Exhibit 10.1
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("First
Amendment"), dated as of January 26, 2001, is entered into by and
among GEORGIA-PACIFIC CORPORATION, a Georgia corporation (the
"Company"), BANK OF AMERICA, N.A., as Issuing Bank and
administrative agent for itself and the Lenders (the "Agent"),
and those financial institutions parties to the Credit Agreement
(collectively, the "Lenders") signatory hereto.
RECITALS
A. The Company, Lenders, and Agent are parties to a Credit
Agreement dated as of November 3, 2000 (the "Credit Agreement")
pursuant to which the Agent and the Lenders have extended certain
credit facilities to the Company.
B. The Company, the Lenders, and the Agent now hereby wish to
amend the Credit Agreement in certain respects, all as set forth
in greater detail below.
NOW, THEREFORE, for valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings, if any, assigned to
them in the Credit Agreement.
2. Amendments to the Credit Agreement.
(a) The definition of "L/C Commitment" set forth in Section 1.01
of the Credit Agreement is hereby amended by deleting such
definition in its entirety, and inserting in its place the
following:
"L/C Commitment" means the commitment of the
Issuing Bank to Issue, and the commitment of the Lenders
severally to participate in, Letters of Credit from time to time
Issued or outstanding under Article 3, in an aggregate amount not
to exceed on any date the amount of $300,000,000, as the same
shall be reduced as a result of a reduction in the L/C Commitment
pursuant to Section 2.06. The L/C Commitment is a part of the
combined Commitments, rather than a separate, independent
commitment.
(b) The definition of "Letter of Credit" set forth in Section
1.01 of the Credit Agreement is hereby amended by deleting such
definition in its entirety, and inserting in its place the
following:
"Letter of Credit" means any letter of credit
issued by the Issuing Bank pursuant to Article 3 and any Existing
Letters of Credit.
(c) The following new definition of "Existing Letters of Credit"
is hereby added to Section 1.01 of the Credit Agreement:
"Existing Letters of Credit" means the letters of
credit described in Schedule 3.10.
(d) Section 2.06 of the Credit Agreement is hereby amended by
deleting the reference to "$150,000,000" in clause (i) thereof
and replacing the same with the following: "$300,000,000".
(e) Article 3 of the Credit Agreement is hereby amended and
restated to conform to the blacklined form of Article 3 attached
as Exhibit A hereto.
3. Representations and Warranties. The Company hereby
represents and warrants to the Agent and the Lenders, as of the
Effective Date (as defined below), as follows:
(a) No Default or Event of Default has occurred and is
continuing.
(b) Since November 3, 2000, there has been no Material Adverse
Effect and no development which is likely to have a Material
Adverse Effect.
(c) None of the representations or warranties made by the
Company, Offeror, or any Restricted Subsidiary in the Loan
Documents as of the date such representations and warranties are
made or deemed made, and none of the statements contained in any
exhibit, report, statement or certificate furnished by or on
behalf of the Company, Offeror, or any Restricted Subsidiary in
connection with the Loan Documents (including the offering and
disclosure materials delivered by or on behalf of the Company to
the Lenders prior to the Effective Date (as defined below)),
contains any untrue statement of a material fact or omits any
material fact required to be stated therein or otherwise
necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading as of the
time when made or delivered.
(d) The execution, delivery and performance by the Company of
this First Amendment have been duly authorized by all necessary
corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or action
by, any person (including any Governmental Authority) in order to
be effective and enforceable. The Credit Agreement as amended by
this First Amendment constitutes the legal, valid and binding
obligations of the Company, enforceable against it in accordance
with its terms, without defense, counterclaim or offset except as
such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to or
limiting creditors' rights generally or by equitable principles
relating to enforceability whether enforcement is sought in a
proceeding at law or in equity.
(e) All representations and warranties of the Company
contained in the Credit Agreement are true and correct.
(f) The Company is entering into this First Amendment on the
basis of its own investigation and for its own reasons, without
reliance upon the Agent and the Lenders or any other person.
(g) Effective Date. This First Amendment will become effective
on the date (the "Effective Date") on which the Agent has
received from the Company, the Issuing Bank, and each of the
Required Lenders a duly executed original, or telefacsimile of
such executed original, of this First Amendment, together with a
duly executed Guarantor Acknowledgment and Consent in the form
attached hereto.
4. Reservation of Rights. The Company acknowledges and agrees
that the execution and delivery by the Agent and the Lenders of
this First Amendment shall not be deemed to create a course of
dealing or otherwise obligate the Agent or the Lenders to enter
into similar amendments under the same or similar circumstances
in the future.
5. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full
force and effect and all references therein to such Credit
Agreement shall henceforth refer to the Credit Agreement as
amended by this First Amendment. This First Amendment shall be
deemed incorporated into, and a part of, the Credit Agreement.
(b) This First Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective
successors and assigns. No third party beneficiaries are
intended in connection with this First Amendment.
(c) This First Amendment shall be governed by and construed in
accordance with the law of the State of New York.
(d) This First Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all
such counterparts together shall constitute but one and the same
instrument.
(e) This First Amendment, together with the Credit Agreement,
contains the entire and exclusive agreement of the parties hereto
with reference to the matters discussed herein and therein. This
First Amendment supersedes all prior drafts and communications
with respect thereto. This First Amendment may not be amended
except in accordance with the provisions of Section 12.02 of the
Credit Agreement.
(f) If any term or provision of this First Amendment shall be
deemed prohibited by or invalid under any applicable law, such
provision shall be invalidated without affecting the remaining
provisions of this First Amendment or the Credit Agreement,
respectively.
(g) Company confirms its obligations under Section 12.04(a) of
the Credit Agreement to reimburse the Agent for all costs and
expenses including reasonable attorneys' fees and expenses
incurred by the Agent in connection with this First Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this First Amendment as of the date first above
written.
GEORGIA-PACIFIC CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
BANK OF AMERICA, N.A., as Agent
and Issuing
Bank and as a Lender
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Managing Director
XXXXXXX XXXXX CAPITAL CORP.
By: /s/ Xxxxx X.X. Xxxxxx
Name: Xxxxx X. X. Xxxxxx
Title: Vice President
XXXXXX XXXXXXX SENIOR FUNDING,
INC.
By: /s/ T. Xxxxxx Xxxxxxx XX
Name: T. Xxxxxx Xxxxxxx XX
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI,
LTD.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Attorney-in-Fact
BANK ONE, NA
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Corporate Banking Officer
BNP PARIBAS
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
By:/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
CIBC INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Executive Director
CIBC World Markets Corp., as Agent
CITIBANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Xxxxxx X. Xxxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
THE DAI-ICHI KANGYO BANK, LIMITED
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLAND BRANCHES
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Vice President
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG, CAYMAN
ISLAND BRANCH
By: /s/ X. X. Xxxxxx
Name: X. X. Xxxxxx
Title: S.V.P.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
KBC BANK N.V.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
THE SANWA BANK, LIMITED, acting
through its New York Branch
By: /s/ X. Xxxxxxxx Wu
Name: X. Xxxxxxxx Wu
Title: Vice President
THE SUMITOMO BANK, LIMITED
By: /s/ C. Xxxxxxx Xxxxxxx
Name: C. Xxxxxxx Xxxxxxx
Title: Senior Vice President
SUNTRUST BANK
By: /s/ J. Xxxxxxxxxxx Xxxxxxx
Name: J. Xxxxxxxxxxx Xxxxxxx
Title: Managing Director
TORONTO-DOMINION (TEXAS), INC.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
UBS AG STAMFORD BRANCH
By:/s/ Xxxxxxx X. Saint
Name: Xxxxxxx X. Saint
Title: Associate Director
Banking Products Services, US
By:/s/ Xxxxxxx X. XxXxxxxx
Name: Xxxxxxx X. XxXxxxxx
Title: Director
Banking Products Services, US
WACHOVIA BANK, N.A.
By:/s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: SVP
GUARANTOR ACKNOWLEDGMENT
AND CONSENT
The undersigned, each a guarantor with respect to the
Company's obligations to the Lenders under the Credit Agreement,
hereby (i) acknowledges and consents to the execution, delivery
and performance by the Company of the foregoing First Amendment
to Credit Agreement ("First Amendment"), and (ii) reaffirms and
agrees that the guaranty to which the undersigned is party and
all other documents and agreements executed and delivered by the
undersigned to the Lenders in connection with the Credit
Agreement are in full force and effect, without defense, offset
or counterclaim. (Capitalized terms used herein have the meanings
specified in the First Amendment.)
