all income, earnings, profits, interest, premium
or other payments in whatever form in respect of the Pledged
Bonds;
(c) all proceeds (cash and non-cash) arising out of
the sale, exchange, collection, enforcement or other disposition
of all or any portion of the Pledged Bonds.
The Collateral shall serve as security for the payment and
performance when due of any and all duties, debts, liabilities
and obligations of the Applicant and the Operator (either
directly, as maker, or indirectly, as guarantor, surety, endorser
or otherwise) to the Bank, whether now or hereafter existing,
howsoever arising or incurred or evidenced including
specifically, but without limitation, the Reimbursement
Obligations and the Reimbursement Note (hereinafter collectively
called the "Obligations"). The Applicant and the Operator shall
deliver, or cause to be delivered,
the Pledged Bonds to the Bank or to a pledge agent designated by
the Bank immediately upon receipt thereof.
Section 7.2. Remedies Upon Default. If any Event of
Default shall have occurred and be continuing, the Bank, without
demand of performance or other demand, advertisement or notice of
any kind (except the notice specified below of time and place of
public or private sale) to or upon the Applicant, the Operator or
any other person (all and each of which demands, advertisements
and/or notices are hereby expressly waived), may forthwith
collect, receive, appropriate and realize upon the Collateral, or
any part thereof, and/or may forthwith sell, assign, give option
or options to purchase, contract to sell or otherwise dispose of
and deliver said Collateral, or any part thereof, in one or more
parcels at public or private sale or sales, at any exchange,
broker's board or at any of the Bank's offices or elsewhere upon
such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future
delivery without assumption of any credit risk, with the right to
the Bank upon any such sale or sales, public or private, to
purchase the whole or any part of said Collateral so sold, free
of any right or equity of redemption in the Applicant or the
Operator, which right or equity is hereby expressly waived or
released. The Bank shall apply the net proceeds of any such
collection, recovery, receipt, appropriation, realization or
sale, after deducting all reasonable costs and expenses of every
kind incurred therein or incidental to the care, safekeeping or
otherwise of any and all of the Collateral or in any way relating
to the rights of the Bank hereunder, including reasonable
attorney's fees and legal expenses, to the payment in whole or in
part of the Obligations in such order as the Bank may elect, the
Applicant and the Operator remaining liable for any deficiency
remaining unpaid after such application, and only after so
applying such net proceeds and after the payment by the Bank of
any other amount required by any provision of law, including,
without limitation, Section 9-504(1)(c) of the Uniform Commercial
Code, need the Bank account for the surplus, if any, to the
Applicant and the Operator. The Applicant and the Operator agree
that the Bank need not give more than ten (10) days notice of the
time and place of any public sale or of the time after which a
private sale or other intended disposition is to take place and
that such notice is reasonable notification of such matters. No
notification need be given to the Applicant or the Operator if it
has signed after Default a statement renouncing or modifying any
right to notification of sale or other intended disposition. In
addition to the rights and remedies granted to the Bank in this
Agreement and in any other instrument or agreement securing,
evidencing or relating to any of the Obligations, the Bank shall
have all the rights and remedies of a secured party under the
Uniform Commercial Code in effect in the State of Georgia at that
time.
If the Bank sells any of the Collateral pursuant to
this Section 7.2, the Bank agrees that it will reinstate the
Letter of Credit in an amount sufficient to cover all principal
and accrued interest on the Bonds so sold for up to one hundred
twenty-four (124) days at twelve percent (12%) per annum
(computed on the basis of a 365/366day year).
Section 7.3. Valid Perfected First Lien. The
Applicant and the Operator covenant that the pledge, assignment
and delivery of the Collateral hereunder will create a valid,
perfected, first priority security interest in all right, title
or interest of the Applicant and the Operator in or to such
Collateral, and the proceeds thereof, subject to no prior pledge,
lien, mortgage, hypothecation, security interest, charge, option
or encumbrance or to any agreement
purporting to grant to any third party a security interest in the
property or assets of the Applicant or the Operator which would
include the Collateral. The Applicant and the Operator covenant
and agree that they will defend the Bank's right, title and
security interest in and to the Collateral and the proceeds
thereof against the claims and demands of all persons whomsoever.
Section 7.4. Release of Pledged Bonds. Pledged Bonds
shall be released from the security interest created hereunder
upon satisfaction of the Obligations with respect to such Pledged
Bonds.
ARTICLE VIII. MISCELLANEOUS
Section 8.1. Notices. All notices, requests and other
communications to either party hereunder shall be in writing and
shall be given to such party at its address set forth below or at
such other address as such party may hereafter specify for the
purpose by notice to the other party. Each such notice, request
or other communication shall be effective (a) if given by mail
five (5) days after such communication is deposited in the mails
with first class postage prepaid, addressed as aforesaid or (b)
if given by any other means, when delivered at the address
specified below:
Party Address
TJ International, Inc. 200 East Mallard Drive
Boise, Idaho 83706
Attention: Treasurer
Wachovia Bank, N.A. 401 Linden Street
Winston-Salem, NC 27101
Attention: International
Operations, Standby Letters
of Credit, NC 30034
with copies to: Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Mr. John A.
Whitner
Section 8.2. Amendments, Consents and Waivers. No
amendment or waiver of any provision of this Agreement nor any
consent to any departure by the Applicant therefrom shall in any
event be effective unless the same shall be in writing and signed
by the Bank. Any such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which
given.
Section 8.3. No Waiver; Remedies. No failure on the part
of the Bank 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 8.4. Indemnification. The Applicant hereby
indemnifies and holds harmless the Bank from and against any and
all claims, damages, losses, liabilities, costs or expenses
whatsoever which the Bank may incur (or which may be claimed
against the Bank by any Person) (a) by reason of any untrue
statement or alleged untrue statement of any material fact
contained or incorporated by reference in the Official Statement,
or in any supplement or amendment thereto, or the omission to
state therein a material fact necessary to make such statements,
in the light of the circumstances under which they are or were
made, not misleading; or (b) by reason of or in connection with
the execution and delivery or transfer of, or payment or failure
to pay under, the Letter of Credit; provided that the Applicant
shall not be required to indemnify the Bank for any such claims,
damages, losses, liabilities, costs or expenses in the case of
indemnification pursuant to clause (a) above, to the extent, but
only to the extent, caused by any statements or information
supplied by the Bank for incorporation in the Official Statement;
provided further that the Applicant shall not be required to
indemnify the Bank for any such claims, damages, losses,
liabilities, costs or expenses in the case of indemnification
pursuant to clause (b) above, to the extent, but only to the
extent, caused by the willful misconduct or gross negligence of
the Bank. Nothing in this Section 8.4 is intended to limit the
Applicant's Reimbursement Obligations contained in Section 2.5
hereof.
Section 8.5. Continuing Obligations. The obligations of
the Applicant and the Operator under this Agreement shall
continue until the later of (a) the Termination Date or (b) the
date upon which all amounts due and owing to the Bank hereunder
shall have been paid in full. This Agreement shall be binding
upon the parties hereto and their respective successors and
assigns and inure to the benefit of and be enforceable by the
parties hereto and their respective successors, transferees and
assigns; provided, however, that (i) neither the Applicant nor
the Operator may assign all or any part of this Agreement without
the prior written consent of the Bank and (ii) the obligations of
the Applicant pursuant to Section 8.4 hereof shall survive the
termination of this Agreement.
Section 8.6. Waiver of Right of Set-Off; Limitation on
Collateral.
