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EXHIBIT 10.10
BUCKEYE TECHNOLOGIES INC.
CREDIT AGREEMENT
Amendment No. 1
This Agreement, dated as of September 7, 2001 (this "Agreement"), is
among Buckeye Technologies Inc., a Delaware corporation, its subsidiaries set
forth on the signature pages hereto, and Fleet National Bank, as Agent for
itself and the other Lenders under the Credit Agreement referred to below. The
parties agree as follows:
1. Credit Agreement; Definitions. This Agreement amends the Credit
Agreement dated as of April 16, 2001 among the parties hereto and
certain lenders (as amended and in effect prior to giving effect to
this Agreement, the "Credit Agreement"). Terms defined in the Credit
Agreement as amended hereby (the "Amended Credit Agreement") and not
otherwise defined herein are used with the meaning so defined.
2. Amendment of Credit Agreement. Effective on the date all the conditions
set forth in Section 4 hereof are satisfied (the "Amendment Date"), the
Credit Agreement is amended as follows:
2.1. Amendments of Section 1.
2.1.1. The definition of "Applicable Margin" in Section 1 of
the Credit Agreement is amended to read in its
entirety as follows:
""Applicable Margin" means (a) through the third
Banking Day after quarterly financial statements have been
forwarded by the Company to the Lenders in accordance with
Section 6.4.2 for the fiscal quarter ended March 31, 2001, the
second highest applicable percentage rate set forth in the
table below and (b) on each day thereafter, the percentage in
the table below indicated by the ratio which (a) Consolidated
Total Debt on the last day of the most recently ended fiscal
quarter for which financial statements have been (or are
required to have been) furnished by the Company to the Lenders
in accordance with Section 6.4.1 or 6.4.2, as the case may be,
prior to the first day of such month bore to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters
ended on the last day of such fiscal quarter:
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Ratio of Consolidated Total Applicable Commitment
Debt to Consolidated EBITDA Margin Fee Rate
--------------------------- ------ --------
Greater than or equal to 4.75 3.250% 0.400%
Greater than or equal to 4.25 2.750% 0.400%
but less than 4.75
Greater than or equal to 3.75 1.500% 0.375%
but less than 4.25
Greater than or equal to 3.50 1.375% 0.375%
but less than 3.75
Greater than or equal to 3.00 1.250% 0.300%
but less than 3.50
Greater than or equal to 2.50 1.000% 0.250%
but less than 3.00
Less than 2.50 0.750% 0.250%
Changes in the Applicable Margin shall occur on the third Banking Day
after quarterly financial statements have been furnished to the Agent
in accordance with Sections 6.4.1 or 6.4.2 from time to time. In the
event that the financial statements required to be delivered pursuant
to Section 6.4.1 or 6.4.2, as applicable, are not delivered when due,
then during the period from the third Banking Day following the date
such financial statements were due until the third Banking Day
following the date on which they are actually delivered, the Applicable
Margin shall be the maximum amount set forth in the table above.
Commencing on the effective date of Amendment No. 1 hereto, the
Applicable Margin will be 3.250% and the Commitment Fee Rate will be
0.400% until financial statements for the first fiscal quarter ending
after such effective date are provided to the Lenders by the Company in
accordance with Section 6.4.2, whereupon the Applicable Margin and the
Commitment Fee Rate will be determined in accordance with the table
above."
2.1.2. The definition of "Base Rate" in Section 1 of the
Credit Agreement is amended to read in its entirety
as follows:
""Base Rate" means, on any date, the greater of (a)
the rate of interest announced by Fleet at the Boston Office
as its prime rate or (b) the sum of 1/2% plus the Federal
Funds Rate; provided, however, that at any time when
Consolidated Total Net Debt is greater than 350% of
Consolidated EBITDA for the most recent period of four
consecutive fiscal quarters for which financial reports have
been (or are required to have been) furnished to the Lenders
in accordance with Section 6.4.2, "Base Rate" shall mean the
sum of 1.75% plus the greater of clauses (a) and (b) above."