UNISOURCE WORLDWIDE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Treasurer's Department
Facsimile: 000-000-0000
GREAT NORTHERN NEKOOSA
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Treasurer's Department
Facsimile: 000-000-0000
BRUNSWICK PULP & PAPER COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Treasurer's Department
Facsimile: 000-000-0000
GEORGIA-PACIFIC WEST, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Treasurer's Department
Facsimile: 000-000-0000
G-P GYPSUM CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Treasurer's Department
Facsimile: 000-000-0000
LEAF RIVER FOREST PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Treasurer's Department
Facsimile: 000-000-0000
NEKOOSA PACKAGING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Treasurer's Department
Facsimile: 000-000-0000
NEKOOSA PAPERS INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Treasurer's Department
Facsimile: 000-000-0000
FORT XXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
Address: c/o Georgia-Pacific Corporation
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Treasurer's Department
Facsimile: 000-000-0000
Exhibit A
ARTICLE 3
THE LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility.
(a) On the terms and conditions set forth herein
(i) the Issuing Bank agrees, (A) from time to time on any
Business Day during the period from the Closing Date to the
Termination Date to issue Letters of Credit for the account of
the Company, and to amend or renew Letters of Credit previously
issued by it, in accordance with Sections 3.02(c) and 3.02(d),
(B) to honor drafts under the Letters of Credit; and (ii) the
Lenders severally agree to purchase an irrevocable and
unconditional participation in each Letter of Credit Issued for
the account of the Company; provided, that the Issuing Bank shall
not be obligated to Issue, and no Lender shall be obligated to
participate in, any Letter of Credit if as of the date of
Issuance of such Letter of Credit (the "Issuance Date"), after
giving effect to any requested Loans, (i) the Effective Amount of
all Committed Loans, L/C Obligations, and Bid Loans shall exceed
the Aggregate Commitment, or (ii) the Effective Amount of all L/C
Obligations shall exceed the L/C Commitment. Within the
foregoing limits, and subject to the other terms and conditions
hereof, the Company's ability to obtain Letters of Credit shall
be fully revolving, and, accordingly, the Company may, during the
foregoing period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and
reimbursed.
(b) The Issuing Bank is under no obligation to Issue
any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the Issuing Bank from Issuing such Letter of
Credit, or any Requirement of Law applicable to the Issuing
Bank or any request or directive (whether or not having the
force of law) from any Governmental Authority with
jurisdiction over the Issuing Bank shall prohibit, or
request that the Issuing Bank refrain from, the Issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Bank with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the Issuing Bank is not
otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the Issuing Bank any
unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the Issuing Bank in good xxxxx
xxxxx material to it;
(ii) the Issuing Bank has received written notice from
any Lender, the Agent or the Company, on or prior to the
Business Day prior to the requested date of Issuance of such
Letter of Credit, that one or more of the applicable
conditions contained in Article 7 is not then satisfied;
(iii) the expiry date of any requested Letter of
Credit is (A) more than one year after the date of Issuance,
unless the Required Lenders have approved such expiry date
in writing, or (B) after after the Termination Date, unless
all of the Lenders have approved such expiry date in
writing;
(iv) the expiry date of any requested Letter of Credit
is prior to the maturity date of any financial obligation to
be supported by the requested Letter of Credit;
(v) any requested Letter of Credit does not provide
for drafts, or is not otherwise in form and substance
acceptable to the Issuing Bank, or the Issuance of a Letter
of Credit shall violate any applicable policies of the
Issuing Bank;
(vi) any standby Letter of Credit is for the purpose of
supporting the Issuance of any Letter of Credit by any other
Person; or
(vii) such Letter of Credit is in a face amount
less than $100,000 or is denominated in a currency other
than Dollars.
(c) Upon the reasonable request of any Lender from time to
time, the Agent will provide a summary of outstanding Letters of
Credit.
3.02 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the
irrevocable written request of the Company received by the
Issuing Bank (with a copy sent by the Company to the Agent) at
least four days (or such shorter time as the Issuing Bank may
agree in a particular instance in its sole discretion) prior to
the proposed date of issuance. Each such request for issuance of
a Letter of Credit shall be by facsimile, confirmed immediately
in an original writing, in the form of an L/C Application, and
shall specify in form and detail satisfactory to the Issuing
Bank: (i) the proposed date of issuance of the Letter of Credit
(which shall be a Business Day); (ii) the face amount of the
Letter of Credit; (iii) the expiry date of the Letter of Credit;
(iv) the name and address of the beneficiary thereof; (v) the
documents to be presented by the beneficiary of the Letter of
Credit in case of any drawing thereunder; (vi) the full text of
any certificate to be presented by the beneficiary in case of any
drawing thereunder; and (vii) such other matters as the Issuing
Bank may require.