(a) The Bank hereby irrevocably waives any banker's
lien or right of set-off that it may have at law or otherwise in
order to appropriate and apply to the payment of any and all of
the obligations of the Applicant now or hereafter existing in
respect of the Reimbursement Obligations of the Applicant set
forth in this Agreement, any balances, credits, deposits,
accounts or moneys of the Applicant at any time with the Bank
when and if there shall be a drawing under the Letter of Credit
(or as a result thereof) during the pendency of any proceeding by
or against the Applicant seeking relief in respect of the
Applicant under Title 11 of the United States Code, as now
constituted or hereafter amended; provided, however, that such
waiver shall not be operative if (i) it has been determined by
the court in such proceeding that the exercise of the Bank's
right of set-off or banker's lien will not lead to the Bank's
being released, prevented, enjoined or restrained, permanently,
preliminarily or temporarily, from fulfilling its obligations
under the Letter of Credit and (ii) the exercise of such banker's
lien or right of set-off would not constitute any payment
(including pursuant to the Letter of Credit) to the Trustee a
voidable preference payment under federal bankruptcy law then in
effect.
(b) The Bank agrees that, except as to its security
interest in Pledged Bonds, it will not at any time accept any
collateral as security for the payment of the Reimbursement
Obligations of the Applicant or the Operator set forth in this
Agreement unless provision is made prior to or simultaneously
with the taking of such collateral security by the Bank for an
equal and ratable security interest in such collateral security
to be granted to the Trustee for the benefit of the holders from
time to time of the Bonds.
(c) The Bank agrees that any payments under the
Letter of Credit will be made with the Bank's own funds and not
with funds of the Issuer, the Applicant or the Operator.
Section 8.7. Limited Liability of the Bank. The Applicant
agrees to assume all risk of the acts or omissions of the Trustee
and any transferee of the Letter of Credit with respect to its
use of the Letter of Credit. Neither the Bank nor any of its
officers or directors shall be liable or responsible for: (a) the
use which may be made of the Letter of Credit or for any acts or
omissions of the Trustee and any beneficiary or transferee in
connection therewith; (b) the validity, or genuineness of
documents, or of any endorsement(s) thereon, even if such
documents should in fact prove to be in any or all respects
invalid, fraudulent or forged; or (c) any other circumstances
whatsoever in making or failing to make payment under the Letter
of Credit, except only that the Applicant shall have a claim
against the Bank, and the Bank shall be liable to the Applicant,
to the extent, but only to the extent, of any direct, as opposed
to consequential, damages suffered by the Applicant which the
Applicant proves were caused by (i) the Bank's willful misconduct
or gross negligence in determining whether documents presented
under the Letter of Credit comply with the terms thereof or (ii)
the Bank's willful failure to pay under the Letter of Credit
after the presentation to it by the Trustee (or a successor
trustee under the Indenture to whom the Letter of Credit has been
transferred in accordance with its terms) of a draft and
certificate strictly complying with the terms and conditions of
the Letter of Credit. In furtherance and not in limitation of
the foregoing, the 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.
Section 8.8. Costs, Expenses and Taxes. The Applicant
agrees to pay on demand all reasonable out-of-pocket expenses of
the Bank, including fees and disbursements of counsel, in
connection with: (a) the preparation, execution, delivery,
filing and administration of this Agreement, the Letter of
Credit, the Related Documents and otherwise in connection with
the issuance of the Bonds, (b) any amendments, supplements,
consents or waivers hereto or thereto, and (c) the enforcement of
this Agreement, the Bonds, the Letter of Credit and the Related
Documents and any other documents which may be delivered in
connection herewith or therewith. In addition, the Applicant
shall pay any and all stamp and other taxes and fees payable or
determined to be payable in connection with the execution,
delivery, filing and recording of this Agreement and such other
documents and agrees to save the Bank harmless from and against
any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees. It is
the intention of the parties hereto that the Applicant shall pay
amounts referred to in this Section directly. In the event the
Bank pays any of the amounts referred to in this Section
directly, the Applicant will reimburse the Bank for such advances
and interest on such advance shall accrue until reimbursed at the
Default Rate.
Section 8.9. Severability. Any provision of this Agreement
which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability or
nonauthorization without invalidating the remaining provisions
hereof or affecting the validity, enforceability or legality of
such provision in any other jurisdiction.
Section 8.10. Governing Law. This Agreement shall be
governed by, and construed and interpreted in accordance with,
the laws of the State of Georgia.
Section 8.11. Consent to Jurisdiction. The Applicant
irrevocably submits to the jurisdiction of any Georgia State or
federal court sitting in said State over any suit, action, or
proceeding arising out of or relating to this Agreement. The
Applicant irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action, or proceeding
brought in such a court and any claim that any such suit, action,
or proceeding has been brought in an inconvenient forum.
Section 8.12. 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first above
written.
TJ INTERNATIONAL, INC.
By: /s/ Richard B. Drury (SEAL)
----------------------------
Name: Richard B. Drury
Title: Corporate Secretary &
Treasurer
TRUS JOIST MACMILLAN A
LIMITED PARTNERSHIP
By: TJ International, Inc., its
sole General Partner
/s/ Richard B. Drury (SEAL)
--------------------------
Name: Richard B. Drury
Title: Corporate Secretary
& Treasurer
[Execution by the Bank appears on the following page]
WACHOVIA BANK, N.A.
By: /s/ J. S. Wright (SEAL)
---------------------------------
Name: Jessica S. Wright
Title: Vice President
ANNEX I
IRREVOCABLE DIRECT-PAY LETTER OF CREDIT
Date: December 1, 1998
LETTER OF CREDIT NO. LC____________
Bank One Trust Company, N. A.
Bank One Tower
400 Texas Street, 7th Floor
Shreveport, LA 71101
Dear Sirs:
SECTION 1. At the request and for the account of our
customer TJ International, Inc. (the "Borrower"), on whose behalf
the Parish of Natchitoches, State of Louisiana (the "Issuer") has
issued its Variable Rate Demand Refunding Bonds (Trus Joist
Corporation Project) Series 1988 (the "Bonds") pursuant to a
trust indenture dated as of September 1, 1988 (including all
amendments and supplements thereto, the "Indenture") by and
between the Issuer and Bank One Trust Company, N.A., formerly
known as The First National Bank of Shreveport, as Premier Bank,
National Association and as Bank One Louisiana, N. A., as trustee
and paying agent (the "Trustee" and "Paying Agent"), Wachovia
Bank, N.A. (the "Bank"), does hereby establish in your favor, as
Paying Agent under the Indenture, this Irrevocable Direct-Pay
Letter of Credit in the aggregate amount of TEN MILLION FOUR
HUNDRED SEVEN THOUSAND SIX HUNDRED SEVENTY-ONE DOLLARS
($10,407,671) (hereinafter, as reduced or reinstated from time to
time in accordance with the provisions hereof, the "Stated
Amount") of which an amount not exceeding TEN MILLION DOLLARS
($10,000,000) (as reduced from time to time in accordance with
the terms hereof, the "Principal Component") may be drawn upon
with respect to payment of the unpaid principal amount or the
portion of the Purchase Price, as hereinafter defined,
corresponding to the unpaid principal amount of the Bonds and an
initial amount not exceeding FOUR HUNDRED SEVEN THOUSAND SIX
HUNDRED SEVENTY-ONE DOLLARS ($407,671) (as reduced or reinstated
from time to time in accordance with the terms hereof, the
"Interest Component") may be drawn upon with respect to payment
of interest accrued and unpaid or the portion of the Purchase
Price corresponding to interest accrued and unpaid on the Bonds
on or prior to their stated maturity date, but in no event more
than the actual interest accrued and unpaid, at an interest rate
on the Bonds of 12% per annum (calculated on the basis of a
365/366-day year) for the 124 days' immediately preceding any
Drawing made with respect to the Bonds to and including the
Conversion Date (as defined in the Indenture) with respect to
such Bonds; provided, however, that the amount of the Principal
Component or Interest Component which may be drawn with respect
to the Bonds shall not exceed the initial aggregate principal
amount of the Bonds or the maximum amount available for an
interest drawing with respect to the Bonds.
