EXHIBIT 10.2
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THE ST. XXX COMPANY
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of June __, 2004 (this "Amendment"), is made among THE ST. XXX COMPANY,
a Florida corporation with its principal offices in Jacksonville, Florida (the
"Borrower"), the undersigned financial institutions party to the Credit
Agreement (as hereinafter defined) in their capacities as Lenders (each, a
"Lender," and collectively, the "Lenders"), and WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly known as First Union National Bank) as administrative
agent for the Lenders under the Credit Agreement (in such capacity, the
"Agent").
RECITALS
A. The Borrower, the Lenders, the Agent, and certain other named agents
have entered into the Second Amended and Restated Credit Agreement dated as of
February 7, 2002 (together with all amendments and modifications, the "Credit
Agreement"). Capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
B. The Borrower has requested that certain provisions of the Credit
Agreement be amended to (i) extend the stated Maturity Date by one year to Xxxxx
00, 0000, (xx) revise the negative covenant regarding repurchases of the
Borrower's common stock, (iii) increase the amount of the Letter of Credit
sub-limit and (iv) allow the Borrower to issue Additional Senior Term Notes (as
hereinafter defined).
C. The Lenders and the Agent have agreed to amend the Credit Agreement as
requested by the Borrower and to effect such agreement the Borrower, the
Lenders, and the Agent have entered into this Amendment.
STATEMENT OF AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Lenders, and the
Agent hereby agree as follows:
ARTICLE 1
AMENDMENTS
1.1 AMENDMENT TO SECTION 1.1 (DEFINITIONS).
(a) Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Maturity Date" in its entirety and replacing it as
follows:
"Maturity Date" shall mean March 30, 2006; provided, however, that
the Maturity Date may be extended for additional one-year periods if
(i) the Agent receives a request for such extension at least
fourteen (14) months prior to the stated Maturity Date then in
effect and (ii) one hundred percent (100%) of the Lenders (including
any replacement Lenders acceptable to Borrower and Agent) approve
such extension within one (1) year prior to the Maturity Date in
effect at such time.
(b) Section 1.1 of the Credit Agreement is hereby amended by
deleting clause (x) of the definition of "Consolidated Secured Debt" and
replacing such clause as follows:
"(x) the Obligations or the Senior Term Notes so long as such
Indebtedness is included in Consolidated Unsecured Debt"
(c) Section 1.1 of the Credit Agreement is hereby amended by
deleting the parenthetical at the end of the definition of "Consolidated
Unsecured Debt" and replacing such parenthetical as follows:
"(but in all events including the Obligations and the Senior Term
Notes)"
(d) Section 1.1 of the Credit Agreement is hereby amended by
deleting clause (ii) of the definition of "Indebtedness" and replacing such
clause as follows:
"(ii) all obligations of such Person evidenced by notes, bonds,
debentures or similar instruments (including the Senior Term Notes)"
(e) Section 1.1 of the Credit Agreement us amended by inserting the
following defined terms in alphabetical order within Section 1.1:
"Additional Senior Term Notes" shall have the meaning given to
such term in SECTION 8.2(VII).
"Intercreditor Agreement" shall mean the Intercreditor
Agreement and Collateral Agency Agreement, dated as of February 7,
2002, among Wachovia Bank, National Association (formerly known as
First Union National Bank) in the several capacities described
therein and the initial holders of the Medium Term Notes, as
amended, modified or supplemented from time to time.
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"Senior Term Notes" shall mean the Medium Term Notes and the
Additional Senior Term Notes.
1.2 AMENDMENT TO SECTION 3.1(A) (LETTER OF CREDIT SUBLIMIT). Section 3.1
of the Credit Agreement is hereby amended by deleting paragraph (a) in its
entirety and replacing it as follows:
"(a) No Letter of Credit shall be issued the Stated Amount upon
issuance of which (i) when added to the aggregate Letter of Credit
Exposure of the Lenders at such time, would exceed $50,000,000 or
(ii) when added to the sum of (x) the aggregate Letter of Credit
Exposure of all Lenders at such time, (y) the aggregate principal
amount of all Revolving Loans then outstanding, and (z) the
aggregate amount of all Swingline Loans then outstanding, would
exceed the aggregate Commitments at such time;"
1.3 AMENDMENT TO SECTION 8.2 (INDEBTEDNESS). Section 8.2 is hereby amended
(a) by deleting subclause (B) in clause (iv) of such section and
replacing such subclause as follows:
"(B) the assets of St. Xxx Finance Company consisting of the
instruments and general intangibles relating to such Indebtedness
are and remain subject to a first priority, perfected Lien pursuant
to the Pledge Agreement for the benefit of the Lenders and the
holders of the Senior Term Notes and"
(b) by adding a new clause (vii) at the end of such Section as follows:
"(vii) additional senior term (not revolving) debt of the Borrower
(w) that matures on a date subsequent to the Maturity Date (as in
effect at the time of issuance of such Indebtedness), (x) that ranks
pari passu in right of repayment with the Obligations and the Medium
Term Notes, (y) that is secured only to the extent that the
Obligations and the Medium Term Notes (if outstanding) are likewise
secured and (z) the holders of which have become parties to the
Intercreditor Agreement on a basis substantially equivalent with the
Medium Term Notes and the holders thereof (such Indebtedness, the
"Additional Senior Term Notes")."
1.4 AMENDMENT TO SECTION 8.3 (LIENS). Section 8.3 of the Credit Agreement
is hereby amended by deleting clause (iii) in its entirety and replacing it as
follows:
"(iii) Liens securing the Indebtedness permitted under clause (vi)
or clause (vii) of SECTION 8.2;"
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1.5 AMENDMENT TO SECTION 8.6 (RESTRICTED PAYMENTS). Section 8.6 of the
Credit Agreement is hereby amended by deleting clause (iii) in its entirety and
replacing it as follows:
"(iii) the Borrower may make repurchases of its outstanding common
stock in an aggregate amount not to exceed $370,000,000 during the
period from and including January 1, 2004 through the Termination
Date; provided that any such repurchases funded from the proceeds of
bulk timberland sales shall not exceed the amount of net proceeds of
such sales after giving effect to all current and deferred taxes;"
1.6 AMENDMENT TO SECTION 8.12 (NO OTHER NEGATIVE PLEDGES). Section 8.12 of
the Credit Agreement is hereby amended by deleting clause (iv) in its entirety
and replacing it as follows:
"(iv) the Note Purchase Agreements dated on or about the Second
Restatement Closing Date and entered into in connection with the
issuance and sale of the Medium Term Notes and any substantially
similar terms as may be contained in the issuance documents for any
Additional Senior Term Notes."
ARTICLE 2
CONSENT TO AMENDMENT OF INTERCREDITOR AGREEMENT AND PLEDGE AGREEMENT
The Lenders hereby consent to, and authorize the Agent to enter into and
execute on their behalf, one or more amendments to the Intercreditor Agreement
and the Pledge Agreement in connection with the issuance of any Additional
Senior Term Notes, which amendments shall provide that the Additional Senior
Term Notes and the holders thereof shall become parties to the Intercreditor
Agreement and shall be treated on a basis substantially equivalent with the
Medium Term Notes and the holders thereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants that:
3.1 COMPLIANCE WITH CREDIT AGREEMENT. The Borrower and its Subsidiaries
are in compliance with all terms and provisions set forth in the Credit
Agreement to be observed or performed by them.
3.2 REPRESENTATIONS IN CREDIT AGREEMENT. The representations and
warranties of the Borrower set forth in the Credit Agreement, except for those
relating to a specific date other than the date hereof, are true and correct in
all material respects on and as of the date hereof as if made on and as of the
date hereof.
3.3 NO DEFAULT. No Default or Event of Default has occurred and is
continuing.
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3.4 CONTINUING GUARANTY. All Obligations will continue to be guaranteed
under the Subsidiary Guaranty, and nothing herein will affect the validity or
enforceability of the Subsidiary Guaranty.
ARTICLE 4
MODIFICATION OF CREDIT DOCUMENTS
Any reference to the Credit Agreement in any of the other Credit Documents
shall mean, unless otherwise specifically provided, the Credit Agreement as
amended and supplemented by this Amendment and all previous amendments, and as
the Credit Agreement is further amended, restated, supplemented or modified from
time to time and any substitute or replacement therefor or renewals thereof.
ARTICLE 5
GENERAL
5.1 FULL FORCE AND EFFECT. The Credit Agreement shall continue in full
force and effect in accordance with the provisions thereof, and no change or
modification in any of the terms thereof except as specifically set forth herein
has been effected.
5.2 APPLICABLE LAW. This Amendment shall be governed by and construed in
accordance with the internal laws and judicial decisions of the State of North
Carolina.
5.3 COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
5.4 FEES, EXPENSES AND INDEMNITY. The Borrower agrees to pay all
out-of-pocket expenses incurred by the Agent in connection with the preparation,
execution and delivery of this Amendment, including, without limitation, all
reasonable attorneys' fees. The provisions of Section 10.7 of the Credit
Agreement shall apply fully to this Amendment.
5.5 FURTHER ASSURANCE. The Borrower shall execute and deliver to the
Lenders such documents, certificates and opinions as the Lenders may reasonably
request to effect the amendment contemplated by this Amendment.
5.6 HEADINGS. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of this Amendment.
5.7 EFFECTIVENESS. This Amendment shall be effective upon (i) execution
hereof by the Borrower, the Agent and the Required Lenders and (ii) the Agent's
receipt of a certificate, in form and substance satisfactory to the Agent and
duly executed by each Subsidiary Guarantor, stating that all Obligations will
continue to be guaranteed under the Subsidiary Guaranty and that nothing herein
will affect the validity or enforceability of such Subsidiary Guaranty.
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IN WITNESS WHEREOF, the Borrower, the Lenders, and the Agent have executed
this Amendment as of the date first written above.
THE ST. XXX COMPANY
By:_______________________________________
Title:_________________________________
Name:__________________________________
WACHOVIA BANK, NATIONAL ASSOCIATION
(FORMERLY KNOWN AS FIRST UNION
NATIONAL BANK), AS AGENT AND A LENDER
By:_______________________________________
Title:_________________________________
Name:__________________________________
BANK OF AMERICA, N.A., A NATIONAL BANKING
ASSOCIATION
By:_______________________________________
Title:_________________________________
Name:__________________________________
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:_______________________________________
Title:_________________________________
Name:__________________________________
[Signatures continue on following page.]
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SUNTRUST BANK
By:_______________________________________
Title:_________________________________
Name:__________________________________
REGIONS BANK
By:_______________________________________
Title:_________________________________
Name:__________________________________
COMPASS BANK
By:_______________________________________
Title:_________________________________
Name:__________________________________
COMERICA BANK,
A MICHIGAN BANKING CORPORATION
By:_______________________________________
Title:_________________________________
Name:__________________________________
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