(b) At least two Business Days prior to the Issuance
of any Letter of Credit, the Issuing Bank will confirm with the
Agent (by telephone or in writing) that the Agent has received a
copy of the L/C Application or L/C Amendment Application from the
Company and, if not, the Issuing Bank will provide the Agent with
a copy thereof. Unless the Issuing Bank has received notice on
or before the Business Day immediately preceding the date the
Issuing Bank is to issue a requested Letter of Credit from the
Agent (i) directing the Issuing Bank not to issue such Letter of
Credit because such issuance is not then permitted under
Section 3.01(b)(iii) as a result of the limitations set forth in
clauses (A) through (B) thereof or Section 3.01(b)(ii); or
(ii) that one or more conditions specified in Article 7 are not
then satisfied; then, subject to the terms and conditions hereof,
the Issuing Bank shall, on the requested date, issue a Letter of
Credit for the account of the Company in accordance with the
Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Termination Date, the Issuing Bank
will, upon the written request of the Company, received by the
Issuing Bank (with a copy sent by the Company to the Agent) at
least five days (or such shorter time as the Issuing Bank may
agree in a particular instance in its sole discretion) prior to
the proposed date of amendment, amend any Letter of Credit issued
by it. Each such request for amendment of a Letter of Credit
shall be made by facsimile, confirmed immediately in an original
writing, made in the form of an L/C Amendment Application and
shall specify in form and detail satisfactory to the Issuing
Bank: (i) the Letter of Credit to be amended; (ii) the proposed
date of amendment of the Letter of Credit (which shall be a
Business Day); (iii) the nature of the proposed amendment; and
(iv) such other matters as the Issuing Bank may require. The
Issuing Bank shall be under no obligation to amend any Letter of
Credit if: (A) the Issuing Bank would have no obligation at such
time to issue such Letter of Credit in its amended form under the
terms of this Agreement; or (B) the beneficiary of any such
letter of Credit does not accept the proposed amendment to the
Letter of Credit. The Agent will promptly notify the Lenders of
the receipt by it of any L/C Application or L/C Amendment
Application.
(d) The Issuing Bank and the Lenders agree that, while
a Letter of Credit is outstanding and prior to the Termination
Date, at the option of the Company and upon the written request
of the Company received by the Issuing Bank (with a copy sent by
the Company to the Agent) at least five days (or such shorter
time as the Issuing Bank may agree in a particular instance in
its sole discretion) prior to the proposed date of notification
of renewal, the Issuing Bank shall be entitled to authorize the
renewal of any Letter of Credit issued by it. Each such request
for renewal of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, in the form of an
L/C Amendment Application, and shall specify in form and detail
satisfactory to the Issuing Bank: (i) the Letter of Credit to be
renewed; (ii) the proposed date of notification of renewal of the
Letter of Credit (which shall be a Business Day); (iii) the
revised expiry date of the Letter of Credit; and (iv) such other
matters as the Issuing Bank may require. The Issuing Bank shall
be under no obligation so to renew any Letter of Credit if:
(A) the Issuing Bank would have no obligation at such time to
issue or amend such Letter of Credit in its renewed form under
the terms of this Agreement; or (B) the beneficiary of any such
Letter of Credit does not accept the proposed renewal of the
Letter of Credit. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the Issuing Bank that
such Letter of Credit shall not be renewed, and if at the time of
renewal the Issuing Bank would be entitled to authorize the
automatic renewal of such Letter of Credit in accordance with
this Section 3.02(d) upon the request of the Company but the
Issuing Bank shall not have received any L/C Amendment
Application from the Company with respect to such
renewal or other written direction by the Company with respect
thereto, the Issuing Bank shall (unless such renewal would cause
the expiry date thereof to extend beyond the Termination Date),
nonetheless be permitted to allow such Letter of Credit to renew,
and the Company and the Lenders hereby authorize such renewal,
and, accordingly, the Issuing Bank shall be deemed to have
received an L/C Amendment Application from the Company requesting
such renewal.
(e) The Issuing Bank may, at its election (or as
required by the Agent at the direction of the Required Lenders),
deliver any notices of termination or other communications to any
Letter of Credit beneficiary or transferee, and take any other
action as necessary or appropriate, at any time and from time to
time, in order to cause the expiry date of such Letter of Credit
to be a date not later than the Termination Date.
(f) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of
Credit).
(g) The Issuing Bank will also deliver to the Agent,
concurrently or promptly following its delivery of a Letter of
Credit, or amendment to or renewal of a Letter of Credit, to an
advising bank or a beneficiary, a true and complete copy of each
such Letter of Credit or amendment to or renewal of a Letter of
Credit.