SECTION 2. This Letter of Credit shall expire at 4:00 p.m.
local time in Winston-Salem, North Carolina, on the date (the
"Termination Date") which is the earliest of: (i) December 5,
2001, unless extended in accordance with Section 2.2(b) of the
Reimbursement and Security Agreement dated as of November 1, 1998
(the "Reimbursement Agreement") among the Borrower, Trus Joist
MacMillan a Limited Partnership (the "Operator") and the Bank
(the "Scheduled Expiration Date"), (ii) the date of payment of a
Principal Component Drawing which when added to all other
Principal Component Drawings honored hereunder and not subject to
reinstatement in the aggregate equals the initial amount of the
Principal Component of the Stated Amount (a "Final Payment
Drawing"), (iii) the first Business Day which is fifteen (15)
calendar days after the date of receipt of notice from us by the
Trustee stating that an Event of Default has occurred under the
Reimbursement Agreement and directing the Trustee to declare the
principal amount of all Bonds then outstanding and interest
accrued thereon immediately due and payable pursuant to the
Indenture, (iv) the first Business Day that is fifteen (15)
calendar days after our receipt of a certificate signed by one
purporting to be your duly authorized officer in the form of
Exhibits F or G ("Termination Certificates") attached hereto,
appropriately completed stating that this Letter of Credit shall
terminate with respect to the Bonds on the first Business Day
which is fifteen (15) calendar days after the date of receipt of
said notice, or (v) the date when you surrender this Letter of
Credit to the Bank for cancellation. You agree to surrender this
Letter of Credit to the Bank, and not to make any Drawing, after
(a) the Expiration Date, or (b) the date on which there are no
Bonds outstanding under the Indenture.
SECTION 3. Funds under this Letter of Credit will be made
available to you against receipt by us of a sight draft in the
form attached hereto as Exhibit I, together with the following
items, at the time required below: (A) if the Drawing is being
made with respect to payment of the principal portion of the
Purchase Price of the Bonds pursuant to Sections 210, 211, 214
and 215 of the Indenture (an "A Drawing"), receipt by us of your
written certificates in the form of Exhibit A and Exhibit D
attached hereto appropriately completed and signed by one
purporting to be your duly authorized officer; (B) if the Drawing
is being made with respect to the principal of the Bonds due on a
principal payment date or upon maturity, acceleration or
redemption (a "B Drawing"), receipt by us of your written
certificate in the form of Exhibit B attached hereto
appropriately completed and signed by one purporting to be your
duly authorized officer; (C) if the Drawing is being made with
respect to the payment of the interest portion of the Purchase
Price of the Bonds, if any, or to pay interest due on an interest
payment date or upon maturity, acceleration or redemption of the
Bonds (a "C Drawing"), receipt by us of your written certificate
in the form of Exhibit C attached hereto appropriately completed
and signed by one purporting to be your duly authorized officer.
"Drawing" as used herein shall mean an "A Drawing," "B Drawing"
or "C Drawing" as the context may require.
SECTION 4. If a Drawing is made by you hereunder at or prior
to 11:00 A.M., Winston-Salem, North Carolina time, on a Business
Day (as defined herein), and provided that such Drawing and the
documents and other items presented in connection therewith are
in strict conformance with the terms and conditions hereof,
payment shall be made to you or your designee, of the amount
specified, in immediately available funds, not later than 3:00
P.M., Winston-Salem, North Carolina time, on the same Business
Day or not later than 1:00 P.M., Winston-Salem, North Carolina
time, on such later Business Day, as you may specify. If a
Drawing is made by you hereunder after 11:00 A.M., Winston-Salem,
North Carolina time, on a
Business Day and provided that such Drawing and the documents and
other items presented in connection therewith are in strict
conformance with the terms and conditions hereof, payment shall
be made to you or your designee, of the amount specified, in
immediately available funds, not later than 1:00 P.M.,
Winston-Salem, North Carolina time, on the next succeeding
Business Day or not later than 1:00 P.M., Winston-Salem, North
Carolina time, on such later Business Day as you may specify.
Payment under this Letter of Credit will be made by wire
transfer of Federal Funds into any account at the Paying Agent.
The Bank agrees to honor all Drawings under this Letter of Credit
with its own funds and not with any funds of the Borrower.
SECTION 5. Demands for payment hereunder honored by us shall
not, in the aggregate, exceed the Stated Amount, as the Stated
Amount may have been increased, reduced or reinstated by us as
herein provided. Subject to the preceding sentence, each "A
Drawing" or "B Drawing" honored by the Bank hereunder shall pro
tanto reduce the Principal Component and each "C Drawing" honored
by the Bank hereunder shall pro tanto reduce the Interest
Component, and any such reduction shall result in a corresponding
reduction in the Stated Amount, it being understood that after
the effectiveness of any such reduction you shall no longer have
any right to make a Drawing hereunder in respect of the amount of
such principal and/or interest on the Bonds or the payment of the
Purchase Price corresponding thereto causing or corresponding to
such reduction unless the amount of such Drawing is subject to
reinstatement and has been reinstated as provided in Paragraph 7
of this Letter of Credit.
SECTION 6. Upon receipt by us of a certificate in the form
of Exhibit E (a "Reduction Certificate") attached hereto
appropriately completed and signed by one purporting to be your
duly authorized officer the Stated Amount, the Principal
Component and the Interest Component will be reduced to the
amounts set forth therein. If the amount available hereunder
shall be so reduced or, if the amount available hereunder shall
be reduced pursuant to Paragraph 5 of this Letter of Credit, we
may require you to surrender this Letter of Credit to us on the
tenth Business Day after prior written notice by us to you and to
accept on such date, in substitution for this Letter of Credit,
an irrevocable direct-pay letter of credit, dated such date, for
an amount equal to the amount to which the amount available to be
drawn hereunder shall have been so reduced, but otherwise in a
form and having terms identical to this Letter of Credit.
SECTION 7. The amount of Drawings made hereunder with
respect to the Borrower for which such Drawings have been made
will be reinstated by us under this Letter of Credit to the
amount of such Drawings under the following conditions:
a. With respect to our honoring an "A Drawing," the Stated
Amount shall be automatically reinstated in the amount of said
Drawing as to the Principal Component and, if applicable, the
Interest Component (subject to any reduction in said amounts as
provided in the first paragraph of Paragraph 6) unless you shall
have received, on or prior to the close of business on the tenth
Business Day after any payment in respect of an "A Drawing," a
notice from us stating that an Event of Default has occurred
under the Reimbursement Agreement and directing the Trustee to
declare the principal amount of
all Bonds then outstanding and interest accrued thereon
immediately due and payable pursuant to the Indenture.
b. With respect to our honoring a "C Drawing," the amount
of said Drawing will automatically be reinstated in the amount of
such Drawing (subject to any reduction in said Interest Component
as above provided in the first paragraph of Paragraph 6) unless
you shall have received, on or prior to the close for business on
the tenth Business Day after any payment in respect of a "C
Drawing," a notice from us stating that an Event of Default has
occurred under the Reimbursement Agreement and directing the
Trustee to declare the principal amount of all Bonds then
outstanding and interest accrued thereon immediately due and
payable pursuant to the Indenture.
SECTION 8. Only the Paying Agent may make a Drawing under
this Letter of Credit. Upon the payment to you, your account,
your designee or the account of your designee of the amount
demanded pursuant to presentation of a sight draft and
accompanying certifications, we shall be fully discharged of our
obligation under this Letter of Credit with respect to payment of
the amount demanded and we shall not thereafter be obligated to
make any further payments under this Letter of Credit in respect
of such demand for payment to you or any other person who may
have made to you or makes to you a demand for payment of
principal of, premium, if any, Purchase Price of, or interest on,
any Bond. By paying to you an amount demanded in accordance
herewith, we make no representation as to the correctness of the
amount demanded or your calculations and representations on the
certificates required of you by this Letter of Credit.
If your sight draft and accompanying Exhibits are not, in
any instance, in strict conformance with the terms and conditions
of this Letter of Credit, we shall give you prompt notice that
the purported negotiation was not effected in accordance with
this Letter of Credit, stating the reasons therefor and that we
are holding any documents at your disposal or are returning them
to you, as we may elect. Upon being notified that the purported
negotiation was not effected in conformity with this Letter of
Credit, you may attempt to correct any such nonconforming sight
draft and accompanying Exhibits if, and to the extent that, you
are entitled (without regard to the provisions of this sentence)
and able to do so.