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2.1.3. Section 1 of the Credit Agreement is amended by
adding immediately after the definition of
"Consolidated Total Net Debt" the following
definition of "Consolidated Total Net Senior Debt" to
read in its entirety as follows:
""Consolidated Total Net Senior Debt" means, at any
date, the remainder of (a) Consolidated Total Net Debt minus
(b) the principal amount of Financing Debt contractually
subordinated to the Credit Obligations in a manner permitted
hereby or otherwise satisfactory to the Required Lenders."
2.1.4. Section 1 of the Credit Agreement is amended by
adding immediately after the definition of "Net Asset
Sale Proceeds" the following definition of "Net
Equity Proceeds" to read in its entirety as follows:
""Net Equity Proceeds" means the cash proceeds (net
of reasonable out-of-pocket fees and expenses) received by the
Company or any of its Subsidiaries in connection with any
issuance by the Company or any of its Subsidiaries after the
Initial Closing Date of any shares of its capital stock, other
equity interests or options, warrants or other purchase rights
to acquire such capital stock or other equity interests to, or
receipt of a capital contribution from, any Person (other than
any Obligors or their officers, employees and directors)."
2.1.5. The definition of "Receivables Securitization" in
Section 1 of the Credit Agreement is amended to read
in its entirety as follows:
""Receivables Securitization" means the sale, pledge
or other disposition by the Company or any of its
Subsidiaries, with or without recourse, of a bulk group of its
accounts receivables in exchange for cash pursuant to an
accounts receivable purchase facility containing terms
substantially similar to the summary terms provided to the
Lenders prior to the effectiveness of Amendment No. 1 hereto
and on more complete terms satisfactory to the Agent, or
pursuant to other programs or facilities approved by the
Required Lenders."
2.1.6. The definition of "Receivables Securitization
Proceeds" in Section 1 of the Credit Agreement is
amended to read in its entirety as follows:
""Receivables Securitization Proceeds" means the
monthly amount of cash proceeds (net of reasonable
out-of-pocket transaction fees and expenses) received by the
Company and its Subsidiaries from the purchaser under a
Receivables Securitization in respect of uncollected accounts
receivable sold pursuant to such Receivables Securitization
net of collection proceeds during such month from accounts
receivable previously sold pursuant to such Receivables
Securitization."
2.2. Amendment of Section 2.1.2. Section 2.1.2 of the Credit
Agreement is amended to read in its entirety as follows:
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"2.1.2. Maximum Amount of Revolving Credit. The term "Maximum
Amount of Revolving Credit" means the lesser of:
(a)(i) $215,000,000 minus (ii) Net Asset Sale Proceeds to the
extent (A) such Net Asset Sale Proceeds exceed both (1) $5,000,000 in
any fiscal year and (2) $25,000,000 in the aggregate after the Initial
Closing Date and (B) the amount of such excess in the foregoing clause
(A) is not allocated to an effective Permitted Reinvestment Reserve
Amount, minus (iii) Receivables Securitization Proceeds to the extent
such Receivables Securitization Proceeds exceed $30,000,000 in the
aggregate after the Initial Closing Date, minus (iv) Net Equity
Proceeds received at any time when Consolidated Total Net Debt is
greater than 350% of Consolidated EBITDA for the most recent period of
four consecutive fiscal quarters for which financial reports have been
(or are required to have been) furnished to the Lenders in accordance
with Section 6.4.2, minus (v) $15,000,000 at any time when neither a
Supported Irish Loan nor a Letter of Credit for the benefit of an Irish
Lender is outstanding; or
(b) the amount (in an integral multiple of $1,000,000) to
which the Maximum Amount of Revolving Credit shall have been
irrevocably reduced from time to time by notice from the Company to the
Agent."
2.3. Amendment of Section 4.2.3. Section 4.2.3 of the Credit
Agreement is amended to read in its entirety as follows:
"4.2.3. Receivables Securitization Proceeds. Upon receipt of
Receivables Securitization Proceeds by the Company or any of its
Subsidiaries, the Company shall within one Banking Day pay to the Agent
as a prepayment of the Loan to be applied as provided in Section 4.4.2
the lesser of (a) the amount of such Receivables Securitization
Proceeds in excess of $30,000,000 in the aggregate after the Initial
Closing Date or (b) the amount of the Revolving Loan."
