CONSENT UNDER THE CREDIT AGREEMENT
BUCKEYE TECHNOLOGIES INC.
Consent Under Credit Agreement
This Agreement, dated as of August 20, 2002 (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 relates to 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 and not otherwise
defined herein are used with the meaning so defined.
2. Consent with Respect to Prepayment of Financing Debt. Notwithstanding
Section 6.13 of the Credit Agreement, which prohibits the Company from making
any voluntary prepayment of principal of or interest on any 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
of the Credit Agreement, the Lenders consent that the Company may pay up to $22
million to UPM-Kymmene (the "Prepayment"), as a prepayment of the entire amount
of the note payment due and payable to UPM-Kymmene on or before October 1, 2002
in respect of the deferred purchase price for the Walkisoft assets.
Notwithstanding the foregoing, the Company shall not make the Prepayment unless
and until:
(a) the Company has provided to the Agent computations based
upon preliminary financial statements for the fiscal quarter ended June
30, 2002 in substantially the form of Exhibit 6.4 to the Credit
Agreement demonstrating compliance with the Computation Covenants as of
the end of such fiscal quarter, and such computations shall be in form
and substance satisfactory to the Agent and
(b) the Company has provided to the Agent computations based
upon preliminary financial statements for the fiscal quarter ended June
30, 2002 on a pro forma basis assuming that the Prepayment had been
made prior to the end of such fiscal quarter in substantially the form
of Exhibit 6.4 to the Credit Agreement demonstrating compliance with
the Computation Covenants as of the end of such fiscal quarter, and
such computations shall be in form and substance satisfactory to the
Agent.
3. Waiver of Stock Issuance Covenant. The Company represents and
warrants that between May 21, 2002 and the date hereof, it has sold its
nonredeemable capital stock on arms length terms in return for $21,363,690 in
net sale proceeds. Based on the foregoing representation and warranty, the
Lenders waive compliance with Section 4 of Amendment No. 3 to the Credit
Agreement dated as of March 18, 2002, which requires the Company by August 31,
2002 to issue its nonredeemable capital stock on arm's length terms in return
for at least $30,000,000 in net sale proceeds.
4. 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
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).
5. Payment of Fees and Expenses. On the date hereof, the Company shall
pay to the Agent (a) for the account of the Lenders, an amendment fee in an
amount equal to 0.10% 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.
6. General. The Credit Agreement and all of the Credit Documents are
each confirmed as being in full force and effect. This Agreement, the 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. Interest and fees under the Credit
Agreement shall be calculated for all periods as provided in the Credit
Agreement. Each of this Agreement and the 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 and
all actions relative hereto and to the other Credit Documents shall be governed
by and construed in accordance with the laws (other than the conflict of law
rules) of The Commonwealth of Massachusetts.
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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 LUMBERTON INC.
BKI INTERNATIONAL INC.
BFOL 2 INC.
BFC 2 INC.
By: /S/ XXXXX X. XXXXXXXX
---------------------
As an authorized officer of each of the
foregoing corporations
BUCKEYE FLORIDA, LIMITED PARTNERSHIP
By Buckeye Florida Corporation, general partner
By: /S/ XXXXX X. XXXXXXXX
---------------------
Title: Vice President
BUCKEYE MT. XXXXX LLC
By Buckeye Lumberton Inc., manager
By: /S/ XXXXX X. XXXXXXXX
---------------------
Title: Vice President
BKI ASSET MANAGEMENT CORPORATION
BKI HOLDING CORPORATION
By: /S/ XXXXXXX X. XXXXX
--------------------
Title: Secretary
BKI LENDING INC.
By: /S/ XXXXXX X. XXXXXX
--------------------
Title: Secretary
BUCKEYE TECHNOLOGIES CANADA INC.
By: /S/ XXXXXX X. XXXXXX
--------------------
Xxxxxx X. Xxxxxx, President
BFC 3 LLC
By: BFOL 2 INC., its manager
By: /S/ XXXXX X. XXXXXXXX
---------------------
Title: Vice President
BFOL 3 LLC
By: BFC 2 INC., its manager
By: /S/ XXXXX X. XXXXXXXX
---------------------
Title: Vice President
MERFIN SYSTEMS INC.
By: /S/ XXXXX X. XXXXXXXX
---------------------
Title: Vice President
FLEET NATIONAL BANK
By /S/XXXXXX X. XXXXXXX
--------------------
Title: Director
ABN AMRO BANK, N.V.
By /S/ W. XXXXXXX XXXXXXX
----------------------
Title: Senior Vice President
By /S/ XXXX X. XXXXXXX
-------------------
Title: Vice President
BANK OF AMERICA, N.A.
By /S/ XXX XXXXXXXXX
-----------------
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By /S/ X. XXXX
-----------
Title: Senior Manager
FIRST PIONEER FARM CREDIT, ACA
By /S/ XXXXX XXXXX
---------------
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By /S/ XXX X. XXXXXX
-----------------
Title: Vice President
UNION PLANTERS BANK, NA
By /S/ XXXXX X. XXXXXXXX
---------------------
Title: Senior Vice President
WACHOVIA BANK, NA
By /S/ XXX X. XXXXXXXX
-------------------
Title: Managing Director
U.S. BANK NATIONAL ASSOCIATION
By /S/ XXXXXXX X. XXXXXX
----------------------
Title: Vice President
OAK HILL CREDIT PARTNERS I, LIMITED
By: Oak Hill CLO Management I, LLC, as
Investment Manager
By /S/ XXXXXX XXXX
---------------
Title:
NUVEEN SENIOR INCOME FUND
By: Nuveen Senior Loan Asset Management
By /S/ XXXXXXX XXXXX
------------------
Title: Portfolio Manager