SECTION 9. Upon receipt of your Reduction Certificate by
the Bank, the Stated Amount of this Letter of Credit shall be
permanently reduced as provided in such Reduction Certificate.
Upon receipt of your Termination Certificate in the form of
Exhibit F by the Bank this Letter of Credit shall be surrendered
for cancellation in accordance with its terms.
SECTION 10. All demands for payment, Bonds and certificates
to be presented to the Bank hereunder, as well as all
communications to the Bank in respect of this Letter of Credit,
shall be in writing and shall be timely delivered in writing or
by tested telex or identifiable telecopy confirmed in writing to
the address shown at the foot hereof or at such other address as
may be designated by us in a written notice delivered to you and
shall make specific reference to Wachovia Bank, N. A. Irrevocable
Direct-Pay Letter of Credit No. LC________, Attention: Standby
Letter of Credit Unit re: TJ International, Inc.
SECTION 11. As used herein (a) "Purchase Price" shall mean
the principal amount of, together with accrued interest, if any,
on, any Bonds to be purchased with proceeds of an "A Drawing"
and, if applicable, a "C Drawing;" (b) "Business Day" shall mean
any day other than a Saturday, a Sunday, or a day on which banks
located in the city in which the principal office of the Trustee
or the office of the Bank at which drawing documents are required
to be presented under this Letter of Credit are required or
authorized to close, or on which the New York Stock Exchange is
closed, (c) "Payment Date" shall mean any day on which the
principal of premium, if any, and interest on the Bonds shall be
due on or prior to their stated maturity or as a result of
acceleration or redemption; (d) "Purchase Payment Date" shall
mean any day on which the Purchase Price of the Bonds shall be
due and payable.
SECTION 12. This Letter of Credit is subject to the Uniform
Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce, Publication No. 500 or any
successor publication which may be in effect from time to time
(the "UCP"), except that Article 41 of the UCP or any successor
Article which is substantially similar shall not be included in
the reference to the UCP. This Letter of Credit shall be deemed
to be a contract made under the laws of the State of Georgia and
shall, as to matters not governed by the UCP, be governed by and
construed in accordance with the laws of the State of Georgia.
SECTION 13. Notwithstanding anything in the UCP to the
contrary, and particularly Article 54 thereof or any successor
Article which is substantially similar, this Letter of Credit may
be successively transferred in its entirety (but not in part).
Transfer of the available Drawing(s) under this Letter of Credit
to such transferee shall be effected by the presentation to us at
our address set forth at the foot of this Letter of Credit
accompanied by the transfer form attached hereto as Exhibit H (a
"Transfer Demand") appropriately completed and the payment to the
Bank of its customary transfer fee.
SECTION 14. This Letter of Credit is intended to remain in
full force and effect until it expires in accordance with its
terms. Any failure by you or any successor paying agent to draw
upon this Letter of Credit with respect to any payment of
principal of or interest with respect to the Bonds in accordance
with the terms and conditions of the Indenture shall not cause
this Letter of Credit to be unavailable for any future drawing in
accordance with the terms and conditions of the Indenture.
SECTION 15. This Letter of Credit sets forth in full our
undertaking, and such undertaking shall not in any way be
modified, amended, amplified or limited by reference to any
document, instrument or agreement referred to herein (including,
without limitation, the Bonds), except only the sight draft and
Exhibits referred to herein; and any such reference shall not be
deemed to incorporate herein by reference any document,
instrument or agreement except for such sight draft and Exhibits.
Very truly yours,
WACHOVIA BANK, N. A.
By:
----------------------------
Authorized Officer
Delivery Address:
401 Linden Street
Winston-Salem, North Carolina 27101
Attention: International
Operations, Standby Letter of
Credit Unit, NC30034
Telecopier No. (336) 735-0950
Telephone No. (336) 735-3367
EXHIBIT A
PAYING AGENT'S CERTIFICATE FOR "A DRAWING"
The undersigned, a duly authorized officer of ____________,
as Paying Agent (the " Paying Agent"), hereby certifies to
Wachovia Bank, N. A. (the "Bank"), with reference to Irrevocable
Direct-Pay Letter of Credit No. LC_________ (the "Letter of
Credit") issued by the Bank in favor of the Paying Agent under
the Indenture, that:
SECTION 1. The Paying Agent is the Paying Agent under the
Indenture for the owners of the Bonds.
SECTION 2. Pursuant to Section __________ of the Indenture,
the Paying Agent has concurrently herewith presented its sight
draft drawn on you in the amount of $____________. The Paying
Agent is making a Drawing under the Letter of Credit with respect
to paying of the Purchase Price on the Bonds to be purchased
pursuant to Section ________ of the Indenture.
SECTION 3. The amount demanded hereby is $ __________.
Such amount represents the principal portion in the amount of $
__________ of the Purchase Price of the Bonds tendered or deemed
tendered to the Paying Agent pursuant to Section _________ of the
Indenture, less the proceeds of the remarketing of such Bonds.
Said amount does not exceed the amount permitted to be drawn
under the Letter of Credit in accordance with the Letter of
Credit and the Indenture.
SECTION 4. The amount demanded hereby does not include any
amount in respect of the purchase of any Pledged Bonds (as
defined in the Reimbursement Agreement) or any Bonds registered
in the name of the Borrower or the Operator.
Any capitalized term used herein and not defined shall have
its respective meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Paying Agent has executed and
delivered this Certificate as of the _____ day of __________, 19
___.
---------------------------------
as Paying Agent
By:
------------------------------
Title:
--------------------------
EXHIBIT B
PAYING AGENT'S CERTIFICATE FOR "B DRAWING"
The undersigned, ____________________, as Paying Agent (the
"Paying Agent"), hereby certifies to Wachovia Bank, N. A. (the
"Bank"), with reference to Irrevocable Direct-Pay Letter of
Credit No. LC____________ (the "Letter of Credit") issued by the
Bank in favor of the Paying Agent under the Indenture, that:
SECTION 1. The Paying Agent is the Paying Agent under the
Indenture for the owners of the Bonds, and the person executing
this Certificate on behalf of the Paying Agent is a duly
authorized officer of the Paying Agent.
SECTION 2. Pursuant to Section ____ of the Indenture, the
Paying Agent has concurrently presented its sight draft drawn on
you in the amount of $__________. The Paying Agent is making a
Drawing under the Principal Component of the Letter of Credit
with respect to paying of principal on the Bonds which amount
has, or will within two (2) Business Days, become due and payable
pursuant to the applicable Indenture, on or prior to their stated
maturity or as a result of acceleration or redemption of the
Bonds.
SECTION 3. The amount demanded hereby is $ __________. Said
amount does not exceed the amount permitted to be drawn under the
Letter of Credit in accordance with the Letter of Credit and the
Indenture.
SECTION 4. The amount demanded hereby does not include any
amount in respect of the payment of principal on any Pledged
Bonds (as defined in the Reimbursement Agreement) or Bonds
registered in the name of the Borrower or the Operator.
SECTION 5. Upon receipt by the undersigned of the amount
demanded hereby, (a) the undersigned will apply the same directly
to the payment when due of the principal amount owing on the
Bonds pursuant to the Indenture, (b) no portion of said amount
shall be applied by the undersigned for any other purpose and (c)
no portion of said amount shall be commingled with other funds
held by the undersigned.
SECTION 6. The Principal Component available under the
Letter of Credit (immediately prior to the Drawing requested
hereby and taking into account any other Drawing previously or
concurrently requested by the Paying Agent which has not been
paid or rejected by the Bank prior to the time of presentation of
this Certificate and assuming no subsequently presented Drawing
is honored prior to the time of payment of this Drawing) is $
____________. After payment of the Drawing requested hereby (and
any other Drawing previously or concurrently requested by the
Paying Agent which has not been paid or rejected by the Bank
prior to the time of presentation of this Certificate and
assuming no subsequently presented Drawing is honored prior to
the time of payment of this Drawing), the Principal Component
will be $ __________.