2.4. Addition of Section 4.2.5. Section 4.2 of the Credit Agreement
is amended by adding immediately after Section 4.2.4 new
Section 4.2.5 to read in its entirety as follows:
"4.2.5. Net Equity Proceeds. Upon receipt of Net Equity
Proceeds by the Company or any of its Subsidiaries at any time when
Consolidated Total Net Debt is greater than 350% of Consolidated EBITDA
for the most recent period of four consecutive fiscal quarters for
which financial reports have been (or are required to have been)
furnished to the Lenders in accordance with Section 6.4.2, the Company
shall within one Banking Day pay to the Agent as a prepayment of the
Loan to be applied as provided in Section 4.4.2 the lesser of (a) the
amount of such Net Equity Proceeds or (b) the amount of the Revolving
Loan."
2.5. Amendment of Section 4.4.2. Section 4.4.2 of the Credit
Agreement is amended so that the last sentence thereof reads
in its entirety as follows:
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"Contingent mandatory prepayments pursuant to Sections 4.2.2,
4.2.3 and 4.2.5 shall be applied first to the Revolving Loan, with any
balance to the Swingline Loan, with any balance to the Money Market
Loan, with any balance to be held as cash collateral for Letter of
Credit Exposure in accordance with Section 4.4."
2.6. Amendment of Section 6.4.3. Section 6.4.3 of the Credit
Agreement is amended to read in its entirety as follows:
"6.4.3. Monthly Reports; Weekly Irish Loan Reports. The
Company shall furnish to the Lenders as soon as available and, in any
event, within 30 days after the end of each month, the internally
prepared financial data for such month in the form prepared by
management for its internal purposes. The Company shall furnish to the
Agent and the Irish Lenders by Friday of each week a summary of
outstanding Irish Loans as of Friday of the previous week. The Company
shall furnish to the Agent on a monthly basis a description of any
Receivables Securitizations consummated during such month, including
calculations showing the accounts receivable sold pursuant to such
Receivables Securitization during such month, the amount of Receivables
Securitization Proceeds received during such month and such other
information with respect to such Receivables Securitization as the
Agent may reasonably request."
2.7. Amendment of Section 6.4.7. Section 6.4.7 of the Credit
Agreement is amended by adding the following sentence at the
end thereof:
"Upon the reasonable request of the Agent, the Agent's
commercial finance examiners may conduct field audits of the Company
and its Subsidiaries."
2.8. Amendment of Section 6.5.2. Section 6.5.2 of the Credit
Agreement is amended to read in its entirety as follows:
"6.5.2. Consolidated Total Net Debt to Consolidated EBITDA.
Consolidated Total Net Debt as of the end of any fiscal quarter of the
Company shall not exceed the applicable percentage set forth in the
table below of Consolidated EBITDA for the period of four consecutive
fiscal quarters then ending:
Fiscal Quarter Ending Percentage
--------------------- ----------
Prior to June 30, 2001 400%
June 30, 2001 425%
September 30, 2001 540%
December 31, 2001 650%
March 31, 2002 690%
June 30, 2002 650%
September 30, 2002 560%
December 31, 2002 400%
through March 31, 2003
June 30, 2003 375%
through December 31, 2003
March 31, 2004 350%"
and thereafter
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2.9. Amendment of Section 6.5.3. Section 6.5.3 of the Credit
Agreement is amended to read in its entirety as follows:
"6.5.3. Consolidated EBITDA to Consolidated Interest Expense.
