AMENDMENT NO. 3 TO REVOLVING CREDIT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 3 TO REVOLVING CREDIT AGREEMENT
This AMENDMENT NO. 3 TO REVOLVING CREDIT AGREEMENT (this "Amendment") is dated as of November 18, 2005, by THE PACIFIC LUMBER COMPANY, a Delaware corporation ("Palco"), THE XXXXX LUMBER CO., INC., a Delaware corporation ("Xxxxx" and together with Palco, the "Borrowers"), the Loan Parties signatory hereto, THE CIT GROUP/BUSINESS CREDIT, INC., as administrative agent (the "Administrative Agent") for itself and the Lenders under and as defined in the Credit Agreement (as hereinafter defined), and the Lenders. Unless otherwise specified herein, capitalized terms used in this Amendment shall have the meanings ascribed to them by the Credit Agreement.
RECITALS
WHEREAS, the Borrowers, the Administrative Agent and the Lenders have entered into that certain Revolving Credit Agreement, dated as of April 19, 2005 (as amended, supplemented, restated or otherwise modified from time to time, the "Credit Agreement");
WHEREAS, the parties hereto have agreed to, among other things, increase permitted unsecured debt by $6,000,000 which may be used to prepay the Loans;
NOW THEREFORE, in consideration of the foregoing recital, mutual agreements contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Administrative Agent and Lenders hereby agree as follows:
SECTION 1. Amendment to Section 5.04(d). Section 5.04(d) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
"(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (c) above, (i) a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements and certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto (which certificate, when furnished by an accounting firm, may be limited to providing negative assurances regarding financial covenants related to accounting matters and disclaim responsibility for legal interpretations) and (ii) a certificate executed by any officer of PALCO setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10 and 6.11;"
SECTION 2. Amendment to Section 6.01(i). Section 6.01(i) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
"(i) other unsecured Indebtedness of the Borrowers or the Subsidiaries in an aggregate amount not to exceed $6,500,000 at any time outstanding; provided, however
that such unsecured Indebtedness does not mature, and no payments of any kind may be made on or with respect thereto, until six (6) months after the Maturity Date."
SECTION 3. Effectiveness. The effectiveness of this Amendment is subject to the satisfaction of each the following conditions precedent:
(a) this Amendment shall have been duly executed and delivered by the Borrower, the Loan Parties, the Administrative Agent and each Lender; and
(b) the representations and warranties contained herein shall be true and correct in all respects.
SECTION 4. Representations and Warranties. In order to induce the Administrative Agent and each Lender to enter into this Amendment, each Loan Party hereby represents and warrants to the Administrative Agent and each Lender, which representations and warranties shall survive the execution and delivery of this Amendment, that:
(a) all of the representations and warranties contained in the Credit Agreement and in each Loan Document are true and correct as of the date hereof after giving effect to this Amendment, except to the extent that any such representations and warranties expressly relate to an earlier date;
(b) the execution, delivery and performance by such Loan Party of this Amendment has been duly authorized by all necessary corporate action required on its part and this Amendment, and the Credit Agreement is the legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its terms, except as its enforceability may be affected by the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors generally;
(c) neither the execution, delivery and performance of this Amendment by such Loan Party, the performance by such Loan Party of the Credit Agreement nor the consummation of the transactions contemplated hereby does or shall contravene, result in a breach of, or violate (i) any provision of any Loan Party's certificate or articles of incorporation or bylaws or other similar documents, or agreements, (iii) any law or regulation, or any order or decree of any court or government instrumentality, or (iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which any Loan Party or any of its Subsidiaries is a party or by which any Loan Party or any of its Subsidiaries or any of their property is bound, except in any such case to the extent such conflict or breach has been waived herein or by a written waiver document, a copy of which has been delivered to Administrative Agent on or before the date hereof; and
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(d) |
no Default or Event of Default has occurred and is continuing. | |
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SECTION 5. |
Reference to and Effect Upon the Credit Agreement. |
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(a) Except as specifically set forth above, the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed; and
(b) The amendment set forth herein is effective solely for the purposes set forth herein and shall be limited precisely as written, and shall not be deemed to (i) be a consent to any amendment, waiver or modification of any other term or condition of the Credit Agreement or any other Loan Document, (ii) operate as a waiver or otherwise prejudice any right, power or remedy that the Administrative Agent or the Lenders may now have or may have in the future under or in connection with the Credit Agreement or any other Loan Document or (iii) constitute a waiver of any provision of the Credit Agreement or any Loan Document, except as specifically set forth herein. Upon the effectiveness of this Amendment, each reference in the Credit Agreement to "this Agreement", "herein", "hereof" and words of like import and each reference in the Credit Agreement and the Loan Documents to the Credit Agreement shall mean the Credit Agreement as amended hereby. This Amendment shall be construed in connection with and as part of the Credit Agreement.
SECTION 6. Costs And Expenses. As provided in Section 9.05 of the Credit Agreement, the Borrower agrees to reimburse Administrative Agent for all fees, costs, and expenses, including the reasonable fees, costs, and expenses of counsel or other advisors for advice, assistance, or other representation in connection with this Amendment.
SECTION 7. Reaffirmation of Guaranties. The Loan Parties signatory hereto hereby reaffirm their Guarantees of the Obligations, taking into account the provisions of this Amendment.
SECTION 8. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 9. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute part of this Amendment for any other purposes.
SECTION 10. Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but all such counterparts shall constitute one and the same instrument.
(signature page follows)
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first written above.
BORROWERS:
THE PACIFIC LUMBER COMPANY
By: /s/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Vice President Finance & Admin. and CFO
XXXXX LUMBER CO., INC.
By: /s/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Vice President Finance and Admin. and CFO
THE CIT GROUP/BUSINESS CREDIT, INC., as Administrative Agent and Lender
By: /s/ XXXXXXX XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: Vice President
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date first written above by below Persons in their capacity as Loan Parties and not as a Borrower.
SALMON CREEK LLC
By: /s/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: President and CEO
SCOTIA INN INC.
By: /s/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Vice President Finance and Admin. and CFO
MAXXAM GROUP INC.
By: /s/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Vice President and CFO
CH\803714.1