SECTION 7. [The amount of the Drawing requested to pay the
Principal Component of the Bonds for an optional redemption
pursuant to Section [ __________ ]* of the Indenture does not
exceed the amount deposited with the Paying Agent for
reimbursement to the Bank for the Drawing to pay such optional
redemption. ]* OR [The amount of the Drawing requested to pay the
Principal Component of the Bonds for mandatory redemption is
being made pursuant to Section [ __________]* of the Indenture. ]
Any capitalized term used herein and not defined shall have
its respective meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Paying Agent has executed and
delivered this Certificate as of the ____ day of __________, 19
___.
----------------------------
as Paying Agent
By:
--------------------------
Title:
-----------------------
*Strike inapplicable language.
EXHIBIT C
PAYING AGENT'S CERTIFICATE FOR "C DRAWING"
The undersigned, _____________________________, as Paying
Agent (the "Paying Agent"), hereby certifies to Wachovia Bank, N.
A. (the "Bank"), with reference to Irrevocable Direct-Pay Letter
of Credit No. LC_____________ (the "Letter of Credit") issued by
the Bank in favor of the Paying Agent under the Indenture, that:
SECTION 1. The Paying Agent is the Paying Agent under the
Indenture for the owners of the Bonds and the person executing
this Certificate on behalf of the Paying Agent is a duly
authorized officer of the Paying Agent.
SECTION 2. Pursuant to Section [ __________]* of the
Indenture, the Paying Agent has concurrently presented its sight
draft drawn on you in the amount of $ __________. The Paying
Agent is making a Drawing under the Interest Component of the
Letter of Credit with respect to payment of interest due on the
Bonds identified below on a [ Payment Date or a Purchase Payment
Date]* for payment of the accrued interest portion of the
Purchase Price of the Bonds identified below or the accrued
interest to be paid on the Bonds on or prior to their stated
maturity or as a result of the acceleration or redemption of the
Bonds, which amount has, or will within two (2) Business Days,
become due and payable pursuant to the Indenture.
SECTION 3. The amount demanded hereby is $ __________. Said
amount does not exceed the amount permitted to be drawn under the
Letter of Credit in accordance with the Letter of Credit and the
Indenture.
SECTION 4. The amount demanded hereby does not include any
amount in respect of the payment of interest or in respect of the
payment of the accrued interest portion of the purchase price of
Pledged Bonds (as defined in the Reimbursement Agreement) or
Bonds registered in the name of the Borrower or the Operator.
SECTION 5. Upon receipt by the undersigned of the amount
demanded hereby, (a) the undersigned will either (i) apply the
same directly to the payment when due of the accrued interest
portion of the Purchase Price of the Bonds or to the payment when
due of the interest accrued and owing on the Bonds pursuant to
the Indenture, (ii) pay such amounts directly to the Paying
Agent, (b) no portion of said amount shall be applied by the
undersigned for any other purpose and (c) no portion of said
amount shall be commingled with other funds held by the
undersigned.
SECTION 6. The Interest Component available under the
Letter of Credit (immediately prior to the Drawing requested
hereby and taking into account any other Drawing previously or
concurrently requested by the Paying Agent which has not been
paid or rejected by the Bank prior to the time of presentation of
this Certificate and assuming no subsequently presented Drawing
is honored prior to the time of payment of this Certificate) is
$____________.
SECTION 7. After payment of the Drawing requested hereby
(and any other Drawing previously or concurrently requested by
the Paying Agent which has not been paid or rejected by the Bank
prior to the time of presentation of this Certificate and
assuming (a) no subsequently presented Drawing is honored prior
to the time of payment of this Drawing, and (b) reinstatement of
the Interest Component in accordance with the terms of the Letter
of Credit) the Interest Component will be $_____________.
SECTION 8. [The amount of the Drawing requested to pay the
Interest Component of the Bonds for an optional redemption
pursuant to Section __________ of the Indenture does not exceed
the amount deposited with the Paying Agent for reimbursement to
the Bank for the Drawing to pay such optional redemption.]*
Any capitalized term used herein and not defined shall have
its respective meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Paying Agent has executed and
delivered this certificate as of the _____ day of __________,
19____.
-------------------------------
as Paying Agent
By:
----------------------------
Title:
----------------------
* Strike inapplicable language
EXHIBIT D
PAYING AGENT'S CERTIFICATE FOR RECEIPT OF PLEDGED BONDS
The undersigned, a duly authorized officer of
_______________________ (the "Paying Agent"), hereby certifies to
Wachovia Bank, N. A. (the "Bank"), with reference to the
Irrevocable Direct-Pay Letter of Credit No. LC__________ (the
"Letter of Credit") issued by the Bank in favor of
____________________, as Paying Agent, that the Paying Agent has
received and is holding as agent for the Bank under the terms of
the Reimbursement and Security Agreement, dated as of November 1,
1998 among TJ International, Inc., Trus Joist MacMillan a Limited
Partnership, and the Bank, Bonds in the principal amount of $
_________, which amount represents the amount of the principal
portion of the Bonds drawn upon the Letter of Credit pursuant to
the "A Drawing" presented to you concurrently herewith.
Any capitalized term used herein and not defined shall have
the respective meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Paying Agent has executed and
delivered this certificate as of the ____ day of __________, 19
__.
--------------------------------
as Paying Agent
By:
----------------------------
Title:
----------------------------
EXHIBIT E
PAYING AGENT'S CERTIFICATE OF REDUCTION
OF AMOUNT OF LETTER OF CREDIT
The undersigned, _____________________, as Paying Agent (the
"Paying Agent"), hereby certifies to Wachovia Bank, N. A. (the
"Bank"), with reference to Irrevocable Direct-Pay Letter of
Credit No. LC__________ (the "Letter of Credit") issued by the
Bank in favor of the Paying Agent under the Indenture, that:
SECTION 1. The Paying Agent is the Paying Agent under the
Indenture for the owners of the Bonds and the person executing
this Certificate on behalf of the Paying Agent is a duly
authorized officer of the Paying Agent.
SECTION 2. The Paying Agent hereby notifies you that on or
prior to the date hereof $ ________ principal amount of the Bonds
have been redeemed, defeased or converted to the Fixed Rate
pursuant to the Indenture.
SECTION 3. Following the redemption, the defeasance or the
conversion to the Fixed Rate of the Bonds, the aggregate
principal amount of Bonds outstanding is $ _____________.
SECTION 4. The maximum amount required for an interest
Drawing on the Bonds referred to in paragraph 3 above is $
_______.
SECTION 5. The amount available to be drawn by the Paying
Agent under the Letter of Credit in respect of accrued and unpaid
interest on the Bonds or the portion of the Purchase Price of the
Bonds equal to accrued and unpaid interest is reduced to $
_______ (such amount being equal to the amount specified in
paragraph 4 above) upon receipt by the Bank of this Certificate.
SECTION 6. The Stated Amount of the Letter of Credit is
reduced to $ ________ (such amount being equal to the sum of the
amounts specified in paragraphs 3 and 4 above) upon receipt by
the Bank of this Certificate, of which amount $ _______ (the
amount specified in paragraph 3 above) constitutes the revised
Principal Component and $ ______________ (the amount specified in
paragraph 4 above) constitutes the revised Interest Component.
Any capitalized term used herein and not defined shall have
its respective meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Paying Agent has executed and
delivered this Certificate as of the ______ day of __________,
19___.
-------------------------------
as Paying Agent
By:
----------------------------
Title:
----------------------
EXHIBIT F
PAYING AGENT'S CERTIFICATE FOR TERMINATION OF
LETTER OF CREDIT (ACCEPTANCE OF
SUBSTITUTE LETTER OF CREDIT)
The undersigned, __________________________ as Paying Agent
(the "Paying Agent"), hereby certifies to Wachovia Bank, N. A.