For each period of four consecutive fiscal quarters of the Company,
Consolidated EBITDA shall equal or exceed the percentage of
Consolidated Interest Expense set forth in the table below:
Fiscal Quarter Ending Percentage
--------------------- ----------
Prior to September 30, 2001 300%
September 30, 2001 260%
December 31, 2001 215%
March 31, 2002 200%
through June 30, 2002
September 30, 2002 230%
December 31, 2002 300%
March 31, 2003 315%
June 30, 2003 325%"
and thereafter
2.10. Amendment of Section 6.5.4. Section 6.5.4 of the Credit
Agreement is amended to read in its entirety as follows:
"6.5.4. Consolidated EBITDA Minus Capital Expenditures to
Consolidated Interest Expense. For each period of four consecutive
fiscal quarters of the Company, the excess of consolidated EBITDA minus
Capital Expenditures of the Company and its Subsidiaries shall equal or
exceed the percentage of Consolidated Interest Expense set forth in the
table below, provided, however, that for the purposes of this Section
6.5.4, Capital Expenditures shall exclude capital expenditures for the
construction of an air-laid facility in Gaston, North Carolina in an
amount not exceeding $85,000,000 for any fiscal quarter and $95,000,000
in the aggregate:
Fiscal Quarter Ending Percentage
--------------------- ----------
Prior to September 30, 2001 175%
September 30, 2001 115%
December 31, 2001 100%
through March 31, 2002
June 30, 2002 120%
September 30, 2002 1150%
December 31, 2002 175%"
and thereafter
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2.11. Addition of Section 6.5.5. Section 6.5 of the Credit Agreement
is amended by adding immediately after Section 6.5.4 new
Section 6.5.5 to read in its entirety as follows:
"6.5.5. Consolidated Total Net Senior Debt to Consolidated
EBITDA. Consolidated Total Net Senior Debt as of the end of any fiscal
quarter of the Company set forth in the table below shall not exceed
the applicable percentage set forth in the table below of Consolidated
EBITDA for the period of four consecutive fiscal quarters then ending:
Fiscal Quarter Ending Percentage
--------------------- ----------
September 30, 2001 225%
December 31, 2001 270%
March 31, 2002 285%
June 30, 2002 265%
September 30, 2002 225%"
and thereafter
2.12. Amendment of Section 6.6.7. Section 6.6.7 of the Credit
Agreement is amended to read in its entirety as follows:
"6.6.7. To the extent permitted by Section 6.7.8, Indebtedness
in respect of Capitalized Lease Obligations or secured by purchase
money security interests; provided, however, that the aggregate
principal amount of all Indebtedness permitted by this Section 6.6.7
and by Section 6.6.18 at any one time outstanding shall not exceed
$50,000,000, and provided, further, that at any time when Consolidated
Total Net Debt is greater than 350% of Consolidated EBITDA for the most
recent period of four consecutive fiscal quarters for which financial
reports have been (or are required to have been) furnished to the
Lenders in accordance with Section 6.4.2, the aggregate principal
amount of all Indebtedness permitted by this Section 6.6.7 and by
Section 6.6.18 at any one time outstanding shall not exceed
$10,000,000."
2.13. Amendment of Section 6.6.10. Section 6.6.10 of the Credit
Agreement is amended to read in its entirety as follows:
"6.6.10. Guarantees by the Company of loans by third parties
to its employees in an amount not to exceed $4,000,000 in the aggregate
at any one time outstanding; provided, however, that at any time when
Consolidated Total Net Debt is greater than 350% of Consolidated EBITDA
for the most recent period of four consecutive fiscal quarters for
which financial reports have been (or are required to have been)
furnished to the Lenders in accordance with Section 6.4.2, the Company
shall not enter into any additional Guarantees of loans by third
parties to its employees."
2.14. Amendment of Section 6.6.16. Section 6.6.16 of the Credit
Agreement is amended to read in its entirety as follows:
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"6.6.16. Indebtedness of Foreign Subsidiaries in respect of
credit facilities to finance working capital and other valid business
purposes in an aggregate amount not to exceed $70,000,000 in the
Equivalent Amount of United States Funds, computed as of the most
recent date such Indebtedness was incurred, minus Irish Loan
Equivalents minus Receivables Securitization Proceeds (provided,
however, that the amount subtracted in respect of Receivables
Securitization Proceeds shall not exceed $30,000,000)"
2.15. Addition of Section 6.7.16 Section 6.7 of the Credit Agreement
is amended by adding immediately after Section 6.7.15 new
section 6.7.16 to read in its entirety as follows:
"6.7.16. Claim of lien in the amount of $46,441.33 filed on
October 23, 2000 in Xxxxxx County, Florida by Rental Service
Corporation USA Inc. against certain real property owned by Buckeye
Florida Corporation (the "Florida Lien"); provided, however, that the
Company shall, (a) no later than November 15, 2001, provide the Agent
with an endorsement to the title insurance policy issued with respect
to the real property located in Florida satisfactory to the Agent
confirming that the Florida Lien has expired by its terms and deleting
the Florida Lien as an exception to such title insurance policy, or (b)
alternatively, in the event that the holder of the Florida Lien seeks
to enforce such lien, the Company shall provide prompt written notice
of such action to the Agent and shall bond such lien and provide the
Agent with an endorsement to the title insurance policy issued with
respect to the real property located in Florida confirming that such
lien has been bonded and deleting the Florida Lien as an exception to
such title insurance policy."