3.03 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the Issuing Bank a
participation in the undrawn amount of such Letter of Credit and
each drawing thereunder in an amount equal to the product of
(i) the Pro Rata Share of such Lender, multiplied by (ii) the
maximum amount available to be drawn under such Letter of Credit
and the amount of such drawing, respectively. For purposes of
Section 2.01, each Issuance of a Letter of Credit shall be deemed
to utilize the Commitment of each Lender by an amount equal to
the amount of such participation.
(b) In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the
Issuing Bank will promptly notify the Company. The Company shall
reimburse the Issuing Bank, directly or with the proceeds of a
Loan, before 1:00 p.m. (New York City time), on each date that
any amount is paid by the Issuing Bank under any Letter of Credit
(each such date, an "Honor Date"), in an amount equal to the
amount so paid by the Issuing Bank. In the event the Company
fails to reimburse the Issuing Bank for the full amount of any
drawing under any Letter of Credit by 1:00 p.m. (New York City
time) on the Honor Date, the Issuing Bank will promptly notify
the Agent and the Agent will promptly notify each Lender thereof,
and the Company shall be deemed to have requested that Reference
Rate Loans be made by the Lenders to be disbursed on the Honor
Date under such Letter of Credit, subject to the amount of the
unutilized portion of the Aggregate Commitments and subject to
the conditions set forth in Section 7.03(b), but without regard
to minimum borrowing and integral amount limitations contained
herein. Any notice given by the Issuing Bank or the
Agent pursuant to this Section 3.03(b) may be oral if promptly
confirmed in writing (including by facsimile); provided, that the
lack of such a prompt confirmation shall not affect the
conclusiveness or binding effect of such notice. Notwithstanding
the Company's unconditional obligation to reimburse the Issuing
Bank hereunder, no Event of Default pursuant to Section 10.01(a)
shall be deemed to have occurred unless the Issuing Bank shall
have notified the Company one Business Day prior to the Honor
Date of such request for a drawing.
(c) Each Lender shall upon any notice from the Agent
pursuant to the third sentence of Section 3.03(b) make available
to the Agent for the account of the Issuing Bank an amount in
Dollars and in immediately available funds equal to its Pro Rata
Share of the amount of the unreimbursed drawing, whereupon the
participating Lenders shall (subject to Section 3.03(d)) each be
deemed to have made a Loan consisting of a Reference Rate Loan to
the Company in that amount. If any Lender so notified fails to
make available to the Agent for the account of the Issuing Bank
the amount of such Lender's Pro Rata Share of the amount of the
drawing by no later than 3:00 p.m. (New York City time) on the
Honor Date, then interest shall accrue on such Lender's
obligation to make such payment, from the Honor Date to the date
such Lender makes such payment, at a rate per annum equal to the
Federal Funds Rate in effect from time to time during such
period. The Agent will promptly give notice of the occurrence of
the Honor Date, but failure of the Agent to give any such notice
on the Honor Date or in sufficient time to enable any Lender to
effect such payment on such date shall not relieve such Lender
from its obligations under this Section 3.03.
(d) With respect to any unreimbursed drawing that is
not converted into Loans consisting of Reference Rate Loans to
the Company, in whole or in part, because of the Company's
failure to satisfy the conditions set forth in Section 7.03(b) or
for any other reason, the Company shall be deemed to have
incurred from the Issuing Bank an L/C Borrowing in the amount of
such drawing, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at a rate
per annum equal to the Reference Rate plus the Applicable Margin
for Reference Rate Loans set forth in Section 2.09(a) for the
first Business Day following notice to the Company of a request
for a drawing, and thereafter at the Reference Rate plus the
Applicable Margin for Reference Rate Loans set forth in Section
2.09(a) plus 2%, and each Lender's payment to the Issuing Bank
pursuant to Section 3.03(c) shall be deemed payment in respect of
its participation in such L/C Borrowing and shall constitute an
L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 3.03.
(e) Each Lender's obligation in accordance with this
Agreement to make the Loans or L/C Advances, as contemplated by
this Section 3.03, as a result of a drawing under a Letter of
Credit, shall be absolute, irrevocable, and unconditional and
without recourse to the Issuing Bank and shall not be affected by
any Default or an Event of Default or other occurrence or event;
provided, however, that each Lender's obligation to make Loans
under this Section 3.03 is subject to the conditions set forth in
Section 7.03(b).