(the "Bank"), with reference to Irrevocable Direct-Pay Letter of
Credit No. LC__________ (the "Letter of Credit") issued by the
Bank in favor of the Paying Agent, that:
SECTION 1. The Paying Agent is the Paying Agent under the
Indenture for the owners of the Bonds and the person executing
this Certificate on behalf of the Paying Agent is a duly
authorized officer of the Paying Agent.
SECTION 2. The conditions precedent to the acceptance of an
"Alternate Credit Facility" set forth in the Indenture have been
satisfied.
SECTION 3. As Paying Agent under the Indenture, the Paying
Agent has received an "Alternate Credit Facility."
SECTION 4. Upon receipt by the Bank of this Certificate the
Letter of Credit shall terminate with respect to the Bonds on the
first Business Day which is fifteen (15) calendar days after the
date of receipt of this notice, all as provided in clause (iv) of
paragraph 2 of the Letter of Credit.
Any capitalized term used herein and not defined shall have
its respective meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Paying Agent has executed and
delivered this Certificate as of the _____ day of ______________,
19____.
-------------------------------
as Paying Agent
By:
----------------------------
Title:
----------------------
EXHIBIT G
PAYING AGENT'S CERTIFICATE FOR TERMINATION OF
LETTER OF CREDIT (NO BONDS OUTSTANDING OR
CONVERSION OF ALL BONDS TO FIXED RATE OR
EXPIRATION OF THE LETTER OF CREDIT)
The undersigned, ____________________, as Paying Agent (the
"Paying Agent"), hereby certifies to Wachovia Bank, N. A. (the
"Bank"), with reference to Irrevocable Direct-Pay Letter of
Credit No. LC_____________ (the "Letter of Credit") issued by the
Bank in favor of the Paying Agent, that:
SECTION 1. The Paying Agent is the Paying Agent under the
Indenture for the owners of the Bonds and the person executing
this Certificate on behalf of the Paying Agent is a duly
authorized officer of the Paying Agent.
SECTION 2. [No Bonds remain outstanding under the
Indenture]* OR [ All Bonds remaining outstanding under the
Indenture have been converted to the Fixed Rate as of ________,
____________________ (the "Final Fixed Rate Date")]* OR [The
Expiration Date of the Letter of Credit will occur on
________________, _______] the date which is 123 days after the
Final Fixed Rate Date or Expiration Date ]*.
SECTION 3. Upon receipt by the Bank of this Certificate the
Letter of Credit shall terminate as provided in the Letter of
Credit.
Any capitalized term used herein and not defined shall have
its respective meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Paying Agent has executed and
delivered this Certificate as of the _____ day of
________________, 19 _____.
--------------------------------
as Paying Agent
By:
----------------------------
Title:
-------------------------
* Strike inapplicable language.
EXHIBIT H
TRANSFER DEMAND
Wachovia Bank, N. A.
401 Linden Street
Winston-Salem, North Carolina 27101
Attn: International Operations, Standby Letters of Credit,
NC30034
Re: Wachovia Bank, N. A. Irrevocable Direct-Pay Letter of
Credit No.LC__________
Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
(Name of Transferee)
(Address)
all rights of the undersigned beneficiary to draw under the above
Letter of Credit in its entirety. The transferee has succeeded
the undersigned as Paying Agent under the Indenture (as defined
in the Letter of Credit).
By this transfer, all rights of the undersigned beneficiary
in such Letter of Credit are transferred to the transferee and
the transferee shall have the sole rights as beneficiary thereof,
including sole rights relating to any amendments, whether
increases or extensions or other amendments and whether now
existing or hereafter made. All amendments are to be advised
direct to the transferee without necessity of any consent of or
notice to the undersigned beneficiary.
The Letter of Credit is returned herewith, and we ask you to
endorse the transfer on the reverse thereof and forward it
directly to the transferee with your customary notice of
transfer.
Very truly yours,
Signature Authenticated
-------------------------------
- ----------------------- Signature of Beneficiary
(Authorized Signature)
We certify that we have succeeded (name of beneficiary) as
Paying Agent under the Indenture (as defined in the Letter of
Credit).
Signature Authenticated
- ----------------------- ----------------------------
(Authorized Signature) Signature of Transferee
EXHIBIT I
FORM OF SIGHT DRAFT
Wachovia Bank, N. A.
401 Linden Street
Winston-Salem, North Carolina 27101
Attn: International Operations, Standby Letters of Credit,
NC30034
This sight draft is presented to you for the amount of $
__________ for the purposes set forth in the accompanying
Certificate.
-------------------------------------
as Paying Agent for the Parish of
Natchitoches, State of Louisiana
Variable Rate Demand Refunding Bonds
(Trus Joist Corporation Project)
Series 1988
By:
----------------------------------
Title:
----------------------------
ANNEX II
November 1, 1998
PROMISSORY NOTE
1. FOR VALUE RECEIVED, the undersigned, TJ INTERNATIONAL,
INC., a corporation organized and existing under the laws of the
State of Delaware (the "Applicant"), promises to pay to the order
of WACHOVIA BANK, N.A. (the "Bank"), at the office of the Bank at
191 Peachtree Street, N.E., Atlanta, Georgia 30303, or at such
other place as the Bank hereafter may direct in writing, in legal
tender of the United States of America, the principal sum of TEN
MILLION AND NO/100'S DOLLARS ($10,000,000) or so much thereof as
may be disbursed and remain outstanding from time to time
hereafter as Tender Advances (as defined below) on the
Termination Date (as defined below) with interest thereon
(computed on the daily outstanding principal balance, for the
actual number of days outstanding, and on the basis of a 360-day
year) on each advance made hereunder from date of advance until
paid in full at a rate per annum equal to the Prime Rate (as
defined below), with any change in such interest rate resulting
from a change in the Prime Rate to become effective as of the
opening of business on each date on which such change in the
Prime Rate has occurred. Each Tender Advance may be endorsed on
the schedule attached hereto and by this reference incorporated
herein by the Bank (provided, however, that any failure by the
Bank to make any such endorsement shall not limit, modify or
affect the obligations of the Applicant hereunder). Accrued
interest on the unpaid principal balance hereof from time to time
outstanding shall be due and payable (a) on each Payment Date (as
defined below), and (b) upon payment or prepayment of any Tender
Advance (but only on the principal so paid or prepaid), and (c)
at maturity. All principal hereunder shall be due and payable on
the Termination Date.
2. This Promissory Note evidences borrowings under, is
subject to and secured by, and shall be paid and enforced in
accordance with, the terms of that certain Reimbursement and
Security Agreement dated as of November 1, 1998 among the Bank,
the Applicant and Trus Joist MacMillan a Limited Partnership
(hereinafter, as it may be amended or supplemented from time to
time, called the "Reimbursement Agreement"), the terms and
provisions of which are hereby incorporated herein by reference
and made a part hereof, and is the "Reimbursement Note" as that
term is defined in Article I of the Reimbursement Agreement. The
Reimbursement Agreement relates to the $10,000,000 Parish of
Natchitoches, State of Louisiana Variable Rate Demand Refunding
Bonds (Trus Joist Corporation Project) Series 1988.
3. Nothing herein shall limit any right granted to the
Bank by any other instrument or by law or equity.
4. The Applicant hereby waives demand, protest, notice of
demand, protest and nonpayment and any other notice required by
law relative hereto, except to the extent as otherwise may be
provided for in the Reimbursement Agreement.
5. The Applicant may prepay any Tender Advance at any time
or from time to time without penalty or premium, provided that
the Applicant shall give the Bank notice of each prepayment as
set forth in the Reimbursement Agreement.
6. The Applicant agrees, in the event that this Promissory
Note or any portion hereof is collected by law or through an
attorney at law, to pay all reasonable costs of collection,
including, without limitation, reasonable attorneys' fees.
As used herein, the terms "Tender Advances", "Termination
Date", "Prime Rate" and "Payment Date" shall have the same
meaning given each such term in Article I of the Reimbursement
Agreement.
IN WITNESS WHEREOF, the Applicant has caused this Promissory
Note to be duly executed under seal as of the day and year first
above written.