2.16. Amendment of Section 6.8.5. Section 6.8.5 of the Credit
Agreement is amended to read in its entirety as follows:
"6.8.5. So long as immediately before and after giving effect
thereto no Default exists, and so long as the Company (if the Company
is party thereto) or a Guarantor (if the Company is not party thereto)
is the surviving entity, the Company and its Subsidiaries may acquire
another entity in the same line of business as the Company as described
in Section 6.2.1:
(a) at all times when Consolidated Total Net Debt
(calculated on a pro forma basis giving effect to the
proposed acquisition) is greater than 350% of
Consolidated EBITDA for the most recent period of
four consecutive fiscal quarters (calculated on a pro
forma basis giving effect to the proposed acquisition
as if such acquisition had been consummated at the
beginning of such period) for which financial reports
have been (or are required to have been) furnished to
the Lenders in accordance with Sections 6.4.1 or
6.4.2, only with the consent of the Required Lenders;
(b) at all other times, for a purchase price not
exceeding, except with the consent of the Required
Lenders, $50,000,000 for any single
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acquisition and $100,000,000 in cumulative aggregate
purchase price for all acquisitions permitted by this
Section 6.8.5 during the period from the Initial
Closing Date through the Final Maturity Date;
provided, however, that (i) the acquisition must be
approved by the target entity's board of directors,
(ii) the Company must be in compliance with the
Computation Covenants immediately after giving effect
to such acquisition, (iii) the acquired entity must
not have any environmental liabilities which, after
giving effect to such acquisition, would reasonably
be expected to result in a Material Adverse Change
and (iv) any Subsidiary (other than a Foreign
Subsidiary) acquired under this Section 6.8.5 shall
guarantee the Credit Obligations, as contemplated by
Section 9.9."
2.17. Addition of Section 6.8.9. Section 6.8 of the Credit Agreement
is amended by adding immediately after Section 6.8.8 new
Section 6.8.9 to read in its entirety as follows:
"6.8.9. So long as immediately before and after giving effect
thereto no Default exists, and provided that the Company complies with
Section 9.9, the Company may create a wholly owned Subsidiary that
constitutes a holding company for the Company's European Subsidiaries."
2.18. Amendment of Section 6.9.2. Section 6.9.2 of the Credit
Agreement is amended to read in its entirety as follows:
"6.9.2. So long as immediately before and after giving effect
thereto no Default exists, the Company may make Distributions in an
aggregate amount which shall not exceed the sum of (i) 50% of the sum
of the Consolidated Net Income (which may be a negative number) for
each fiscal quarter after March 31, 2001, plus (ii) the net amount
received by the Company from the exercise of options and other
purchases of Company stock after March 31, 2001 by Company employees
plus (iii) $35,000,000, which amount in this clause (iii) may be
applied to pay dividends to stockholders or to repurchase shares of the
Company's capital stock from its stockholders only after the amounts in
clauses (i) and (ii) have already been applied in their entirety to pay
dividends or to make stock repurchases; provided, however, that the
Company shall not make Distributions to pay dividends on or in respect
of any shares of the Company's capital stock or to repurchase shares of
the Company's capital stock from its stockholders at any time when
Consolidated Total Net Debt is greater than 350% of Consolidated EBITDA
for the most recent period of four consecutive fiscal quarters for
which financial reports have been (or are required to have been)
furnished to the Lenders in accordance with Section 6.4.2."