3.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the Agent for the
account of the Issuing Bank of immediately available funds from
the Company (i) in reimbursement of any payment made by the
Issuing Bank under the Letter of Credit with respect to which any
Lender has paid the Agent for the account of the Issuing Bank for
such Lender's participation in the Letter of Credit pursuant to
Section 3.03, or (ii) in payment of interest thereon, the Agent
will pay to each Lender, in the same funds as those received by
the Agent for the account of the Issuing Bank, the amount of such
Lender's Pro Rata Share of such funds, and the Issuing Bank shall
receive the amount of the Pro Rata Share of such funds of any
Lender that did not so pay the Agent for the account of the
Issuing Bank.
(b) If the Agent or the Issuing Bank is required at
any time to return to the Company, or to a trustee, receiver,
liquidator, custodian, or any official in any proceeding of the
type described in Section 10.01(f), any portion of the payments
made by the Company to the Agent for the account of the Issuing
Bank pursuant to Section 3.04(a) in reimbursement of a payment
made under a Letter of Credit, or any interest or fee thereon,
each Lender shall, on demand of the Agent forthwith return to the
Agent or the Issuing Bank the amount of its Pro Rata Share of any
amounts so returned by the Agent or the Issuing Bank, plus
interest thereon from the date such demand is made to the date
such amounts are returned by such Lender to the Agent or the
Issuing Bank at a rate per annum equal to the Federal Funds Rate
in effect from time to time.
3.05 Role of the Issuing Bank.
(a) Each Lender and the Company agree that, in paying
any drawing under a Letter of Credit, the Issuing Bank shall not
have any responsibility to obtain any document (other than any
sight draft and certificates expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or
delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Bank
shall be liable to any Lender for: (i) any action taken or
omitted in connection herewith at the request or with the
approval of the Lenders (including the Required Lenders, as
applicable); (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any L/C-
Related Document.
(c) The Company hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its
use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the
Company's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other
agreement. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the Issuing Bank,
shall be liable or responsible for any of the matters described
in Sections 3.06(a) through (g); provided, however, anything in
such clauses to the contrary notwithstanding, that the Company
may
have a claim against the Issuing Bank, and the Issuing Bank may
be liable to the Company, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary, damages
suffered by the Company which the Company proves were caused by
the Issuing Bank's willful misconduct or gross negligence or the
Issuing Bank's willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft
and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing: (i) the Issuing 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; and (ii) the Issuing Bank
shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
3.06 Obligations Absolute. The obligations of the Company
under this Agreement and any L/C-Related Document to reimburse
the Issuing Bank for a drawing under a Letter of Credit, and to
repay any L/C Borrowing and any drawing under a Letter of Credit
converted into Committed Loans, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and each such other L/C-Related Document
under all circumstances, including the following:
(a) any lack of validity or enforceability of this
Agreement or any L/C-Related Document;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the obligations of the
Company in respect of any Letter of Credit or any other amendment
or waiver of or any consent to departure from all or any of the
L/C-Related Documents;
(c) the existence of any claim, set-off, defense or
other right that the Company may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may
be acting), the Issuing Bank or any other Person, whether in
connection with this Agreement, the transactions contemplated
hereby or by the L/C-Related Documents or any unrelated
transaction;
(d) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or
any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of
Credit;
(e) any payment by the Issuing Bank under any Letter
of Credit against presentation of a draft or certificate that
does not strictly comply with the terms of any Letter of Credit;
or any payment made by the Issuing Bank under any Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any
transferee of any Letter of Credit, including any arising in
connection with any Insolvency Proceeding;
(f) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent
to departure from any other guarantee, for all or any of the
obligations of the Company in respect of any Letter of Credit; or
(g) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any
other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or a guarantor.
3.07 Cash Collateral Pledge. Upon the request of the Agent
or the Required Lenders, (a) if the Issuing Bank has honored any
full or partial drawing request on any Letter of Credit and such
drawing has resulted in an L/C Borrowing hereunder, or (b) if, as
of the Termination Date, any Letters of Credit may for any reason
remain outstanding and partially or wholly undrawn, then, the
Company shall immediately Cash Collateralize the L/C Obligations
in an amount equal to such L/C Obligations.
3.08 Letter of Credit Fees.
(a) The Company shall pay to the Agent for the
account of each of the Lenders a letter of credit fee with
respect to the Letters of Credit at a rate per annum equal to the
applicable margin above the Offshore Rate then in effect under
Section 2.09 Section 2.09 for Offshore Rate Loans for each day
such Letters of Credit are outstanding, computed on a quarterly
basis in arrears on the last Business Day of each calendar
quarter and based upon Letters of Credit outstanding for that
quarter as calculated by the Agent. Such letter of credit fees
shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter during which Letters of
Credit are outstanding, commencing on the first such quarterly
date to occur after the Closing Date, through the Termination
Date (or such later date upon which the outstanding Letters of
Credit shall expire), with the final payment to be made on the
Termination Date (or such later expiration date).
(b) The Company shall pay to the Issuing Bank a
letter of credit fronting fee for each Letter of Credit Issued by
the Issuing Bank equal to 0.125% of the face amount (or increased
face amount, as the case may be) of such Letter of Credit. Such
Letter of Credit for the account of the Issuing Bank a fronting
fee with respect to the Letters of Credit at a rate equal to
0.125% per annum for each day such Letters of Credit are
outstanding, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter and based upon Letters of
Credit outstanding for that quarter as calculated by the Agent.
Such fronting fee shall be due and payable on each date of
Issuance of a Letter of Credit. quarterly in arrears on the last
Business Day of each calendar quarter during which Letters of
Credit are outstanding, commencing on the first such quarterly
date to occur after the Closing Date, through the Termination
Date (or such later date upon which the outstanding Letters of
Credit
shall expire), with the final payment to be made on the
Termination Date (or such later expiration date).
(c) The Company shall pay to the Issuing Bank from
time to time on demand the normal issuance, presentation,
amendment and other processing fees, and other standard costs and
charges, of the Issuing Bank relating to standby letters of
credit as from time to time in effect.
3.09 International Standby Practices. The International
Standby Practices as published by the International Chamber of
Commerce most recently at the time of issuance of any Letter of
Credit shall (unless otherwise expressly provided in the Letters
of Credit) apply to the Letters of Credit.
3.10 Existing Letters of Credit.
On and after the Effective Date of the First Amendment
hereto, the Existing Letters of Credit shall be deemed for all
purposes, including for purposes of the fees to be collected
pursuant to subsections 3.08(a) and 3.08(c), and reimbursement of
costs and expenses to the extent provided herein, Letters of
Credit outstanding under this Agreement and entitled to the
benefits of this Agreement and the other Loan Documents, and
shall be governed by the applications and agreements pertaining
thereto and by this Agreement. Each Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase
from the Issuing Bank on the Effective Date of the First
Amendment hereto a participation in each such Letter of Credit
and each drawing thereunder in an amount equal to the product of
(i) such Lender's Pro Rata Share times (ii) the maximum amount
available to be drawn under such Letter of Credit and the amount
of such drawing, respectively. For purposes of subsection 2.01,
the Existing Letters of Credit shall be deemed to utilize pro
rata the Commitment of each Lender.
3.11 Subsidiaries as Account Parties
(a) As agreed from time to time between the Company and the
Issuing Bank, the L/C-Related Documents for any Letter of Credit,
and other communications required of the Company with respect
thereto under this Article 3, may be executed by a Principal
Subsidiary of the Company rather than the Company. The parties
hereto acknowledge and agree that a letter of credit issued
pursuant to such L/C-Related Documents shall be a Letter of
Credit for all purposes hereunder, and the Company, the Issuing
Bank, and the Lenders shall be obligated with respect thereto
hereunder, and the Company shall be obligated under the related
L/C-Related Documents, as though the Company were the signatory
to such L/C Related Documents. Without limiting the foregoing,
the Company hereby guarantees the payment when due, upon
maturity, acceleration or otherwise, of any and all L/C
Obligations of any Principal Subsidiary arising under any L/C-
Related Document. If any or all of such L/C Obligations becomes
due and payable, the Company
unconditionally promises to pay such L/C Obligations to the
Issuing Bank and each Lender on demand, in lawful money of the
United States.
(b) The Company guarantees the payment of any and all
L/C Obligations of each Principal Subsidiary whether or not due
or payable by such Principal Subsidiary upon (a) dissolution,
insolvency or business failure of, or any assignment for benefit
of creditors by, or commencement of any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief
proceedings by or against, such Principal Subsidiary or the
Company, or (b) the appointment of a receiver for, or the
attachment, restraint of or making or levying of any order of
court or legal process affecting, the property of such Principal
Subsidiary or the Company, and unconditionally promises to pay
such L/C Obligations to the Agent, on demand, in lawful money of
the United States.
(c) The liability of the Company under this
Section 3.11 is exclusive and independent of any security for or
other guaranty of the L/C Obligations of any Principal
Subsidiary, whether executed by the Company or by any other
party, and the liability of the Company hereunder is not affected
or impaired by (a) any direction of application of payment by any
Principal Subsidiary or by any other party, or (b) any other
guaranty or undertaking of the Company or of any other party as
to the L/C Obligations of any Principal Subsidiary, or (c) any
payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel of any Principal Subsidiary or
the Company. To the extent any Principal Subsidiary or the
Company makes any payment to the Issuing Bank or the Agent in
connection with the L/C Obligations, and all or any part of such
payment is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid or paid over to
a trustee, receiver or any other entity, whether in connection
with an Insolvency Proceeding or otherwise (any such payment is
hereinafter referred to as a "Preferential Payment"), then this
guaranty shall continue to be effective or shall be reinstated,
as the case may be, and, to the extent of such payment or
repayment, the L/C Obligations or part thereof intended to be
satisfied by such Preferential Payment shall be revived and
continued in full force and effect as if said Preferential
Payment had not been made.
(d) The obligations of the Company under this
Section 3.11 are independent of the obligations of the Principal
Subsidiaries, and a separate action or actions may be brought and
prosecuted against the Company whether or not action is brought
against any Principal Subsidiary and whether or not any Principal
Subsidiary be joined in any such action or actions.
(e) The Company authorizes the Issuing Bank, without
notice to the Company, and without affecting or impairing the
Company's liability hereunder, from time to time to (a) renew,
compromise, extend, accelerate or otherwise change the time for
payment of, or otherwise change the terms of the L/C Obligations
of any Principal Subsidiary or any part thereof; (b) take and
hold security granted by
any Person for the payment of such L/C Obligations and exchange,
enforce, waive and release any such security; (c) apply such
security and direct the order or manner of sale thereof as
Issuing Bank in its discretion may determine; and (d) release or
substitute any one or more endorsers, guarantors, Principal
Subsidiaries or other obligors.
(f) It is not necessary for the Issuing Bank to
inquire into the capacity or powers of any Principal Subsidiary
or the officers, directors, partners or agents acting or
purporting to act on its behalf, and any L/C Obligations made or
created in reliance upon the professed exercise of such powers
shall be guaranteed hereunder.
(g) Absent a waiver of such right, the Company may have the
right to assert a defense to an action to enforce this guaranty
if (a) the Issuing Bank, the Agent, or the Lenders do not proceed
against any Principal Subsidiary, or any security for the L/C
Obligations of any Principal Subsidiary, or pursue any other
remedy in its power that the Company cannot pursue, before
enforcing this guaranty, (b) the Issuing Bank, the Agent, or the
Lenders takes any action, without the Company's consent, of the
type specified in subsection 3.11(c), or any other action by
which the L/C Obligations of any Principal Subsidiary is altered
in any respect, or the remedies or rights of the Company against
any Principal Subsidiary or any other person or any security are
impaired, suspended or extinguished, (c) any Principal Subsidiary
is under a legal disability or has any other defense to payment
of the L/C Obligations, (d) there is no liability on the part of
any Principal Subsidiary or such liability is limited or ceases
for any reason other than payment of the L/C Obligations in full,
(e) Issuing Bank, the Agent, or any Lender fails to notify the
Company of information known to them as to any Principal
Subsidiary's financial condition, assets or other circumstances
bearing on repayment of the L/C Obligations or the nature, scope
and extent of the risks that the Company assumes and incurs
hereunder (and the Company agree that neither the Issuing Bank,
the Agent, nor any Lender shall have any duty to advise the
Company of any such information), (f) the statute of limitations
applicable to an action to enforce this guaranty has run (and the
Company agrees that any payment by any Principal Subsidiary or
other circumstance that operates to toll any statute of
limitations as to any Principal Subsidiary shall operate to toll
the statute of limitations as to the Company), (g) the Issuing
Bank, the Agent, or any Lender fails to make or provide any
presentment, demand for performance, or notice of nonperformance,
dishonor, the acceptance of this guaranty, or other notice, or
(h) any election of remedies by the Issuing Bank, the Agent, or
any Lender, including any election to proceed by nonjudicial
foreclosure on any security, or any act or omission of the
Issuing Bank, the Agent, or any Lender relating to such
foreclosure, operates to impair, suspend or extinguish any right
of contribution, subrogation or reimbursement that the Company
would otherwise have against any Principal Subsidiary. The
Company hereby expressly waives the right to assert any defense
described in this subsection 3.11(g).
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