TJ INTERNATIONAL, INC.
By:
------------------------------
Title:
--------------------------
SCHEDULE
AMOUNT OF PAYMENT
DATE TENDER ADVANCE OR REPAYMENT
- -----------------------------------------------------------------
ANNEX III
GUARANTY AGREEMENT
GUARANTY AGREEMENT (this "Agreement" or this "Guaranty")
dated as of November 1, 1998, among each Subsidiary listed on the
signature pages hereto (each such Subsidiary individually, a
"Guarantor" and, if more than one such Subsidiary is party to
this Agreement, collectively, the "Guarantors") of TJ
INTERNATIONAL, INC., a Delaware corporation (the "Borrower"), and
WACHOVIA BANK, N.A., and its successors and assigns (the "Bank").
Reference is made to the Reimbursement and Security
Agreement dated as of November 1, 1998 (as amended, supplemented
or otherwise modified from time to time, the "Reimbursement
Agreement"), among the Borrower, Trus Joist MacMillan a Limited
Partnership and the Bank. Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in
the Reimbursement Agreement.
The Bank has agreed to issue its irrevocable letter of
credit (the "Letter of Credit") for the account of the Borrower
pursuant to, and upon the terms and subject to the conditions
specified in, the Reimbursement Agreement. Each of the Guarantors
is a Subsidiary of the Borrower and acknowledges that it will
derive substantial benefit from the issuance of the Letter of
Credit by the Bank. The obligation of the Bank to issue its
Letter of Credit is conditioned on, among other things, the
execution and delivery by the Guarantors of a Guaranty Agreement
in the form hereof. As consideration therefor and in order to
induce the Bank to issue its Letter of Credit, the Guarantors are
willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally
guarantees, jointly with the other Guarantors and severally, as a
primary obligor and not merely as a surety, (a) the due and
punctual payment of (i) the principal of and interest (including
interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding) on the
Reimbursement Obligations, when and as due, whether at maturity,
by acceleration, upon one or more dates set for prepayment or
otherwise and (ii) all other monetary obligations, including
fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding),
of the Borrower to the Bank under the Reimbursement Agreement and
the Reimbursement Note and (b) the due and punctual performance
of all covenants, agreements, obligations and liabilities of the
Borrower under or pursuant to the Reimbursement Agreement and the
Reimbursement Note (all the monetary and other obligations
referred to in the preceding clauses (a) and (b) being
collectively called the "Obligations"). Each Guarantor further
agrees that the Obligations may be extended or renewed, in whole
or in part, without notice to or further assent from it, and that
it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation.
Anything contained in this Agreement to the contrary
notwithstanding, the obligations of each Guarantor hereunder
shall be limited to a maximum aggregate amount equal to the
greatest amount that would not render such Guarantor's
obligations hereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the
United States Code or any provisions of applicable state law
(collectively, the "Fraudulent Transfer Laws"), in each case
after giving effect to all other liabilities of such Guarantor,
contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities
of such Guarantor (a) in respect of intercompany indebtedness to
the Borrower or Affiliates of the Borrower to the extent that
such indebtedness would be discharged in an amount equal to the
amount paid by such Guarantor hereunder and (b)_under any
Guarantee of senior unsecured indebtedness or Debt subordinated
in right of payment to the Obligations which Guarantee contains a
limitation as to maximum amount similar to that set forth in this
paragraph, pursuant to which the liability of such Guarantor
hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as
assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, contribution, reimbursement, indemnity or similar
rights of such Guarantor pursuant to (i) applicable law or
(ii)_any agreement providing for an equitable allocation among
such Guarantor and other Affiliates of the Borrower of
obligations arising under Guarantees by such parties.
SECTION 2. Obligations Not Waived. To the fullest extent
permitted by applicable law, each Guarantor waives presentment
to, demand of payment from and protest to the Borrower of any of
the Obligations, and also waives notice of acceptance of its this
Guaranty and notice of protest for nonpayment. To the fullest
extent permitted by applicable law, the obligations of each
Guarantor hereunder shall not be affected by (a) the failure of
the Bank to assert any claim or demand or to enforce or exercise
any right or remedy against the Borrower or any other Guarantor
under the provisions of the Reimbursement Agreement, the
Reimbursement Note, or otherwise, (b) any rescission, waiver,
amendment or modification of, or any release from any of the
terms or provisions of this Agreement, the Reimbursement
Agreement, the Reimbursement Note, any other Related Document,
any Guarantee or any other agreement, including with respect to
any other Guarantor under this Agreement or (c) the failure to
perfect any security interest in, or the release of, any of the
security held by or on behalf of the Bank.
SECTION 3. Security. Each of the Guarantors authorizes the
Bank to (a) take and hold security for the payment of this
Guaranty and the Obligations and exchange, enforce, waive and
release any such security, (b) apply such security and direct the
order or manner of sale thereof as the Bank in its sole
discretion may determine and (c) release or substitute any one or
more endorsees, other guarantors or other obligors.
SECTION 4. Guarantee of Payment. Each Guarantor further
agrees that this Guaranty constitutes a guarantee of payment when
due and not of collection, and waives any right to require that
any resort be had by the Bank to any of the security held for
payment of the Obligations or to any balance of any deposit
account or credit on the books of the Bank in favor of the
Borrower or any other Person.
SECTION 5. No Discharge or Diminishment of Guarantee. The
obligations of each Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any
reason (other than the indefeasible payment in full in cash of
the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations,
and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations
of each Guarantor hereunder shall not be discharged or impaired
or otherwise affected by the failure of the Bank to assert any
claim or demand or to enforce any remedy under the Reimbursement
Agreement, the Reimbursement Note, any other Related Document or
any other agreement, by any waiver or modification of any
provision of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations, or
by any other act or omission that may or might in any manner or
to any extent vary the risk of any Guarantor or that would
otherwise operate as a discharge of any Guarantor as a matter of
law or equity (other than the indefeasible payment in full in
cash of all the Obligations).
SECTION 6. Defenses of Borrower Waived. To the fullest
extent permitted by applicable law, each of the Guarantors waives
any defense based on or arising out of any defense of the
Borrower or the unenforceability of the Obligations or any part
thereof from any cause, or the cessation from any cause of the
liability of the Borrower, other than the final and indefeasible
payment in full in cash of the Obligations. The Bank may, at its
election, foreclose on any security held by it by one or more
judicial or nonjudicial sales, accept an assignment of any such
security in lieu of foreclosure, compromise or adjust any part of
the Obligations, make any other accommodation with the Borrower
or any other Guarantor or exercise any other right or remedy
available to it against the Borrower or any other Guarantor,
without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Obligations have
been fully, finally and indefeasibly paid in cash. Pursuant to
applicable law, each of the Guarantors waives any defense arising
out of any such election even though such election operates,
pursuant to applicable law, to impair or to extinguish any right
of reimbursement or subrogation or other right or remedy of such
Guarantor against the Borrower or any other Guarantor, as the
case may be, or any security.
SECTION 7. Agreement To Pay; Subordination. In furtherance
of the foregoing and not in limitation of any other right that
the Bank has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Borrower to pay any Obligation
when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each
Guarantor hereby promises to and will forthwith pay, or cause to
be paid, to the Bank as designated thereby in cash the amount of
such unpaid Obligations. Upon payment by any Guarantor of any
sums to the Bank as provided above, all rights of such Guarantor
against the Borrower arising as a result thereof by way of right
of subrogation, contribution, reimbursement, indemnity or
otherwise shall in all respects be subordinate and junior in
right of payment to the prior indefeasible payment in full in
cash of all the Obligations. In addition, any indebtedness of the
Borrower or any Guarantor now or hereafter held by any Guarantor
is hereby subordinated in right of payment to the prior payment
in full of the Obligations. If any amount shall erroneously be
paid to any Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or (ii)
any such indebtedness of the Borrower or any other Guarantor,
such amount shall be held in trust for the benefit of the Bank
and shall forthwith be paid to the Bank to be credited against
the payment of the Obligations, whether matured or unmatured, in
accordance with the terms of the Reimbursement Agreement and the
Reimbursement Note.