2.19. Amendment of Section 6.9.5. Section 6.9.5. of the Credit
Agreement is amended to read in its entirety as follows:
"6.9.5. So long as immediately before and after giving effect
thereto no Default exists, the Company may repurchase shares of its
stock from employees whose
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employment with the Company and its Subsidiaries has terminated, to the
extent required by the Company's nonqualified employee benefit plans
and contracts in an aggregate amount not exceeding the sum of
$1,000,000 in any fiscal year plus net amounts received by the Company
during such fiscal year from the exercise of options and other
purchases of Company stock by employees; provided, however, that the
Company shall not repurchase shares of its stock from employees
pursuant to this Section 6.9.5 at any time when Consolidated Total Net
Debt is greater than 350% of Consolidated EBITDA for the most recent
period of four consecutive fiscal quarters for which financial reports
have been (or are required to have been) furnished to the Lenders in
accordance with Section 6.4.2."
2.20. Amendment of Section 6.13. Section 6.13 of the Credit
Agreement is amended to read in its entirety as follows:
"6.13. Voluntary Prepayments of Other Indebtedness. Neither
the Company nor any of its Domestic Subsidiaries shall make any
voluntary prepayment of principal of or interest on any Financing Debt
(other than the Credit Obligations) or make any voluntary redemptions
or repurchases of Financing Debt (other than the Credit Obligations) in
an aggregate amount exceeding $20,000,000 since the Initial Closing
Date, except that the Company and its Domestic Subsidiaries may
refinance Financing Debt to the extent permitted by Section 6.6;
provided, however, that such amount shall increase to $40,000,000 at
any time when Consolidated Total Net Debt is less than 250% of
Consolidated for the most recent period of four consecutive fiscal
quarters for which financial reports have been (or are required to have
been) furnished to the Lenders in accordance with Section 6.4.2; and
provided, further, that if Consolidated Total Net Debt decreases below
250% of Consolidated EBITDA for the most recent period of four
consecutive fiscal quarters for which financial reports have been (or
are required to have been) furnished to the Lenders in accordance with
Section 6.4.2 and then subsequently becomes greater than 250%, such
amount shall be limited to the greater of $20,000,000 in the aggregate
or the aggregate amount of such prepayments made as of the time
Consolidated Total Net Debt again became greater than 250% of
Consolidated EBITDA for the most recent period of four consecutive
fiscal quarters for which financial reports have been (or are required
to have been) furnished to the Lenders in accordance with Section
6.4.2. Notwithstanding the foregoing, neither the Company nor any of
its Domestic Subsidiaries shall make any voluntary prepayment of
principal of or interest on any Financing Debt (other than the Credit
Obligations) or make any voluntary redemptions or repurchases of
Financing Debt (other than the Credit Obligations) at any time when
Consolidated Total Net Debt is greater than 350% of Consolidated EBITDA
for the most recent period of four consecutive fiscal quarters for
which financial reports have been (or are required to have been)
furnished to the Lenders in accordance with Section 6.4.2."
2.21. Addition of Section 8.1.12. Section 8.1. of the Credit
Agreement is amended by adding immediately after Section
8.1.11 new Section 8.1.12 to read in its entirety as follows:
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"8.1.12. On or before October 31, 2001, the Company shall fail
to provide the Lenders with a perfected security interest in (a)
Buckeye Lumberton Inc d/b/a Buckeye Xxxxxx'x real and personal property
located in Xxxxxx, North Carolina, (b) Buckeye Mt. Xxxxx LLC's real and
personal property located in Xxxxxx, North Carolina, and (c) the
membership interests in Buckeye Mt. Xxxxx LLC, all as more particularly
described in section 2.2.3 of the Security Agreement."
2.22. Amendment of Section 10.1. Section 10.1(a) of the Credit
Agreement is amended by adding the phrase "commercial finance
examiners," immediately following the phrase "any
environmental audit report".
3. Representations and Warranties. In order to induce the Agent and the
documentation agents to enter into this Agreement, each of the Company
and the Guarantors jointly and severally represents and warrants that
after giving effect to this Agreement, (a) no Default exists and (b)
the representations and warranties contained in Section 7 of the Credit
Agreement are true and correct in all material respects on and as of
the date hereof with the same force and effect as though made on and as
of such date (except as to any representation or warranty which refers
to a specific earlier date).
4. Conditions to Effectiveness.
4.1. Proper Proceedings. This Agreement, each other Credit Document
and the transactions contemplated hereby and thereby shall
have been authorized by all necessary proceedings of the
Company and the Guarantors. All necessary consents, approvals
and authorizations of any governmental or administrative
agency or any other Person with respect to any of the
transactions contemplated hereby or by any other Credit
Document shall have been obtained and shall be in full force
and effect. The Agent shall have received copies of all
documents, including acquisition agreements, certificates,
records of corporate and partnership proceedings and opinions
of counsel, which the Agent may have reasonably requested in
connection therewith, such documents where appropriate to be
certified by proper corporate, partnership or governmental
authorities.
4.2. Payment of Fees and Expenses. The Company shall have paid to
the Agent (a) for the account of the Lenders, an amendment fee
in an amount equal to 0.25% of the respective Commitments of
the Lenders and (b) the reasonable legal fees and expenses of
the Agent with respect to this Agreement and the transactions
contemplated hereby.
4.3. Receivables Securitization. The Company shall have furnished
to the Agent a summary of the proposed term sheet, the terms
of which must be satisfactory to the Agent, of the nonrecourse
insured Receivables Securitization facility it intends to
enter into following the Amendment Date.
4.4. Florida and Tennessee Real Property.
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4.4.1. Notwithstanding anything in the Credit Agreement or
the Security Agreement to the contrary, the Obligors
shall have duly authorized executed, acknowledged and
delivered to the Agent (a) a mortgage in
substantially the form previously agreed upon on
substantially all of the real property owned by
Buckeye Florida, Limited Partnership and located in
Florida except for the property commonly known as San
Xxxxx Bay comprising approximately 7,000 acres,
together with related UCC financing statements and
(b) a deed of trust in substantially the form
previously agreed upon on the real property owned by
the Company and located in Tennessee together with
related UCC financing statements.
4.4.2. In connection with each mortgage and deed of trust to
be delivered in accordance with Section 4.4.1, the
Agent shall have received as of the effective date of
this Agreement (a) ALTA mortgagee title insurance
policies or unconditional commitments therefor in the
form of the proforma title insurance policies issued
by First American Title Insurance Company with
respect to the properties located in Florida and
Tennessee and attached as Exhibit B to that certain
Escrow Agreement dated as of April 16, 2001 by and
among Buckeye Technologies Inc., a Delaware
corporation, Buckeye Lumberton Inc., a North Carolina
Corporation, d/b/a Buckeye Xxxxxx, Buckeye Mt. Xxxxx
LLC, a Delaware limited liability company, Buckeye
Florida, Limited Partnership, a Delaware limited
partnership, Fleet National Bank, a national banking
association as Agent and First American Title
Insurance Company, a California corporation as Escrow
Holder (the "Escrow Agreement"), (b) evidence
satisfactory to the Agent that the Company has paid
to the title company or to the appropriate
governmental authority all expenses and premiums of
the title company and all other sums required in
connection with the issuance of each title policy and
all recording and stamp taxes (including mortgage
recording and intangible taxes) payable in connection
with recording the mortgage and deed of trust in the
appropriate real estate records, and (c) an opinion
of local counsel reasonably satisfactory to the Agent
in all respects with respect to the enforceability of
each such mortgage and deed of trust.
5. Confirmation of Security Agreement. As a result of the foregoing
provisions, the parties confirm that, upon the Amendment Date, the
documents held in escrow pursuant to section 2.2.4 of the Security
Agreement may be released to the Company.
6. Certain Calculations. Amounts in respect of interest, commitment fees,
Letter of Credit fees and other amounts payable under the Amended
Credit Agreement shall be payable in accordance with the terms of the
Credit Agreement as in effect prior to giving effect to the amendments
provided in Section 2 hereof for periods prior to the Amendment Date
and in accordance with the Amended Credit Agreement for periods from
and after the Amendment Date.
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13
7. General. The Amended Credit Agreement and all of the Credit Documents
are each confirmed as being in full force and effect. This Agreement,
the Amended Credit Agreement and the other Credit Documents referred to
herein or therein constitute the entire understanding of the parties
with respect to the subject matter hereof and thereof and supersede all
prior and current understandings and agreements, whether written or
oral. Each of this Agreement and the Amended Credit Agreement is a
Credit Document and may be executed in any number of counterparts,
which together shall constitute one instrument, and shall bind and
inure to the benefit of the parties and their respective successors and
assigns, including as such successors and assigns all holders of any
Credit Obligation. This Agreement shall be governed by and construed in
accordance with the laws (other than the conflict of law rules) of The
Commonwealth of Massachusetts.
[The rest of this page is intentionally blank]
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14
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
BUCKEYE TECHNOLOGIES INC.
BUCKEYE FLORIDA CORPORATION
BUCKEYE XXXXX CORPORATION
BUCKEYE LUMBERTON INC.
BKI FINANCE CORPORATION
BKI INTERNATIONAL INC.
By: /S/ X. X. XXXXXXX
----------------------------------------
As an authorized officer of each of the
foregoing corporations
BUCKEYE FLORIDA, LIMITED PARTNERSHIP
By Buckeye Florida Corporation, general
partner
By: /S/ X. X. XXXXXXX
----------------------------------------
Title: PRESIDENT
BUCKEYE MT. XXXXX LLC
By Buckeye Lumberton Inc., Manager
By: /S/ X. X. XXXXXXX
----------------------------------------
Title: PRESIDENT
BKI ASSET MANAGEMENT CORPORATION
BKI HOLDING CORPORATION
By: /S/ XXXXXXX XXXXXX
----------------------------------------
Title: PRESIDENT
BKI LENDING INC.
By: /S/ XXXXX X. XXXXX
----------------------------------------
Title: PRESIDENT
15
BFC I CORP.
By: /S/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx, Secretary
BFOL 1 CORP.
By: /S/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx, President
BFC 2 LP
By: BFOL 1 Corp., its general partner
By: /S/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx, President
BFOL 2 LP
By: BFC I Corp., its general partner
By: /S/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx, Secretary
BFC 3 LLC
By: BFOL 2 LP, its manager
By: BFC I Corp., its general partner
By: /S/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx, Secretary
BFOL 3 LLC
By: BFC 2 LP, its manager
By: BFOL 1 Corp., its general partner
By: /S/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx, President
MERFIN SYSTEMS INC.
By: X. X. XXXXXXX
----------------------------------------
Title:
16
FLEET NATIONAL BANK
By /S/ XXXXXX X. XXXXXXX
----------------------------------------
Title: DIRECTOR
ABN AMRO BANK, N.V.
By /S/ XXXXXX X. XXXX
----------------------------------------
Title: SENIOR VICE PRESIDENT
By /S/ XXXXX XXXXXXX
----------------------------------------
Title: VICE PRESIDENT
BANK OF AMERICA, N.A.
By /S/ XXXXXX XXXXXXX
----------------------------------------
Title:
THE BANK OF NOVA SCOTIA
By /S/ M. D. XXXXX
----------------------------------------
Title: AGENT
FIRST PIONEER FARM CREDIT, ACA
By /S/ XXX PAPAL
----------------------------------------
Title: VICE PRESIDENT
FIRST UNION NATIONAL BANK
By /S/ J. XXXXXX XXXXXX
----------------------------------------
Title: VICE PRESIDENT
17
FIRSTAR BANK, NATIONAL ASSOCIATION
By /S/ XXXXX X. XXXXXXXXX
----------------------------------------
Title: VICE PRESIDENT
TORONTO DOMINION (TEXAS), INC.
By /S/ XXX X. XXXXXX
----------------------------------------
Title:
UNION PLANTERS BANK, NA
By /S/ XXXXX XXXXXX
----------------------------------------
Title: VICE PRESIDENT
WACHOVIA BANK, NA
By /S/ XXXX X. XXXXX
----------------------------------------
Title: SENIOR VICE PRESIDENT