SECTION 8. Information. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks that
such Guarantor assumes and incurs hereunder, and agrees that the
Bank will not have any duty to advise any of the Guarantors of
information known to it regarding such circumstances or risks.
SECTION 9. Representations and Warranties. Each of the
Guarantors represents and warrants as to itself that:
(a) it (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its creation; (ii)
has all requisite power, and has all material governmental
licenses, authorizations, consents and approvals necessary to own
its assets and carry on its business as now being or as proposed
to be conducted; and (iii) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it
makes such qualification necessary and where failure so to
qualify would have a material adverse effect on its condition
(financial or otherwise), assets, nature of assets, liabilities
(including, without limitation, tax, ERISA and environmental
liabilities) or prospects.
(b) it has all necessary power and authority to execute,
deliver and perform its obligations under this Guaranty; the
execution, delivery and performance by the Guarantor of this
Guaranty have been duly authorized by all necessary action; and
this Guaranty has been duly and validly executed and delivered by
it and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or moratorium or other similar laws relating to
the enforcement of creditors' rights generally and by general
equitable principles.
(c) neither the execution and delivery by it of this
Guaranty nor compliance with the terms and provisions hereof by
the Guarantor will conflict with or result in a breach of, or
require any consent under, its organizational documents and
agreements or any applicable law or regulation, or any order,
writ, injunction or decree of any court or governmental authority
or agency, or any material agreement or instrument to which it is
a party or by which it is bound or to which it is subject, or
constitute a default under any such agreement or instrument, or
result in the creation or imposition of any Lien upon any of its
revenues or assets pursuant to the terms of any such agreement or
instrument.
(d) it is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(e) after giving effect to the execution and delivery of
this Guaranty and the incurring of its obligations hereunder, it
will not be "insolvent," within the meaning of such term as used
in O.C.G.A. Section 18-2-22 or as defined in Section 101 of Title
11 of the United States Code or Section 2
of the Uniform Fraudulent Transfer Act, as each is amended from
time to time, or be unable to pay its debts generally as such
debts become due, or have an unreasonably small capital to engage
in any business or transaction, whether current or contemplated.
(f) it is not a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company," as
such terms are defined in the Public Utility Holding Company Act
of 1935, as amended.
SECTION 10. Termination. This Guaranty (a) shall terminate
when all the Obligations have been indefeasibly paid in full and
the Letter of Credit has terminated and (b) shall continue to be
effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or
must otherwise be restored by the Bank or any Guarantor upon the
bankruptcy or reorganization of the Borrower, any Guarantor or
otherwise.
SECTION 11. Binding Effect; Several Agreement; Assignments.
Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and
assigns of such party; and all covenants, promises and agreements
by or on behalf of the Guarantors that are contained in this
Agreement shall bind and inure to the benefit of each party
hereto and their respective successors and assigns. This
Agreement shall become effective as to any Guarantor when a
counterpart hereof executed on behalf of such Guarantor shall
have been delivered to the Bank, and a counterpart hereof shall
have been executed on behalf of the Bank, and thereafter shall be
binding upon such Guarantor and the Bank and their respective
successors and assigns, and shall inure to the benefit of such
Guarantor, and the Bank, and their respective successors and
assigns, except that no Guarantor shall have the right to assign
its rights or obligations hereunder or any interest herein (and
any such attempted assignment shall be void). This Agreement
shall be construed as a separate agreement with respect to each
Guarantor and may be amended, modified, supplemented, waived or
released with respect to any Guarantor without the approval of
any other Guarantor and without affecting the obligations of any
other Guarantor hereunder.
SECTION 12. Waivers; Amendment.
(a) No failure or delay of the Bank in exercising any power
or right hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of
the Bank hereunder are cumulative and are not exclusive of any
rights or remedies that the Bank would otherwise have. No waiver
of any provision of this Agreement or consent to any departure by
any Guarantor therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) below, and then such
waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand
on any Guarantor in any case shall entitle such Guarantor to any
other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written
agreement entered into between the Guarantors with respect to
which such waiver, amendment or modification relates and the
Bank.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
GEORGIA.
SECTION 14. Notices. All communications and notices
hereunder shall be in writing and given as provided in Section
8.1 of the Reimbursement Agreement. All communications and
notices hereunder to each Guarantor shall be given to it in care
of the Borrower at the address set forth in Section 8.1 of the
Reimbursement Agreement.
SECTION 15. Survival of Agreement, Severability.
(a) All covenants, agreements, representations and
warranties made by the Guarantors herein and in the certificates
or other instruments prepared or delivered in connection with or
pursuant to this Agreement or the Reimbursement Agreement shall
be considered to have been relied upon by the Bank and shall
survive regardless of any investigation made by the Bank on its
behalf, and shall continue in full force and effect as long as
any Reimbursement Obligation or any other fee or amount payable
under this Agreement or the Reimbursement Agreement is
outstanding and unpaid and as long as the Letter of Credit has
not been terminated.
(b) In the event any one or more of the provisions contained
in this Agreement or in the Reimbursement Agreement should be
held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good faith
negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 16. Counterparts. This Agreement may be executed
in counterparts, each of which shall constitute an original, but
all of which when taken together shall constitute a single
contract, and shall become effective as provided in Section 11.
Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 17. Jurisdiction; Consent to Service of Process.
(a) Each Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive
jurisdiction of any Georgia State court or Federal court of the
United States of America sitting in Atlanta, Georgia, and any
appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, the Reimbursement
Agreement, the Reimbursement Note or the Letter of Credit, 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 or, to the extent
permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right
that the Bank may otherwise have to bring any action or
proceeding relating to this Agreement, the Reimbursement
Agreement or the Reimbursement Note against any Guarantor or its
properties in the courts of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or
relating to this Agreement, the Reimbursement Agreement or the
Reimbursement Note in any Georgia State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section
14. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted
by law.
SECTION 18. Right of Setoff. If an Event of Default shall
have occurred and be continuing, the Bank is hereby authorized at
any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
and other Debt at any time owing by the Bank to or for the credit
or the account of any Guarantor against any or all the
obligations of such Guarantor now or hereafter existing under
this Agreement, the Reimbursement Agreement or the Reimbursement
Note held by the Bank, irrespective of whether or not the Bank
shall have made any demand under this Agreement, the
Reimbursement Agreement or the Reimbursement Note and although
such obligations may be unmatured. The rights of the Bank under
this Section 18 are in addition to other rights and remedies
(including other rights of setoff) which the Bank may have.
SECTION 19. Additional Guarantors. Pursuant to the
Reimbursement Agreement, additional Subsidiaries may enter into
this Agreement as a Guarantor. Upon execution and delivery,
after the date hereof, by the Bank and such a Subsidiary of an
instrument in form and substance satisfactory to the Bank, such
Subsidiary shall become a Guarantor hereunder with the same force
and effect as if originally named as a Guarantor herein. The
execution and delivery of any instrument adding an additional
Guarantor as a party to this Agreement shall not require the
consent of any other Guarantor hereunder. The rights and
obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding
the addition of any new Guarantor as a party to this Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
TRUS JOIST MACMILLAN A LIMITED PARTNERSHIP
By: TJ International, Inc., its sole General
Partner
By:
(SEAL)
---------------------------------------------
Name:
Title:
NORCO WINDOWS, INC.
By:
(SEAL)
--------------------------------------------
Name:
Title:
TRUS JOIST MACMILLAN LIMITED
By:
(SEAL)
--------------------------------------------
Name:
Title:
TRUS JOIST (WESTERN) LTD.
By:
(SEAL)
---------------------------------------------
Name:
Title:
TRUS JOIST CORPORATION
By:
(SEAL)
--------------------------------------------
Name:
Title:
TJM FACILITIES CORPORATION
By:
(SEAL)
--------------------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By:
(SEAL)
--------------------------------------------
Name:
Title: