Exhibit 10.7
EXECUTION COPY
AMENDMENT AND RESTATEMENT AGREEMENT dated as of April 18,
2005, among BOISE CASCADE HOLDINGS, L.L.C. ("BC HOLDINGS"), BOISE
LAND & TIMBER HOLDINGS CORP. ("TIMBER HOLDINGS" and together with
BC Holdings, the "HOLDING COMPANIES"), BOISE CASCADE, L.L.C. (the
"BC BORROWER"), BOISE LAND & TIMBER CORP. (the "TIMBER BORROWER"
and together with the BC Borrower, the "BORROWERS"), the LENDERS
party hereto and JPMORGAN CHASE BANK, N.A. (f/k/a/ JPMorgan Chase
Bank), as Administrative Agent, under the Credit Agreement dated
as of October 29, 2004 (as amended and in effect on the date
hereof, the "EXISTING CREDIT AGREEMENT"), among the Holding
Companies, the Borrowers, the lenders referred to therein and the
Administrative Agent.
WHEREAS, the Holding Companies and the Borrowers have requested, and
the Required Restatement Lenders and the Administrative Agent have agreed, upon
the terms and subject to the conditions set forth herein, that (a) the Tranche D
Lenders referred to below extend credit to the BC Borrower in the form of
Tranche D Term Loans on the Restatement Effective Date referred to below, in an
aggregate principal amount equal to $840,000,000 and (b) the Existing Credit
Agreement be amended and restated as provided herein;
NOW, THEREFORE, the Holding Companies, the Borrowers, the Required
Restatement Lenders and the Administrative Agent hereby agree as follows:
SECTION 1. DEFINED TERMS. (a) Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the form of Restated
Credit Agreement attached hereto as Exhibit A.
(b) As used in this Agreement, the following terms have the meanings
specified below:
"ADDITIONAL REVOLVING COMMITMENT" means, with respect to each
Additional Revolving Lender, such Additional Revolving Lender's Revolving
Commitment (or, in the case of an Additional Revolving Lender that is a
Revolving Lender under the Existing Credit Agreement, the increased amount of
its existing Revolving Commitment) as of the Restatement Effective Date, as set
forth on Schedule 1 attached hereto.
"ADDITIONAL REVOLVING LENDERS" means the Persons named on Schedule 1
hereto.
"ADDITIONAL TRANCHE D COMMITMENT" means, with respect to each
Additional Tranche D Lender, the commitment, if any, of such Additional Tranche
D Lender to make a Tranche D Term Loan hereunder on the Restatement Effective
Date,
2
expressed as an amount representing the maximum principal amount of the Tranche
D Term Loan to be made by such Additional Tranche D Lender hereunder. The
initial amount of each Additional Tranche D Lender's Additional Tranche D
Commitment is set forth on Schedule 2 attached hereto, or in the Assignment and
Assumption pursuant to which such Additional Tranche D Lender shall have assumed
its Additional Tranche D Commitment, as applicable.
"ADDITIONAL TRANCHE D LENDERS" means the Persons named on Schedule 2
hereto, and any other Person to whom an Additional Tranche D Commitment is
assigned pursuant to an Assignment and Assumption.
"EXISTING TERM LOANS" means Tranche B Term Loans that are outstanding
immediately prior to the Restatement Effective Date.
"REQUIRED LENDERS" has the meaning assigned to such term in the
Existing Credit Agreement.
"REQUIRED RESTATEMENT LENDERS" means, at any time, (a) the Required
Lenders and (b) each of the Tranche D Lenders and Additional Revolving Lenders.
"RESTATED CREDIT AGREEMENT" means the Existing Credit Agreement as
amended and restated in the form of Exhibit A to this Agreement.
"RESTATEMENT EFFECTIVE DATE" means the date on which the conditions
specified in Section 7 of this Agreement are satisfied.
"ROLLING TRANCHE D LENDER" means a Tranche B Lender that has a Rolling
Tranche D Commitment. Each Tranche B Lender that executes this Agreement as a
Tranche D Lender is doing so as a Rolling Tranche D Lender.
"ROLLING TRANCHE D COMMITMENT" means, with respect to each Rolling
Tranche D Lender, the commitment of such Rolling Tranche D Lender to convert and
continue Indebtedness represented by the outstanding principal of its Existing
Term Loans to, and exchange such Indebtedness for, Tranche D Term Loans,
expressed as an amount representing the principal of such outstanding Existing
Tem Loans to be so converted and continued. The amount of each Rolling Tranche D
Lender's Rolling Tranche D Commitment has been separately agreed, and confirmed
by telephonic notice to such Rolling Tranche D Lender from the Administrative
Agent.
"TRANCHE B LENDER" has the meaning assigned to such term in the
Existing Credit Agreement.
"TRANCHE B TERM LOAN" has the meaning assigned to such term in the
Existing Credit Agreement.
"TRANCHE D COMMITMENT" means an Additional Tranche D Commitment or a
Rolling Tranche D Commitment. The aggregate amount of the Tranche D Commitments
is $840,000,000.
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"TRANCHE D LENDER" means an Additional Tranche D Lender or a Rolling
Tranche D Lender.
"TRANCHE D TERM LOAN" means a loan made pursuant to Section 3 of this
Agreement.
SECTION 2. RESTATEMENT EFFECTIVE DATE. (a) The transactions provided
for in Sections 3 through 6 hereof shall be consummated at a closing to be held
on the Restatement Effective Date at the offices of Cravath, Swaine & Xxxxx LLP,
or at such other place as the parties hereto shall agree upon.
(b) The BC Borrower shall give not less than one Business Day's
written notice to the Administrative Agent proposing a date as the Restatement
Effective Date, and the Administrative Agent shall send copies of such notice to
the Lenders. The Tranche D Commitments shall terminate at 5:00 p.m., New York
City time, on April 18, 2005, if the Restatement Effective Date shall not have
occurred at or prior to such time.
(c) The Required Lenders hereby waive the limitations set forth in
Section 6.01 of the Existing Credit Agreement to the extent, but only to the
extent, necessary to permit the BC Borrower to incur the Tranche D Term Loans on
the Restatement Effective Date. The Required Lenders also hereby waive the
requirement set forth in Section 2.11(g) of the Existing Credit Agreement that
the Borrowers give three Business Days' prior notice of the prepayment of
Tranche B Term Loans and Revolving Loans to be made on the Restatement Effective
Date; PROVIDED that such notice shall be given not later than 5:00 p.m., New
York City time, on the Business Day before the date of prepayment (it being
understood that any such notice may be revoked if the Restatement Effective Date
does not occur).
(d) Until the Restated Credit Agreement becomes effective in
accordance with the terms of this Agreement, the Existing Credit Agreement shall
remain in full force and effect and shall not be affected hereby.
SECTION 3. TRANCHE D TERM LOANS; PREPAYMENT OF TRANCHE B TERM LOANS.
(a) Subject to the terms and conditions set forth herein, each Tranche D Lender
agrees to make a Tranche D Term Loan to the BC Borrower on the Restatement
Effective Date in the manner contemplated by this Section.
(b) The BC Borrower shall give a Borrowing Request to the
Administrative Agent in accordance with Section 2.03 of the Restated Credit
Agreement in order to request the Borrowing of Tranche D Term Loans to be made
on the Restatement Effective Date. The provisions of Sections 2.02, 2.03, 2.06
and 2.16 of the Restated Credit Agreement shall be applicable to such requested
Borrowing, MUTATIS MUTANDIS, regardless of whether the Restatement Effective
Date occurs (and any obligations arising under any such Section shall survive
the termination of this Agreement if the Restatement Effective Date does not
occur); PROVIDED that (i) notwithstanding the foregoing, the BC Borrower may
request that the initial Tranche D Term Borrowing be made as a Eurodollar
Borrowing later than otherwise permitted, if
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such request is made not later than 12:00 noon, New York City time, one Business
Day before the Restatement Effective Date and (ii) in such event, the LIBO Rate
for the Interest Period for such Borrowing commencing on the Restatement
Effective Date will be determined by the Administrative Agent by such means as
it determines to be reasonably appropriate to reflect market rates for such
Interest Period, rather than in accordance with the express terms of the
definition of "LIBO Rate". The provisions of Section 9.04 of the Restated Credit
Agreement shall be applicable to assignments of Tranche D Commitments.
(c) Notwithstanding anything herein to the contrary, the Tranche D
Term Loans to be made by each Rolling Tranche D Lender on the Restatement
Effective Date shall be made by converting Indebtedness represented by the
outstanding principal amount of its Existing Term Loans (not exceeding its
Rolling Tranche D Commitment) to, and exchanging such Indebtedness for, Tranche
D Term Loans in an equal principal amount (on a net basis), and such
Indebtedness shall remain outstanding under the Restated Credit Agreement as
Tranche D Term Loans.
(d) On the Restatement Effective Date, the BC Borrower shall prepay in
full all Tranche B Term Loans then outstanding (other than Existing Term Loans
exchanged for Tranche D Term Loans pursuant to paragraph (c) of this Section),
together with all accrued and unpaid interest on the Tranche B Term Loans
(including Existing Term Loans exchanged for Tranche D Term Loans pursuant to
paragraph (c) of this Section), all amounts payable pursuant to Section 2.16 of
the Existing Credit Agreement as a result of the prepayment of the Tranche B
Term Loans (to the extent that the BC Borrower has received notice of such
amounts) and all other amounts payable under the Existing Credit Agreement to
the Tranche B Lenders in their capacity as such (to the extent that the BC
Borrower has received notice of such amounts). The rights of the Tranche B
Lenders under Sections 2.15, 2.16, 2.17 and 9.03 of the Existing Credit
Agreement shall survive such prepayment to the extent of amounts not so paid to
them on the Restatement Effective Date. The exchange of any Existing Term Loans
for Tranche D Term Loans pursuant to paragraph (c) of this Section shall be
treated as a prepayment of such Existing Term Loans for purposes of Section 2.16
of the Existing Credit Agreement.
(e) The BC Borrower hereby authorizes and instructs the Administrative
Agent to apply the proceeds of the Tranche D Term Loans to prepay principal of
the outstanding Tranche B Term Loans (other than Existing Term Loans exchanged
for Tranche D Term Loans pursuant to paragraph (c) of this Section) on the
Restatement Effective Date. It is understood that the BC Borrower shall be
responsible for all payments required to be made pursuant to paragraph (d) of
this Section to the extent not made with such proceeds.
(f) Each Tranche B Lender that executes this Agreement specifically in
the capacity as a Consenting Lender or Required Lender on a signature page
hereto which does not have a Tranche D Commitment shall be deemed on the
Restatement Effective Date to have consented to this Agreement but shall not
have any commitment to make Tranche D Term Loans.
5
SECTION 4. ADDITIONAL REVOLVING COMMITMENTS. (a) Subject to the terms
and conditions set forth herein, on the Restatement Effective Date (i) each
Additional Revolving Lender that is not already a Revolving Lender under the
Existing Credit Agreement will become a Revolving Lender under the Restated
Credit Agreement with a Revolving Commitment equal to its Additional Revolving
Commitment and (ii) the Revolving Commitment under the Existing Credit Agreement
of each Additional Revolving Lender that is already a Revolving Lender
thereunder shall be increased by the amount of its Additional Revolving
Commitment. The effect of the foregoing shall be that the total Revolving
Commitments in effect under the Existing Credit Agreement will be increased by
the total amount of Additional Revolving Commitments.
(b) On the Restatement Effective Date, the BC Borrower shall prepay in
full all Revolving Loans (if any) then outstanding, together with all accrued
and unpaid interest on the Revolving Loans, all amounts payable pursuant to
Section 2.16 of the Existing Credit Agreement as a result of the prepayment of
the Revolving Loans (to the extent that the BC Borrower has received notice of
such amounts) and all accrued and unpaid commitment fees and Letter of Credit
participation fees accrued pursuant to Section 2.12(a) and clause (i) of Section
2.12(b) of the Existing Credit Agreement. The BC Borrower's obligation to make
such payments may be financed by making a Revolving Borrowing on the Restatement
Effective Date under the Restated Credit Agreement, giving effect to the
Additional Revolving Commitments, subject to applicable conditions to borrowing.
SECTION 5. AMENDMENT OF SECURITY DOCUMENTS. The Required Restatement
Lenders hereby (a) authorize the Collateral Agent to execute and deliver any
amendments or modifications to the Security Documents that the Collateral Agent
determines to be necessary or appropriate in connection with the Restatement
Transactions and (b) consent to all such amendments or modifications; PROVIDED
that such amendments or modifications to the Security Documents shall not become
effective prior to the Restatement Effective Date.
SECTION 6. AMENDMENT AND RESTATEMENT OF THE EXISTING CREDIT AGREEMENT.
Effective immediately after the exchange or prepayment of the Tranche B Term
Loans pursuant to Sections 3(c) and (d) above, the Existing Credit Agreement is
hereby amended and restated to read in its entirety as set forth in Exhibit A
hereto. From and after the effectiveness of such amendment and restatement, (i)
the terms "Agreement", "this Agreement", "herein", "hereinafter", "hereto",
"hereof" and words of similar import, as used in the Restated Credit Agreement,
shall, unless the context otherwise requires, refer to the Existing Credit
Agreement as amended and restated in the form of the Restated Credit Agreement
and (ii) the term "Credit Agreement", as used in the other Loan Documents, shall
mean the Restated Credit Agreement.
SECTION 7. CONDITIONS. The consummation of the transactions set forth
in Sections 3 through 6 of this Agreement, including the obligations of the
Tranche D Lenders to make Tranche D Term Loans and the effectiveness of the
Additional Revolving Commitments, shall be subject to the satisfaction of the
following conditions precedent:
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(a) The Administrative Agent (or its counsel) shall have received from
the Required Restatement Lenders and each of the Holding Companies and the
Borrowers either (i) a counterpart of this Agreement signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent (which
may include telecopy transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Restatement Effective Date) of each of (i) General Counsel of BC Holdings,
substantially in the form of Exhibit B-1 to this Agreement and (ii) Xxxxxxxx &
Xxxxx LLP, counsel for the Loan Parties, substantially in the form of Exhibit
B-2 to this Agreement. Each of the Holding Companies and the Borrowers hereby
requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Agents or their counsel may reasonably request relating to
the organization, existence and good standing of each Loan Party, the
authorization of the Restatement Transactions and any other legal matters
relating to the Loan Parties, the Loan Documents or the Restatement
Transactions, all in form and substance reasonably satisfactory to the Agents
and their counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Restatement Effective Date and signed by the President, a Vice President or
a Financial Officer of the BC Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Restated
Credit Agreement, with the same effect as though the Restated Credit Agreement
were in effect and the Tranche D Term Loans were being made thereunder.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Restatement Effective Date,
including, to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses (including fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall have been satisfied
and the Administrative Agent shall have received (i) a completed Perfection
Certificate dated the Restatement Effective Date and signed by an executive
officer or Financial Officer of each of the Borrowers, together with all
attachments contemplated thereby, including the results of a search of the
Uniform Commercial Code (or equivalent) filings made with respect to the Loan
Parties in the jurisdictions contemplated by the Perfection Certificate and
copies of the financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Agents that the Liens
indicated by such financing statements (or similar documents) are permitted by
Section 6.02 of the Restated Credit Agreement or have been released and (ii) to
the extent requested by the Administrative Agent, (A) amendments to each
Mortgage executed in connection with the Existing Credit Agreement providing
that the Tranche D Term Loans of each Lender
7
and any Revolving Exposure attributable to the Additional Revolving Commitments
(in addition to other Obligations) shall be secured by a Lien on each Mortgaged
Property and (B) a policy or policies of title insurance or title endorsement to
an existing title insurance policy, issued by a nationally recognized title
insurance company, insuring the Lien of each such Mortgage as a valid first Lien
on the Mortgaged Property described therein, free of any other Liens except as
permitted by the Restated Credit Agreement, together with such endorsements,
coinsurance and reinsurance as the Administrative Agent or the Required
Restatement Lenders may reasonably request. Without limiting the generality of
the foregoing, the Administrative Agent shall have received a counterpart of a
Reaffirmation Agreement, substantially in the form of Exhibit C to this
Agreement, duly executed and delivered on behalf of each Loan Party.
(g) The Administrative Agent shall have received evidence that the
insurance required by Section 5.07 of the Restated Credit Agreement and the
Security Documents is in effect.
(h) The Administrative Agent shall have received from the BC Borrower
(i) an amount sufficient, together with proceeds of the Tranche D Term Loans, to
make the payments required to be made pursuant to Section 3(d) hereof and (ii)
an amount sufficient, together with proceeds of any Revolving Loans made under
the Restated Credit Agreement on the Restatement Effective Date, to make the
payments required to be made under Section 4(b) hereof.
(i) The conditions set forth in Section 4.02 of the Restated Credit
Agreement shall be satisfied with the same effect as though the Restated Credit
Agreement were in effect and the Tranche D Term Loans were being made
thereunder.
(j) The Administrative Agent shall have received all documentation and
other information requested by it to satisfy the requirements of bank regulatory
authorities under applicable "know your customer" and anti-money laundering
rules and regulations, including the USA Patriot Act.
The Administrative Agent shall notify the Borrowers and the Lenders of the
Restatement Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the consummation of the transactions set forth in
Sections 3 through 6 of this Agreement and the obligations of the Tranche D
Lenders to make Tranche D Term Loans hereunder and the effectiveness of the
Additional Revolving Commitments, in each case shall not become effective unless
each of the foregoing conditions is satisfied (or waived pursuant to Section 8
below) at or prior to 5:00 p.m., New York City time, on April 18, 2005 (and, in
the event such conditions are not so satisfied or waived, the Tranche D
Commitments shall terminate at such time).
SECTION 8. EFFECTIVENESS; COUNTERPARTS; AMENDMENTS; FEES. (a) This
Agreement shall become effective when copies hereof which bear the signatures of
the Holding Companies, the Borrowers, the Administrative Agent and the Required
Restatement Lenders shall have been received by the Administrative Agent. This
Agreement may not be amended nor may any provision hereof be waived except
pursuant
8
to a writing signed by the Holding Companies, the Borrowers, the Administrative
Agent and the Required Restatement Lenders. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute a single contract. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9. NO NOVATION. This Agreement shall not extinguish the Loans
outstanding under the Existing Credit Agreement. Nothing herein contained shall
be construed as a substitution or novation of the Loans outstanding under the
Existing Credit Agreement, which (except to the extent repaid as provided
herein) shall remain outstanding after the Restatement Effective Date as
modified hereby. Notwithstanding any provision of this Agreement, the provisions
of Sections 2.15, 2.16, 2.17 and 9.03 of the Existing Credit Agreement as in
effect immediately prior to the Restatement Effective Date will continue to be
effective as to all matters arising out of or in any way related to facts or
events existing or occurring prior to the Restatement Effective Date.
SECTION 10. NOTICES. All notices hereunder shall be given in
accordance with the provisions of Section 9.01 of the Restated Credit Agreement.
SECTION 11. APPLICABLE LAW; WAIVER OF JURY TRIAL. (A) THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
(B) EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION 9.10 OF
THE RESTATED CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.
SECTION 12. HEADINGS. The Section headings used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first written above.
BOISE CASCADE HOLDINGS, L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: VICE PRESIDENT AND TREASURER
Principal Place of Business:
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
TIN: 00-0000000
BOISE LAND & TIMBER HOLDINGS
CORP.,
by
/s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: VICE PRESIDENT AND TREASURER
Principal Place of Business:
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
TIN: 00-0000000
BOISE CASCADE, L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: VICE PRESIDENT AND TREASURER
Principal Place of Business:
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
TIN: 00-0000000
BOISE LAND & TIMBER CORP.,
by
/s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: VICE PRESIDENT AND TREASURER
Principal Place of Business:
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
TIN: 00-000 00 00
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent,
by
/s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT, DATED AS OF APRIL 18, 2005, AMONG BOISE
CASCADE HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C., BOISE LAND
& TIMBER CORP., THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT.
Name of Institution*
ACCESS INSTITUTIONAL LOAN FUND
Executing as a Required Lender: Executing as a Tranche D Lender:
ACCESS INSTITUTIONAL LOAN FUND
By: Deerfield Capital Management LLC as its
Portfolio Manager
By: /s/ Xxx Xxxxxxx
----------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
ACCESS INSTITUTIONAL LOAN FUND
By: Deerfield Capital Management LLC as its
Portfolio Manager
By: /s/ Xxx Xxxxxxx
----------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT
AGREEMENT, DATED AS OF APRIL 18, 2005, AMONG BOISE
CASCADE HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C., BOISE LAND
& TIMBER CORP., THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT.
Name of Institution* ADAR INVESTMENT FUND LTD
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
By: ADAR Investment Management LLC
Investment Manager
by /s/ Abby [ILLEGIBLE] by
------------------------------ ----------------------------------
Name: Abby [ILLEGIBLE] Name:
Title: Manager Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE
AMENDMENT AND RESTATEMENT
AGREEMENT, DATED AS OF APRIL 18, 2005, AMONG BOISE
CASCADE HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C., BOISE LAND
& TIMBER CORP., THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
ADDISON CDO, LIMITED
By: Pacific Investment Management Company LLC, by
as its Investment Advisor ----------------------------------
Name:
Title:
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxxxx
Managing Director
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE
AMENDMENT AND RESTATEMENT
AGREEMENT, DATED AS OF APRIL 18, 2005, AMONG BOISE
CASCADE HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C., BOISE LAND
& TIMBER CORP., THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT.
Name of Institution* AgFirst Farm Credit Bank
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ J. Xxxxxxx Xxxxxxx, Jr. by /s/ J. Xxxxxxx Xxxxxxx, Jr.
------------------------------ -----------------------------------
Name: J. Xxxxxxx Xxxxxxx, Jr. Name: J. Xxxxxxx Xxxxxxx, Jr.
Title: VP - Capital Markets Title: VP - Capital Markets
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ J. Xxxxxxx Xxxxxxx, Jr. by
--------------------------- -----------------------------------
Name: J. Xxxxxxx Xxxxxxx, Jr. Name:
Title: VP - Capital Markets Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE
AMENDMENT AND RESTATEMENT
AGREEMENT, DATED AS OF APRIL 18, 2005, AMONG BOISE
CASCADE HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C., BOISE LAND
& TIMBER CORP., THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT.
Name of Institution: AIM FLOATING RATE FUND
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxxx Xxxxxxx
------------------------------ -----------------------------------
Name: Name: Xxxxxx Xxxxxxx
Title: Title: Authorized Signatory
AIM FLOATING RATE FUND
By: INVESCO Senior Secured Management, Inc.
As Sub-Adviser
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
--------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE
AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C.,
BOISE LAND & TIMBER CORP., THE LENDERS
PARTY THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
AIM FLOATING RATE FUND
Name of Institution* By: INVESCO Senior Secured Management, Inc.
As Sub-Adviser
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxx Xxxxxxx by
------------------------------ ----------------------------------
Name: Xxxxxx Xxxxxxx Name:
Title: Authorized Signatory Title:
Executing as an Additional Revolving
Lender:
by
----------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE
AMENDMENT AND RESTATEMENT
AGREEMENT, DATED AS OF APRIL 18, 2005, AMONG BOISE
CASCADE HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C., BOISE LAND
& TIMBER CORP., THE LENDERS PARTY THERETO AND
JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE
AGENT.
Name of Institution* AIMCO CLO SERIES 2001-A
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx Xxxxxxx by /s/ Xxxxx Xxxxxxx
------------------------------ ----------------------------------
Name: XXXXX XXXXXXX Name: XXXXX XXXXXXX
Title: Title:
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxx
------------------------------ ----------------------------------
XXXXX X. XXXXXXX XXXXX X. XXXXXXX
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
--------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE
AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* AIMCO CDO Series 2000-A
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx Xxxxxxx by /s/ Xxxxx Xxxxxxx
------------------------------ ----------------------------------
Name: XXXXX XXXXXXX Name: XXXXX XXXXXXX
Title: Title:
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxx
------------------------------ ----------------------------------
XXXXX X. XXXXXXX XXXXX X. XXXXXXX
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
--------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE
AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ALLSTATE LIFE INSURANCE COMPANY
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx Xxxxxxx by /s/ Xxxxx Xxxxxxx
------------------------------ ----------------------------------
Name: XXXXX XXXXXXX Name: XXXXX XXXXXXX
Title: Title:
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxx
------------------------------ ----------------------------------
XXXXX X. XXXXXXX XXXXX X. XXXXXXX
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
--------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C.,
BOISE LAND & TIMBER CORP., THE LENDERS
PARTY THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
ALZETTE EUROPEAN CLO S.A.
Name of Institution* By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxx Xxxxxxx by
------------------------------ ----------------------------------
Name: XXXXXX XXXXXXX Name:
Title: AUTHORIZED SIGNATORY Title:
Executing as an Additional Revolving
Lender:
by
----------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution: ALZETTE EUROPEAN CLO S.A.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxxx Xxxxxxx
------------------------------ ----------------------------------
Name: Name: Xxxxxx Xxxxxxx
Title: Title: Authorized Signatory
ALZETTE EUROPEAN CLO S.A.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by: by
--------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
American Express Certificate Company
By: American Express Asset Management
Name of Institution* Group, Inc. as Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxx by /s/ Xxxxxxx X. Xxxx
------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx
Title: Director - Operations Title: Director - Operations
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
--------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
-------------------------------------------------
AMMC CLO III, LIMITED AMMC CLO III, LIMITED
BY: AMERICAN MONEY MANAGEMENT CORP., BY: AMERICAN MONEY MANAGEMENT CORP.,
AS COLLATERAL MANAGER AS COLLATERAL MANAGER
by /s/ Xxxxxxx X. Eng by /s/ Xxxxxxx X. Eng
------------------------------ ----------------------------------
Name: XXXXXXX X. ENG Name: XXXXXXX X. ENG
Title: SENIOR VICE PRESIDENT Title: SENIOR VICE PRESIDENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
--------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
-------------------------------------------------
AMMC CDO II, LIMITED AMMC CDO II, LIMITED
BY: AMERICAN MONEY MANAGEMENT CORP., BY: AMERICAN MONEY MANAGEMENT CORP.,
AS COLLATERAL MANAGER AS COLLATERAL MANAGER
by /s/ Xxxxxxx X. Eng by /s/ Xxxxxxx X. Eng
------------------------------ ----------------------------------
Name: XXXXXXX X. ENG Name: XXXXXXX X. ENG
Title: SENIOR VICE PRESIDENT Title: SENIOR VICE PRESIDENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
--------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* APEX (Trimaran) CDO I, LTD.
by Trimaran Advisors, L.L.C.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx X. Xxxxxxxx by /s/ Xxxxx X. Xxxxxxxx
------------------------------ ----------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Managing Director Title: Managing Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
--------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ARES II LEVERAGED INVESTMENT FUND II, L.P.
EXECUTING AS A REQUIRED LENDER:
By: ARES Management II, L.P.
Its: General Partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ARES III CLO LTD.
EXECUTING AS A REQUIRED LENDER:
By: ARES CLO Management, LLC
Its: Investment Manager
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ARES IV CLO LTD.
EXECUTING AS A REQUIRED LENDER:
By: Ares CLO Management IV, LP
Its: Investment Manager
By: Ares CLO XX XX, LLC
Its: Managing Member
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ARES V CLO LTD.
EXECUTING AS A REQUIRED LENDER:
By: Ares CLO Management V, LP
Its: Investment Manager
By: Ares CLO GP V, LLC
Its: Managing Member
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ARES VI CLO LTD.
EXECUTING AS A REQUIRED LENDER: Executing as a Tranche D Lender:
By: Ares CLO Management VI, LP
Its: Investment Manager
By: Ares CLO GP VI, LLC
Its: Managing Member
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ARES VII CLO LTD.
EXECUTING AS A REQUIRED LENDER:
By: Ares CLO Management VII, LP
Its: Investment Manager
By: Ares CLO GP VII, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ARES VIII CLO LTD.
EXECUTING AS A REQUIRED LENDER:
By: Ares CLO Management VIII, LP
Its: Investment Manager
By: Ares CLO GP VII, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ARES IX CLO LTD.
EXECUTING AS A REQUIRED LENDER:
By: Ares CLO Management IX, LP
Its: Investment Manager
By: Ares CLO GP IX, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ARES TOTAL VALUE FUND, L.P.
EXECUTING AS A REQUIRED LENDER:
By: Ares Total Value Management LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ARES ENHANCED LOAN INVESTMENT STRATEGY, LTD
EXECUTING AS A REQUIRED LENDER:
By: Ares Enhanced Loan Management, LP
Its: Investment Manager
By: Ares Enhanced Loan GP, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Atlas Capital Funding, Ltd.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
By Structured Asset Investors, LLC
Its Investment Manager
by /s/ Xxxxx X. XxXxxxx by
--------------------------- -----------------------------------
Name: Xxxxx X. XxXxxxx Name:
Title: Vice President Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C.,
BOISE LAND & TIMBER CORP., THE LENDERS
PARTY THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Atrium CDO
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx X. Xxxxxx by /s/ Xxxxx X. Xxxxxx
------------------------------ ----------------------------------
Name: XXXXX X. XXXXXX Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY Title: AUTHORIZED SIGNATORY
Executing as an Additional Revolving
Lender:
by
----------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C.,
BOISE LAND & TIMBER CORP., THE LENDERS
PARTY THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Atrium II
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx X. Xxxxxx by /s/ Xxxxx X. Xxxxxx
------------------------------ ----------------------------------
Name: XXXXX X. XXXXXX Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY Title: AUTHORIZED SIGNATORY
Executing as an Additional Revolving
Lender:
by
----------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C.,
BOISE LAND & TIMBER CORP., THE LENDERS
PARTY THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Atrium III
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx X. Xxxxxx by /s/ Xxxxx X. Xxxxxx
------------------------------ ----------------------------------
Name: XXXXX X. XXXXXX Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY Title: AUTHORIZED SIGNATORY
Executing as an Additional Revolving
Lender:
by
----------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* AURUM CLO 2002 - 1 LTD.,
BY: COLUMBIA MANAGEMENT ADVISORS, INC
AS PORTFOLIO MANAGER
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxx X. Xxxxxxxxx by /s/ Xxxx X. Xxxxxxxxx
------------------------------ ----------------------------------
Name: XXXX X. XXXXXXXXX Name: XXXX X. XXXXXXXXX
Title: DIRECTOR Title: VICE PRESIDENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxx X. Xxxxxxxxx by
---------------------------- ----------------------------------
Name: XXXX X. XXXXXXXXX Name:
Title: DIRECTOR Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C.,
BOISE LAND & TIMBER CORP., THE LENDERS
PARTY THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
AVALON CAPITAL LTD. 3
By: INVESCO Senior Secured Management, Inc.
Name of Institution* As Asset Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxx Xxxxxxx by
------------------------------ ----------------------------------
Name: Xxxxxx Xxxxxxx Name:
Title: Authorized Signatory Title:
Executing as an Additional Revolving
Lender:
by
----------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* AVALON CAPITAL LTD. 3
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxxx Xxxxxxx
------------------------------ ----------------------------------
Name: Name: Xxxxxx Xxxxxxx
Title: Title: Authorized Signatory
AVALON CAPITAL LTD. 3
By: INVESCO Senior Secured Management, Inc.
As Asset Manager
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
---------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Avenue CLO Fund, Limited
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxxxx X'xxxxxxx by
---------------------------- ----------------------------------
Name: XXXXXXX X'XXXXXXX Name:
Title: SENIOR PORTFOLIO MANAGER Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Azure Funding
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxx Xxxxxxxx by
---------------------------- ----------------------------------
Name: XXXXX XXXXXXXX Name:
Title: DIRECTOR Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* BABSON CLO LTD. 2003-I
Executing as a Required Lender: Executing as a Tranche D Lender:
by By: Babson Capital Management LLC as
Collateral Manager
/s/ Xxxxx X. Xxxxxxxxx
------------------------------ ----------------------------------
Name: Name: XXXXX X. XXXXXXXXX
Title: Title: Managing Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
---------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* BABSON CLO LTD. 2004-I
Executing as a Required Lender: Executing as a Tranche D Lender:
by By: Babson Capital Management LLC as
Collateral Manager
/s/ Xxxxx X. Xxxxxxxxx
------------------------------ ----------------------------------
Name: Name: XXXXX X. XXXXXXXXX
Title: Title: Managing Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
---------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
BALLYROCK CLO II Limited, By: BALLYROCK Investment Advisors LLC, as
Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxx Xxxxx
------------------------------ ----------------------------------
Name: Name: Xxxx Xxxxx
Title: Title: Assistant Treasurer
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
---------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
BALLYROCK CDO I Limited, By: BALLYROCK Investment Advisors LLC, as
Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxx Xxxxx
------------------------------ ----------------------------------
Name: Name: Xxxx Xxxxx
Title: Title: Assistant Treasurer
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
---------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Bank of America, N.A.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxx X. Xxxxxxxx by /s/ Xxxxxx X. Xxxxxxxx
------------------------------ ----------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by /s/ Xxxxxx X. Xxxxxxxx
---------------------------- ----------------------------------
Name: Name: Xxxxxx X. Xxxxxxxx
Title: Title: Vice President
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Bank of Montreal - $20,000,000.00 Revolving
Commitment
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by /s/ Xxxxx X. Xxxxxx
---------------------------- ----------------------------------
Name: Name: Xxxxx X. Xxxxxx
Title: Title: Director
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
--------------------------------------
Executing as a Required Lender: Executing as a Tranche D Lender:
BANK OF MONTREAL
by By: HIM Monegy, Inc. as agent
------------------------------
Name:
Title:
/s/ [ILLEGIBLE]
------------------------------
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
---------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Bear Xxxxxxx Institutional Loan Master Fund, Ltd
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------ ----------------------------------
Name: Name: [ILLEGIBLE]
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
---------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Bear Xxxxxxx Institutional Loan
Master Fund
By: Bear Xxxxxxx Asset Management Inc.
as its attorney-in-fact
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxx X. Xxxxxxxxxx
------------------------------ ----------------------------------
Name: Name: XXXXX X. XXXXXXXXXX
Title: Title: MANAGING DIRECTOR
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
---------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Bear Xxxxxxx Loan Trust
By: Bear Xxxxxxx Asset Management, Inc.,
as its attorney-in-fact
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxx X. Xxxxxxxxxx
------------------------------ ----------------------------------
Name: Name: XXXXX X. XXXXXXXXXX
Title: Title: MANAGING DIRECTOR
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
---------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Bear Xxxxxxx Loan Trust
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------ ----------------------------------
Name: Name: [ILLEGIBLE]
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* BIG SKY SENIOR LOAN FUND, LTD.
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxxxxx by /s/ Xxxxxxx X. Xxxxxxx
------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* BIG SKY III SENIOR LOAN TRUST
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxxxxx by /s/ Xxxxxxx X. Xxxxxxx
------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* XXXX & XXXXXXX XXXXX FOUNDATION
Executing as a Required Lender: Executing as a Tranche D Lender:
by By: Babson Capital Management LLC as
Investment Adviser
/s/ Xxxxx X. Xxxxx
------------------------------ ----------------------------------
Name: Name: Xxxxx X. Xxxxx, CFA
Title: Title: Managing Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* BIRCHWOOD FUNDING LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxxx X. Xxxxxxx by /s/ Xxxxxxxx X. Xxxxxxx
------------------------------ ----------------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President Title: Assistant Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C.,
BOISE LAND & TIMBER CORP., THE LENDERS
PARTY THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* BlackRock (on behalf of the funds listed below)*
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ [ILLEGIBLE] by /s/ [ILLEGIBLE]
------------------------------ -----------------------------------
Name: Name:
Title: Title:
Executing as an Additional Revolving
Lender:
by
-----------------------------------
Name:
Title:
* BLACKROCK GLOBAL FLOATING RATE INCOME TRUST
BLACKROCK LIMITED DURATION INCOME TRUST
BLACKROCK SENIOR INCOME SERIES
MAGNETITE ASSET INVESTORS LLC
MAGNETITE ASSET INVESTORS III LLC
MAGNETITE IV CLO, LIMITED
MAGNETITE V CLO, LIMITED
SENIOR LOAN PORTFOLIO
SENIOR LOAN FUND
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* BLUE SQUARE FUNDING LIMITED SERIES 3
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxx X. Xxxxxx by
------------------------------ ----------------------------------
Name: Xxxxx X. Xxxxxx Name:
Title: Vice President Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* BOSTON HARBOR CLO 2004-1, LTD.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxx Xxxxx
------------------------------ ----------------------------------
Name: Name: Xxxx Xxxxx
Title: Title: V.P.
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Braymoor & Co.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------ ----------------------------------
Name: Name: [ILLEGIBLE]
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Braymoor & Co.
By: Bear Xxxxxxx Asset Management, Inc.
as its attorney-in-fact
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxx X. Xxxxxxxxxx
------------------------------ ----------------------------------
Name: Name: XXXXX X. XXXXXXXXXX
Title: Title: MANAGING DIRECTOR
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
BRYN MAWR CLO, Ltd.
Executing as a Required Lender: Executing as a Tranche D Lender:
BRYN MAWR CLO, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Xxx Xxxxxxx
-------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
BRYN MAWR CLO, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Xxx Xxxxxxx
-------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
BUSHNELL CBNA LOAN FUNDING LLC,
FOR ITSELF OR AS AGENT FOR BUSHNELL
Name of Institution* CFPF LOAN FUNDING LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx Xxxxx by /s/ Xxxxx Xxxxx
------------------------------ ----------------------------------
Name: XXXXX XXXXX Name: XXXXX XXXXX
Title: AS ATTORNEY-IN-FACT Title: AS ATTORNEY-IN-FACT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Calyon
New York Branch
Executing as a Required Lender: Executing as a Tranche D Lender:
/s/ Xxx Xxxxx /s/ Xxx Xxxxx
------------------------------ ----------------------------------
Xxx Xxxxx Xxx Xxxxx
Director Director
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxx
------------------------------ ----------------------------------
Xxxxx Xxxxxx Xxxxx Xxxxxx
Managing Director Managing Director
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CANADIAN IMPERIAL BANK OF COMMERCE
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxx X' Xxxx by
------------------------------ ----------------------------------
Name: XXXX X' XXXX Name:
Title: AUTHORIZED SIGNATORY Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CANADIAN IMPERIAL BANK OF COMMERCE
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxx X' Xxxx by
------------------------------ ----------------------------------
Name: XXXX X' XXXX Name:
Title: AUTHORIZED SIGNATORY Title:
By: /s/ Xxxxxx Xxxxx
----------------------
Name: XXXXXX XXXXX
Title: Authorized Signatory
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CDL LOAN FUNDING LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxx Xxxxx by
------------------------------ ----------------------------------
Name: XXXXX XXXXX Name:
Title: Attorney-In-Fact Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
Executing as a Consenting Lender:
CELERITY CLO LIMITED
By: TCW Advisors, Inc.,
As Agent
By /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: XXXXXXX X. XXXXXX
Title: MANAGING DIRECTOR
By /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: XXXXXXXX X. XXXXXX
Title: MANAGING DIRECTOR
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Centurion CDO VI, Ltd.
By: American Express Asset Management
Name of Institution* Group, Inc. as Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxx by /s/ Xxxxxxx X. Xxxx
------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx
Title: Director - Operations Title: Director - Operations
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Centurion CDO II, Ltd.
By: American Express Asset Management
Name of Institution* Group, Inc. as Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxx by /s/ Xxxxxxx X. Xxxx
------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx
Title: Director - Operations Title: Director - Operations
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Centurion CDO 8, Limited.
By: American Express Asset Management
Name of Institution* Group, Inc. as Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxx by /s/ Xxxxxxx X. Xxxx
------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx
Title: Director - Operations Title: Director - Operations
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Centurion CDO III, Ltd.
By: American Express Asset Management Group,
Name of Institution* Inc. as Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxx by /s/ Xxxxxxx X. Xxxx
------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx
Title: Director - Operations Title: Director - Operations
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Centurion CDO VII, Ltd.
By: American Express Asset Management
Name of Institution* Group, Inc. as Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxx by /s/ Xxxxxxx X. Xxxx
------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx
Title: Director - Operations Title: Director - Operations
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution: CHAMPLAIN CLO LTD.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxxx Xxxxxxx
------------------------------ ----------------------------------
Name: Name: Xxxxxx Xxxxxxx
Title: Title: Authorized Signatory
CHAMPLAIN CLO, LTD.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
Name of Institution* As Investment Advisor
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxx Xxxxxxx by
------------------------------ ----------------------------------
Name: XXXXXX XXXXXXX Name:
Title: AUTHORIZED SIGNATORY Title:
Executing as an Additional Revolving
Lender:
by
----------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution: CHARTER VIEW PORTFOLIO
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxxx Xxxxxxx
------------------------------ ----------------------------------
Name: Name: Xxxxxx Xxxxxxx
Title: Title: Authorized Signatory
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
As Investment Advisor
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CITADEL HILL 2004 Ltd.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx Xxxxxxx by /s/ Xxxxx Xxxxxxx
------------------------------ ----------------------------------
Name: XXXXX XXXXXXX Name: XXXXX XXXXXXX
Title: Authorized Signatory Title: Authorized Signatory
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CITADEL HILL 2000 Ltd.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx Xxxxxxx by /s/ Xxxxx Xxxxxxx
------------------------------ ----------------------------------
Name: XXXXX XXXXXXX Name: XXXXX XXXXXXX
Title: Authorized Signatory Title: Authorized Signatory
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CITIBANK, N.A.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxx X. Xxxxxx by
------------------------------ ----------------------------------
Name: XXXXX X. XXXXXX Name:
Title: Attorney-In-Fact Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Citigroup Investments Corporate Loan Fund Inc.
By: Travelers Asset Management International Company LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
By: Citigroup Investments Corporate Loan Citigroup Investments Corporate Loan
Fund Inc. By: Travelers Asset Management Fund Inc.: By Travelers Asset Management
International Company LLC International Company LLC
/s/ Xxxxx Xxx /s/ Xxxxx Xxx
------------------------------ ----------------------------------
Name: Xxxxx Xxx Name: Xxxxx Xxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional
Revolving Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
CLARENVILLE CDO, SA
By: Pacific Investment Management Company LLC, by
as its Investment Advisor ----------------------------------
Name:
Title:
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------
XXXXX X. XXXXXXXXXX
MANAGING DIRECTOR
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Classic Cayman B.D. Limited
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ----------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ [ILLEGIBLE] by
------------------------------ ----------------------------------
Name: [ILLEGIBLE] Name:
Title: Authorized Signatory Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Clydesdale CLO 2001-1, Ltd.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxxxxxx XxxXxxx
------------------------------------ ---------------------------------
Name: NOMURA CORPORATE RESEARCH Name: Xxxxxxxxx XxxXxxx
Title: AND ASSET MANAGEMENT INC. Title: Director
AS
COLLATERAL MANAGER
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Clydesdale CLO 2003 Ltd.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxxxxxx XxxXxxx
------------------------------------ ---------------------------------
Name: NOMURA CORPORATE RESEARCH Name: Xxxxxxxxx XxxXxxx
Title: AND ASSET MANAGEMENT INC. Title: Director
AS
COLLATERAL MANAGER
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Clydesdale CLO 2004, Ltd.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxxxxxx XxxXxxx
------------------------------------ ---------------------------------
Name: NOMURA CORPORATE RESEARCH Name: Xxxxxxxxx XxxXxxx
Title: AND ASSET MANAGEMENT INC. Title: Director
AS
INVESTMENT MANAGER
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
CLT, L.P.
Name of Institution* By Royal Bank of Canada as Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx Xxxxxx by /s/ Xxxxxxx Xxxxxx
------------------------------------ ---------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory Title: Authorized Signatory
Executing as an Additional Revolving
Lender:
by
---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* C.M. LIFE INSURANCE COMPANY
Executing as a Required Lender: Executing as a Tranche D Lender:
by By: Babson Capital Management LLC as
Investment Sub-Adviser
/s/ Xxxxx X. Xxxxx, CFA
-------------------------------- ---------------------------------
Name: Name: Xxxxx X. Xxxxx, CFA
Title: Title: Managing Director
Executing as a Consenting Lender: Executing as an Additional Revolving Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CoBank, ACB
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx Xxxxxxxxxx by /s/ Xxxxxxx Xxxxxxxxxx
------------------------------------ ---------------------------------
Name: Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxxxx Xxxxxxxxxx by
------------------------------ ---------------------------------
Name: Xxxxxxx Xxxxxxxxxx Name:
Title: Vice President Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Commerzbank AG,
New York and Grand Cayman Branches
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by /s/ Christian Jagenberg
------------------------------ ---------------------------------
Name: Name: Christian Jagenberg
Title: Title: SVP & Manager
/s/ Yangling Xxxxxx Si
---------------------------------
Name: Yangling Xxxxxx Si
Title: AVP
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
CONSTANTINUS XXXXX XXXXX CDO V, LTD.
BY: XXXXX XXXXX MANAGEMENT
Name of Institution* AS INVESTMENT ADVISOR
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxxxxx by /s/ Xxxxxxx X. Xxxxxxx
------------------------------------ ---------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CONTINENTAL CASUALTY COMPANY
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. XxXxxx by /s/ Xxxxxxx X. XxXxxx
------------------------------------ ---------------------------------
Name: Xxxxxxx X. XxXxxx Name: Xxxxxxx X. XxXxxx
Title: Vice President and Assistant Treasurer Title: Vice President and Assistant Treasurer
By:
--------
Date: 4-11-05
-------
Executing as an Additional Revolving
Lender:
by
---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Cooksmill
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxx A.M Xxxxxxxx by
------------------------------ ---------------------------------
Name: XXXX A.M XXXXXXXX Name:
Title: Authorised Signatory Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
EXECUTING AS REQUIRED LENDER:
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH,
AS LENDER
By: /s/ Xxxx XxXxxx
------------------------------
Name: Xxxx XxXxxx
Title: Executive Director
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Director
EXECUTING AS CONSENTING LENDER:
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH,
AS CONSENTING LENDER
By: /s/ Xxxx XxXxxx
------------------------------
Name: Xxxx XxXxxx
Title: Executive Director
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Director
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CSAM Funding I
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx X. Xxxxxx by /s/ Xxxxx X. Xxxxxx
------------------------------------ ---------------------------------
Name: XXXXX X. XXXXXX Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY Title: AUTHORIZED SIGNATORY
Executing as an Additional Revolving
Lender:
by
---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CSAM Funding II
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx X. Xxxxxx by /s/ Xxxxx X. Xxxxxx
------------------------------------ ---------------------------------
Name: XXXXX X. XXXXXX Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY Title: AUTHORIZED SIGNATORY
Executing as an Additional Revolving
Lender:
by
---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CSAM Funding III
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx X. Xxxxxx by /s/ Xxxxx X. Xxxxxx
------------------------------------ ---------------------------------
Name: XXXXX X. XXXXXX Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY Title: AUTHORIZED SIGNATORY
Executing as an Additional Revolving
Lender:
by
---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CSAM Funding IV
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx X. Xxxxxx by /s/ Xxxxx X. Xxxxxx
------------------------------------ ---------------------------------
Name: XXXXX X. XXXXXX Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY Title: AUTHORIZED SIGNATORY
Executing as an Additional Revolving
Lender:
by
---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* CSAM SLF
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx X. Xxxxxx by /s/ Xxxxx X. Xxxxxx
------------------------------------ ---------------------------------
Name: XXXXX X. XXXXXX Name: XXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY Title: AUTHORIZED SIGNATORY
Executing as an Additional Revolving
Lender:
by
---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
Executing as a Consenting Lender:
C-SQUARED CDO LTD.
BY: TCW ADVISORS, INC., AS ITS
PORTFOLIO MANAGER
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: XXXXXXXX X. XXXXXX
Title: MANAGING DIRECTOR
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Deutsche Bank
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx XxXxxxx by
------------------------------ ---------------------------------
Name: Xxxxx XxXxxxx Name:
Title: Director Title:
by /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* DIVERSIFIED CREDIT PORTFOLIO LTD.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxxx Xxxxxxx
------------------------------ ---------------------------------
Name: Name: Xxxxxx Xxxxxxx
Title: Title: Authorized Signatory
DIVERSIFIED CREDIT PORTFOLIO LTD.
By: INVESCO Senior Secured Management, Inc.
as Investment Adviser
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
DIVERSIFIED CREDIT PORTFOLIO LTD.
By: INVESCO Senior Secured Management, Inc.
Name of Institution* as Investment Adviser
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxx Xxxxxxx by
------------------------------------ ---------------------------------
Name: Xxxxxx Xxxxxxx Name:
Title: Authorized Signatory Title:
Executing as an Additional Revolving
Lender:
by
---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Xxxxxx III[cad 228]Leveraged Loan CDO 2002
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxx Xxxxxx by
------------------------------------ ---------------------------------
Name: Xxxxxx Xxxxxx Name:
Title: Principal Title:
Executing as an Additional Revolving
Lender:
by
---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Xxxxxx VII [cad 228] Leveraged Loan CDO 2004
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxx Xxxxxx by
------------------------------------ ---------------------------------
Name: Xxxxxx Xxxxxx Name:
Title: Principal Title:
Executing as an Additional Revolving
Lender:
by
---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
EAGLE LOAN TRUST
By: Xxxxxxxxx Capital Partners, LLC
Name of Institution* as its Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxxxxxx X. Xxxxxx by
------------------------------ ---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx Name:
Title: Managing Partner Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* EAGLE MASTER FUND LTD.
By: Citigroup Alternative Investments LLC, as Investment
Manager for and on behalf of Eagle Master Fund Ltd.
Executing as a Required Lender: Executing as a Tranche D Lender:
By: EAGLE MASTER FUND LTD. BY: EAGLE MASTER FUND LTD.
By: Citigroup Alternative Investments LLC By: Citigroup Alternative Investments LLC
As Investment Manager for and on behalf of As Investment Manager for and behalf of
Eagle Master Eagle Master
/s/ Xxxxx Xxx /s/ Xxxxx Xxx
------------------------------ ----------------------------------
Name: Xxxxx Xxx Name: Xxxxx Xxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional
Revolving Lender:
By: By:
------------------------------ ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
XXXXX XXXXX FLOATING-RATE
INCOME TRUST
BY: XXXXX XXXXX MANAGEMENT
Name of Institution* AS INVESTMENT ADVISOR
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxxxxx by /s/ Xxxxxxx X. Xxxxxxx
------------------------------ ---------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* XXXXX XXXXX SENIOR
FLOATING-RATE TRUST
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxxxxx by /s/ Xxxxxxx X. Xxxxxxx
------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- ------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* XXXXX XXXXX
VT FLOATING-RATE INCOME FUND
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxxxxx by /s/ Xxxxxxx X. Xxxxxxx
------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- ------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* XXXXX XXXXX
LIMITED DURATION INCOME FUND
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxxxxx by /s/ Xxxxxxx X. Xxxxxxx
------------------------------- --------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* XXXXX XXXXX INSTITUTION SENIOR LOAN FUND
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxxxxx by /s/ Xxxxxxx X. Xxxxxxx
------------------------------- --------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* XXXXX XXXXX CDO III, LTD.
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxxxxx by /s/ Xxxxxxx X. Xxxxxxx
------------------------------- --------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* XXXXX XXXXX CDO VI LTD.
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxxxxx by /s/ Xxxxxxx X. Xxxxxxx
------------------------------- --------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* XXXXX XXXXX SENIOR INCOME TRUST
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx X. Xxxxxxx by /s/ Xxxxxxx X. Xxxxxxx
------------------------------- --------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Fidelity Fixed-Income Trust: Fidelity High
Income Fund
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxx X. Xxxxxxxx
------------------------------- --------------------------------------
Name: Name: Xxxx X. Xxxxxxxx
Title: Title: Assistant Treasurer
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ECL Funding LLC for itself or as agent for
ECL2 Funding LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ [ILLEGIBLE] by /s/ [ILLEGIBLE]
------------------------------- --------------------------------------
Name: Name:
Title: AS ATTORNEY-IN-FACT Title: AS ATTORNEY-IN-FACT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ELF FUNDING TRUST I
BY: Highland Capital Management, L.P.
as Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx Xxxxxxxx by /s/ Xxxxx Xxxxxxxx
-------------------------------------- --------------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx
Title: Treasurer Title: Treasurer
Highland Capital Management, L.P. Highland Capital Management, L.P.
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
-------------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ELF Funding Trust III
By:
New York Life Investment Management LLC
as Attorney-In-Fact
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ F. Xxxxx Xxxxx
------------------------------- --------------------------------------
Name: Name: F. Xxxxx Xxxxx
Title: Title: Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Farm Credit Bank of Texas
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxx X. Xxxx by /s/ Xxxx X. Xxxx
------------------------------- --------------------------------------
Name: Xxxx X. Xxxx Name: Xxxx X. Xxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Fidelity Advisor Series II: Fidelity
Advisor Floating Rate High Income Fund
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxx X. Xxxxxxxx
------------------------------- --------------------------------------
Name: Name: Xxxx X. Xxxxxxxx
Title: Title: Assistant Treasurer
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ [ILLEGIBLE] by
------------------------------- --------------------------------------
Name: [ILLEGIBLE] Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Fidelity Fixed-Income Trust: Fidelity High
Income Fund
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxx X. Xxxxxxxx by
------------------------------- --------------------------------------
Name: Xxxx X. Xxxxxxxx Name:
Title: Assistant Treasurer Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Fidelity Advisor Series II: Fidelity
Advisor Floating Rate High Income Fund
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxx X. Xxxxxxxx by
------------------------------- --------------------------------------
Name: Xxxx X. Xxxxxxxx Name:
Title: Assistant Treasurer Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
Executing as a Consenting Lender:
FIRST 2004-II CLO, LTD.
By: TCW Advisor, Inc.,
its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: XXXXXXX X. XXXXXX
Title MANAGING DIRECTOR
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Name: XXXXXXXX X. XXXXXX
Title MANAGING DIRECTOR
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
Executing as a Consenting Lender:
FIRST 2004-I CLO, LTD.
By: TCW Advisor, Inc.,
its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: XXXXXXX X. XXXXXX
Title MANAGING DIRECTOR
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Name: XXXXXXXX X. XXXXXX
Title MANAGING DIRECTOR
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* FIRST TRUST / FOUR CORNERS SENIOR FLOATING RATE
INCOME FUND
Executing as a Required Lender: Executing as a Tranche D Lender:
By: Four Corners Capital Management LLC, By: Four Corners Capital Management LLC,
as Sub-Advisor as Sub-Advisor
by /s/ Xxxx X. Xxxxxxxxx by /s/ Xxxx X. Xxxxxxxxx
------------------------------- --------------------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* FIRST TRUST / FOUR CORNERS SENIOR FLOATING RATE
INCOME FUND II
Executing as a Required Lender: Executing as a Tranche D Lender:
By: Four Corners Capital Management LLC, By: Four Corners Capital Management LLC,
as Sub-Advisor as Sub-Advisor
by /s/ Xxxx X. Xxxxxxxxx by /s/ Xxxx X. Xxxxxxxxx
------------------------------- -----------------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* First Trust/Highland Capital Floating Rate
Income Fund
By: Highland Capital Management, L.P., its
Investment Sub-Advisor
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxx Xxxxxxx by /s/ Xxxx Xxxxxxx
------------------------------- --------------------------------------
Name: Xxxx Xxxxxxx Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager Title: Senior Portfolio Manager
Highland Capital Management, L.P. Highland Capital Management, L.P.
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* FLAGSHIP CAPITAL CLO II
BY: FLAGSHIP CAPITAL MANAGEMENT, INC.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxx X. Xxxxxxxxx by /s/ Xxxx X. Xxxxxxxxx
------------------------------- --------------------------------------
Name: XXXX X. XXXXXXXXX Name: XXXX X. XXXXXXXXX
Title: DIRECTOR Title: DIRECTOR
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxx X. Xxxxxxxxx by
------------------------------- --------------------------------------
Name: XXXX X. XXXXXXXXX Name:
Title: DIRECTOR Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* FLAGSHIP CAPITAL CLO 2001-1
BY: FLAGSHIP CAPITAL MANAGEMENT, INC.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxx X. Xxxxxxxxx by /s/ Xxxx X. Xxxxxxxxx
------------------------------- --------------------------------------
Name: XXXX X. XXXXXXXXX Name: XXXX X. XXXXXXXXX
Title: DIRECTOR Title: DIRECTOR
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxx X. Xxxxxxxxx by
------------------------------- --------------------------------------
Name: XXXX X. XXXXXXXXX Name:
Title: DIRECTOR Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* FLAGSHIP CAPITAL CLO III
BY: FLAGSHIP CAPITAL MANAGEMENT, INC.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxx X. Xxxxxxxxx by /s/ Xxxx X. Xxxxxxxxx
------------------------------- --------------------------------------
Name: XXXX X. XXXXXXXXX Name: XXXX X. XXXXXXXXX
Title: DIRECTOR Title: DIRECTOR
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxx X. Xxxxxxxxx by
------------------------------- --------------------------------------
Name: XXXX X. XXXXXXXXX Name:
Title: DIRECTOR Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Floating Rate Income Strategies Fund, Inc.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------- ------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- ------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Floating Rate Income Strategies Fund II, Inc.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------- ------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- ------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* FOREST CREEK CLO, Ltd.
Executing as a Required Lender: Executing as a Trache D Lender:
FOREST CREEK CLO, Ltd.
By: Deerfield Capital Management, LLC as its
Collateral Manager _________________
By: /s/ Xxx Harrori
-----------------------
Name: Xxx Harrori
Title: Senior Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
FOREST CREEK CLO, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager ________________
By: /s/ Xxx Harrori
-----------------------
Name: Xxx Harrori
Title: Senior Vice President
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* FORTRESS PORTFOLIO TRUST
Executing as a Required Lender: Executing as a Tranche D Lender:
By: Four Corners Capital Management LLC, By: Four Corners Capital Management LLC,
as Sub-Advisor as Investment Advisor
by /s/ Xxxx X. Xxxxxxxxx by /s/ Xxxx X. Xxxxxxxxx
------------------------------- --------------------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Franklin CLO I, Limited
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx Xxxxxx by /s/ Xxxxx Xxxxxx
------------------------------- --------------------------------------
Name: XXXXX XXXXXX Name: XXXXX XXXXXX
Title: VICE PRESIDENT Title: VICE PRESIDENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxx Xxxxxx by
------------------------------- --------------------------------------
Name: XXXXX XXXXXX Name:
Title: VICE PRESIDENT Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Franklin CLO II, Limited
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx Xxxxxx by /s/ Xxxxx Xxxxxx
------------------------------- --------------------------------------
Name: XXXXX XXXXXX Name: XXXXX XXXXXX
Title: VICE PRESIDENT Title: VICE PRESIDENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxx Xxxxxx by
------------------------------- --------------------------------------
Name: XXXXX XXXXXX Name:
Title: VICE PRESIDENT Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Franklin CLO III, Limited
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx Xxxxxx by /s/ Xxxxx Xxxxxx
------------------------------- --------------------------------------
Name: XXXXX XXXXXX Name: XXXXX XXXXXX
Title: VICE PRESIDENT Title: VICE PRESIDENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxx Xxxxxx by
------------------------------- --------------------------------------
Name: XXXXX XXXXXX Name:
Title: VICE PRESIDENT Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* FRANKLIN CLO IV, LIMITED
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx Xxxxxx by /s/ Xxxxx Xxxxxx
------------------------------- --------------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxx Xxxxxx by
------------------------------- --------------------------------------
Name: Xxxxx Xxxxxx Name:
Title: Vice President Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Franklin Floating Rate Trust
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx Xxx by /s/ Xxxxxxx Xxx
------------------------------- --------------------------------------
Name: Xxxxxxx Xxx Name: Xxxxxxx Xxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxxxx Xxx by
------------------------------- --------------------------------------
Name: Xxxxxxx Xxx Name:
Title: Vice President Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Franklin Floating Rate Master Series
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxx Xxx by /s/ Xxxxxxx Xxx
------------------------------- --------------------------------------
Name: Xxxxxxx Xxx Name: Xxxxxxx Xxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxxxx Xxx by
------------------------------- --------------------------------------
Name: Xxxxxxx Xxx Name:
Title: Vice President Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* FRANKLIN FLOATING RATE
DAILY ACCESS FUND
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Richard Hsu by /s/ Richard Hsu
------------------------------- --------------------------------------
Name: Richard Hsu Name: Richard Hsu
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Richard Hsu by
------------------------------- --------------------------------------
Name: Richard Hsu Name:
Title: Vice President Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* FRANKLIN TEMPLETON
LIM. DURATION INCOME TRUST
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Richard Hsu by /s/ Richard Hsu
------------------------------- --------------------------------------
Name: Richard Hsu Name: Richard Hsu
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Richard Hsu by
------------------------------- --------------------------------------
Name: Richard Hsu Name:
Title: Vice President Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Madison Park Funding I
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ David H. Lerner by /s/ David H. Lerner
------------------------------- --------------------------------------
Name: DAVID H. LERNER Name: DAVID H. LERNER
Title: AUTHORIZED SIGNATORY Title: AUTHORIZED SIGNATORY
Executing as an Additional Revolving
Lender:
by
--------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* MainStay Floating Rate Fund,
a series of Eclipse Funds Inc.
By: New York Life Investment Management LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ F. David Melka
------------------------------- --------------------------------------
Name: Name: F. David Melka
Title: Title: Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* MAPLEWOOD (CAYMAN) LIMITED
Executing as a Required Lender: Executing as a Tranche D Lender:
by By: Babson Capital Management LLC as
Investment Manager
/s/ David P. Wells
------------------------------- --------------------------------------
Name: Name: David P. Wells, CFA
Title: Title: Managing Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* MARKET SQUARE CLO, Ltd.
Executing as a Required Lender: Executing as a Trache D Lender:
MARKET SQUARE CLO, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Dan Hattori
------------------------------
Name: Dan Hattori
Title: Senior Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
MARKET SQUARE CLO, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Dan Hattori
------------------------------
Name: Dan Hattori
Title: Senior Vice President
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
Executing as a Required Lender: Executing as a Tranche D Lender:
by By: Babson Capital Management LLC as
Investment Manager
/s/ David P. Wells
------------------------------- -------------------------------------
Name: Name: David P. Wells, CFA
Title: Title: Managing Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- -------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Merrill Lynch Capital, a division of Merrill
Lynch Business Financial Services Inc.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Kelli J. O'Connell by /s/ Kelli J. O'Connell
------------------------------- -------------------------------------
Name: Kelli J. O'Connell Name: Kelli J. O'Connell
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- -------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Merrill Lynch Prime Rate Portfolio
By: Merrill Lynch Investment Managers, L.P.
as Investment Advisor
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ [ILLEGIBLE] by /s/ [ILLEGIBLE]
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ [ILLEGIBLE] by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Met Life Bank, National Association
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ James R. Dingler by
------------------------------- --------------------------------------
Name: James R. Dingler Name:
Title: Director Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Metropolitan Life Insurance Company
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ James R. Dingler by
------------------------------- --------------------------------------
Name: James R. Dingler Name:
Title: Director Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Morgan Stanley Senior Funding, Inc.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ James Morgan by /s/ James Morgan
------------------------------- --------------------------------------
Name: JAMES MORGAN Name: JAMES MORGAN
Title: VICE PRESIDENT Title: VICE PRESIDENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Mountain Capital CLO III Ltd
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Chris Siddons by /s/ Chris Siddons
------------------------------- --------------------------------------
Name: Chris Siddons Name: Chris Siddons
Title: Director Title: Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Mountain Capital CLO 11 Ltd.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Chris Siddons by /s/ Chris Siddons
------------------------------- --------------------------------------
Name: Chris Siddons Name: Chris Siddons
Title: Director Title: Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* MUIRFIELD TRADING LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Meredith J. Koslick by
------------------------------- --------------------------------------
Name: Meredith J. Koslick Name:
Title: Assistant Vice President Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Meredith J. Koslick by
------------------------------- --------------------------------------
Name: Meredith J. Koslick Name:
Title: Assistant Vice President Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* NATEXIS BANQUES POPULAIRES
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Frank H. Madden by /s/ Frank H. Madden
------------------------------- --------------------------------------
Name: FRANK H. MADDEN, JR. Name: FRANK H. MADDEN, JR.
Title: VICE PRESIDENT & GROUP MANAGER Title: VICE PRESIDENT & GROUP MANAGER
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Jordan H. Levy by /s/ Jordan H. Levy
------------------------------- --------------------------------------
Name: JORDAN H. LEVY Name: JORDAN H. LEVY
Title: ASSISTANT VICE PRESIDENT Title: ASSISTANT VICE PRESIDENT
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* National City Bank
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Tony J. Deher by /s/ Tony J. Deher
------------------------------- --------------------------------------
Name: Tony J. Deher Name: Tony J. Deher
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Tony J. Deher by /s/ Tony J. Deher
------------------------------- --------------------------------------
Name: Tony J. Deher Name: Tony J. Deher
Title: Vice President Title: Vice President
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* New York Life Insurance and Annuity Corporation
By: New York Life Investment Management LLC
its Investment Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ F. David Melka
------------------------------- --------------------------------------
Name: Name: F. David Melka
Title: Title: Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* New York Life Insurance Company
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ F. David Melka
------------------------------- --------------------------------------
Name: Name: F. David Melka
Title: Title: Investment Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Nomura Bond and Loan Fund
Executing as a Required Lender: Executing as a Tranche D Lender:
by: UFJ Trust Bank Limited
as Trustee
by by /s/ Elizabeth MacLean
------------------------------- --------------------------------------
Name: Name: Elizabeth MacLean
Title: Title: Director
by: Nomura Corporate Research and
Asset Management Inc.
Attorney in Fact
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* North Fork Business Capital Corp.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Ron Walker by /s/ Ron Walker
------------------------------- --------------------------------------
Name: Ron Walker Name: Ron Walker
Title:Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Nuveen Senior Income Fund, as a lender
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------- --------------------------------------
Name: Name: [ILLEGIBLE]
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Nuveen Floating Rate Income Fund, as a lender
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------- --------------------------------------
Name: Name: [ILLEGIBLE]
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Nuveen Floating Rate Income Oppurtunity Fund,
as a lender
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------- --------------------------------------
Name: Name: [ILLEGIBLE]
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* NYLIM Flatron CLO 2004-1 Ltd.
By: New York Life Investment Management LLC,
as Collateral Manager and Attorney-In-Fact
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ F. David Melka
------------------------------- --------------------------------------
Name: Name: F. David Melka
Title: Title: Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* NYLIM Flatron CLO 2003-1 Ltd.
By: New York Life Investment Management LLC
as Collateral Manager and Attorney-In-Fact
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ F. David Melka
------------------------------- --------------------------------------
Name: Name: F. David Melka
Title: Title: Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* OCTAGON INVESTMENT PARTNERS VII, LTD.
By: Octagon Credit Investors, LLC
as Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Michael B. Nechamkin
------------------------------- --------------------------------------
Name: Name: Michael B. Nechamkin
Title: Title: Portfolio Manager
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* OCTAGON INVESTMENT PARTNERS V, LTD.
By: Octagon Credit Investors, LLC
as Portfolio Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Michael B. Nechamkin
------------------------------- --------------------------------------
Name: Name: Michael B. Nechamkin
Title: Title: Portfolio Manager
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* OCTAGON INVESTMENT PARTNERS IV, LTD.
By: Octagon Credit Investors, LLC
as collateral manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Michael B. Nechamkin
------------------------------- --------------------------------------
Name: Name: Michael B. Nechamkin
Title: Title: Portfolio Manager
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* OCTAGON INVESTMENT PARTNERS II, LLC
By: Octagon Credit Investors, LLC
as sub-investment manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Michael B. Nechamkin
------------------------------- --------------------------------------
Name: Name: Michael B. Nechamkin
Title: Title: Portfolio Manager
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* OLYMPIC CLO I LTD.,
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Kevin J. Hickam by
------------------------------- --------------------------------------
Name: Kevin J. Hickam Name:
Title: Managing Director Title:
Centre Pacific, LLC
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Oppenheimer Senior Floating Rate Fund
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Lisa Chaffee by
------------------------------- --------------------------------------
Name: Lisa Chaffee Name:
Title: AVP Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Pacifica CDO II, LTD.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ An Pham by
------------------------------- --------------------------------------
Name: An Pham, Jr. Name:
Title: Authorized Signatory Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ An Pham by
------------------------------- --------------------------------------
Name: An Pham, Jr. Name:
Title: Authorized Signatory Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
Executing as a Consenting Lender:
PARK AVENUE LOAN TRUST
By: TCW Adivsors, Inc.,
as Agent
by /s/ Matthew A. Miller
------------------------------
Name: MATTHEW A. MILLER
Title: MANAGING DIRECTOR
by /s/ Jonathan R. Insull
------------------------------
Name: JONATHAN R. INSULL
Title: MANAGING DIRECTOR
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* PETRUSSE EUROPEAN CLO S.A.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manger
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Joseph Rotondo by
------------------------------- --------------------------------------
Name: Joseph Rotondo Name:
Title: Authorized Signatory Title:
Executing as an Additional Revolving
Lender:
by
--------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution: PETRUSSE EUROPEAN CLO S.A.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Joseph Rolondo
------------------------------- --------------------------------------
Name: Name: Joseph Rolondo
Title: Title: Authorized Signatory
PETRUSSE EUROPEAN CLO S.A.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
PIMCO FLOATING RATE INCOME FUND
By: Pacific Investment Management Company LLC, by
as its Investment Advisor, acting through Investors --------------------------------------
Fiduciary Trust Company in the Nominee Name of IFTCO Name:
Title:
By: /s/ Mohan V. Phansalkar
-------------------------
Mohan V. Phansalkar
Managing Director
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS
AGREEING TO THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A
TRANCHE B LENDER UNDER THE EXISTING CREDIT AGREEMENT WHICH IS NOT A
TRANCHE D LENDER MAY NEVERTHELESS CONSENT TO THE TERMS OF THIS
AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
PIMCO FLOATING INCOME FUND
By: Pacific Investment Management Company LLC, by
as its Investment Advisor, acting through Investors --------------------------------------
Fiduciary Trust Company in the Nominee Name of IFTCO Name:
Title:
By: /s/ Mohan V. Phansalkar
-------------------------
Mohan V. Phansalkar
Managing Director
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
PIMCO HIGH YIELD FUND
By: Pacific Investment Management Company LLC, by
as its Investment Advisor for the PIMCO High Yield --------------------------------------
Fund, acting through Investors Fiduciary Trust Name:
Company in the Nominee Name of IFTCO Title:
By: /s/ Mohan V. Phansalkar
-------------------------
Mohan V. Phansalkar
Managing Director
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
PIMCO FLOATING RATE STRATEGY FUND
By: Pacific Investment Management Company LLC, by
as its Investment Advisor, acting through Investors --------------------------------------
Fiduciary Trust Company in the Nominee Name of IFTCO Name:
Title:
By: /s/ Mohan V. Phansalkar
-------------------------
Mohan V. Phansalkar
Managing Director
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Pinehurst Trading, Inc.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Ann E. Morris by /s/ Ann E. Morris
------------------------------- --------------------------------------
Name: ANN E. MORRIS Name: ANN E. MORRIS
Title: ASST VICE PRESIDENT Title: ASST VICE PRESIDENT
Executing as an Additional Revolving
Lender:
by
--------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Pioneer Floating Rate Trust
By: Highland Capital Management, L.P.,
its Sub Advisor
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Todd Travers by /s/ Todd Travers
------------------------------- --------------------------------------
Name: Todd Travers Name: Todd Travers
Title: Senior Portfolio Manager Title: Senior Portfolio Manager
Highland Capital Management, L.P. Highland Capital Management, L.P.
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
-------------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* PNC BANK, NATIONAL ASSOCIATION
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Thomas J. Bogdewic by /s/ Thomas J. Bogdewic
------------------------------- --------------------------------------
Name: THOMAS J. BOGDEWIC Name: THOMAS J. BOGDEWIC
Title: VICE PRESIDENT Title: VICE PRESIDENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* By: PPM America, Inc., as
Attorney-in-fact, on behalf of
Jackson National Life Insurance
Company
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Chris Kappas
------------------------------- --------------------------------------
Name: Name: Chris Kappas
Title: Title: Managing Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* PPM MONARCH BAY FUNDING LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Meredith J. Koslick by /s/ Meredith J. Koslick
------------------------------- --------------------------------------
Name: Meredith J. Koslick Name: Meredith J. Koslick
Title: Assistant Vice President Title: Assistant Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* PPM SHADOW CREEK FUNDING LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Meredith J. Koslick by /s/ Meredith J. Koslick
------------------------------- --------------------------------------
Name: Meredith J. Koslick Name: Meredith J. Koslick
Title: Assistant Vice President Title: Assistant Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* PPM SPYGLASS FUNDING TRUST
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Kelly W. Warnement by /s/ Kelly W. Warnement
------------------------------- --------------------------------------
Name: KELLY W. WARNEMENT Name: KELLY W. WARNEMENT
Title: AUTHORIZED AGENT Title: AUTHORIZED AGENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Premium Loan Trust I, Ltd.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Thomas A. Kramer by /s/ Thomas A. Kramer
------------------------------- --------------------------------------
Name: Thomas A. Kramer Name: Thomas A. Kramer
Title: Senior Managing Director & Title: Senior Managing Director &
Chief Executive Officer Chief Executive Officer
Executing as an Additional Revolving
Lender:
by
--------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* PRINCIPAL LIFE INSURANCE COMPANY
Executing as a Required Lender: Executing as a Tranche D Lender:
PRINCIPAL LIFE INSURANCE COMPANY PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC By: Principal Global Investors, LLC
a Delaware limited liability company, a Delaware limited liability company,
its authorized signatory its authorized signatory
By: /s/ Jon C. Heiny By: /s/ Jon C. Heiny
-------------------------------- ---------------------------------
Its: JON C. HEINY, Counsel Its: JON C. HEINY, Counsel
-------------------------------- ---------------------------------
By: /s/ James C. Fifield By: /s/ James C. Fifield
-------------------------------- ---------------------------------
Its: JAMES C. FIFIELD, Counsel Its: JAMES C. FIFIELD, Counsel
-------------------------------- ---------------------------------
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Executing as a Required Lender:
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By: /s/ James C. Fifield
-------------------------
Its: JAMES C. FIFIELD, Counsel
-------------------------
By: /s/ Christopher J. [ILLEGIBLE]
-------------------------
Its: CHRISTOPHER J. [ILLEGIBLE], COUNSEL
-----------------------------------
Executing as a Tranche D Lender:
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By: /s/ James C. Fifield
-------------------------
Its: JAMES C. FIFIELD, Counsel
-------------------------
By: /s/ Christopher J. [ILLEGIBLE]
-------------------------
Its: CHRISTOPHER J. [ILLEGIBLE], COUNSEL
-----------------------------------
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* PROMETHEUS INVESTMENT FUNDING NO. 2 LTD.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ James T. Li
------------------------------- --------------------------------------
Name: Name: JAMES T. LI
Title: Title: ASSOCIATE DIRECTOR
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* PROMETHEUS INVESTMENT FUNDING NO.2 LTD.
By: HVB Credit Advisors LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ James T. Li by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
/s/ Vicky S. [ILLEGIBLE] Executing as an Additional Revolving
Vicky S. [ILLEGIBLE] Lender:
ASSOCIATE DIRECTOR
by
--------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Prospero CLO I, Ltd
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ John Randolph Walkins by /s/ John Randolph Walkins
------------------------------- --------------------------------------
Name: John Randolph Walkins Name: John Randolph Walkins
Title: Executive Director Title: Executive Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Protective Life Insurance Company
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Diane S. Griswold by
------------------------------- --------------------------------------
Name: Diane S. Griswold Name:
Title: AVP Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* PUTNAM DIVERSIFIED INCOME TRUST
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Beth Mazor
------------------------------- --------------------------------------
Name: Name: Beth Mazor
Title: Title: V.P.
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* PUTNAM FLOATING RATE INCOME FUND
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Beth Mazor
------------------------------ ---------------------------------
Name: Name: Beth Mazor
Title: Title: V.P.
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* REGIMENT CAPITAL, LTD
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- ---------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
By: Regiment Capital Management, LLC by
as its Investment Advisor ---------------------------------
Name:
By Regiment Capital Advisors, LP Title:
its Manager and pursuant to delegated
authority
By: /s/ Timothy S. Peterson
------------------------------
Timothy S. Peterson
President
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* RESTORATION FUNDING CLO, LTD
By: Highland Capital Management, L.P.
As General Partner
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ David Lancelot by /s/ David Lancelot
------------------------------ ---------------------------------
Name: David Lancelot Name: David Lancelot
Title: Treasurer Title: Treasurer
Highland Capital Management, L.P. Highland Capital Management, L.P.
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* ROSEMONT CLO, Ltd.
Executing as a Required Lender: Executing as a Tranche D Lender:
ROSEMONT CLO, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Dan Hattori
-----------------------
Name: Dan Hattori
Title: Senior Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
ROSEMONT CLO, Ltd.
By: Deerfield Capital Management LLC as its
Collateral Manager
By: /s/ Dan Hattori
-----------------------
Name: Dan Hattori
Title: Senior Vice President
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
________, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SAGAMORE CLO LTD.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Joseph Rotondo by
------------------------------- ---------------------------------
Name: Joseph Rotondo Name:
Title: Authorized Signatory Title:
Executing as an Additional Revolving
Lender:
by
---------------------------------
Name:
Title:
----------
* EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution: SAGAMORE CLO LTD.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Joseph Rotondo
------------------------------ ---------------------------------
Name: Name: Joseph Rotondo
Title: Title: Authorized Signatory
SAGAMORE CLO LTD.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
Sankaty Advisors, LLC as Collateral
Manager for AVERY POINT CLO,
LTD., as Term Lender
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
-------------------------------------------
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Diane J. Exter by /s/ Diane J. Exter
------------------------------ ---------------------------------
Name: DIANE J. EXTER Name: DIANE J. EXTER
Title: MANAGING DIRECTOR Title: MANAGING DIRECTOR
PORTFOLIO MANAGER PORTFOLIO MANAGER
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
Sankaty Advisors, LLC as Collateral
Manager for Race Point CLO, Limited,
as Term Lender
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
-------------------------------------------
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Diane J. Exter by /s/ Diane J. Exter
------------------------------ ---------------------------------
Name: DIANE J. EXTER Name: DIANE J. EXTER
Title: MANAGING DIRECTOR Title: MANAGING DIRECTOR
PORTFOLIO MANAGER PORTFOLIO MANAGER
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
Sankaty Advisors, LLC as Collateral
Manager for Castle Hill II - INGOTS,
LTD., as Term Lender
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
-------------------------------------------
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Diane J. Exter by /s/ Diane J. Exter
------------------------------ ---------------------------------
Name: DIANE J. EXTER Name: DIANE J. EXTER
Title: MANAGING DIRECTOR Title: MANAGING DIRECTOR
PORTFOLIO MANAGER PORTFOLIO MANAGER
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
Sankaty Advisors, LLC as Collateral
Manager for Loan Funding XI LLC,
as Term Lender
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF
APRIL 18, 2005, AMONG BOISE CASCADE
HOLDINGS L.L.C., BOISE LAND &
TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND &
TIMBER CORP., THE LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK,
N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
-------------------------------------------
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Diane J. Exter by /s/ Diane J. Exter
------------------------------ ---------------------------------
Name: DIANE J. EXTER Name: DIANE J. EXTER
Title: MANAGING DIRECTOR Title: MANAGING DIRECTOR
PORTFOLIO MANAGER PORTFOLIO MANAGER
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------ ---------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
Sankaty Advisors, LLC as Collateral
Manager for Race Point II CLO,
Limited, as Term Lender
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* _________________________________
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Diane J. Exter by /s/ Diane J. Exter
------------------------------- --------------------------------------
Name: DIANE J. EXTER Name: DIANE J. EXTER
Title: MANAGING DIRECTOR Title: MANAGING DIRECTOR
PORTFOLIO MANAGER PORTFOLIO MANAGER
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
Sankaty Advisors, LLC as Collateral
Manager for Castle Hill I - INGOTS,
Ltd., as Term Lender
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* _________________________________
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Diane J. Exter by /s/ Diane J. Exter
------------------------------- --------------------------------------
Name: DIANE J. EXTER Name: DIANE J. EXTER
Title: MANAGING DIRECTOR Title: MANAGING DIRECTOR
PORTFOLIO MANAGER PORTFOLIO MANAGER
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
Sankaty Advisors, LLC as Collateral
Manager for Brant Point II CBO
2000-1 LTD., as Term Lender
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* _________________________________
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Diane J. Exter by /s/ Diane J. Exter
------------------------------- --------------------------------------
Name: DIANE J. EXTER Name: DIANE J. EXTER
Title: MANAGING DIRECTOR Title: MANAGING DIRECTOR
PORTFOLIO MANAGER PORTFOLIO MANAGER
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
Sankaty Advisors, LLC as Collateral
Manager for Castle Hill III CLO,
Limited, as Term Lender
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* _________________________________
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Diane J. Exter by /s/ Diane J. Exter
------------------------------- --------------------------------------
Name: DIANE J. EXTER Name: DIANE J. EXTER
Title: MANAGING DIRECTOR Title: MANAGING DIRECTOR
PORTFOLIO MANAGER PORTFOLIO MANAGER
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SARATOGA CLO I, LIMITED.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Joseph Rotondo
------------------------------- ----------------------------------
Name: Name: Joseph Rotondo
Title: Title: Authorized Signatory
SARATOGA CLO I, LIMITED
By: INVESCO Senior Secured Management, Inc.
As Asset Manager
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- ----------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
SARATOGA CLO I, LIMITED
Name of Institution* By: INVESCO Senior Secured Management, Inc.
As Asset Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Joseph Rotondo by
------------------------------- --------------------------------------
Name: Joseph Rotondo Name:
Title: Authorized Signatory Title:
Executing as an Additional Revolving
Lender:
by
--------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SAWGRASS TRADING LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Meredith J. Koslick by /s/ Meredith J. Koslick
------------------------------- --------------------------------------
Name: Meredith J. Koslick Name: Meredith J. Koslick
Title: Assistant Vice President Title: Assistant Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SEABOARD CLO 2000 LTD.
Executing as a Required Lender: Executing as a Tranche D Lender:
by By: Babson Capital Management LLC as
Collateral Manager
by /s/ David P. Wells
------------------------------- --------------------------------------
Name: Name: David P. Wells, CFA
Title: Title: Managing Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SECURITY BENEFIT LIFE INSURANCE COMPANY
Executing as a Required Lender: Executing as a Tranche D Lender:
By: Four Corners Capital Management By: Four Corners Capital Management LLC,
LLC, as Sub-Advisor as Sub-Advisor
by /s/ Dean F. Valentine by /s/ Dean F. Valentine
------------------------------- --------------------------------------
Name: Dean F. Valentine Name: Dean F. Valentine
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SECURITY INCOME FUND - INCOME OPPORTUNITY SERIES
Executing as a Required Lender: Executing as a Tranche D Lender:
By: Four Corners Capital By: Four Corners Capital Management LLC,
Management LLC, as Sub-Advisor as Sub-Advisor
by /s/ Dean F. Valentine by /s/ Dean F. Valentine
------------------------------- --------------------------------------
Name: Dean F. Valentine Name: Dean F. Valentine
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SEMINOLE FUNDING LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Meredith J. Koslick by /s/ Meredith J. Koslick
------------------------------- --------------------------------------
Name: Meredith J. Koslick Name: Meredith J. Koslick
Title: Assistant Vice President Title: Assistant Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Michael B. Botthof by /s/ Michael B. Botthof
------------------------------- --------------------------------------
Name: Michael B. Botthof Name: Michael B. Botthof
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Michael B. Botthof by
------------------------------- --------------------------------------
Name: Michael B. Botthof Name:
Title: Vice President Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Michael B. Botthof by
------------------------------- --------------------------------------
Name: Michael B. Botthof Name:
Title: Vice President Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Sequils-Centurion V, Ltd.
By: American Express Asset Management
Group, Inc. as Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Vincent P. Pham by /s/ Vincent P. Pham
------------------------------- --------------------------------------
Name: Vincent P. Pham Name: Vincent P. Pham
Title: Director - Operations Title: Director - Operations
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SEQUILS-LIBERTY, LTD.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Joseph Rotondo by
------------------------------- --------------------------------------
Name: Joseph Rotondo Name:
Title: Authorized Signatory Title:
Executing as an Additional Revolving
Lender:
by
--------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution: SEQUILS-LIBERTY, LTD.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Joseph Rotondo
------------------------------- --------------------------------------
Name: Name: Joseph Rotondo
Title: Title: Authorized Signatory
SEQUILS-LIBERTY, LTD.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
SEQUILS-MAGNUM, LTD.
By: Pacific Investment Management Company LLC, by
as its Investment Advisor --------------------------------------
Name:
By: /s/ Mohan V. Phansalkar Title:
-------------------------------
Mohan V. Phansalkar
Managing Director
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SIERRA CLO I LTD.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Kevin J. Hickam by
------------------------------- --------------------------------------
Name: Kevin J. Hickam Name:
Title: Managing Director Title:
Centre Pacific, LLC
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Sky CBNA Loan Funding
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Karen Kwan by /s/ Karen Kwan
------------------------------- --------------------------------------
Name: Karen Kwan Name: Karen Kwan
Title: Assistant Vice President Title: Assistant Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SOL Loan Funding LLC, for itself or as
agent for SOL2 Loan Funding LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Janet Haack by /s/ Janet Haack
------------------------------- --------------------------------------
Name: JANET HAACK Name: JANET HAACK
Title: AS ATTORNEY-IN-FACT Title: AS ATTORNEY-IN-FACT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Southfork CLO, Ltd.
By: Highland Capital Management, LP.
As Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ David Lancelot by /s/ David Lancelot
------------------------------- --------------------------------------
Name: David Lancelot Name: David Lancelot
Title: Treasurer Title: Treasurer
Highland Capital Management, L.P. Highland Capital Management, L.P.
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
SOUTHPORT CLO, LIMITED
By: Pacific Investment Management Company LLC,
as its Investment Advisor by
--------------------------------------
by /s/ Mohan V. Phansalkar Name:
------------------------------- Title:
Mohan V. Phansalkar
Managing Director
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Spiret IV Loan Trust 2003-B
By: Wilmington Trust Company
not in its individual capacity but
equity as Trustee
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
WILMINGTON TRUST COMPANY
not in its individual capacity but
Solely as Owner - Trustee
by /s/ Ronald L. Simpson by
------------------------------- --------------------------------------
Name: Ronald L. Simpson Name:
Title: Financial Services Officer Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SRF 2000, INC.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Meredith J. Koslick by /s/ Meredith J. Koslick
------------------------------- --------------------------------------
Name: Meredith J. Koslick Name: Meredith J. Koslick
Title: Assistant Vice President Title: Assistant Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Stanfield Arbitrage CDO, Ltd.
By: Stanfield Capital Partners LLC
as its Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Christopher E. Jansen by
------------------------------- --------------------------------------
Name: Christopher E. Jansen Name:
Title: Managing Partner Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Stanfield Carrera CLO, Ltd.
By: Stanfield Capital Partners LLC
as its Asset Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Christopher E. Jansen by
------------------------------- --------------------------------------
Name: Christopher E. Jansen Name:
Title: Managing Partner Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Stanfield Modena CLO, Ltd
By: Stanfield Capital Partners, LLC
as its Asset Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Christopher E. Jansen by
------------------------------- --------------------------------------
Name: Christopher E. Jansen Name:
Title: Managing Partner Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Stanfield Quattro CLO, Ltd.
By: Stanfield Capital Partners LLC
As its Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Christopher E. Jansen by
------------------------------- --------------------------------------
Name: Christopher E. Jansen Name:
Title: Managing Partner Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Stanfield/RMF Transatlantic CDO Ltd.
By: Stanfield Capital Partners LLC
as its Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Christopher E. Jansen by
------------------------------- --------------------------------------
Name: Christopher E. Jansen Name:
Title: Managing Partner Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* STANWICH LOAN FUNDING LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Meredith J. Koslick by /s/ Meredith J. Koslick
------------------------------- --------------------------------------
Name: Meredith J. Koslick Name: Meredith J. Koslick
Title: Assistant Vice President Title: Assistant Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* State Street Bank & Trust Company as Trustee
For GMAM Group Pension Trust I
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Russell Ricciardi
------------------------------- --------------------------------------
Name: Name: Russell Ricciardi
Title: Title: CSO
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* State Street Bank & Trust Company as Trustee
For General Motors Welfare Benefit Trust
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Russell Ricciardi
------------------------------- --------------------------------------
Name: Name: Russell Ricciardi
Title: Title: CSO
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Stichting Pensioenfonds ABP
By ABP Investments US, Inc., its agent
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------- --------------------------------------
Name: Name:
Title: Title: SVP
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
Name: Name:
Title: Title:
Executing as an Additional Revolving
Lender:
by
Name:
Title:
Executing as a Tranch D Lender:
Stone Tower CLO III LTD.
By: Stone Tower Debt Advisors LLC,
as its Collateral Manager
By: /s/ [ILLEGIBLE]
--------------------
Name: [ILLEGIBLE]
Title: AUTHORIZED SIGNATORY
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
Name: Name:
Title: Title:
Executing as an Additional Revolving
Lender:
by
Name:
Title:
Executing as a Tranch D Lender:
Stone Tower CDO LTD.
By: Stone Tower Debt Advisors LLC,
as its Collateral Manager
By: /s/ [ILLEGIBLE]
---------------------
Name: [ILLEGIBLE]
Title: AUTHORIZED SIGNATORY
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* SUFFIELD CLO. LIMITED
Executing as a Required Lender: Executing as a Tranche D Lender:
by By: Babson Capital Management LLC as
Collateral Manger
/s/ David P. Wells
------------------------------- --------------------------------------
Name: Name: David P.Wells, CFA
Title: Title: Managing Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Sun America Senior [ILLEGIBLE] Fund, Inc.
By: AIG Global Investment Corp.,
Investment Sub-Adviser
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Steven S. Oh by /s/ Steven S. Oh
------------------------------- --------------------------------------
Name: Steven S. Oh Name: Steven S. Oh
Title: Managing Director Title: Managing Director
Executing as an Additional Revolving
Lender:
by
--------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Sun America Life Insurance Company
By: AIG Global Investment Corp.,
Its Investment Adviser
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Steven S. Oh by /s/ Steven S. Oh
------------------------------- --------------------------------------
Name: Steven S. Oh Name: Steven S. Oh
Title: Managing Director Title: Managing Director
Executing as an Additional Revolving
Lender:
by
--------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Sun Life Assurance Company of Canada (US)
By: Fairlead Capital Management, Inc.
as Sub-Advisor
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Melissa Marano by /s/ Melissa Marano
------------------------------- --------------------------------------
Name: Melissa Marano Name: Melissa Marano
Title: Vice President & Title: Vice President &
Senior Portfolio Manager Senior Portfolio Manager
Executing as an Additional Revolving
Lender:
by
--------------------------------------
Name:
Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
Executing as a Consenting Lender:
TCW Senior Secured Loan Fund
By: TCW Advisors, Inc., as its Investment Advisor
By: /s/ Matthew A. Miller
-------------------------
Name: MATTHEW A. MILLER
Title: MANAGING DIRECTOR
By: /s/ Jonathan R. Insull
-------------------------
Name: JONATHAN R. INSULL
Title: MANAGING DIRECTOR
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
Executing as a Consenting Lender:
TCW SELECT LOAN FUND, LIMITED
BY: TCW ADVISORS, INC., AS ITS
COLLATERAL MANAGER
By: /s/ Matthew A. Miller
----------------------------
Name: MATTHEW A. MILLER
Title: MANAGING DIRECTOR
By: /s/ Jonathan R. Insull
----------------------------
Name: JONATHAN R. INSULL
Title: MANAGING DIRECTOR
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* THE LOOMIS SAYLES SENIOR LOAN FUND, LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Kevin J.Perry
------------------------------- --------------------------------------
Name: Name: Kevin J.Perry
Title: Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* THE NORINCHUKIN BANK, NEW YORK BRANCH,
through State Street Bank and
Trust Company N.A. as
Fiduciary Custodian
By: Eaton Vance Management, Attorney-in-fact
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Michael B. Botthof by /s/ Michael B. Botthof
------------------------------- -------------------------------------
Name: Michael B. Botthof Name: Michael B. Botthof
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- -------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* The Sumitomo Trust and Banking Co., Ltd.,
New York Branch
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Elizabeth A. Quisk by /s/ Elizabeth A. Quisk
------------------------------- --------------------------------------
Name: ELIZABETH A. QUISK Name: ELIZABETH A. QUISK
Title: VICE PRESIDENT Title: VICE PRESIDENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Elizabeth A. Quisk by
------------------------------- --------------------------------------
Name: ELIZABETH A.QUISK Name:
Title: VICE PRESIDENT Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* TOLLS & CO.
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Michael B. Botthof by /s/ Michael B. Botthof
------------------------------- --------------------------------------
Name: Michael B. Botthof Name: Michael B. Botthof
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* TORONTO DOMINION (NEW YORK), LLC.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ [ILLEGIBLE] by /s/ [ILLEGIBLE]
------------------------------- --------------------------------------
Name: [ILLEGIBLE] Name: [ILLEGIBLE]
Title: Authorized Signatory Title: Authorized Signatory
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* TORONTO DOMINION (TEXAS) LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Neva Nesbitt by /s/ Neva Nesbitt
------------------------------- --------------------------------------
Name: NEVA NESBITT Name: NEVA NESBITT
Title: AUTHORIZED AGENT Title: AUTHORIZED AGENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* THUMBULL THE LOAN FUNDING LLC, FOR
ITSELF OR AS AGENT FOR THUMBULL STEZ
CFPI LOAN FUNDING LLC.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Janet Haack by /s/ Janet Haack
------------------------------- --------------------------------------
Name: JANET HAACK Name: JANET HAACK
Title: AS ATTORNEY-IN-FACT Title: AS ATTORNEY-IN-FACT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* TRYON CLO LTD. 2001-I
Executing as a Required Lender: Executing as a Tranche D Lender:
by By: Babson Capital Management LLC as
Collateral Manager
/s/ David P.Wells
------------------------------- --------------------------------------
Name: Name: David P.Wells, CFA
Title: Title: Managing Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* UBS AG, Stamford Branch
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ [ILLEGIBLE] by /s/ [ILLEGIBLE]
------------------------------- --------------------------------------
Name: [ILLEGIBLE] Name: [ILLEGIBLE]
Title: DIRECTOR Title: [ILLEGIBLE]
BANKING PRODUCTS BANKING PRODUCTS
SERVICES, US SERVICES, US
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ [ILLEGIBLE] by
------------------------------- --------------------------------------
Name: [ILLEGIBLE] Name:
Title: DIRECTOR Title:
BANKING PRODUCTS
SERVICES, US
by
-------------------------------
Name: [ILLEGIBLE]
Title: ASSOCIATE DIRECTOR
BANKING PRODUCTS
SERVICES, US
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* UBS AG, Stamford Branch
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by [ILLEGIBLE] by
------------------------------- --------------------------------------
Name: [ILLEGIBLE] Name:
Title: DIRECTOR Title:
BANKING PRODUCTS
SERVICES, US
by [ILLEGIBLE]
-------------------------------
Name: [ILLEGIBLE] Name:
Title: ASSOCIATE DIRECTOR Title:
BANKING PRODUCTS
SERVICES, US
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
ULT CBNA Loan Funding LLC, for itself or as
Name of Institution* agent for ULT CFPI Loan Funding LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Janet Haack by /s/ Janet Haack
------------------------------- --------------------------------------
Name: JANET HAACK Name: JANET HAACK
Title: AS ATTORNEY-IN-FACT Title: AS ATTORNEY-IN-FACT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* U.S. BANK NATIONAL ASSOCIATION
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ James W. Henken by /s/ James W. Henken
------------------------------- --------------------------------------
Name: JAMES W. HENKEN Name: JAMES W. HENKEN
Title: VICE PRESIDENT Title: VICE PRESIDENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
VAN KAMPEN
SENIOR INCOME TRUST
By: Van Kampen Asset Management
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Christina Jamieson
------------------------------- --------------------------------------
Name: Name: CHRISTINA JAMIESON
Title: Title: Executive Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
VAN KAMPEN
SENIOR LOAN FUND
By: Van Kampen Asset Management
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Christina Jamieson
------------------------------- --------------------------------------
Name: Name: CHRISTINA JAMIESON
Title: Title: Executive Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution*
Executing as a Consenting Lender:
VELOCITY CLO, LTD.
By: TCW Advisors, Inc.,
its Collateral Manager
By: /s/ Matthew A. Miller
------------------------
Name: MATTHEW A. MILLER
Title: MANAGING DIRECTOR
By: /s/ Jonathan R. Insull
------------------------
Name: JONATHAN R. INSULL
Title: MANAGING DIRECTOR
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Venture IV CDO Limited
By its investment advisor,
MJX Asset Management LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by by [ILLEGIBLE]
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Venture II CDO 2002, Limited
By its investment advisor,
MJX Asset Management LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Venture CDO 2002, Limited
By its investment advisor,
MJX Asset Management LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Venture III CDO Limited
By its investment advisor,
MJX Asset Management LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
q
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* [ILLEGIBLE] CLO I, Ltd.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ John Randolph Watkins by /s/ John Randolph Watkins
------------------------------- --------------------------------------
Name: John Randolph Watkins Name: John Randolph Watkins
Title: Executive Director Title: Executive Director
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF _________,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Victoria Falls CLO, Ltd
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Mark D. Senkpiel by /s/ Mark D. Senkpiel
------------------------------- --------------------------------------
Name: Mark D. Senkpiel Name: Mark D. Senkpiel
Title: Managing Director Title: Managing Director
Executing as an Additional Revolving
Lender:
by
--------------------------------------
Name:
Title:
----------
*Each Lender must sign separately in each capacity in which it is agreeing to
the terms of this Agreement.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* VICTORIA FALLS CLO, LTD.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Mark D. Senkpiel by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Vista Leveraged Income Fund
By its investment advisor, MJX Asset Management LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ [ILLEGIBLE]
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Wachovia Bank, N.A.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxx Xxxxx by
------------------------------- --------------------------------------
Name: Xxxxxx Xxxxx Name:
Title: Director Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* WATERVILLE FUNDING LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxxx X. Xxxxxxx by /s/ Xxxxxxxx X. Xxxxxxx
------------------------------- --------------------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President Title: Assistant Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
Waveland - INGOTS, LTD.
By: Pacific Investment Management Company LLC, by
as its Investment Advisor --------------------------------------
Name:
Title:
by /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxxxx
Managing Director
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* WB Loan Funding I, LLC
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx X. Xxxxx by /s/ Xxxxx X. Xxxxx
------------------------------- --------------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Associate Title: Associate
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* Xxxxx Fargo Bank, N.A.
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx X. Xxxxx by /s/ Xxxxx X. Xxxxx
------------------------------- --------------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by /s/ Xxxxx X. Xxxxx
------------------------------- --------------------------------------
Name: Name: Xxxxx X. Xxxxx
Title: Title: Vice President
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* WINGED FOOT FUNDING TRUST
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxx X. Xxxxxxxxx by /s/ Xxxxx X. Xxxxxxxxx
------------------------------- --------------------------------------
Name: XXXXX X. XXXXXXXXX Name: XXXXX X. XXXXXXXXX
Title: AUTHORIZED AGENT Title: AUTHORIZED AGENT
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Name of Institution* WHITNEY CLO I LTD.,
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxx X. Xxxxxx by
------------------------------- --------------------------------------
Name: Xxxxx X. Xxxxxx Name:
Title: Managing Director Title:
Centre Pacific, LLC
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
WIND RIVER CLO I LTD.
Name of Institution* By: XxXxxxxxx Investment Management, LLC, as
Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by by /s/ Xxxxxxxx X. Zam
------------------------------- --------------------------------------
Name: Name: Xxxxxxxx X. Zam
Title: Title: Vice President
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by /s/ Xxxxxxxx X. Zam by
------------------------------- --------------------------------------
Name: Xxxxxxxx X. Zam Name:
Title: Vice President Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Windsor Loan Funding, Limited
By: Xxxxxxxxx Capital Partners LLC
Name of Institution* as its Investment Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxxxxxx X. Xxxxxx by
------------------------------- --------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx Name:
Title: Managing Partner Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
Executing as a Required Lender: Executing as a Tranche D Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
Wrigley CDO, Ltd.
By: Pacific Investment Management Company LLC, by
as its Investment Advisor --------------------------------------
Name:
Title:
by /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Managing Director
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SIGNATURE PAGE TO THE AMENDMENT AND
RESTATEMENT AGREEMENT, DATED AS OF APRIL 18,
2005, AMONG BOISE CASCADE HOLDINGS L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP., BOISE
CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
THE LENDERS PARTY THERETO AND JPMORGAN CHASE
BANK, N.A., AS ADMINISTRATIVE AGENT.
XL Re Ltd.
By: Xxxxxxxxx Capital Partners LLC
Name of Institution* as its Collateral Manager
Executing as a Required Lender: Executing as a Tranche D Lender:
by /s/ Xxxxxxxxxxx X. Xxxxxx by
------------------------------- --------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx Name:
Title: Managing Partner Title:
Executing as a Consenting Lender: Executing as an Additional Revolving
Lender:
by by
------------------------------- --------------------------------------
Name: Name:
Title: Title:
----------
*EACH LENDER MUST SIGN SEPARATELY IN EACH CAPACITY IN WHICH IT IS AGREEING TO
THE TERMS OF THIS AGREEMENT. EACH INSTITUTION THAT IS A TRANCHE B LENDER UNDER
THE EXISTING CREDIT AGREEMENT WHICH IS NOT A TRANCHE D LENDER MAY NEVERTHELESS
CONSENT TO THE TERMS OF THIS AGREEMENT BY SIGNING SOLELY IN THE CAPACITY OF A
CONSENTING LENDER.
SCHEDULE 1 TO THE
AMENDMENT AND RESTATEMENT AGREEMENT
ADDITIONAL REVOLVING COMMITMENTS
Additional Revolving Lender Commitment
--------------------------- ----------
Xxxxx Fargo National Association $ 20,000,000
Bank of Montreal $ 20,000,000
Commerzbank AG, New York and Grand Cayman Branches $ 20,000,000
Bank of America, N.A. $ 7,000,000
Rabobank International $ 7,000,000
National City Bank $ 1,000,000
TOTAL $ 75,000,000
SCHEDULE 2 TO THE
AMENDMENT AND RESTATEMENT AGREEMENT
TRANCHE D COMMITMENTS -
ADDITIONAL TRANCHE D LENDER'S COMMITMENTS
NONE.
SCHEDULE 2.01 TO
RESTATED CREDIT AGREEMENT
REVOLVING COMMITMENTS
Lender Commitment
------ ----------
CoBank, ACB $ 52,000,000
Xxxxxx Commercial Paper Inc. $ 35,000,000
Farm Credit Bank of Texas $ 32,000,000
JPMorgan Chase Bank, N.A. $ 30,000,000
Deutsche Bank AG Cayman Islands Branch $ 29,000,000
AgFirst FCB $ 28,000,000
Caylon, New York Branch $ 20,000,000
Mizuho Corporate Bank Ltd. $ 20,000,000
Toronto Dominion (Texas), Inc. $ 20,000,000
Wachovia National Bank Association $ 20,000,000
Capital Farm Credit, FLCA $ 20,000,000
U.S. Bank National Association $ 20,000,000
Bank of America, N.A. $ 20,000,000
Rabobank International $ 20,000,000
Bank of Montreal $ 20,000,000
Commerzbank AG New York and Grand Cayman Branches $ 20,000,000
Xxxxx Fargo National Association $ 20,000,000
North Fork Business Capital Corp. $ 19,000,000
Greenstone FCS, FLCA $ 9,000,000
Xxxxxxx Sachs Credit Partners L.P. $ 9,000,000
National City Bank $ 7,000,000
Farm Credit Services of Mid-America, PCA $ 5,000,000
TOTAL $ 475,000,000
SCHEDULE 3.05(d)
OWNED AND LEASED REAL PROPERTY
OWNED PROPERTIES
SITE NO. FACILITY NAME FACILITY LOCATION TITLE HOLDER
-------- ------------- ----------------- ------------
1-0 BOISE CASCADE - CORPORATE
1-14-2-2 Trucking Wallula Trucking Boise Cascade, L.L.C. ("BC
Wallula, WA LLC")
0-00-0-0 Xxxxxxxx 0000 X.X. Xxxxxx XX LLC
Xxxxxxxx, XX
0-00-0-0 MD&W Railroad (Office building, MD&W Railroad N/A
maintenance shop, rail yard, International Falls, MN
approx. 5 miles of track)
1-16 Headquarters 0000 X. Xxxxxxxxx Xxxxxx XX LLC
Boise, ID
1-16 Offices 0000 X. Xxxxxxxxx Xxxxxx XX LLC
Boise, ID
1-16 R&D 0000 X. Xxxxxxxxx Xxxxxx XX LLC
Boise, ID
1-16 Parking 0000 X. Xxxxx Xxxxxx XX LLC
00xx & Xxxxxxxxx Xxxxxx (Xxxxx Xxx)
Xxxxx, XX
0-00 Xxxxxxx XXX 00xx & Xxxxxxxxx Xxxxxxx XX LLC
East Parking Lot
Boise, ID
1-16 Parking NE Parking Lot BC LLC
(00xx & Xxxxxxxxx & Xxxxx)
Xxxxx, XX
1-16 Parking Parking Lot-S1/2South Lot BC LLC
Boise, ID
0-00 Xxxxxxx Xxxx Xxxxxxx Xxx XX XXX
Xxxxx, XX
1-16 Parking 0000 X. Xxxxxxxxx Xxxxxx XX LLC
Boise, ID
1
SITE NO. FACILITY NAME FACILITY LOCATION TITLE HOLDER
-------- ------------- ----------------- ------------
0-0 XXXXX XXXXXXXX XXXXXXXXX -
XXXXXXXXXXXX
0-0-0-0 Xxxxxxxxxxx Distribution Facility 000 Xxxxxxxxxx XX Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxx, XX Distribution, L.L.C.
("BBSD LLC")
2-1-2-2 Billings Distribution Facility 0000 X. 00xx Xxxxxx Xxxx BBSD LLC
Billings, MT
2-1-3-2 Boise Distribution Facility 4300 Enterprise BBSD LLC
Boise, ID
2-1-4-2 Xxxxxxxx Distribution Facility 000 Xxxxxx Xxxx BBSD LLC
Rochelle, IL
2-1-5-2 Dallas Distribution Facility 00000 Xxxxx Xxxxxx BBSD LLC
Dallas, TX
3930 and 0000 Xxxxxxxxxxx Xxxx BBSD LLC
Dallas, TX
2-1-6-2 Denver Distribution Facility 0000 Xxxx 00xx Xxxxxx XXXX XXX
Xxxxxx, XX
0000 Xxxx 00xx Xxxxxx BBSD LLC
Denver, CO
2-1-7-2 Grand Junction Distribution 0000 0xx Xxxxxx (Truck Stop) BBSD LLC
Facility Grand Junction, CO
615 South 15th BBSD LLC
Grand Junction, CO
2-1-8-2 Idaho Falls Distribution Facility 0000 Xxxxxxxxxx Xxxxxx BBSD LLC
Idaho Falls, ID
2-1-9-2 Minneapolis Distribution Facility 0000 000xx Xxxxxx Xxxx BBSD LLC
Lakeville, MN
2-1-10-2 Phoenix Distribution Facility 000 Xxxxx 00xx Xxxxxx BBSD LLC
Phoenix, AZ
2-1-12-2 Xxxx Xxxx Xxxx Xxxxxxxxxxxx 0000 Xxxx 0000 Xxxxx BBSD LLC
Facility Salt Lake City, UT
2-1-13-2 Woodinville Distribution Facility 0000-000xx Xxxxxx, XX BBSD LLC
Woodinville, WA
2-1-14-2 Spokane Distribution Facility East 0000 Xxxxxxx Xxxxxx BBSD LLC
Spokane, WA
2
SITE NO. FACILITY NAME FACILITY LOCATION TITLE HOLDER
-------- ------------- ----------------- ------------
2-1-15-2 Tulsa Distribution Facility 0000 Xxxx 00xx Xxxxxx BBSD LLC
Tulsa, OK
2-1-17-2 Yakima Distribution Facility 0000 Xxxxx 0xx Xxxxxx BBSD LLC
Yakima, WA
2-1-19-2 Baltimore Re-Load Facility 0000 Xxxxxxx Xxxx Xxxxx Xxxxxxxx Business Trust
Annapolis Junction (Baltimore),
MD
2-1-20-2 Delanco (Philadelphia) 000 Xxxxxxxxxx Xxxx BBSD LLC
Distribution Facility Delanco (Philadelphia) NJ
2-1-24-2 Memphis Distribution Facility 4365 Old Xxxxx (Hwy. 78) BBSD LLC
(Note: 4341 Old Xxxxx was the
old entrance for same location)
Memphis, TN
2-1-25-2 Orlando Distribution Facility 00 X. Xxxxxx Xxxxxx BBSD LLC
Orlando, FL
2-1-26-2 Portsmouth Distribution Facility 000 Xxxxxx Xxxx BBSD LLC
Portsmouth, XX
0-0-00-0 Xxxxxxxxx Distribution Facility 00 Xxxxxxx Xxxx BBSD LLC
Billerica, MA
3-0 BOISE BUILDING SOLUTIONS -
MANUFACTURING
3-1-1-2 1) Elgin Plywood Plant Elgin Complex Boise Building Solutions
2) Elgin Veneer Mill 90 South 21st Street Manufacturing, L.L.C. ("BBSM
NE 3) Log Yard Elgin, OR LLC")
Oregon 4) Office Building
5) Warehouse
Trucking Highway 82
Elgin, OR
3-1-1-4 LaGrande Particleboard Plant 00000 Xxxxxxx 00 BBSM LLC
LaGrande, OR
NE
Oregon
0-0-0-0 XxXxxxxx Xxxxxx Mill, 0000 Xxxxxxx Xxxxxx BBSM LLC
Sawmill & Truck Shop Xxxxxxx & Willow Street
NE Region Offices LaGrande, OR
Oregon
3
SITE NO. FACILITY NAME FACILITY LOCATION TITLE HOLDER
-------- ------------- ----------------- ------------
3-1-1-7 Laminated Beam Plant Emmett Laminated Beam Plant BBSM LLC
Emmett, Mill Rd & Main,
ID Xxxxxx, ID
3-2-1-2 Small machine shop 0000 Xxxxxx Xxxx Xxxx BBSM LLC
Kettle (Cross street is Xxxx Xxxx Xxxx
Xxxxx Xxxx)
Xxxx Xxxx, XX 00000
Region Office Region Administration BBSM LLC
Facility/Timberland Xxxxxx 0000 Xxxxx Xx
Xxxxxx Xxxxx, XX
Kettle Falls Plywood 0000 Xxxxx Xxxxx Xxxxxx BBSM LLC
Facility/Small Log Mill Hwy 395
Facility/Office Kettle Falls, WA
(Plywood)
Naches Property Naches, WA BBSM LLC
Yakima County
0-0-0-0 Xxxxxx Xxxxx Xxxxxx Facility (Saw Hwy. 395 & River Road BBSM LLC
Mill) Kettle Falls, WA
3-3-1-2 Medford Plywood Facility North Pacific Hwy BBSM LLC
Medford, OR
Western
Oregon
3-3-1-3 Rogue Valley Plywood Facility 0000 Xxxxxxxx Xxxx XXXX XXX
Xxxxx Xxxx, XX
Western
Oregon
3-3-1-4 / White City Lumber White City Complex BBSM LLC
3-3-1-5 0000 Xxxxx Xxxx
Xxxxx Xxxx Xxxxxx Xxxxx Xxxx, XX
Western
Oregon
3-3-1-6 Willamina Veneer Plant Highway 18-B BBSM LLC
XX Xxx 000
Xxxxxxx Xxxxxxxxx, XX
Xxxxxx
0-0-0-0 Xx. Xxxxxx Xxxxxx Xxxxx Xxxxx 0xx Street BBSM LLC
St. Helens, OR
Western
Oregon
4
SITE NO. FACILITY NAME FACILITY LOCATION TITLE HOLDER
-------- ------------- ----------------- ------------
3-3-1-8 Independence Veneer Plant North Road BBSM LLC
(INCLUDING VALSETZ RAILROAD BUT Independence, OR
Western EXCLUDING INDEPENDENCE
Oregon LANDFILL)
0-0-0-0 XXX Xxxxx 0000 Xxxxxxxx Xxxx BBSM LLC
White City, OR
Western
Oregon
0-0-0-0 Xxxxxxxx Xxxxxxxxxxxxxx Xxxxxxx 000 BBSM LLC
Office/Florien Plywood Plant Florien, LA
Louisiana
3-4-1-3 Oakdale Plywood Plant Hwy 165 South BBSM LLC
Oakdale, LA
Louisiana
3-6-1-1 All-joist: Railroad loading 30 Boulevard Acadie Boise AllJoist Ltd.
facility Edmundston, New Brunswick
Canada
3-6-1-1 All-joist: Main I-joist plant site 0 Xxxxxxx Xxxxxx Boise AllJoist Ltd.
Xx. Xxxxxxx, Xxx Xxxxxxxxx
Xxxxxx
3-7-1-1 Brazilian operations Xxxxxxx Xxxxx Guaiba Boise Cascade do Brasil Ltda.
Bom Retiro, 1001
Bairro Industrial - CEP 92500-000
Guaiba - RS - Brasil (or Brazil)
Timberlands 14,165 hectares of timberlands in Boise Cascade do Brasil Ltda.
Brazil
3-8 Chilean Operations 270 acre parcel and port Compania Industrial Puerto Montt
Puerto Montt, Chile S.A.
4-0 BOISE PAPER SOLUTIONS - WHITE
PAPER (XXXXX &
CONVERTING) ("BPSWP")
0-0-0-0 XXXXX XXXX 0000 Xxxxxx Xxxx Boise White Paper, L.L.C. ("BWP
St. Helens, OR LLC")
Clarifier Solids Landfill and
Sludge Disposal Xxxx
Xxxxxxx 00, X0X, X0X, X.X.
Xxxxxxxx Xxxxxx, XX
4-2-1-1 CONVERTING PLANT 000 Xxxx 0xx Xxxxxx XXX XXX
Xxxxxxxxx, XX
5
SITE NO. FACILITY NAME FACILITY LOCATION TITLE HOLDER
-------- ------------- ----------------- ------------
4-3-1-2 CONVERTING PLANT 000 Xxxxxxxxxx Xxxxxx XX XXX XXX
Xxxxx, XX
Storage 000 Xxxxxxxxxx Xxxxxx XX BWP LLC
Minto Island
Salem, OR
4-4-1 aka Chipping Facility Port of Umatilla BWP LLC
0-0-0-0 XX Xxx 0000
Xxxxxxxx, XX
XX
Xxxxxx
0-0-0-0-0 XXXXX XXXX Xxxxxxx 000 XXX LLC
& 0-0-0-0 Xxxxxxx, XX
Container Plant Xxxxxxx 000
Xxxxxxx, XX
Fiber Farm Cottonwoods BWP LLC
(Tree Farm)
Xxxxxxxx, OR
Xxxxxx County
Cottonwoods BWP LLC
(Fiber Farm)
Xxxxxxx 000
Xxxxxxx, XX
0-0-0-0 XXXXX XXXX Xxxxx Xxxx XXX LLC
International Falls, MN
(EXCLUDE MOONLIGHT ROCK
LANDFILL, FORMER REDI-MIX SITE
AND PAINT DISPOSAL SITE)
0-0-0-0 Xxx Xxxx X.X. Xxxxx Xxxxxxx XXX LLC
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX
and
Tuscahoma Landing Hunting
Lodge
Choctaw County, AL
4-8-2-2 Regional Service Center 0000 Xxxx Xxxxxxxxxxxxx Xxxx. BWP LLC
(Southwest RSC)
Kennesaw (Atlanta), GA
6
SITE NO. FACILITY NAME FACILITY LOCATION TITLE HOLDER
-------- ------------- ----------------- ------------
5-0 BOISE PAPER SOLUTIONS -
PACKAGING & NEWSPRINT
("BPSPN")
0-0-0-0 XXXXX XXXX Xxxxxx Xxxx Boise Packaging & Newsprint,
DeRidder, LA L.L.C. ("BPN LLC")
5-2-1-2 Container Plant -- Main 451 0000 Xxxx Xxxxxx XXX LLC
Xxxx Xxxx Xxxxxxxxxxxxx Xxxxxx
Xxxx Xxxx Xxxx, XX
5-3-1-2 Container Plant -- Main 0000 Xxxx 00xx Xxxxxx XXX XXX
Xxxxxx, XX
Container Plant-Satellite 000 Xxxxxxx Xxxxxx XXX LLC
Warehouse Idaho Falls, ID
5-4-1-2 Container Plant - Main 0000 Xxxx Xxxxxxxx Xxxxx BPN LLC
Nampa, ID
5-6-1-2 Container Plant - Main 2121 Madrona Avenue, S.E. BPN LLC
Salem, OR
7
LEASED PROPERTIES
FACILITY
NO. FACILITY NAME FACILITY LOCATION TENANT
-------- ------------- ----------------- ------
1-0 BOISE CASCADE - CORPORATE
1-11-7 Hangar Boise Airport, 2001 Commerce Boise Cascade, L.L.C. ("BC
(Operation Agreement) Avenue LLC")
Boise, ID
1-14-1-3 Trucking 0000 Xxxxxxxx Xxxxxx XX LLC
(Boise Air Terminal)
Boise, ID
0-00-0 Xxxxxxx Xxxxxxx Xxx-X0/0xx Xxxxx Xxx XX LLC
Boise, ID
1-16-1 Office for Washington 0000 X. Xxxxxxx Xxx XX LLC
Governmental Affairs Xxxxxx 000 & 000
Xxxxxxx, XX
0-0 XXXXX XXXXXXXX XXXXXXXXX -
XXXXXXXXXXXX
0-0-0-0 Xxxxxx Distribution Facility 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxx, XX Distribution, L.L.C. ("BBSD
LLC")
Railroad Ground Lease BBSD LLC
Xxxx 00xx Xxxxxx
Xxxxxx, XX
2-1-7-2 Grand Junction Distribution Facility 000 Xxxxx 00xx Xxxxxx BBSD LLC
Grand Junction, CO
2-1-10-2 Phoenix Distribution Facility 000 Xxxxx 00xx Xxxxxx XXXX XXX
Xxxxxxx, XX (Campo)
2-1-11-2 Riverside Distribution Facility 0000 Xxxxxxxxx Xxxxxx BBSD LLC
Riverside, CA
2-1-13-2 Woodinville Distribution Facility 00000 00xx Xxxxxx XX BBSD LLC
Woodinville, WA
8
FACILITY
NO. FACILITY NAME FACILITY LOCATION TENANT
-------- ------------- ----------------- ------
2-1-14-2 Spokane Distribution Facility Xxxxxxx Street BBSD LLC
(Xxx 0, Xxxxx 0, XXXX)
Xxxxxxx, XX
North 0000 Xxxxxxx Xxxx XXXX XXX
Xxxxxxx, XX
2-1-16-2 Vancouver Distribution Facility 0000 XX Xxxxx Xxxxx Xxxx BBSD LLC
Building Nos. 2516 & 0000
Xxxx Xxxxxxxx
Xxxxxxxxx, XX
2-1-17-2 Yakima Distribution Facility 0000 Xxxxx 0xx Xxxxxx (Paginelli) BBSD LLC
Yakima, WA
Railroad Lease (Burlington BBSD LLC
Northern)
Xxxxxx, XX
0-0-00-0 Xxxxxxx (Xxxxxx) Distribution 1800 Montreal Station BBSD LLC
Facility Tucker, GA
2-1-19-2 Baltimore (Annapolis Junction) 000 Xxxxxxxxxx Xxxxxx BBSD LLC
Distribution Facility Baltimore, MD
000 Xxxxxxxxxx Xxxxxx BBSD LLC
Baltimore, MD
2-1-20-2 Delanco (Philadelphia) 000 Xxxxxxxxxx Xxxx BBSD LLC
Distribution Facility Delanco, (Philadelphia) NJ
2-1-21-2 Detroit Distribution Facility 00000 Xxxxxxxx Xxxxxx BBSD LLC
Wayne, MI
Paved Lot Xxxxxx Industrial Center BBSD LLC
0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxx, XX
2-1-22-2 Greensboro Distribution Facility 0000 Xxxxxxx Xxxxx BBSD LLC
Triad Industrial, Xxxx 00 & 00
Xxxxxxxxxx, XX
0-0-00-0 Xxxxxxx Distribution Facility 000 Xxxx Xxxx BBSD LLC
Sugar Land, TX
2-1-26-2 Portsmouth Distribution Facility 00 Xxxxxx Xxx BBSD LLC
Portsmouth, NH
9
FACILITY
NO. FACILITY NAME FACILITY LOCATION TENANT
-------- ------------- ----------------- ------
2-1-27-2 Westfield Distribution Facility 00 Xxxxxx Xxxxxx Extension BBSD LLC
Westfield, MA
2-2-1-9 Procurement Office Lease Three Centerpointe Drive, Suite BBSD LLC
180 Lake Oswego, OR
3-0 BOISE BUILDING SOLUTIONS -
MANUFACTURING
0-0-0-0 XxXxxxxx Xxxxxx (Mill & 0000 Xxxxxxx Xxxxxx Boise Building Solutions
Storage) Xxxxxxx & Willow Street Manufacturing, L.L.C.
NE LaGrande, OR ("BBSM LLC")
Oregon
3-2-1-1 Re-Load Facility Hwy 395 & River Road BBSM LLC
Xxxxxx Xxxxx, XX
Xxxxxx
Xxxxx, XX
0-0-0-0 Xx. Xxxxxx Xxxxxx Xxxxx (0.00 Xxxxx 0xx Street BBSM LLC
acres leased since 1980 as ground St. Helens, OR
Western lease/storage)
Oregon
Log Pond 1 (ML-9809) St. Helens, OR BBSM LLC
(Veneer)
Log Pond 2 (ML-10149) St. Helens, OR BBSM LLC
(Veneer)
3-4-1-4 Engineer Wood Products Plant 0000 Xxx. 0, Xxxxxxxxxx BBSM LLC
LVL Plant Rapides Parish, LA
Louisiana
3-6-1-1 All-joist: Small sales office 455 Xxxxxxx, Suite 102 Boise AllJoist Ltd.
(database 0-0-0-0) Xxxxxx, Xxxxxx
Xxxxxx
3-8-4-1 EWP Sales office of less than 1000 0000 Xxxxxx Xxxxxxxxx, Xxxxx 0 BBSM LLC
aka 3-5-1-1 sqft Sacramento, CA
EWP Sales office of less than 1000 3585 Lawrenceville Suwannee BBSM LLC
sqft Road Suite 402
Suwannee, GA
10
FACILITY
NO. FACILITY NAME FACILITY LOCATION TENANT
-------- ------------- ----------------- ------
EWP Sales office of about 2000 00000 Xxxxxx Xxxxx, Xxxxx 0000 BBSM LLC
sqft XX Xxx 000
Xxxx Xxxxxxx, XX 00000
EWP Sales office 000 X. Xxxxxx Xxxxxx Xxxxx, XXXX LLC
Suite 301
Portland, OR
3-8-4-3 UK operations Xxxxxxxxx 000 & 000 Xxxxx Xxxxxxxx Products
Heyford Park, Upper Heyford Limited (UK)
Bicester, Oxfordshire
United Kingdom
4-0 BOISE PAPER SOLUTIONS - WHITE
PAPER
4-1-1-2 Intake/Pumphouse (10310) St. Helens, OR Boise White Paper, L.L.C.
(Paper) ("BWP LLC")
4-2-1-1 CONVERTING PLANT 000 Xxxx 0xx Xxxxxx XXX LLC
(Port Lease/Building #160)
Vancouver, WA
000 Xxxx 0xx Xxxxxx XXX LLC
(DNR Lease)
Vancouver, WA
4-4-1 Chipping Facility Port of Umatilla BWP LLC
(9.84 acres XxXxxx Industrial)
NE PO Box 1377
Oregon Umatilla, OR
Windrowing Sludge Port of Umatilla BWP LLC
(8.34 acres XxXxxx Industrial)
XX Xxx 0000
Xxxxxxxx, XX
Chipping Facility Port of Umatilla BWP LLC
(3.2 acres)
XX Xxx 0000
Xxxxxxxx, XX
0-0-0-0-0 Xxxxxxxxxxx (Xxx Xxxxxx Xxxxx) XXX LLC
Fiber Xxxx
Xxxxxxx 000
Xxxxxxx, XX
11
FACILITY
NO. FACILITY NAME FACILITY LOCATION TENANT
-------- ------------- ----------------- ------
(Hillside Farms) BWP LLC
Xxxx Xxxx
Xxxxxxx 000
Xxxxxxx, XX
4-6-1-2 PAPER MILL 000 Xxxxxxxxxx Xxxx (1988) BWP LLC
Jackson, AL
000 Xxxxxxxxxx Xxxx (1979)
Xxxxxxx, AL
000 Xxxxxxxxxx Xxxx (1973)
Xxxxxxx, AL
000 Xxxxxxxxxx Xxxx (1966)
Jackson, AL
000 Xxxxxxxxxx Xxxx (1965)
Jackson, AL
000 Xxxxxxxxxx Xxxx (1964)
Xxxxxxx, AL
000 Xxxxxxxxxx Xxxx (1963)
Jackson, XX
Xxxxxxx Facility 000 Xxxxxxxxx Xxxx
Xxxxxxx, XX
Paper Warehouse Xxxxxxxxx Road
Jackson, AL
4-8-1-1 Paper Distribution Administrative Admin. Regional Service Center - BWP LLC
aka 4-2- Facility Park Tower III
1-1 000 XX Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX
4-8-3-1 Regional Service Center 591 Supreme Drive BWP LLC
(Chicago RSC)
Bensenville, IL
4-8-4-1 Regional Service Center 0000 Xxxxxx X, Xxxxx 000 BWP LLC
(Dallas RSC)
Grand Prairie, TX
12
FACILITY
NO. FACILITY NAME FACILITY LOCATION TENANT
-------- ------------- ----------------- ------
4-8-5-1 Regional Service Center 8900 Xxx Road BWP LLC
(Los Angeles RSC)
Pico Rivera, CA
4-8-6-1 Regional Service Xxxxxx 000 Xxxxxx Xxxxxx Xxxx XXX LLC
(Northeast RSC)
Pureland Xxxx. 0
Xxxxxxxxxx, XX
4-8-7-1 Regional Service Center 0000 Xxxxx Xxxxxx Xxxxx BWP LLC
(Northwest RSC)
Portland, OR
4-9-3-1 Paper sales office of less than 1000 0000 X. Xxxxxxxxxx Xxxxxxxxx, Xxxxx XXX LLC
sqft 000
Xxxxxx Xxxxx, XX
Paper sales office of less than 1000 0000 Xxxxx Xxxx BWP LLC
sqft Eagan, MN
Paper sales office of less than 6000 00000 Xxxxxxxxxx Xxxxx, Xxxxx 000 XXX LLC
sqft Kansas City, MO
5-0 BOISE PAPER SOLUTIONS -
PACKAGING & NEWSPRINT
5-3-1-2 Container Plant - Satellite 000 X. 000 X. Boise Packaging
warehouse Burley, ID Newspring, L.L.C. ("BPN LLC")
5-4-1-2 Container Plant - Satellite 0000 Xxxx Xxxxx Xxxxxx BPN LLC
warehouse Nampa, ID
Container Plant - Satellite 0000 Xxxx Xxxxx XXX LLC
warehouse Nampa, ID
5-5-1-2 Container Plant - Satellite 0000 X. Xxxxx Xxxx BPN LLC
warehouse Spokane, WA
Container Plant - Satellite 0000 Xxxxx Xxxxxxxx Xxxx, Xxxx. 0 BPN LLC
warehouse Spokane Business & Industrial Park
Spokane, WA
Container Plant - Satellite 0000 X. Xxxxxxxxx Xxxxxx BPN LLC
warehouse Wenatchee, WA
13
FACILITY
NO. FACILITY NAME FACILITY LOCATION TENANT
-------- ------------- ----------------- ------
Container Plant - Satellite 0000 Xxxx X Xxxxxx XXX XXX
xxxxxxxxx Xxxxxx, XX
Satellite Warehouse 0000 Xxxxx Xxxx Xxx XXX XXX
Xxxx Xxxx Xxxx, XX
14
EXHIBIT A
TO AMENDMENT AND RESTATEMENT AGREEMENT
================================================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
April 18, 2005
among
BOISE CASCADE HOLDINGS, L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP.,
BOISE CASCADE, L.L.C.,
BOISE LAND & TIMBER CORP.,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
--------------------------
X.X. XXXXXX SECURITIES INC.
and
XXXXXX BROTHERS INC.,
as Joint Lead Arrangers and
Joint Bookrunners
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent
COBANK, ACB,
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
and
XXXXXXX SACHS CREDIT PARTNERS L.P.
as Documentation Agents
================================================================================
[CS&M No. 6701-411]
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.....................................................................1
SECTION 1.02. Classification of Loans and Borrowings...........................................34
SECTION 1.03. Terms Generally..................................................................34
SECTION 1.04. Accounting Terms; GAAP; Treatment of Timber Installment Note Subsidiaries........35
SECTION 1.05. Certificates.....................................................................35
ARTICLE II
The Credits
SECTION 2.01. Revolving Commitments; Tranche D Term Loans......................................35
SECTION 2.02. Loans and Borrowings.............................................................36
SECTION 2.03. Requests for Borrowings..........................................................37
SECTION 2.04. Swingline Loans..................................................................37
SECTION 2.05. Letters of Credit................................................................39
SECTION 2.06. Funding of Borrowings............................................................44
SECTION 2.07. Interest Elections...............................................................45
SECTION 2.08. Termination and Reduction of Commitments.........................................46
SECTION 2.09. Repayment of Loans; Evidence of Debt.............................................46
SECTION 2.10. Amortization of Term Loans.......................................................47
SECTION 2.11. Prepayment of Loans..............................................................48
SECTION 2.12. Fees.............................................................................51
SECTION 2.13. Interest.........................................................................52
SECTION 2.14. Alternate Rate of Interest.......................................................53
SECTION 2.15. Increased Costs..................................................................53
SECTION 2.16. Break Funding Payments...........................................................54
SECTION 2.17. Taxes............................................................................55
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs......................56
SECTION 2.19. Mitigation Obligations; Replacement of Lenders...................................58
SECTION 2.20. Increase in Revolving Credit Commitments.........................................59
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.............................................................61
SECTION 3.02. Authorization; Enforceability....................................................61
SECTION 3.03. Governmental Approvals; No Conflicts.............................................61
SECTION 3.04. Financial Condition; No Material Adverse Change..................................61
SECTION 3.05. Properties.......................................................................62
SECTION 3.06. Litigation and Environmental Matters.............................................63
SECTION 3.07. Compliance with Laws and Agreements..............................................64
SECTION 3.08. Investment and Holding Company Status............................................64
SECTION 3.09. Taxes............................................................................64
SECTION 3.10. ERISA............................................................................64
SECTION 3.11. Disclosure.......................................................................64
SECTION 3.12. Subsidiaries.....................................................................65
SECTION 3.13. Insurance........................................................................65
SECTION 3.14. Labor Matters....................................................................65
SECTION 3.15. Solvency.........................................................................66
SECTION 3.16. Senior Indebtedness..............................................................66
SECTION 3.17. Security Interests...............................................................66
ARTICLE IV
Conditions
SECTION 4.01. [Intentionally Omitted]..........................................................66
SECTION 4.02. Each Credit Event................................................................66
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information.......................................67
SECTION 5.02. Notices of Material Events.......................................................69
SECTION 5.03. Information Regarding Collateral.................................................69
SECTION 5.04. Existence; Conduct of Business...................................................70
SECTION 5.05. Payment of Obligations...........................................................70
SECTION 5.06. Maintenance of Properties........................................................70
SECTION 5.07. Insurance........................................................................70
SECTION 5.08. Casualty and Condemnation........................................................70
SECTION 5.09. Books and Records; Inspection Rights.............................................71
SECTION 5.10. Compliance with Laws.............................................................71
SECTION 5.11. Use of Proceeds and Letters of Credit............................................71
SECTION 5.12. Additional Subsidiaries..........................................................71
SECTION 5.13. Further Assurances...............................................................72
SECTION 5.14. Interest Rate Protection.........................................................72
SECTION 5.15. Fiscal Periods...................................................................73
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities; Designated Senior Indebtedness..........73
SECTION 6.02. Liens............................................................................75
SECTION 6.03. Fundamental Changes..............................................................79
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions........................80
SECTION 6.05. Asset Sales......................................................................84
SECTION 6.06. Sale and Leaseback Transactions..................................................87
SECTION 6.07. Swap Agreements..................................................................87
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness............................87
SECTION 6.09. Transactions with Affiliates.....................................................90
SECTION 6.10. Restrictive Agreements...........................................................91
SECTION 6.11. Amendment of Material Documents..................................................91
SECTION 6.12. Interest Expense Coverage Ratio..................................................92
SECTION 6.13. Leverage Ratio...................................................................92
SECTION 6.14. Capital Expenditures.............................................................93
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices..........................................................................99
SECTION 9.02. Waivers; Amendments.............................................................100
SECTION 9.03. Expenses; Indemnity; Damage Waiver..............................................101
SECTION 9.04. Successors and Assigns..........................................................103
SECTION 9.05. Survival........................................................................106
SECTION 9.06. Counterparts; Integration; Effectiveness........................................106
SECTION 9.07. Severability....................................................................107
SECTION 9.08. Right of Setoff.................................................................107
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process......................107
SECTION 9.10. WAIVER OF JURY TRIAL............................................................108
SECTION 9.11. Headings........................................................................108
SECTION 9.12. Confidentiality.................................................................108
SECTION 9.13. Interest Rate Limitation........................................................109
SECTION 9.14. USA Patriot Act.................................................................109
SECTION 9.15. Sale of Timber Borrower.........................................................110
SECTION 9.16. Effectiveness of Amendment and Restatement......................................110
ARTICLE X
Release of Timber Parties and Amendment and Restatement After Initial Public Offering
SECTION 10.01. Release and Amendment...........................................................110
SCHEDULES:
Schedule 2.01 -- Revolving Commitments
Schedule 3.05(d) --Real Property
Schedule 3.05(e) -- Purchase Rights on Mortgaged Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02(a) -- Existing BC Borrower Liens
Schedule 6.04(a) -- Existing BC Borrower Investments
Schedule 6.09 -- Original Effective Date Agreements
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- [Intentionally Omitted]
Exhibit C -- Form of Guarantee and Collateral Agreement
Exhibit D -- Form of Perfection Certificate
Exhibit E -- Form of Second Restated Credit Agreement
AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 18,
2005, among
BOISE CASCADE HOLDINGS, L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
the LENDERS party hereto and JPMORGAN CHASE BANK, N.A., as
Administrative Agent.
WHEREAS, the Holding Companies, the Borrowers, the lenders party
thereto and JPMorgan Chase Bank, N.A. (f/k/a/ JPMorgan Chase Bank), as
administrative agent, are parties to the Credit Agreement dated as of October
29, 2004 (the "ORIGINAL CREDIT AGREEMENT"), as amended and in effect immediately
prior to the Restatement Effective Date (as defined herein);
WHEREAS, the Holding Companies, the Borrowers, the Required
Restatement Lenders (as defined therein) and JPMorgan Chase Bank, N.A., as
administrative agent, are parties to an Amendment and Restatement Agreement
dated as of April 18, 2005 (the "AMENDMENT AND RESTATEMENT AGREEMENT"); and
WHEREAS, pursuant to the Amendment and Restatement Agreement, on the
Restatement Effective Date the Original Credit Agreement is amended and restated
as provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"ACCOUNT" means, collectively, (a) an "account" as such term is
defined in the Uniform Commercial Code as in effect from time to time in the
State of New York or under other relevant law, and (b) any rights of the BC
Borrower or any BC Subsidiary to payment for goods sold or leased or services
performed, including all such rights evidenced by an account, note, contract,
security agreement, chattel paper, or other evidence of indebtedness or
security.
"ACQUIRED BUSINESSES" means the Operating Businesses and the
Timberland Assets, collectively.
"ACQUISITION" means the acquisition (a) by the BC Subsidiaries of all
of the assets exclusively or primarily related to or used exclusively or
primarily in the conduct of the Operating Businesses prior to the Original
Effective Date and (b) by the
2
Timber Borrower and the Timber Subsidiaries of the Timberland Assets, in each
case pursuant to and as set forth in the Acquisition Agreement.
"ACQUISITION AGREEMENT" means the Asset Purchase Agreement dated as of
July 26, 2004, by and among the Sellers, FPH and the Timber Borrower and the
Schedules and exhibits attached thereto.
"ADDITIONAL CONSIDERATION AGREEMENT" has the meaning assigned to such
term in the Acquisition Agreement.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/32 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders hereunder. The terms
"Administrative Agent" and "Collateral Agent" are used interchangeably and shall
not be construed to distinguish separate roles, functions or duties.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified; PROVIDED
that, solely for purposes of Section 6.09, a Person shall not be an "Affiliate"
of either Holding Company or Borrower solely by reason of being commonly
Controlled by Madison Dearborn if (a) such Person is not Controlled by either
Holding Company or either Borrower and (b) the Equity Interests in such Person
owned or Controlled, directly or indirectly, by Madison Dearborn represent less
than 20% of each of the aggregate ordinary voting power and the aggregate equity
value represented by such Person's outstanding Equity Interests.
"AGENTS" means the Administrative Agent and the Syndication Agent.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"AMENDMENT AND RESTATEMENT AGREEMENT" has the meaning assigned to such
term in the recitals hereto.
"APPLICABLE PERCENTAGE" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the
3
Applicable Percentages shall be determined based upon the Revolving Commitments
most recently in effect, giving effect to any assignments.
"APPLICABLE RATE" means, for any day (a) with respect to any Tranche D
Term Loan, (i) until sub-clause (ii) of this clause (a) becomes effective (A) in
the case of an ABR Loan, 0.75% per annum and (B) in the case of a Eurodollar
Loan, 1.75% per annum or (ii) effective on and after the first date that the
credit facilities under this Agreement are rated both BB or better by S&P and
Ba2 or better by Xxxxx'x (and the Administrative Agent shall have received a
certificate to such effect signed on behalf of the BC Borrower by a Financial
Officer), (A) in the case of an ABR Loan, 0.50% per annum and (B) in the case of
a Eurodollar Loan, 1.50% per annum; and (b) with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan, the applicable rate per annum set
forth below under the caption "ABR Spread" or "Eurodollar Spread", as the case
may be, based upon the Leverage Ratio as of the most recent determination date;
provided that prior to delivery of combined consolidated financial statements
for the fiscal quarter ending March 31, 2005, the Applicable Rate in respect of
Revolving Loans shall be determined by reference to Category 1 below:
ABR Eurodollar
Leverage Ratio: Spread Spread
----------------------------------------------------------------------
CATEGORY 1
Greater than 4.00 to 1.00 1.25% 2.25%
CATEGORY 2
Greater than 3.50 to 1.00
but less than or equal to 4.00 to 1.00 1.00% 2.00%
CATEGORY 3
Greater than 3.00 to 1.00
but less than or equal to 3.50 to 1.00 0.75% 1.75%
CATEGORY 4
Less than or equal to 3.00 to 1.00 0.50% 1.50%
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of the Borrowers' fiscal year based upon the
combined consolidated financial statements of the Holding Companies delivered
pursuant to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the date of delivery to the Administrative
Agent of such combined consolidated financial statements indicating such change
and ending on the date immediately preceding the effective date of the next such
change; PROVIDED that the Leverage Ratio shall be deemed to be in Category 1 (A)
at any time that an Event of Default has occurred and is continuing or (B) at
the option of the Administrative Agent or at the request of the Required Lenders
if the Borrowers fail to deliver the consolidated financial statements of the
Holding Companies required to be delivered pursuant to Section 5.01(a) or (b),
during the period from the expiration of the time for delivery thereof until
such consolidated financial statements are delivered.
4
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"BC BORROWER" means Boise Cascade, L.L.C., a Delaware limited
liability company that is a wholly owned subsidiary of BC Holdings.
"BC CORPORATE CONVERSION" means the conversion of BC Holdings from a
Delaware limited liability company to a Delaware corporation pursuant to a
transaction (whether effected by merger or otherwise) that (a) results in the
surviving corporation having the same assets and liabilities as those of BC
Holdings immediately prior to such transaction, (b) results in shareholders of
the surviving corporation that are substantially the same as, and that hold
Equity Interests in such surviving corporation in substantially the same
percentage interests as those held by, the Members of BC Holdings (or the direct
or indirect holders of the Equity Interests in such Members) immediately prior
to such transaction, and (c) does not involve any other consideration.
"BC HOLDINGS" means
Boise Cascade Holdings, L.L.C., a Delaware limited
liability company, or, upon and after the BC Corporate Conversion, the
corporation surviving the BC Corporate Conversion.
"BC SUBSIDIARY" means a Subsidiary of the BC Borrower.
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States of America.
"BORROWERS" means the BC Borrower and the Timber Borrower.
"BORROWING" means (a) all Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"BORROWING REQUEST" means a request by a Borrower for a Borrowing in
accordance with Section 2.03.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; PROVIDED that, when used in connection with a Eurodollar Loan,
the term "BUSINESS DAY" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CAPITAL EXPENDITURES" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Holding
Companies, the Borrowers and their consolidated Subsidiaries that are (or would
be) set forth as capital expenditures in a combined consolidated statement of
cash flows of the Holding Companies for such period prepared in accordance with
GAAP and (b) the principal portion of Capital Lease Obligations incurred by the
Holding Companies, the Borrowers
5
and their consolidated Subsidiaries during such period; PROVIDED that Capital
Expenditures shall not include (i) the purchase price paid in connection with a
Permitted Acquisition, (ii) expenditures made pursuant to any election to apply
Net Proceeds of a Prepayment Event described in clause (a) or (b) of the
definition of the term "Prepayment Event" to acquire assets as contemplated by
the proviso to Section 2.11(c), or made pursuant to any election to apply Net
Proceeds described in clause (b)(ii) of the definition of the term "Timberland
Prepayment Event" to repair or replace Timberland Assets as described therein,
(iii) the non-cash consideration transferred or disposed of in connection with a
Permitted Operating Asset Swap or Permitted Timberland Asset Swap, (iv) any
Specified Investment and (v) payments required to be made by any Loan Party
under the Additional Consideration Agreement.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person of any Equity Interest
in a Borrower (other than (i) the ownership by BC Holdings of Equity Interests
in the BC Borrower, (ii) the ownership by Timber Holdings of Equity Interests in
the Timber Borrower and (iii) pursuant to a sale of the Equity Interests of the
Timber Borrower permitted by Section 6.05(c)); (b) at any time prior to an IPO
with respect to BC Holdings, the failure by Madison Dearborn to own, directly or
indirectly, beneficially and of record, Equity Interests of BC Holdings
representing at least a majority of each of the aggregate ordinary voting power
and aggregate equity value represented by the issued and outstanding Equity
Interests of BC Holdings; (c) at any time prior to an IPO with respect to Timber
Holdings, the failure by Madison Dearborn to beneficially own, directly or
indirectly, Equity Interests of Timber Holdings representing at least a majority
of each of the aggregate ordinary voting power and aggregate equity value
represented by the issued and outstanding Equity Interests of Timber Holdings;
(d) at any time after an IPO with respect to BC Holdings, the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
group (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the
Original Effective Date), other than Madison Dearborn, of Equity Interests
representing 35% or more of either the aggregate ordinary voting power or the
aggregate equity value represented by the issued and outstanding Equity
Interests of BC Holdings; (e) at any time after an IPO with respect to Timber
Holdings, the acquisition of ownership, directly or indirectly, beneficially or
of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder
as in effect on the Original Effective Date), other than Madison Dearborn, of
Equity Interests representing 35% or more of either the aggregate ordinary
voting power or the aggregate equity value represented by the issued and
outstanding Equity Interests of Timber Holdings; (f) after an IPO with respect
to BC Holdings, occupation of a majority of the seats (other than vacant seats)
on
6
the board of directors of BC Holdings by Persons who were neither nominated by
the board of directors of BC Holdings nor appointed by directors so nominated;
(g) after an IPO with respect to Timber Holdings, occupation of a majority of
the seats (other than vacant seats) on the board of directors of Timber Holdings
by Persons who were neither nominated by the board of directors of Timber
Holdings nor appointed by directors so nominated; (h) the acquisition, by reason
of a written agreement, of direct or indirect Control of BC Holdings, Timber
Holdings, the BC Borrower or the Timber Borrower (other than pursuant to a sale
of the Equity Interests of the Timber Borrower permitted by Section 6.05(c)) by
any Person or group other than Madison Dearborn; or (k) the occurrence of a
"Change of Control", as defined in the Subordinated Debt Documents or the Senior
Unsecured Debt Documents; PROVIDED that clauses (c), (e) and (g) above shall not
apply at any time after each of Timber Holdings and the Timber Borrower cease to
be parties to this Agreement pursuant to and in accordance with Section 9.15.
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation
after the Original Effective Date, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the Original Effective Date or (c) compliance by any Lender or any Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or such Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the Original Effective Date.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Tranche D Term Loans or Swingline Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Commitment or
Tranche D Commitment.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COLLATERAL" means any and all "Collateral", as defined in any
applicable Security Document.
"COLLATERAL AGENT" means JPMorgan Chase Bank, N.A., as collateral
agent under the Security Documents. The terms "Administrative Agent" and
"Collateral Agent" are used interchangeably and shall not be construed to
distinguish separate roles, functions or duties.
"COLLATERAL AGREEMENT" means the Guarantee and Collateral Agreement
among each of the Holding Companies, the Borrowers, the Subsidiary Loan Parties
and the Administrative Agent, substantially in the form of Exhibit C.
"COLLATERAL AND GUARANTEE REQUIREMENT" means the requirement that:
(a) the Administrative Agent shall have received from each Loan Party
either (i) a counterpart of the Collateral Agreement duly executed and
delivered
7
on behalf of such Loan Party or (ii) in the case of any Person that becomes
a Loan Party after the Original Effective Date, a supplement to the
Collateral Agreement, in the form specified therein, duly executed and
delivered on behalf of such Loan Party;
(b) all outstanding Equity Interests of each Borrower and each
Subsidiary owned by or on behalf of any Loan Party shall have been pledged
pursuant to the Collateral Agreement (except that the Loan Parties shall
not be required to pledge more than 65% of the outstanding voting Equity
Interests of any Foreign Subsidiary that is not a Loan Party) and the
Administrative Agent shall have received certificates or other instruments
representing all such Equity Interests, together with stock powers or other
instruments of transfer with respect thereto endorsed in blank;
(c) all Indebtedness of each of the Holding Companies, the Borrowers
and the Subsidiaries that is owing to any Loan Party shall be evidenced by
a promissory note and shall have been pledged pursuant to the Collateral
Agreement and the Administrative Agent shall have received all such
promissory notes, together with instruments of transfer with respect
thereto endorsed in blank; PROVIDED that Indebtedness of any such Person
owing to a Loan Party shall not be required to be evidenced by a promissory
note (but shall nevertheless constitute Collateral) if the aggregate
principal amount of outstanding Indebtedness of such Person owing to Loan
Parties and not so evidenced by promissory notes does not exceed
$5,000,000;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create the
Liens intended to be created by the Collateral Agreement and perfect such
Liens to the extent required by, and with the priority required by, the
Collateral Agreement, shall have been filed, registered or recorded or
delivered to the Administrative Agent for filing, registration or
recording;
(e) the Administrative Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid first
Lien on the Mortgaged Property described therein, free of any other Liens
except as expressly permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent or
the Required Lenders may reasonably request, and (iii) such surveys,
abstracts, appraisals, legal opinions and other documents as the
Administrative Agent or the Required Lenders may reasonably request with
respect to any such Mortgage or Mortgaged Property;
(f) each Loan Party shall have obtained all material consents and
approvals required to be obtained by it in connection with the execution
and
8
delivery of all Security Documents to which it is a party, the performance
of its obligations thereunder and the granting by it of the Liens
thereunder; and
(g) the Administrative Agent shall be reasonably satisfied that all
warehousemen, bailees, agents or processors which have in their possession
or control any Inventory with a fair market value in excess of $5,000,000
at any one time have been notified of the Liens created by the Security
Documents in such Inventory and that the Borrowers shall have used
reasonable efforts to cause each such warehouseman, bailee, agent or
processor to (i) acknowledge in writing, in form and substance satisfactory
to the Administrative Agent, that such warehouseman, agent, bailee or
processor holds the Inventory for the benefit of the Administrative Agent
subject to the Liens created by the Security Documents and shall act upon
the instructions of the Administrative Agent without further consent from
any Loan Party, and (ii) agree to waive and release any Lien held by it
with respect to such Inventory, whether arising by operation of law or
otherwise.
"COMMITMENT" means a Revolving Commitment or Tranche D Commitment, or
any combination thereof (as the context requires).
"COMMITTED SWINGLINE LENDER" means JPMorgan Chase Bank, N.A., in its
capacity as lender of Committed Swingline Loans hereunder.
"COMMITTED SWINGLINE LOAN" means a Loan made by the Committed
Swingline Lender pursuant to Section 2.04(a).
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period, the excess
of (a) the sum (without duplication) of (i) the interest expense (including
imputed interest expense in respect of Capital Lease Obligations) of the Holding
Companies, the Borrowers and the Subsidiaries for such period, determined on a
combined consolidated basis in accordance with GAAP, (ii) any cash payments made
during such period in respect of obligations referred to in clause (b)(iii)
below that were amortized or accrued in a previous period and (iii)
interest-equivalent costs associated with any Permitted Receivables Financing,
whether accounted for as interest expense or loss on the sale of Receivables,
minus (b) the sum of (i) interest income of the Holding Companies, the Borrowers
and the Subsidiaries for such period, determined on a combined consolidated
basis in accordance with GAAP, (ii) to the extent included in such combined
consolidated interest expense for such period, non-cash amounts attributable to
amortization of financing costs paid in a previous period, plus (iii) to the
extent included in such combined consolidated interest expense for such period,
non-cash amounts attributable to amortization of debt discounts or accrued
interest payable in kind for such period.
"CONSOLIDATED EBITDA" means, for any period, the sum of Consolidated
Net Income for such period, plus the following, without duplication, to the
extent deducted in calculating such Consolidated Net Income:
9
(a) all income tax expense of the Holding Companies, the Borrowers and
the Subsidiaries, on a combined consolidated basis;
(b) all interest expense of the Holding Companies, the Borrowers and
the Subsidiaries, on a combined consolidated basis;
(c) depreciation, depletion and amortization expense of the Holding
Companies, the Borrowers and the Subsidiaries, on a combined consolidated
basis (in each case excluding amortization expense attributable to a
prepaid item that was paid in cash in a prior period);
(d) any management fees paid to Madison Dearborn in such period, not
to exceed $2,000,000 for any consecutive four quarter period;
(e) any non-recurring costs and expenses incurred in connection with
the Acquisition, including non-recurring costs and expenses incurred in
connection with the Financing Transactions (other than the Installment Note
Financing) and severance costs, facility closure and related restructuring
costs incurred within 18 months of the Original Effective Date, in an
aggregate amount for all periods not to exceed $25,000,000;
(f) any non-recurring costs and expenses related to (i) any public or
private offering of Equity Interests of BC Holdings, Timber Holdings or the
BC Borrower, (ii) any investment or acquisition permitted by Section 6.04
or (iii) recapitalizations or Indebtedness permitted by Section 6.01; and
(g)(i) all other non-cash charges of the Holding Companies, the
Borrowers and the Subsidiaries, on a combined consolidated basis (in each
case excluding any such non-cash charge to the extent that it represents an
accrual of or reserve for cash expenditures in any future period) less (ii)
all non-cash items of income of the Holding Companies, the Borrowers and
the Subsidiaries, on a combined consolidated basis (in each case other than
accruals of revenue in the ordinary course of business and other than
reversals (to the extent made without any payment in cash) of reserves
previously excluded from clause (g)(i)),
in each case for such period. Notwithstanding the foregoing, the provision for
taxes based on the income or profits of, and the depreciation, amortization and
depletion and non-cash charges of, a Subsidiary shall be added to Consolidated
Net Income to compute Consolidated EBITDA only to the extent (and in the same
proportion, including by reason of minority interests) that the net income or
loss of such Subsidiary was included in calculating Consolidated Net Income for
any purpose and, with respect to a Subsidiary that is not a Subsidiary Loan
Party, only if a corresponding amount would be permitted at the date of
determination to be dividended to a Loan Party by such Subsidiary without prior
approval (that has not been obtained), pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Subsidiary or its stockholders.
Solely for purposes of calculating the Leverage Ratio, if during any period
(each, a "REFERENCE PERIOD") (or, in
10
the case of PRO FORMA calculations, during the period from the last day of such
Reference Period to and including the date as of which such calculation is made)
either of the Borrowers or any Subsidiary shall have made a Material Disposition
or Material Acquisition (other than the Acquisition), their Consolidated EBITDA
for such Reference Period shall be calculated after giving PRO FORMA effect
thereto as if such Material Disposition or Material Acquisition occurred on the
first day of such Reference Period; PROVIDED that such PRO FORMA calculations
shall give effect to operating expense reductions and other cost savings only to
the extent that such reductions and savings would be permitted to be reflected
in a pro forma financial statement prepared in compliance with Regulation S-X.
As used in this definition, "MATERIAL ACQUISITION" means any Permitted
Acquisition or series of related Permitted Acquisitions that involves
consideration (including any non-cash consideration) with a fair market value in
excess of $20,000,000; and "MATERIAL DISPOSITION" means any disposition of
property or series of related dispositions of property or assets (including the
Equity Interests of a Subsidiary) that involves consideration (including any
non-cash consideration) with a fair market value in excess of $20,000,000.
For purposes of this Agreement, Consolidated EBITDA for any Reference Period
that includes any period of time prior to the Acquisition shall be calculated
after giving PRO FORMA effect for such period to the Acquisition and the other
categories of adjustments to "EBITDA" used to calculate pro forma "Adjusted
EBITDA" as set forth in footnote 7 under the section of the Offering Memorandum
entitled "Offering memorandum summary--Summary historical and pro forma
condensed combined financial data" (without duplication of amounts otherwise
included in the calculation of "EBITDA" as presented in the Offering
Memorandum), it being understood that, with respect to the adjustment related to
the Additional Consideration Agreement, the adjustment shall be for a deemed
one-time receipt by the BC Borrower of $40,233,000 pursuant to such agreement
during the relevant Reference Period until such time as such Reference Period
includes an actual payment or receipt pursuant to such agreement, at which point
such actual payment or receipt shall be used in place of such deemed receipt.
"CONSOLIDATED NET INCOME" means, for any period, the net income or
loss of the Holding Companies, the Borrowers and the Subsidiaries for such
period determined on a combined consolidated basis in accordance with GAAP;
PROVIDED that there shall not be included in such Consolidated Net Income:
(a) any net income of any Person (other than the Holding Companies and
the Borrowers) if such Person is not a Subsidiary, except that, subject to
the exclusion contained in clause (c) below, the BC Borrower's or the
Timber Borrower's, as the case may be, equity in the net income of any such
Person for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash actually distributed by such Person during
such period to the BC Borrower or the Timber Borrower, as the case may be,
or a Subsidiary as a dividend or other distribution (subject, in the case
of a dividend or other distribution paid to a Subsidiary, to the
limitations contained in clause (b) below);
11
(b) any net income of any Subsidiary that is not a Subsidiary Loan
Party if such Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions by
such Subsidiary, directly or indirectly, to the BC Borrower or the Timber
Borrower, as the case may be, except that:
(i) subject to the exclusion contained in clause (c) below, the
BC Borrower's or the Timber Borrower's, as the case may be, equity in
the net income of any such Subsidiary for such period shall be
included in such Consolidated Net Income to the extent that the net
income of such Subsidiary would be permitted at the date of
determination to be dividended to the BC Borrower or the Timber
Borrower, as the case may be, without any prior approval or waiver
(that has not been obtained) pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes,
rules or governmental regulations applicable to that Subsidiary or its
stockholders (subject, in the case of a dividend or other distribution
paid to another Subsidiary, to the limitation contained in this clause
(i)) and
(ii) the BC Borrower's or the Timber Borrower's, as the case may
be, equity in a net loss of any such Subsidiary for such period shall
be included in determining such Consolidated Net Income;
(c) any gain or loss (or, in respect of sales of Timberland Assets,
income or loss) realized upon the sale or other disposition of any assets
of any Holding Company, any Borrower or any Subsidiary or any other Person
(including pursuant to any sale-and-leaseback arrangement) which are not
sold or otherwise disposed of in the ordinary course of business (it being
understood that the determination of whether any sale of Timberland Assets
has been made in the ordinary course of business shall be made in good
faith on a basis consistent with that used in the calculation of pro forma
"Adjusted EBITDA" used in the Offering Memorandum (it being understood that
such calculation makes adjustments for non-ordinary course of business
sales of Timberland Assets and not for ordinary course of business sales))
and any gain (or loss) realized upon the sale or other disposition of any
Equity Interests of any Person;
(d) extraordinary gains or losses;
(e) any unrealized Statement of Financial Accounting Standards No. 133
gain or loss in respect of any Swap Agreement;
(f) any non-cash gains or losses attributable to the early
extinguishment of Indebtedness;
(g) unusual or non-recurring non-cash gains or losses;
(h) any non-cash goodwill impairment charges resulting from the
application of Statement of Financial Accounting Standards No. 142; and
12
(i) any non-cash compensation charge or expense, including any such
charge or expense arising from grants of stock options or restricted stock
or other equity-incentive programs for the benefit of officers, directors
and employees of any Holding Company, any Borrower or any Subsidiary,
in each case for such period. Notwithstanding the foregoing, any amounts
received and any amounts paid by any Holding Company, any Borrower or any
Subsidiary under the Additional Consideration Agreement during such period shall
be added and subtracted, respectively, in calculating Consolidated Net Income,
without duplication.
"CONTEMPLATED IPO" means the IPO of BC Holdings contemplated by the
Registration Statement on Form S-1 filed on February 11, 2005 (File No.
333-122770), as amended or supplemented from time to time.
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person
through the right to exercise voting power or by contract. "CONTROLLING" and
"CONTROLLED" have meanings correlative thereto.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"ELIGIBLE SWAP ASSETS" means (a) in the case of a Permitted Timberland
Asset Swap, interests in real property and related assets (including timber and
other products of or rights in or to any such interests in real property)
relating to or used for the purpose of growing or harvesting timber, and (b) in
the case of a Permitted Operating Asset Swap, assets constituting warehousing or
distribution facilities (including any related equipment and interests in real
property associated therewith).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions or legally binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the protection of the environment, preservation or
reclamation of natural resources, the management, release or threatened release
of any Hazardous Material or to occupational health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of any of the Holding Companies, the Borrowers or the
Subsidiaries directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or
13
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with either Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Plan
(other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by either Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by either Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by either Borrower or any of its ERISA Affiliates
of any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the receipt by either Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from either
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"EURODOLLAR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VII.
"EXCESS CASH FLOW" means, for any fiscal year, the sum (without
duplication) of:
(a) the combined consolidated net income (or loss) of the Holding
Companies, the Borrowers and their consolidated Subsidiaries for such
fiscal year, adjusted to exclude (i) any gains or losses attributable to
Prepayment Events, Timberland Prepayment Events, Permitted Operating Asset
Swaps, Permitted
14
Timberland Asset Swaps or any sale or other disposition of Non-Cash
Timberlands Consideration and (ii) any income attributable to any Non-Cash
Timberlands Consideration; PLUS
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining such combined consolidated net income (or loss) for
such fiscal year; PLUS
(c) the aggregate amount of payments received by any Loan Party
pursuant to the Additional Consideration Agreement during such fiscal year;
PLUS
(d) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such fiscal year plus (ii) the net amount, if any, by
which the combined consolidated deferred revenues of the Holding Companies,
the Borrowers and their consolidated Subsidiaries increased during such
fiscal year; MINUS
(e) the sum of (i) any non-cash gains included in determining such
combined consolidated net income (or loss) for such fiscal year plus (ii)
the amount, if any, by which Net Working Capital increased during such
fiscal year plus (iii) the net amount, if any, by which the combined
consolidated deferred revenues of the Holding Companies, the Borrowers and
their consolidated Subsidiaries decreased during such fiscal year; MINUS
(f) Capital Expenditures for such fiscal year, except to the extent
attributable to (i) the incurrence of Capital Lease Obligations or
otherwise financed by incurring Long-Term Indebtedness or (ii) the
reinvestment of Net Proceeds received in respect of any Prepayment Events
or Timberland Prepayment Events; MINUS
(g) the aggregate amount of payments made by any Loan Party pursuant
to the Additional Consideration Agreement during such fiscal year; MINUS
(h) the amount of Tax Distributions paid in cash during such fiscal
year in compliance with Section 6.08; MINUS
(i) the amount of any expenses related to severance costs, facility
closure and related restructuring costs incurred in connection with the
Acquisition and paid within 18 months of the Original Effective Date by any
of the Holding Companies, the Borrowers or the Subsidiaries which expenses
are not otherwise deducted in calculating the combined consolidated net
income (or loss) of the Holding Companies, the Borrowers and their
consolidated Subsidiaries as a result of the application of purchase
accounting principles; MINUS
(j) the aggregate principal amount of Long-Term Indebtedness repaid or
prepaid by the Borrowers and their consolidated Subsidiaries during such
fiscal year, excluding (i) Indebtedness in respect of Revolving Loans,
Swingline Loans and LC Exposure unless (and then only to the extent that)
the Revolving
15
Commitments are also reduced, (ii) Term Loans prepaid pursuant to Section
2.11, (iii) repayments or prepayments of Long-Term Indebtedness financed by
incurring other Long-Term Indebtedness, (iv) repayments or prepayments of
Long-Term Indebtedness (other than Loans) deducted in calculating the
amount of Net Proceeds in connection with any Prepayment Event or
Timberland Prepayment Event and (v) repayments or prepayments of Unsecured
Senior Debt or Subordinated Debt pursuant to clause (v) or (vii) of Section
6.08(b); MINUS
(k) the aggregate amount of dividends paid in cash by BC Holdings
during such fiscal year pursuant to clause (xiv) of Section 6.08(a).
"EXCESS TIMBER CONSIDERATION" means any Net Proceeds and Non-Cash
Timberlands Consideration received in respect of Timberland Prepayment Events
other than (a) the first $1,650,000,000 of Net Proceeds from Timberland
Prepayment Events after the Original Effective Date and (b) 50% of the Net
Proceeds received from Timberland Prepayment Events in excess of $1,650,000,000.
For purposes hereof, any Net Proceeds or non-cash consideration received from
the sale, transfer or disposition of Non-Cash Timberlands Consideration
constitutes Excess Timber Consideration.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, any Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of either Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by either Borrower
under Section 2.19(b)), any withholding tax that (i) is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.17(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from either Borrower with respect to any withholding tax
pursuant to Section 2.17(a).
"EXISTING LETTERS OF CREDIT" means the letters of credit listed on
Schedule 1.01 to the Original Credit Agreement.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
16
"FINANCIAL OFFICER" means, in respect of any Person, the chief
financial officer, principal accounting officer, treasurer or controller of such
Person.
"FINANCING TRANSACTIONS" has the meaning assigned to such term in the
Original Credit Agreement.
"FOREIGN LENDER" means any Lender that is organized under the laws of
a jurisdiction other than that in which either of the Borrowers is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"FPH" means Forest Products Holdings, L.L.C., a Delaware limited
liability company and a direct subsidiary of Madison Dearborn Capital Partners,
IV, L.P.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease (including pursuant to any "synthetic lease") property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
17
"HOLDING COMPANIES" means BC Holdings and Timber Holdings.
"IMMATERIAL SUBSIDIARIES" means, at any time, BC Subsidiaries, that,
on a consolidated basis with their respective BC Subsidiaries and treated as if
all such BC Subsidiaries and their respective BC Subsidiaries were combined and
consolidated as a single BC Subsidiary, (a) had consolidated assets representing
less than 2% of the consolidated assets of BC Holdings as of the last day of the
most recently ended fiscal quarter for which financial statements are available,
(b) accounted for less than 2% of the consolidated revenues of BC Holdings for
the period of four consecutive fiscal quarters most recently ended for which
financial statements are available and (c) accounted for less than 2% of
Consolidated EBITDA of BC Holdings for the period of four consecutive fiscal
quarters most recently ended for which financial statements are available.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding accounts
payable due within one year and accrued expenses, in each case incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed;
PROVIDED that if recourse for such Indebtedness is limited to such property, the
amount of Indebtedness arising under this clause (f) shall be limited to the
lesser of (i) the outstanding principal amount thereof and (ii) the fair market
value of the property subject to such Lien, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INSTALLMENT NOTE DOCUMENTS" means the Installment Notes, the
Installment Note Guaranties and the "Collateral Notes" (as defined in
Installment Note Guaranties) and all other documents and agreements contemplated
by the Installment Note Guaranties.
"INSTALLMENT NOTE FINANCING" means the transactions contemplated by
the Installment Note Documents, including (a) the contribution by the Timber
Borrower of $1,635,250,000 in cash to the Timber Installment Note Subsidiaries,
(b) the issuance of
18
the Installment Notes by the Timber Installment Note Subsidiaries to certain of
the Sellers, (c) the purchase for cash by the Timber Installment Note
Subsidiaries of private placement notes from various financial institutions in
the aggregate principal amount of $1,635,250,000, (d) the issuance by Wachovia
Corporation and Xxxxxx Brothers Holdings Inc. of guaranties pursuant to the
Installment Note Guaranties to provide credit support for the Installment Notes
and (e) the pledge by each of the Timber Installment Note Subsidiaries of the
private placement notes purchased by it (as contemplated by clause (c) above)
and certain other collateral as security for its obligations under its
Installment Note Guaranty.
"INSTALLMENT NOTE GUARANTIES" means (a) the Guaranty dated as of
October 29, 2004 issued by Xxxxxx Brothers Holdings Inc. and (b) the Guaranty
dated as of October 29, 2004 issued by Wachovia Corporation, in each case to
provide credit support for the Installment Notes.
"INSTALLMENT NOTES" means the installment notes issued by the
respective Timber Installment Note Subsidiaries to certain of the Sellers as
contemplated by the Acquisition Agreement and the Reimbursement Agreements, in
an aggregate principal amount equal to $1,635,000,000.
"INTEREST ELECTION REQUEST" means a request by the BC Borrower to
convert or continue a Borrowing in accordance with Section 2.07.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"INTEREST PERIOD" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
(or, with respect to a Eurodollar Revolving Borrowing, one week or, with the
consent of each Lender participating in such Borrowing, nine or twelve months)
thereafter, as the applicable Borrower may elect; PROVIDED, that (a) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, (b) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period and (c) on one occasion, an
Interest Period for a Eurodollar Tranche D Term Borrowing may be selected by the
BC Borrower for a period of less than two months ending on June 30, 2005
(subject to clause (a) above). For
19
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"INVENTORY" has the meaning assigned to such term in the Collateral
Agreement.
"IPO" means the initial offering by BC Holdings or Timber Holdings, as
applicable, of its Equity Interests to the public by means of an offering
registered with the Securities and Exchange Commission, including pursuant to
the Contemplated IPO.
"ISSUING BANK" means, as the context may require, (a) JPMorgan Chase
Bank, N.A., in its capacity as an issuer of Letters of Credit hereunder, and (b)
any other Revolving Lender that becomes an Issuing Bank pursuant to Section
2.05(j), in its capacity as an issuer of Letters of Credit hereunder, and, in
each case, its successors in such capacity as provided in Section 2.05(i). Any
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of such Issuing Bank, in which case the term "Issuing
Bank" shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.
"LC DISBURSEMENT" means a payment made by any Issuing Bank pursuant to
a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the BC Borrower at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"LENDERS" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lenders.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement (whether issued before or after the Restatement Effective Date).
"LEVERAGE RATIO" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Holding Companies ended on such date (or, if
such date is not the last day of a fiscal quarter, ended on the last day of the
fiscal quarter of the Holding Companies most recently ended prior to such date).
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such
20
page of such Service, as determined by the Administrative Agent from time to
time for purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for dollar deposits with a maturity comparable to such Interest Period;
PROVIDED that, in the case of a Eurodollar Tranche D Term Borrowing with an
Interest Period described in clause (c) of the proviso to the definition of the
term "Interest Period", the Administrative Agent may determine the LIBO Rate by
any other means that it determines to reasonably reflect the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO RATE"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" means this Agreement, the Amendment and Restatement
Agreement, the Reaffirmation Agreement, the Collateral Agreement and the other
Security Documents.
"LOAN PARTIES" means the Holding Companies, the Borrowers and the
Subsidiary Loan Parties.
"LOANS" means the loans made by the Lenders to the BC Borrower
pursuant to this Agreement (whether made before or after the Restatement
Effective Date); PROVIDED that, for purposes of calculating Excess Cash Flow or
any prepayment required by Section 2.11(d), the term "Loans" also includes
"Loans"' as defined in the Original Credit Agreement.
"LONG-TERM INDEBTEDNESS" means any Indebtedness that, in accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
"MADISON DEARBORN" means Madison Dearborn Capital Partners, IV, L.P.,
its Affiliates and investment funds under common management with Madison
Dearborn Capital Partners, IV, L.P., but excluding any such Affiliate that is
(a) a "portfolio company", (b) a Person that is Controlled by, or under common
Control with, Madison Dearborn Capital Partners, IV, L.P., or any of its
Affiliates and conducts any business other than investment activities and
activities incidental thereto or (c) Controlled by a Person described in clause
(a) or (b) above.
21
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, financial condition or results of operations of the Holding Companies,
the Borrowers and the Subsidiaries, taken as a whole, (b) the ability of any
Loan Party to perform any of its material obligations under any Loan Document or
(c) the rights of the Lenders under the Loan Documents.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements, of
any one or more of the Holding Companies, the Borrowers and the Subsidiaries in
an aggregate principal amount exceeding $25,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of any of the
Holding Companies, the Borrowers or the Subsidiaries in respect of any Swap
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that such Holding Company, Borrower or Subsidiary would
be required to pay if such Swap Agreement were terminated at such time.
"MATERIAL SUBSIDIARY" means any Subsidiary that is not an Immaterial
Subsidiary.
"MEMBERS" means the holders of the Equity Interests of BC Holdings.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be reasonably
satisfactory in form and substance to the Collateral Agent.
"MORTGAGED PROPERTY" means, initially, the real property set forth on
Schedule 3.05(d) that is identified on such Schedule as Mortgaged Property and
the improvements thereto, and includes each other parcel of real property and
improvements thereto owned by a Borrower or any Subsidiary with respect to which
a Mortgage is granted.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NET PROCEEDS" means, with respect to any event (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
fees and out-of-pocket expenses paid by any of the Holding Companies, the
Borrowers and the Subsidiaries to third parties (other than Affiliates) in
connection with such event, (ii) in the case of a sale, transfer or other
disposition of an asset (including pursuant to a sale and leaseback transaction
or a casualty or a condemnation or similar proceeding), the amount of all
payments required to be made by any of the Holding Companies, the Borrowers and
the Subsidiaries as a result of such event to repay Indebtedness (other than
Loans) owed to third parties
22
secured by such asset, and (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by any of the Holding Companies, the Borrowers and the
Subsidiaries, and the amount of any reserves established by the Holding
Companies, the Borrowers and the Subsidiaries to fund contingent liabilities
reasonably estimated to be payable to third parties, in each case during the
year that such event occurred or the next succeeding year and that are directly
attributable to such event (as determined reasonably and in good faith by the
chief financial officer of any of the Holding Companies or the Borrowers).
"NET WORKING CAPITAL" means, at any date, (a) the combined
consolidated current assets of the Holding Companies, the Borrowers and their
consolidated Subsidiaries as of such date (excluding cash and Permitted
Investments) minus (b) the combined consolidated current liabilities of the
Holding Companies, the Borrowers and their consolidated Subsidiaries as of such
date (excluding current liabilities in respect of Indebtedness). Net Working
Capital at any date may be a positive or negative number. Net Working Capital
increases when it becomes more positive or less negative and decreases when it
becomes less positive or more negative.
"NON-CASH TIMBERLANDS CONSIDERATION" means any non-cash consideration
received in respect of a sale made in reliance upon Section 6.05(c) as permitted
by clause (B)(2) of the proviso to such Section.
"OBLIGATIONS" has the meaning assigned to such term in the Collateral
Agreement.
"OFFERING MEMORANDUM" means the offering memorandum dated October 15,
2004 relating to the Senior Unsecured Debt and the Subordinated Debt.
"OPERATING BUSINESSES" means the forest products and distribution
businesses (and assets comprising such businesses) acquired by the BC Borrower
and its Subsidiaries pursuant to the Acquisition Agreement, including, (a) their
paper manufacturing, conversion, distribution and sales operations, (b) their
building solutions manufacturing and conversion operations, (c) their packaging
and newsprint manufacturing, conversion, distribution and sales operations, (d)
certain of their aviation operations and (e) their transportation operations.
"ORIGINAL CREDIT AGREEMENT" has the meaning assigned to such term in
the recitals hereto.
"ORIGINAL EFFECTIVE DATE" means October 29, 2004.
"OTHER TAXES" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
23
"PERFECTION CERTIFICATE" means a certificate in the form of Exhibit D
or any other form approved by the Collateral Agent.
"PERMITTED ACQUISITION" means any acquisition by the BC Borrower or
any BC Subsidiary of all or substantially all the assets of, or all the Equity
Interests in, a Person or division or line of business of a Person if,
immediately after giving effect thereto, (a) no Default has occurred and is
continuing or would result therefrom, (b) any such business shall comply with
the permitted businesses of the BC Borrower and the BC Subsidiaries as provided
in Section 6.03(b), (c) all of the Equity Interests of each Subsidiary formed
for the purpose of or resulting from such acquisition shall be owned directly by
the BC Borrower or a BC Subsidiary and all actions required to be taken with
respect to each such acquired or newly formed Subsidiary under Sections 5.12 and
5.13 have been taken, (d) the Holding Companies, the Borrowers and the
Subsidiaries are in compliance, on a PRO FORMA basis after giving effect to such
acquisition (and any operating expense reductions related thereto that would be
permitted to be deducted in any calculation of Consolidated EBITDA in accordance
with the definition of such term contained herein), with the covenants contained
in Sections 6.12 and 6.13 recomputed as at the last day of the most recently
ended fiscal quarter of the Holding Companies for which financial statements are
available, as if such acquisition had occurred on the first day of each relevant
period for testing such compliance and (e) the BC Borrower has delivered to the
Administrative Agent an officers' certificate to the effect set forth in clauses
(a), (b), (c) and (d) above, together with all relevant financial information
for the Person or assets to be acquired and reasonably detailed calculations
demonstrating satisfaction of the requirement set forth in clause (d) above.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 60 days
or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that
24
do not secure any monetary obligations and do not materially detract from
the value of the affected property or interfere with the ordinary conduct
of business of either Borrower or any Subsidiary;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, at
least an A2 credit rating from S&P or at least a P2 credit rating from
Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above; and
(e) demand deposit accounts with commercial banks.
"PERMITTED OPERATING ASSET SWAP" means any transfer of Eligible Swap
Assets by the BC Borrower or any BC Subsidiary in which at least 95% of the
consideration received by the transferor consists of Eligible Swap Assets (and
any balance of such consideration consists of cash); PROVIDED that (a) after
giving effect to such transfer, the aggregate fair market value of all assets
transferred pursuant to Permitted Operating Asset Swaps (i) during any fiscal
year of the Borrowers, on a cumulative basis, shall not exceed $20,000,000 and
(ii) during the term of this Agreement, on a cumulative basis, shall not exceed
$40,000,000 and (b) all actions required to be taken pursuant to Sections 5.12
and 5.13 with respect to any Eligible Swap Assets so received as consideration
shall be taken.
"PERMITTED RECEIVABLES FINANCING" means financing arrangements
pursuant to which the BC Borrower or one or more of the BC Subsidiaries (or a
combination thereof) realizes cash proceeds in respect of Receivables and
Related Security by selling or otherwise transferring such Receivables and
Related Security (on a non-recourse basis, other than Standard Securitization
Undertakings) to one or more
25
Receivables Subsidiaries, and such Receivables Subsidiary or Receivables
Subsidiaries realize cash proceeds in respect of such Receivables and Related
Security pursuant to a revolving committed financing arrangement; PROVIDED that
(a) the BC Borrower shall deliver to the Administrative Agent copies of all
documentation entered into in connection with any such financing arrangements
and (b) the BC Borrower represents, in a certificate of a Financial Officer of
the BC Borrower delivered to the Administrative Agent, that the terms and
conditions of such financing arrangements are customary for accounts receivable
securitization financings. The "funded amount" or "principal amount" of any
Permitted Receivables Financing at any time shall be the principal amount of
Receivables Financing Debt in respect thereof.
"PERMITTED TIMBERLAND ASSET SWAP" means any transfer of Eligible Swap
Assets by the Timber Borrower or any Timber Subsidiary in the ordinary course of
business in which at least 95% of the consideration received by the transferor
consists of Eligible Swap Assets (and any balance of such consideration consists
of cash); PROVIDED that all actions required to be taken pursuant to Sections
5.12 and 5.13 with respect to any Eligible Swap Assets so received as
consideration shall be taken.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"PLEDGED COLLATERAL" has the meaning assigned to such term in the
Collateral Agreement.
"PREPAYMENT EVENT" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of either Holding
Company, either Borrower or any Subsidiary (other than a Receivables
Subsidiary), other than (i) Timberland Prepayment Events, (ii) dispositions
described in clauses (i), (ii), (iii) and (iv) of Section 6.05(a), (iii)
dispositions described in clauses (i), (ii), (iii), (iv) and (v) of Section
6.05(b), and (iv) other dispositions resulting in aggregate Net Proceeds
not exceeding $5,000,000 during any fiscal year of the Borrowers; or
(b) any insured casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding of,
any property or asset of either Holding Company, either Borrower or any
Subsidiary (other than a Timberland Asset Disposition) other than those
resulting in
26
aggregate Net Proceeds not exceeding $5,000,000 during any fiscal year of
the Borrowers; or
(c) the issuance by either Holding Company, either Borrower or any
Subsidiary of any Equity Interests, or the receipt by either Holding
Company, either Borrower or any Subsidiary of any capital contribution,
other than (i) any such issuance of Equity Interests to, or receipt of any
such capital contribution from, a Holding Company, a Borrower or a
Subsidiary, (ii) the issuance of Equity Interests of either Holding Company
to employees of either Holding Company, either Borrower or any Subsidiary
in their capacity as such pursuant to employee benefit plans and employment
arrangements; (iii) the issuance of Equity Interests of BC Holdings
pursuant to the Contemplated IPO, (iv) the issuance of Equity Interests of
a Holding Company to fund Specified Investments, (v) the issuance of Equity
Interests of a Holding Company to Madison Dearborn or (vi) the issuance of
Equity Interests of BC Holdings pursuant to and in compliance with clause
(xiv) of Section 6.04(b); or
(d) the incurrence by either Holding Company, either Borrower or any
Subsidiary of any Indebtedness, other than Indebtedness permitted by
Section 6.01; or
(e) any transfer of Receivables pursuant to a Permitted Receivables
Financing; PROVIDED that any such transfer will be treated as a Prepayment
Event only to the extent that, after giving effect thereto, the aggregate
funded amount of such Permitted Receivables Financing exceeds the greatest
aggregate funded amount previously outstanding thereunder.
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"QUALIFIED PREFERRED STOCK" means, with respect to either Holding
Company, any preferred Equity Interest of such Holding Company that (a) is not
subject to any requirement to pay mandatory cash dividends or similar
distributions, (b) is not subject to any mandatory redemption or repurchase
requirement (whether pursuant to a sinking fund obligation, or at the option of
the holder thereof, or upon the occurrence of specified events, or otherwise),
(c) is not convertible, or exchangeable, other than into or for common Equity
Interests of a Holding Company or Qualified Preferred Stock, and (d) does not
entitle the holder thereof to any other rights or remedies that could subject
either Holding Company, either Borrower or any Subsidiary to any mandatory
payment obligation; PROVIDED that the foregoing shall not be construed to
prohibit rights to receive dividends and distributions in preference to those
paid on any other Equity Interests of the relevant Holding Company (if and when
paid).
"RECEIVABLE" means an Account owing to the BC Borrower or any BC
Subsidiary (before its transfer to a Receivables Subsidiary), whether now
existing or
27
hereafter arising, together with all cash collections and other cash proceeds in
respect of such Account, including all yield, finance charges or other related
amounts accruing in respect thereof and all cash proceeds of Related Security
with respect to such Receivable.
"RECEIVABLES FINANCING DEBT" means, as of any date with respect to any
Permitted Receivables Financing, the amount of the outstanding Receivables
subject to such Permitted Receivables Financing that would be required to
discharge all principal obligations to financing parties (and would not be
returned, directly or indirectly, to the BC Borrower or any BC Subsidiary) if
all such Receivables were to be collected at such date and such Permitted
Receivables Financing were to be terminated at such date.
"RECEIVABLES SUBSIDIARY" means a wholly owned BC Subsidiary that does
not engage in any activities other than participating in one or more Permitted
Receivables Financings and activities incidental thereto; PROVIDED that (a) such
Subsidiary does not have any Indebtedness other than (i) Indebtedness incurred
pursuant to a Permitted Receivables Financing owed to financing parties
supported by Receivables and Related Security and (ii) Subordinated Receivables
Transfer Debt, (b) neither of the Holding Companies or the Borrowers nor any
other Subsidiary Guarantees any Indebtedness or other obligation of such
Subsidiary, other than Standard Securitization Undertakings and (c) all Equity
Interests of and other investments in such Subsidiary that are owned by the BC
Borrower or any other BC Subsidiary (including any Subordinated Receivables
Transfer Debt) are pledged pursuant to the Collateral Agreement.
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents,
and advisors and trustees of such Person and such Person's Affiliates.
"RELATED SECURITY" means, with respect to any Receivable: (a) all of
the BC Borrower's or the applicable BC Subsidiary's right, title and interest in
and to any goods, the sale of which gave rise to such Receivable; (b) all
security pledged, assigned, hypothecated or granted to or held by the BC
Borrower or the applicable BC Subsidiary to secure such Receivable; (c) all
guaranties, endorsements and indemnifications on, or of, such Receivable or any
of the foregoing (other than by any of the Holding Companies, the Borrowers and
the Subsidiaries that is not a Receivables Subsidiary); (d) all powers of
attorney for the execution of any evidence of indebtedness or security or other
writing in connection therewith; (e) all books, records, ledger cards and
invoices related to such Receivable or any of the foregoing, whether maintained
electronically, in paper form or otherwise; (f) all evidences of the filing of
financing statements and other statements and the registration of other
instruments in connection therewith and amendments thereto, notices to other
creditors or secured parties, and certificates from filing or other registration
officers; (g) all credit information, reports and memoranda relating thereto;
(h) all other writings related thereto; and (i) all proceeds of any of the
foregoing.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing more than 50% of the
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sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"RESTATEMENT EFFECTIVE DATE" has the meaning assigned to such term in
the Amendment and Restatement Agreement.
"RESTATEMENT TRANSACTIONS" means (a) the execution, delivery and
performance by each Loan Party of the Loan Documents to which it is, or is to
be, a party, the borrowing of Loans, the use of the proceeds thereof and the
issuance of Letters of Credit hereunder and (b) the prepayment of the Tranche B
Term Loans.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
either Holding Company, either Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancelation or termination of any Equity Interests in either
Holding Company, either Borrower or any Subsidiary or any option, warrant or
other right to acquire any such Equity Interests in either Holding Company,
either Borrower or any Subsidiary.
"REVOLVING AVAILABILITY PERIOD" means the period from and including
the Original Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"REVOLVING COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01 (as of the
Restatement Effective Date), or in the Assignment and Assumption pursuant to
which such Lender shall have assumed its Revolving Commitment, as applicable.
The aggregate amount of the Lenders' Revolving Commitments as of the Restatement
Effective Date is $475,000,000.
"REVOLVING EXPOSURE" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure and Swingline Exposure at such time.
"REVOLVING LENDER" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"REVOLVING LOAN" means a Loan made pursuant to Section 2.01(a) and
includes any "Revolving Loan" outstanding under the Original Credit Agreement on
the Restatement Effective Date.
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"REVOLVING MATURITY DATE" means October 29, 2010.
"S&P" means Standard & Poor's.
"SECURED PARTIES" has the meaning assigned to such term in the
Collateral Agreement.
"SECURITY DOCUMENTS" means the Collateral Agreement, the Mortgages and
each other security agreement or other instrument or document executed and
delivered pursuant to Section 5.12 or 5.13 to secure any of the Obligations.
"SELLERS" means Seller Parent, Boise Southern Company and Minidoka
Paper Company.
"SELLER PARENT" means OfficeMax Incorporated (f/k/a Boise Cascade
Corporation), a Delaware corporation.
"SENIOR UNSECURED DEBT" means (a) the senior unsecured notes issued by
the BC Borrower on the Original Effective Date in the aggregate principal amount
of $250,000,000 and the Indebtedness represented thereby (the "INITIAL SENIOR
UNSECURED DEBT") and (b) any senior unsecured debt securities issued by the BC
Borrower after the Original Effective Date to refinance the Initial Senior
Unsecured Debt; PROVIDED that (i) such senior unsecured debt securities do not
mature earlier than, or require any scheduled payment of principal, sinking fund
payment or similar payment prior to, the scheduled maturity date of the Initial
Senior Unsecured Debt, (ii) the Indebtedness in respect of such senior unsecured
debt securities is not Guaranteed by any Person that did not Guarantee (and is
not permitted by this Agreement to Guarantee) the Initial Senior Unsecured Debt,
(iii) the aggregate principal amount of such senior unsecured debt securities
does not exceed the aggregate principal amount of Initial Senior Unsecured Debt
refinanced thereby plus capitalized interest and any applicable redemption
premiums paid in respect of the refinancing thereof, (iv) the portion of the
interest rate payable in cash in respect of such senior unsecured debt
securities does not exceed the interest rate in respect of the Initial Senior
Unsecured Debt, (v) such senior unsecured debt securities are not supported by
any letter of credit or other credit enhancement, (vi) the terms and conditions
of such senior unsecured debt securities and any Senior Unsecured Debt Documents
in respect thereof (including covenants, events of default and any provisions
relating to any mandatory redemption or required offer to repurchase such senior
unsecured debt securities) are no less favorable in any material respect to the
Loan Parties and the Lenders than the terms and conditions of the Initial Senior
Unsecured Debt and the Senior Unsecured Debt Documents in respect of the Initial
Senior Unsecured Debt and (vii) the Initial Senior Unsecured Debt being
refinanced by such senior unsecured debt securities is repaid on the same date
that such senior unsecured debt securities are issued.
"SENIOR UNSECURED DEBT DOCUMENTS" means any indenture under which any
Senior Unsecured Debt is issued and all other instruments, agreements and other
30
documents evidencing or governing any Senior Unsecured Debt or providing for any
Guarantee or other right in respect thereof.
"SPECIFIED INVESTMENT" means any investment by the BC Borrower or any
BC Subsidiary that is financed solely with Net Proceeds received from the
issuance of Equity Interests by BC Holdings after the Restatement Effective
Date, PROVIDED that (i) the Administrative Agent receives written notice
describing such investment concurrently with or promptly following the issuance
of such Equity Interests and (ii) such investment is made within 90 days of
receipt by BC Holdings of such Net Proceeds.
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, covenants and indemnities made by the BC Borrower or any BC
Subsidiary in connection with a Permitted Receivables Financing that are
customary for accounts receivables securitization financings; PROVIDED that
Standard Securitization Undertakings shall not include any Guarantee of any
Indebtedness or collectability of any Receivables.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"SUBORDINATED DEBT" means (a) the senior subordinated notes issued by
the BC Borrower on the Original Effective Date in the aggregate principal amount
of $400,000,000 and the Indebtedness represented thereby (the "INITIAL
SUBORDINATED DEBT") and (b) any subordinated debt securities issued by the BC
Borrower after the Original Effective Date to refinance the Initial Subordinated
Debt; PROVIDED that (i) such subordinated debt securities do not mature earlier
than, or require any scheduled payment of principal, sinking fund payment or
similar payment prior to, the scheduled maturity date of the Initial
Subordinated Debt, (ii) the Indebtedness in respect of such subordinated debt
securities is not Guaranteed by any Person that did not Guarantee (and is not
permitted by this Agreement to Guarantee) the Initial Subordinated Debt, (iii)
the aggregate principal amount of such subordinated debt securities does not
exceed the aggregate principal amount of Initial Subordinated Debt refinanced
thereby plus capitalized interest and any applicable redemption premiums paid in
respect of the refinancing thereof, (iv) the portion of the interest rate
payable in cash in respect of such subordinated debt securities does not exceed
the interest rate in respect of the Initial Subordinated Debt, (v) such
subordinated debt securities are unsecured and are not supported by any letter
of credit or other credit enhancement, (vi) the terms and
31
conditions of such subordinated debt securities and any Subordinated Debt
Documents in respect thereof (including subordination provisions, covenants,
events of default and any provisions relating to any mandatory redemption or
required offer to repurchase such subordinated debt securities) are no less
favorable in any material respect to the Loan Parties and the Lenders than the
terms and conditions of the Initial Subordinated Debt and the Subordinated Debt
Documents in respect of the Initial Subordinated Debt and (vii) the Initial
Subordinated Debt being refinanced by such subordinated debt securities is
repaid on the same date that such subordinated debt securities are issued.
"SUBORDINATED DEBT DOCUMENTS" means any indenture under which any
Subordinated Debt is issued and all other instruments, agreements and other
documents evidencing or governing any Subordinated Debt or providing for any
Guarantee or other right in respect thereof.
"SUBORDINATED RECEIVABLES TRANSFER DEBT" means Indebtedness of a
Receivables Subsidiary owed to the BC Borrower or a BC Subsidiary and incurred
to finance the purchase of Receivables and Related Security from the BC Borrower
or a BC Subsidiary in connection with a Permitted Receivables Financing;
PROVIDED that (a) such Indebtedness is evidenced by a promissory note pledged
pursuant to the Collateral Agreement and (b) all proceeds of such Indebtedness
are applied by such Receivables Subsidiary to pay the purchase price of such
Receivables and Related Security.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of either Borrower, other than the
Timber Installment Note Subsidiaries.
"SUBSIDIARY LOAN PARTY" means (a) any BC Subsidiary that is not a
Foreign Subsidiary or a Receivables Subsidiary and (b) any Timber Subsidiary.
"SUPPLY AGREEMENT" means the Paper Purchase Agreement dated October
29, 2004, between Boise White Paper, L.L.C. and Seller Parent, amending and
superseding the Paper Purchase Agreement Term Sheet dated April 28, 2004 between
Seller Parent and Boise Office Solutions.
"SWAP AGREEMENT" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or
32
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; PROVIDED that no phantom
stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Holding Companies, the Borrowers or the Subsidiaries shall be a Swap
Agreement.
"SWINGLINE EXPOSURE" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"SWINGLINE LENDERS" means the Committed Swingline Lender and any
Uncommitted Swingline Lenders.
"SWINGLINE LOAN" means a Committed Swingline Loan or an Uncommitted
Swingline Loan.
"SYNDICATION AGENT" means Xxxxxx Commercial Paper Inc., in its
capacity as syndication agent for the Lenders.
"TAX DISTRIBUTIONS" means cash distributions by BC Holdings to the
Members in respect of its Equity Interests for the purpose of providing the
Members with funds to pay the tax liability attributable to their shares of the
taxable income of BC Holdings and its consolidated subsidiaries.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERM LOANS" means Tranche D Term Loans; PROVIDED that, for purposes
of calculating Excess Cash Flow or any prepayment required by Section 2.11(d)
the term "Term Loans" also includes "Term Loans" as defined in the Original
Credit Agreement.
"TIMBER BORROWER" means Boise Land & Timber Corp., a Delaware
corporation.
"TIMBER HOLDINGS" means Boise Land & Timber Holdings Corp., a Delaware
corporation.
"TIMBER INSTALLMENT NOTE SUBSIDIARIES" means Boise Land & Timber,
L.L.C. and Boise Land & Timber II, L.L.C., each a Delaware limited liability
company.
"TIMBER SUBSIDIARY" means a Subsidiary of the Timber Borrower.
"TIMBERLAND ASSET DISPOSITION" means (a) any sale, transfer or other
disposition (including pursuant to any sale and leaseback transaction) of any
Timberland
33
Asset or (b) any casualty or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any Timberland
Asset.
"TIMBERLAND ASSETS" means the interests in real property and related
assets (including timber and other products of or rights in or to any such
interests in real property) relating to or used for the purpose of growing or
harvesting timber acquired by the Timber Borrower pursuant to the Acquisition
Agreement, and also includes any other assets acquired by the Timber Borrower
after the Original Effective Date for the same or similar purposes (including
pursuant to any Permitted Timberland Asset Swap).
"TIMBERLAND PREPAYMENT EVENT" means (a) any sale made in reliance upon
Section 6.05(c) and (b) any other Timberland Asset Disposition, other than (i)
those permitted by clauses (i), (ii), (iii), (v) and (vi) of Section 6.05(b) and
(ii) any casualty or other insured damage to, or any taking under power of
eminent domain or by condemnation or similar proceeding of, any Timberland Asset
if (A) the Timber Borrower elects, by notice to the Administrative Agent
delivered prior to or promptly upon receipt of the Net Proceeds therefrom, to
apply such Net Proceeds to repair or replace such Timberland Asset, (B) pending
application of such Net Proceeds, such Net Proceeds are deposited with the
Collateral Agent and held as Collateral and (C) such Net Proceeds are so applied
within 180 days after receipt of such Net Proceeds (it being understood that any
such Net Proceeds that are not so applied within such period shall be treated as
Net Proceeds of a Timberland Prepayment Event).
"TOTAL INDEBTEDNESS" means, as of any date, the sum (without
duplication) of (a) the aggregate principal amount of Indebtedness of the
Holding Companies, the Borrowers and the Subsidiaries outstanding as of such
date, in the amount that would be reflected on a balance sheet prepared as of
such date on a combined consolidated basis in accordance with GAAP, plus (b) the
aggregate principal amount of Indebtedness of the Holding Companies, the
Borrowers and the Subsidiaries outstanding as of such date that is not required
to be reflected on a balance sheet in accordance with GAAP, determined on a
combined consolidated basis (but, in each case, excluding (i) Receivables
Financing Debt and (ii) obligations arising under the Additional Consideration
Agreement) as of such date minus (c) cash on hand and Permitted Investments of
the Holding Companies, the Borrowers and the Subsidiaries as of such date (other
than any such cash or Permitted Investments subject to any Lien (other than (i)
Liens securing Indebtedness described in clause (a) or (b) above and (ii)
Permitted Encumbrances that would not prohibit, limit, or otherwise impair the
ability of the Borrowers to use such cash and Permitted Investments to pay the
Obligations hereunder)) in an aggregate amount not to exceed $35,000,000;
PROVIDED that, for purposes of clause (b) above, the term "Indebtedness" shall
not include contingent obligations of either Borrower or any Subsidiary as an
account party in respect of any letter of credit or letter of guaranty unless
such letter of credit or letter of guaranty supports an obligation that
constitutes Indebtedness.
"TRANCHE B TERM LOAN" has the meaning assigned to such term in the
Original Credit Agreement.
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"TRANCHE D COMMITMENT" has the meaning assigned to such term in the
Amendment and Restatement Agreement.
"TRANCHE D LENDER" means a Lender with an outstanding Tranche D Term
Loan.
"TRANCHE D MATURITY DATE" means October 28, 2011.
"TRANCHE D TERM LOAN" means a Loan made pursuant to Section 3 of the
Amendment and Restatement Agreement.
"TRANSACTIONS" has the meaning assigned to such term in the Original
Credit Agreement.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"UNCOMMITTED SWINGLINE LENDER" means, at any time, any Revolving
Lender or Tranche D Lender that holds an Uncommitted Swingline Loan outstanding
at such time.
"UNCOMMITTED SWINGLINE LOAN" means a Loan made pursuant to Section
2.04(d); PROVIDED that any such Loan shall cease to constitute a "Loan" for all
purposes of the Loan Documents if the holder of such Loan is neither a Revolving
Lender nor a Tranche D Lender.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (E.G., a
"Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class and Type
(E.G., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (E.G., a "Revolving Borrowing") or by Type (E.G., a
"Eurodollar Borrowing") or by Class and Type (E.G., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein),
35
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP; TREATMENT OF TIMBER INSTALLMENT
NOTE SUBSIDIARIES. (a) Except as otherwise expressly provided herein, all terms
of an accounting or financial nature shall be construed in accordance with GAAP,
as in effect from time to time; PROVIDED that, if a Borrower notifies the
Administrative Agent that the Borrowers request an amendment to any provision
hereof to eliminate the effect of any change occurring after the Original
Effective Date in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies a Borrower that the Required
Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
(b) Notwithstanding any provision to the contrary contained herein,
the Timber Installment Note Subsidiaries (and their respective assets,
liabilities, revenues, income, expenses, cash flows and results of operations,
as well as any Equity Interest or other investment therein) shall be disregarded
for purposes of all financial and accounting calculations and determinations
hereunder relating to the Holding Companies, the Borrowers and their
Subsidiaries (including for purposes of determining the Leverage Ratio,
Consolidated EBITDA, Consolidated Cash Interest Expense and Excess Cash Flow),
in each case as though the Timber Installment Note Subsidiaries were not
subsidiaries of the Timber Borrower and the Timber Borrower did not own any
Equity Interests of the Timber Installment Note Subsidiaries.
SECTION 1.05. CERTIFICATES. All certificates and other documents or
statements of any sort provided, executed or attested to by any officer,
director or employee of any Loan Party shall be treated as being provided,
executed or attested to on behalf of such Loan Party, and not in such officer's,
director's or employee's individual capacity.
ARTICLE II
THE CREDITS
SECTION 2.01. REVOLVING COMMITMENTS; TRANCHE D TERM LOANS. (a) Subject
to the terms and conditions set forth herein, each Revolving Lender agrees to
make Revolving Loans to the BC Borrower from time to time during the Revolving
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Availability Period in an aggregate principal amount that will not result in
such Revolving Lender's Revolving Exposure exceeding such Lender's Revolving
Commitment. Within the foregoing limits and subject to the terms and conditions
set forth herein, the BC Borrower may borrow, prepay and reborrow Revolving
Loans.
(b) The Tranche D Term Loans constitute Loans made pursuant to this
Agreement for all purposes of the Loan Documents. Amounts repaid or prepaid in
respect of Tranche D Term Loans may not be reborrowed.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; PROVIDED that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the BC
Borrower may request in accordance herewith; PROVIDED that each Eurodollar Term
Borrowing that has an Interest Period beginning prior to the date that is 30
days after the Restatement Effective Date shall have an Interest Period with a
duration of one month. Each Committed Swingline Loan shall be an ABR Loan. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; PROVIDED that (i)
any exercise of such option shall not affect the obligation of the BC Borrower
to repay such Loan in accordance with the terms of this Agreement and (ii) the
BC Borrower shall be entitled to treat any Lender exercising such option as the
Lender in respect of such Eurodollar Loan for all purposes hereunder, including
Section 2.15.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $5,000,000; PROVIDED
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Revolving Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Each Committed Swingline Loan shall be in an amount that is an integral
multiple of $500,000 and not less than $1,000,000. Borrowings of more than one
Type and Class may be outstanding at the same time; PROVIDED that there shall
not at any time be more than a total of 12 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the BC
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or Tranche D Maturity Date, as applicable.
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SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Borrowing, the BC
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurodollar Borrowing, not later than 12:00 noon, New York City
time, three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 2:00 p.m., New York City time, one
Business Day before the date of the proposed Borrowing; PROVIDED that any such
notice of an ABR Revolving Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e) may be given not later than
10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the BC Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing or
a Tranche D Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest Period
to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(vi) the location and number of the BC Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the BC Borrower
shall be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each participating Lender of the
details thereof and of the amount of such Lender's Loan to be made as part of
the requested Borrowing.
SECTION 2.04. SWINGLINE LOANS. (a) Subject to the terms and conditions
set forth herein, the Committed Swingline Lender agrees to make Committed
Swingline Loans to the BC Borrower from time to time during the Revolving
Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding
Swingline Loans exceeding $40,000,000 or (ii) the sum of the total Revolving
Exposures exceeding the total Revolving Commitments; PROVIDED that the Committed
Swingline Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Within
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the foregoing limits and subject to the terms and conditions set forth herein,
the BC Borrower may borrow, prepay and reborrow Committed Swingline Loans.
(b) To request a Committed Swingline Loan, the BC Borrower shall
notify the Administrative Agent of such request by telephone (confirmed by
telecopy), not later than 1:00 p.m., New York City time, on the day of a
proposed Committed Swingline Loan. Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day) and amount of
the requested Committed Swingline Loan. The Administrative Agent will promptly
advise the Committed Swingline Lender of any such notice received from the BC
Borrower. The Committed Swingline Lender shall make each Committed Swingline
Loan available to the BC Borrower by means of a credit to the general deposit
account of the BC Borrower with the Committed Swingline Lender (or, in the case
of a Committed Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(e), by remittance to the applicable
Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such
Committed Swingline Loan.
(c) The Committed Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Committed Swingline Loans outstanding.
Such notice shall specify the aggregate amount of Committed Swingline Loans in
which Revolving Lenders will participate. Promptly upon receipt of such notice,
the Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender's Applicable Percentage of such Committed
Swingline Loan or Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Committed Swingline Lender, such
Lender's Applicable Percentage of such Committed Swingline Loan or Loans. Each
Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Committed Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, MUTATIS MUTANDIS, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to the Committed Swingline
Lender the amounts so received by it from the Revolving Lenders. The
Administrative Agent shall notify the BC Borrower of any participations in any
Committed Swingline Loan acquired pursuant to this paragraph, and thereafter
payments in respect of such Committed Swingline Loan shall be made to the
Administrative Agent and not to the Committed Swingline Lender. Any amounts
received by the Committed Swingline Lender from the BC Borrower (or other party
on behalf of the BC Borrower) in respect of a Committed Swingline Loan after
receipt by the Committed Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the
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Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph and to the Committed Swingline Lender, as
their interests may appear; PROVIDED that any such payment so remitted shall be
repaid to the Committed Swingline Lender or to the Administrative Agent, as
applicable, if and to the extent such payment is required to be refunded to the
BC Borrower for any reason. The purchase of participations in a Committed
Swingline Loan pursuant to this paragraph shall not relieve the BC Borrower of
any default in the payment thereof.
(d) Any Revolving Lender or Tranche D Lender may (but shall not have
any obligation to) agree to make, and make, Uncommitted Swingline Loans to the
BC Borrower from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$40,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments; PROVIDED that an Uncommitted Swingline Loan shall not be
borrowed to refinance an outstanding Swingline Loan. Within the foregoing limits
and subject to the terms and conditions set forth herein, the BC Borrower may
borrow, prepay and reborrow Uncommitted Swingline Loans.
(e) Any Uncommitted Swingline Loan may be made pursuant to such
procedures as shall be separately agreed between the BC Borrower and the
relevant Lender, subject to the following provisions of this paragraph. Each
Lender in respect of an Uncommitted Swingline Loan that is not the same Person
as the Person serving as the Administrative Agent shall notify the
Administrative Agent of (i) the amount of such Uncommitted Swingline Loan prior
to making such Loan and (ii) any repayment of the principal of such Uncommitted
Swingline Loan (in whole or in part) and the amount of such repayment, promptly
upon receipt of such repayment.
(f) It is understood that paragraph (c) of this Section shall not
apply to Uncommitted Swingline Loans and the Revolving Lenders shall not have
any obligation to acquire participations in such Loans.
SECTION 2.05. LETTERS OF CREDIT. (a) GENERAL. Subject to the terms and
conditions set forth herein, the BC Borrower may request the issuance of Letters
of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the Revolving Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the BC Borrower to, or entered into by the BC Borrower with, any
Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the BC Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the relevant Issuing Bank selected by
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the BC Borrower to issue such Letter of Credit and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be
a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the applicable Issuing Bank, the BC Borrower also
shall submit a letter of credit application on such Issuing Bank's standard form
in connection with any request for a Letter of Credit. A Letter of Credit shall
be issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the BC Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed $150,000,000 and (ii)
the total Revolving Exposures shall not exceed the total Revolving Commitments.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension), subject to renewal
provisions reasonably acceptable to the applicable Issuing Bank (which shall in
any event permit such Issuing Bank to disallow renewal) and (ii) the date that
is five Business Days prior to the Revolving Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, the
Issuing Bank in respect of such Letter of Credit hereby grants to each Revolving
Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the applicable Issuing Bank, such Lender's Applicable
Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed
by the BC Borrower on the date due as provided in paragraph (e) of this Section,
or of any reimbursement payment required to be refunded to the BC Borrower for
any reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. If an Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the BC Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not
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later than 12:00 noon, New York City time, on (i) the date that such LC
Disbursement is made, if the BC Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on the Business Day
immediately preceding the date that such LC Disbursement is made or (ii)
otherwise, the Business Day immediately following the later of the date that
such LC Disbursement is made or the date of receipt by the BC Borrower of notice
of such LC Disbursement; PROVIDED that, if such LC Disbursement is not less than
the applicable minimum borrowing amount, the BC Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the BC
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If the BC Borrower
fails to make such payment when due, the Administrative Agent shall notify each
Revolving Lender of the applicable LC Disbursement, the payment then due from
the BC Borrower in respect thereof and such Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each Revolving Lender shall
pay to the Administrative Agent its Applicable Percentage of the payment then
due from the BC Borrower, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, MUTATIS
MUTANDIS, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Revolving Lenders. Promptly following receipt
by the Administrative Agent of any payment from the BC Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then to such
Lenders and such Issuing Bank as their interests may appear. Any payment made by
a Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the BC Borrower of its obligation to reimburse such LC Disbursement.
(f) OBLIGATIONS ABSOLUTE. The BC Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the BC Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of
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the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of any Issuing Bank; PROVIDED that the foregoing shall not be
construed to excuse an Issuing Bank from liability to the BC Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the BC Borrower to the extent permitted by
applicable law) suffered by the BC Borrower that are caused by such Issuing
Bank's failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that, in the absence of gross negligence or
wilful misconduct on the part of an Issuing Bank (as finally determined by a
court of competent jurisdiction), such Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the applicable Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) DISBURSEMENT PROCEDURES. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Such Issuing Bank shall
promptly notify the Administrative Agent and the BC Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing Bank
has made or will make an LC Disbursement thereunder; PROVIDED that any failure
to give or delay in giving such notice shall not relieve the BC Borrower of its
obligation to reimburse such Issuing Bank and the Revolving Lenders with respect
to any such LC Disbursement.
(h) INTERIM INTEREST. If an Issuing Bank shall make any LC
Disbursement, then, unless the BC Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof
shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the BC Borrower reimburses
such LC Disbursement, at the rate per annum then applicable to ABR Revolving
Loans; PROVIDED that, if the BC Borrower fails to reimburse such LC Disbursement
when due pursuant to paragraph (e) of this Section, then Section 2.13(d) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of
the applicable Issuing Bank, except that interest accrued on and after the date
of payment by any Revolving Lender pursuant to paragraph (e) of this Section to
reimburse such Issuing Bank shall be for the account of such Lender to the
extent of such payment.
(i) REPLACEMENT OR TERMINATION OF AN ISSUING BANK. Any Issuing Bank
may be replaced at any time by written agreement among the BC Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.
An
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Issuing Bank's obligations to issue additional Letters of Credit hereunder may
be terminated at any time by written agreement among the BC Borrower, the
Administrative Agent and such Issuing Bank; PROVIDED that after giving effect
thereto there is at least one remaining Issuing Bank obligated to issue Letters
of Credit. The Administrative Agent shall notify the Lenders of any such
replacement or termination of an Issuing Bank. At the time any such replacement
or termination shall become effective, the BC Borrower shall pay all unpaid fees
accrued for the account of the replaced or terminated Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, the
successor Issuing Bank shall have all the rights and obligations of the replaced
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter. After the replacement or termination of an Issuing Bank hereunder,
the replaced or terminated Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement or termination, but shall not be required to issue additional
Letters of Credit.
(j) ADDITION OF ISSUING BANK. Any Revolving Lender may at any time
become an Issuing Bank hereunder by written agreement between the BC Borrower
and such Revolving Lender, subject to notice to and the consent (not to be
unreasonably withheld) of the Administrative Agent. From and after the effective
date of any such Revolving Lender becoming an Issuing Bank, such Revolving
Lender shall have the rights and obligations of an Issuing Bank under this
Agreement. Any Revolving Lender that becomes an Issuing Bank shall not cease to
be an Issuing Bank hereunder if it later ceases to be a Revolving Lender
hereunder.
(k) CASH COLLATERALIZATION. If any Event of Default shall occur and be
continuing, on the Business Day that the BC Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the BC Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; PROVIDED that the obligation
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to the BC
Borrower described in clause (h) or (i) of Article VII. The BC Borrower also
shall deposit cash collateral pursuant to this paragraph as and to the extent
required by Section 2.11(b). Each such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrowers under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the BC Borrower's risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse any Issuing Bank for LC
Disbursements for
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which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the BC Borrower
for the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrowers under this Agreement. If the BC Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the BC Borrower within three Business Days after
all Events of Default have been cured or waived.
(l) CERTAIN NOTICES BY ISSUING BANKS. Each Issuing Bank that is not
the same Person as the Person serving as the Administrative Agent shall notify
the Administrative Agent of (i) the amount and expiration date of each Letter of
Credit issued by such Issuing Bank at or prior to the time of issuance thereof,
(ii) any amendment or modification to any such Letter of Credit at or prior to
the time of such amendment or modification and (iii) any termination, surrender,
cancelation or expiry of any such Letter of Credit at or prior to the time of
such termination, surrender, cancelation or expiration.
(m) EXISTING LETTERS OF CREDIT. All Existing Letters of Credit shall
be deemed to be Letters of Credit issued under this Agreement as of the Original
Effective Date and thereupon shall constitute Letters of Credit for all purposes
of the Loan Documents.
SECTION 2.06. FUNDING OF BORROWINGS. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; PROVIDED that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
BC Borrower by promptly crediting the amounts so received, in like funds, to an
account of the BC Borrower maintained with the Administrative Agent in New York
City and designated by the BC Borrower in the applicable Borrowing Request;
PROVIDED that ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the BC Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the BC Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the BC Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the greater of the Federal Funds
Effective Rate and a rate
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determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the BC Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. INTEREST ELECTIONS. (a) Each Revolving Borrowing and
Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
BC Borrower may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The BC Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the BC Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the BC Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the BC
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the BC Borrower shall be deemed to have
selected an Interest Period of one month's duration.
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(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the BC Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the BC Borrower, then, so long as
an Event of Default is continuing (i) no outstanding Borrowing may be converted
to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.08. TERMINATION AND REDUCTION OF COMMITMENTS. (a) Unless
previously terminated, the Revolving Commitments shall terminate on the
Revolving Maturity Date. The Tranche D Commitments shall terminate on the
Restatement Effective Date upon funding of the Tranche D Term Loans.
(b) The BC Borrower may at any time terminate, or from time to time
reduce, the Revolving Commitments; PROVIDED that (i) each such reduction shall
be in an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000 and (ii) the BC Borrower shall not terminate or reduce the Revolving
Commitments if, after giving effect to any concurrent prepayment of the
Revolving Loans in accordance with Section 2.11, the sum of the Revolving
Exposures would exceed the total Revolving Commitments.
(c) The BC Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Commitments under paragraph (b) of
this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Revolving Lenders of the contents thereof. Each notice
delivered by the BC Borrower pursuant to this Section shall be irrevocable;
PROVIDED that a notice of termination of the Revolving Commitments delivered by
the BC Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the BC
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction
of the Commitments of any Class shall be permanent. Each reduction of the
Revolving Commitments shall be made ratably among the Lenders in accordance with
their respective Revolving Commitments.
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The BC
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account
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of each Lender the then unpaid principal amount of each Tranche D Term Loan of
such Lender as provided in Section 2.10 and (iii) to each Swingline Lender the
then unpaid principal amount of each Swingline Loan of such Lender on the
earlier of the Revolving Maturity Date and the date that is five Business Days
after such Swingline Loan is made; PROVIDED that on each date that a Revolving
Borrowing is made, the BC Borrower shall repay all Swingline Loans that were
outstanding on the date such Borrowing was requested.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the BC Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made to the BC Borrower hereunder, the Class
and Type thereof and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
BC Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the BC Borrower to
repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the BC Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. AMORTIZATION OF TERM LOANS. (a) Subject to adjustment
pursuant to paragraph (c) of this Section, the BC Borrower shall repay Tranche D
Term Borrowings on each date set forth below in the aggregate principal amount
set forth opposite such date:
Date Amount
---- ------
June 30, 2005 $ 2,100,000
September 30, 2005 $ 2,100,000
December 31, 2005 $ 2,100,000
March 31, 2006 $ 2,100,000
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Date Amount
---- ------
June 30, 2006 $ 2,100,000
September 30, 2006 $ 2,100,000
December 31, 2006 $ 2,100,000
March 31, 2007 $ 2,100,000
June 30, 2007 $ 2,100,000
September 30, 2007 $ 2,100,000
December 31, 2007 $ 2,100,000
March 31, 2008 $ 2,100,000
June 30, 2008 $ 2,100,000
September 30, 2008 $ 2,100,000
December 31, 2008 $ 2,100,000
March 31, 2009 $ 2,100,000
June 30, 2009 $ 2,100,000
September 30, 2009 $ 2,100,000
December 31, 2009 $ 2,100,000
March 31, 2010 $ 2,100,000
June 30, 2010 $ 2,100,000
September 30, 2010 $ 2,100,000
March 31, 2011 $ 396,900,000
Tranche D Maturity Date $ 396,900,000
(b) To the extent not previously paid all Tranche D Term Loans shall
be due and payable on the Tranche D Maturity Date.
(c) Any prepayment of a Tranche D Term Borrowing shall be applied to
reduce the subsequent scheduled repayments of the Tranche D Term Borrowings to
be made pursuant to this Section in the direct chronological order of maturity.
If the initial aggregate amount of the Lenders' Tranche D Commitments exceeds
the aggregate principal amount of Tranche D Term Loans that are made on the
Restatement Effective Date, then the scheduled repayments of Tranche D Term
Borrowings to be made pursuant to this Section shall be reduced ratably by an
aggregate amount equal to such excess.
(d) Prior to any repayment of any Tranche D Term Borrowings hereunder,
the BC Borrower shall select the Borrowing or Borrowings to be repaid and shall
notify the Administrative Agent by telephone (confirmed by telecopy) of such
selection not later than 11:00 a.m., New York City time, three Business Days
before the scheduled date of such repayment. Each repayment of a Tranche D Term
Borrowing shall be applied ratably to the Loans included in the repaid
Borrowing. Repayments of Tranche D Term Borrowings shall be accompanied by
accrued interest on the amount repaid.
SECTION 2.11. PREPAYMENT OF LOANS. (a) Each Borrower shall have the
right at any time and from time to time to prepay any of its Borrowings in whole
or in part, subject to the requirements of this Section.
49
(b) In the event and on each occasion that the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the BC Borrower shall prepay
Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are
outstanding, deposit cash collateral in an account with the Administrative Agent
pursuant to Section 2.05(k)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of either Holding Company, either Borrower or any
Subsidiary in respect of any Prepayment Event, the BC Borrower shall, within
three Business Days after such Net Proceeds are so received, prepay Term
Borrowings in an aggregate amount equal to 100% of such Net Proceeds (or, in the
case of a Prepayment Event described in clause (c) of the definition of the term
Prepayment Event, 50% of such Net Proceeds); PROVIDED that, in the case of any
event described in clause (a) or (b) of the definition of the term Prepayment
Event and subject to Section 6.06, if the BC Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer of the BC Borrower to
the effect that the BC Borrower or its Subsidiaries intend to apply the Net
Proceeds from such event (or a portion thereof specified in such certificate),
within 360 days after receipt of such Net Proceeds, to acquire real property,
equipment or other tangible assets to be used in the business of the BC Borrower
or its Subsidiaries, and certifying that no Default has occurred and is
continuing, then no prepayment shall be required pursuant to this paragraph in
respect of the Net Proceeds in respect of such event (or the portion of such Net
Proceeds specified in such certificate, if applicable) except to the extent of
any such Net Proceeds therefrom that have not been so applied by the end of such
360-day period, at which time a prepayment shall be required in an amount equal
to such Net Proceeds that have not been so applied. In addition, in the event
and on each occasion that the BC Borrower, the Timber Borrower or any Subsidiary
shall sell, lease or otherwise dispose of any asset (whether or not such
transaction shall constitute a Prepayment Event), if the BC Borrower would be
required to prepay or redeem, or to offer to prepay or redeem, any Subordinated
Debt or any Senior Unsecured Debt as a result of such transaction unless the
proceeds of such transaction are applied within a specified period to prepay
Term Borrowings (or otherwise reinvested as permitted in accordance with the
terms of such Subordinated Debt or Senior Unsecured Debt, as applicable), then
the BC Borrower shall (unless such proceeds are otherwise reinvested within the
specified period in a manner that relieves the BC Borrower of any such
requirement in respect of the Subordinated Debt or Senior Unsecured Debt, as
applicable) prepay Term Borrowings within such specified period to the extent
necessary to relieve the BC Borrower of any such requirement.
(d) Following the end of each fiscal year of the Borrowers, commencing
with the fiscal year ending December 31, 2005, the BC Borrower shall prepay Term
Borrowings in an aggregate amount equal to the excess, if any, of (A) 50% of
Excess Cash Flow for such fiscal year over (B) the aggregate principal amount of
Term Loans optionally prepaid during the period from and including March 31 of
the fiscal year for which Excess Cash Flow is being calculated to but excluding
March 31 of the fiscal year during which such prepayment is being made (or, if
earlier, the date on which such prepayment is made); PROVIDED that (i) the
aggregate prepayment amount required by this paragraph in respect of a fiscal
year shall be calculated based upon 25% (instead of 50%)
50
of Excess Cash Flow for such fiscal year if the Leverage Ratio is less than or
equal to 3.5 to 1.0 on the last day of such fiscal year and (ii) no prepayment
shall be required by this paragraph in respect of Excess Cash Flow for any
fiscal year if the Leverage Ratio is less than or equal to 3.0 to 1.0 on the
last day of such fiscal year. Each prepayment pursuant to this paragraph shall
be made on or before the date on which financial statements are delivered
pursuant to Section 5.01 with respect to the fiscal year for which Excess Cash
Flow is being calculated (and in any event within 90 days after the end of such
fiscal year).
(e) In the event that any Net Proceeds are received by or on behalf of
either Holding Company, either Borrower or any Subsidiary in respect of a
Timberland Prepayment Event, the BC Borrower shall prepay Term Borrowings in an
aggregate amount equal to 50% of such Net Proceeds so received (it being
understood that, for purposes of determining the amount of any prepayment
pursuant to this paragraph, such Net Proceeds shall be deemed to include the
fair market value of all Non-Cash Timberlands Consideration received by any Loan
Party in connection with such Timberland Prepayment Event). Prepayments required
pursuant to this paragraph (e) shall be made within three Business Days after
the date of receipt of any Net Proceeds that results in the aggregate cumulative
amount of such Net Proceeds so received (and in respect of which no prepayment
has been made pursuant to this paragraph (e)) exceeding $5,000,000.
(f) Prior to any optional or mandatory prepayment of Borrowings under
this Section, the BC Borrower shall select the Borrowing or Borrowings to be
prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (g) of this Section.
(g) The BC Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the relevant Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; PROVIDED that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the relevant Lenders of the contents thereof.
Each partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied
51
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.13.
(h) All prepayments of Tranche D Term Loans effected on or prior to
December 31, 2005 with the proceeds of a substantially concurrent issuance or
incurrence of new secured credit facilities (excluding a refinancing of all the
facilities outstanding under this Agreement in connection with another
transaction not permitted by this Agreement (as determined prior to giving
effect to any amendment or waiver of this Agreement being adopted in connection
with such transaction) so long as the primary purpose of such transaction is not
to refinance Indebtedness hereunder at an Applicable Rate or similar interest
rate spread more favorable to the BC Borrower), shall be accompanied by a
prepayment fee equal to 1.00% of the aggregate amount of such prepayments if the
Applicable Rate or similar interest rate spread applicable to such new term
loans is or, upon the satisfaction of certain conditions, could be less than the
Applicable Rate applicable to the Tranche D Term Loans, as the case may be, as
of the date hereof.
SECTION 2.12. FEES. (a) The BC Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at the rate of 0.50% per annum on the average daily unused
amount of the Revolving Commitment of such Lender during the period from and
including the Original Effective Date to but excluding the date on which such
Revolving Commitment terminates. Accrued commitment fees shall be payable in
arrears on the last day of March, June, September and December of each year and
on the date on which the Revolving Commitments terminate, commencing on the
first such date to occur after the Original Effective Date. All commitment fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day). For purposes of computing commitment fees, a Revolving Commitment of
a Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender
shall be disregarded for such purpose).
(b) The BC Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as applicable for purposes of determining the interest rate applicable to
Eurodollar Revolving Loans on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Original Effective Date
to but excluding the later of the date on which such Lender's Revolving
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to each Issuing Bank a fronting fee, which shall accrue at
the rate of 0.25% per annum (or such other rate separately agreed upon between
the BC Borrower and such Issuing Bank) on the average daily amount of the LC
Exposure attributable to Letters of Credit issued by such Issuing Bank
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Original Effective Date to but
excluding the later of the date of termination of the Revolving Commitments and
the date on which there ceases to be any such LC Exposure, as well as
52
such Issuing Bank's standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including
the last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing on the
first such date to occur after the Original Effective Date; PROVIDED that all
such fees shall be payable on the date on which the Revolving Commitments
terminate and any such fees accruing after the date on which the Revolving
Commitments terminate shall be payable on demand. Any other fees payable to an
Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Borrowers jointly and severally agree to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed to be payable to the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the applicable
Issuing Bank, in the case of fees payable to it) for distribution, in the case
of commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR Borrowing
(including each Committed Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(c) Each Uncommitted Swingline Loan shall bear interest at such rate
per annum as shall be separately agreed by the BC Borrower and the relevant
Uncommitted Swingline Lender; PROVIDED that such rate shall not exceed the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by either Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
53
termination of the Revolving Commitments; PROVIDED that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Revolving Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit issued by such Issuing Bank or
participation therein;
54
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrowers jointly and severally agree to pay to such Lender or such Issuing
Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or such Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or an Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or such Issuing Bank's capital or on the capital of
such Lender's or such Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a
level below that which such Lender or such Issuing Bank or such Lender's or such
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or such Issuing Bank's policies and the
policies of such Lender's or such Issuing Bank's holding company with respect to
capital adequacy), then from time to time the Borrowers jointly and severally
agree to pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing Bank
or such Lender's or such Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or such Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrowers and shall be conclusive absent
manifest error. The Borrowers shall pay such Lender or such Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; PROVIDED
that the Borrowers shall not be required to compensate a Lender or an Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or such Issuing Bank, as
the case may be, notifies the Borrowers of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or such Issuing Bank's
intention to claim compensation therefor; PROVIDED FURTHER that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto,
55
(c) the failure to borrow, convert, continue or prepay any Revolving Loan or
Term Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice may be revoked under Section 2.11(g) and is
revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by the BC Borrower pursuant to Section 2.19, then, in any such
event, the BC Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined
reasonably and in good faith by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the BC Borrower and shall be conclusive absent manifest error. The BC
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
SECTION 2.17. TAXES. (a) Any and all payments by or on account of any
obligation of either Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; PROVIDED that if either Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the applicable Borrower shall make such deductions and (iii) the
applicable Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, each Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent, each
Lender and each Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or such Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of such
Borrower hereunder or under any other Loan Document (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
56
liability delivered to the applicable Borrower by a Lender or an Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or an
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by either Borrower to a Governmental Authority, such Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which either
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to such Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by such Borrower as will permit such payments to be
made without withholding or at a reduced rate, provided that such Foreign Lender
has received written notice from such Borrower advising it of the availability
of such exemption or reduction and supplying all applicable documentation.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by either Borrower or with respect to which either
Borrower has paid additional amounts pursuant to this Section 2.17, it shall pay
over such refund to the applicable Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by such Borrower under this Section
2.17 with respect to the Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); PROVIDED, that each Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to such Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent or
such Lender in the event the Administrative Agent or such Lender is required to
repay such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems
confidential) to either Borrower or any other Person.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. (a) The BC Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, New York City time), on the date when
due, in immediately available funds,
57
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made
directly to an Issuing Bank or a Swingline Lender as expressly provided herein
and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be
made directly to the Persons entitled thereto and payments pursuant to other
Loan Documents shall be made to the Persons specified therein. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Committed Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans,
Term Loans and participations in LC Disbursements and Committed Swingline Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans, Term Loans and participations
in LC Disbursements and Committed Swingline Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Term Loans and
participations in LC Disbursements and Committed Swingline Loans; PROVIDED that
(i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by a Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to a Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this
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paragraph shall apply). Each Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against each Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the BC Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or an Issuing Bank hereunder
that the BC Borrower will not make such payment, the Administrative Agent may
assume that the BC Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
such Issuing Bank, as the case may be, the amount due. In such event, if the BC
Borrower has not in fact made such payment, then each of the Lenders or the
applicable Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or such Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
any Lender requests compensation under Section 2.15, or if either Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The BC
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if
either Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the BC
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to
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the restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); PROVIDED that (i) the BC Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment is
being assigned, each Issuing Bank and the Committed Swingline Lender), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the BC Borrower (in the case of all other amounts) and (iii) in the
case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a material reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrowers to require such assignment and delegation
cease to apply.
SECTION 2.20. INCREASE IN REVOLVING CREDIT COMMITMENTS. (a) The BC
Borrower may, by written notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Revolving Lenders), request that the
total Revolving Commitments be increased (a "REVOLVING COMMITMENT INCREASE");
PROVIDED that the total Revolving Commitments shall not be increased by more
than $25,000,000 during the term of this Agreement pursuant to this Section.
Such notice shall set forth (i) the amount of the requested increase in the
total Revolving Commitments and the date on which such increase is requested to
become effective and (ii) whether the BC Borrower desires to effect all or any
portion of such increase by offering the Revolving Lenders the opportunity to
ratably increase their Revolving Commitments. If such notice indicates that the
BC Borrower elects to offer Revolving Lenders the opportunity to ratably
increase their Revolving Commitments, the Administrative Agent will notify the
Revolving Lenders of such offer and the amount of the proposed increase to be
offered ratably to the Revolving Lenders, and each Revolving Lender shall, by
notice to the BC Borrower and the Administrative Agent given not more than 10
days after the date of the BC Borrower's notice, either agree to increase its
Revolving Commitment by all or a portion of the offered amount or decline to
increase its Revolving Commitment (and any Revolving Lender that does not
deliver such a notice within such period of 10 days shall be deemed to have
declined to increase its Revolving Commitment). Regardless of whether the BC
Borrower's notice elects to offer Revolving Lenders the opportunity to ratably
increase their Revolving Commitments, the BC Borrower may arrange for one or
more banks or other financial institutions (any such bank or other financial
institution being called an "AUGMENTING REVOLVING LENDER"), which may include
any Lender, to extend Revolving Commitments or increase their existing Revolving
Commitments in order to effect all or part of the proposed increase in the total
Revolving Commitments; PROVIDED that each Augmenting Revolving Lender, if not
already a Lender hereunder, shall be subject to the approval of the
Administrative Agent, each Issuing Bank and the Committed Swingline Lender (such
approvals not to be unreasonably withheld), and the BC Borrower and each
Augmenting Revolving Lender shall execute all such
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documentation as the Administrative Agent shall reasonably specify to evidence
its Revolving Commitment and/or its status as a Revolving Lender hereunder. Any
increase in the total Revolving Commitments may be made in an amount which is
less than the increase requested by the BC Borrower if the BC Borrower so
elects.
(b) On the effective date (the "REVOLVING COMMITMENT INCREASE
EFFECTIVE DATE") of any Revolving Commitment Increase, if any Revolving Loans
are outstanding, the BC Borrower (i) shall prepay all Revolving Loans then
outstanding (including all accrued but unpaid interest thereon) and (ii) may, at
its option, fund such prepayment by simultaneously borrowing Revolving Loans of
the Types and for the Interest Periods specified in a Borrowing Request
delivered pursuant to Section 2.03, which Revolving Loans shall be made by the
Revolving Lenders ratably in accordance with their respective Revolving
Commitments (calculated after giving effect to the Revolving Commitment
Increase); PROVIDED that such prepayment of Revolving Loans pursuant to this
paragraph shall not be required if such Revolving Commitment Increase is
effected entirely by ratably increasing the Revolving Commitments of the
existing Revolving Lenders. The payments made pursuant to clause (i) above in
respect of each Eurodollar Loan shall be subject to Section 2.16.
(c) Increases and new Revolving Commitments created pursuant to this
Section 2.20 shall become effective on the date specified in the notice
delivered by the BC Borrower pursuant to the first sentence of paragraph (a)
above; PROVIDED that the BC Borrower may, with the consent of the Administrative
Agent (such consent not to be unreasonably withheld), extend such date by up to
30 days by delivering written notice to the Administrative Agent no less than
three Business Days prior to the date specified in the notice delivered by the
BC Borrower pursuant to the first sentence of paragraph (a) above.
(d) Notwithstanding the foregoing, no increase in the total Revolving
Commitments (or in the Revolving Commitment of any Revolving Lender) or addition
of an Augmenting Revolving Lender shall become effective under this Section
unless (i) on the Revolving Commitment Increase Effective Date, the conditions
set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied and the
Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Financial Officer of the BC Borrower, and (ii) the
Administrative Agent shall have received (with sufficient copies for each of the
Lenders) (A) documents consistent with those delivered on the Restatement
Effective Date under clauses (b) and (c) of Section 7 of the Amendment and
Restatement Agreement and (B) to the extent requested by the Administrative
Agent, documents consistent with those delivered on the Restatement Effective
Date under clauses (f)(ii)(A) and (B) of Section 7 of the Amendment and
Restatement Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Holding Companies and the Borrowers represents and
warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Holding Companies, the
Borrowers and the Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required. Each of the Timber Installment Note Subsidiaries is
duly organized and validly existing as a Delaware limited liability company.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Restatement
Transactions to be entered into by each Loan Party are within such Loan Party's
corporate or limited liability company powers and have been duly authorized by
all necessary corporate or limited liability company and, if required,
stockholder action. This Agreement has been duly executed and delivered by each
of the Holding Companies and the Borrowers and constitutes, and each other Loan
Document to which any Loan Party is to be a party, when executed and delivered
by such Loan Party, will constitute, a legal, valid and binding obligation of
such Holding Company, such Borrower or such Loan Party (as the case may be),
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Restatement
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect and except filings
necessary to perfect Liens created under the Loan Documents, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of any of the Holding Companies, the Borrowers or the
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon any of the Holding Companies, the Borrowers or the Subsidiaries or its
assets, or give rise to a right thereunder to require any payment to be made by
any of the Holding Companies, the Borrowers or the Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of any of the
Holding Companies, the Borrowers or the Subsidiaries, except Liens created under
the Loan Documents.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE. (a) The
Holding Companies and the Borrowers have heretofore furnished to the Lenders
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(i) consolidated and consolidating balance sheets and related statements of
income, stockholders' equity and cash flows of each of (x) the Acquired
Businesses, taken as a whole, (y) the Timberland Assets, on a stand-alone basis
and (z) the Operating Businesses, taken as a whole, in each case as of and for
the fiscal years ended December 31, 2003, reported on by KPMG LLP, independent
public accountants and (ii) the audited consolidated and unaudited consolidating
balance sheet and related statements of operations, stockholders' equity and
cash flows of each of (x) the Holding Companies and their consolidated
subsidiaries (combined), (y) the BC Borrower and its consolidated subsidiaries
and (z) the Timber Borrower and its consolidated subsidiaries, in each case as
of December 31, 2004, and for the periods January 1, 2004, through October 28,
2004, and October 29, 2004, through December 31, 2004, reported on (in the case
of such audited statements) by KPMG LLP. Such financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of (A) in the case of the financial statements
referred to in clause (i) above, the Acquired Businesses, the Timberland Assets
and the Operating Businesses and (B) in the case of the financial statements
referred to in clause (ii) above, the Persons referred to therein, in each case
as of such dates and for such periods, in accordance with GAAP.
(b) The Holding Companies and the Borrowers have heretofore furnished
to the Lenders the pro forma combined consolidated balance sheet of the Holding
Companies as of December 31, 2004, prepared giving effect to the Restatement
Transactions as if the Restatement Transactions had occurred on such date. Such
pro forma combined consolidated balance sheet (i) has been prepared in good
faith based on assumptions believed by the Holding Companies and the Borrowers
to be reasonable, (ii) is based on the best information available to the Holding
Companies and the Borrowers after due inquiry, (iii) accurately reflects all
adjustments necessary to give effect to the Restatement Transactions and (iv)
presents fairly, in all material respects, the pro forma combined financial
position of the Holding Companies and their consolidated subsidiaries as of
December 31, 2004, as if the Restatement Transactions had occurred on such date.
(c) Except as disclosed in the financial statements referred to above
or the notes thereto and except for the Disclosed Matters, after giving effect
to the Restatement Transactions, none of the Holding Companies, the Borrowers or
the Subsidiaries has, as of the Restatement Effective Date, any material
contingent liabilities, unusual long-term commitments or unrealized losses.
(d) Since December 31, 2004, there has been no change or effect that
is or would reasonably be expected to be materially adverse to the business,
financial condition or results of operations of the Holding Companies, the
Borrowers and the Subsidiaries, taken as a whole. It is understood that the sale
by the Timber Borrower of the Timber Subsidiaries that was consummated on
February 4, 2005, shall not be construed to be materially adverse within the
meaning of the preceding sentence.
SECTION 3.05. PROPERTIES. (a) Each of the Holding Companies, the
Borrowers and the Subsidiaries has good title to, or valid leasehold interests
in, or other valid and enforceable rights to use, all its real and personal
property material to its
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business (including its Mortgaged Properties), except for minor defects in title
that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes.
(b) Each of the Holding Companies, the Borrowers and the Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and
other intellectual property material to its business, and the use thereof by the
Holding Companies, the Borrowers and the Subsidiaries does not infringe upon the
rights of any other Person, except for any such infringements that, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
(c) Neither the Timber Borrower nor any Timber Subsidiary owns or
leases any real property.
(d) Schedule 3.05(d) sets forth the address or legal description of
each parcel of real property that is owned or leased by the BC Borrower or any
BC Subsidiary as of the Restatement Effective Date after giving effect to the
Restatement Transactions, in each case indicating whether such real property is
owned or leased, the record owner of such real property.
(e) As of the Restatement Effective Date, none of the Holding
Companies, the Borrowers or the Subsidiaries has received notice of, or has
knowledge of, any pending or contemplated condemnation proceeding affecting any
Mortgaged Property or any sale or disposition thereof in lieu of condemnation.
Except as set forth on Schedule 3.05(e), as of the Restatement Effective Date,
neither any Mortgaged Property nor any interest therein is subject to any right
of first refusal, option to purchase or other contractual right to purchase such
Mortgaged Property or interest therein.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Holding Companies or the
Borrowers, threatened against or affecting any of the Holding Companies, the
Borrowers or the Subsidiaries (i) as to which there is a reasonable possibility
of an adverse determination and that, if adversely determined, could reasonably
be expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve any of the Loan
Documents or the Restatement Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, none of the Holding Companies,
the Borrowers or the Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received written notice of any claim with
respect to any Environmental Liability or (iv) knows of any facts, conditions or
circumstances that would reasonably be expected to result in any Environmental
Liability.
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(c) Since the Original Effective Date, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the Holding
Companies, the Borrowers and the Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. None of the
Holding Companies, the Borrowers or the Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of the Holding Companies, the Borrowers and
the Subsidiaries has timely filed or caused to be filed all Tax returns and
reports required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) any Taxes that are being contested
in good faith by appropriate proceedings and for which such Holding Company,
Borrower or Subsidiary, as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent annual financial statements reflecting such amounts, exceed
the fair market value of the assets of such Plan by an amount that, if required
to be paid, would reasonably be expected to result in a Material Adverse Effect,
and the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent annual
financial statements reflecting such amounts, exceed the fair market value of
the assets of all such underfunded Plans by an amount that, if required to be
paid, would reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. DISCLOSURE. The Holding Companies and the Borrowers have
disclosed to the Lenders all agreements, instruments and corporate or other
restrictions to which any of the Holding Companies, the Borrowers or the
Subsidiaries is subject, and all other matters known to any of them, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports,
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financial statements, certificates or other information furnished by or on
behalf of any Loan Party to the Administrative Agent or any Lender in connection
with the negotiation of this Agreement or any other Loan Document or delivered
hereunder or thereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED that, with
respect to projected financial information, the Holding Companies and the
Borrowers represent only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.
SECTION 3.12. SUBSIDIARIES. (a) BC Holdings does not have any
subsidiaries other than the BC Borrower and the BC Subsidiaries. Schedule 3.12
sets forth the name and jurisdiction of organization of, and the direct or
indirect ownership interest of the BC Borrower in, each BC Subsidiary and
identifies each such BC Subsidiary that is a Subsidiary Loan Party, in each case
as of the Restatement Effective Date.
(b) Timber Holdings does not have any subsidiaries other than the
Timber Borrower, the Timber Subsidiaries and the Timber Installment Note
Subsidiaries. Schedule 3.12 sets forth the name and jurisdiction of organization
of, and the direct or indirect ownership interest of the Timber Borrower in,
each Timber Subsidiary, in each case as of the Restatement Effective Date. Each
Timber Subsidiary is a Subsidiary Loan Party.
SECTION 3.13. INSURANCE. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of the Holding Companies, the Borrowers and
the Subsidiaries as of the Restatement Effective Date. As of the Restatement
Effective Date, all premiums due and payable in respect of such insurance have
been paid. The Holding Companies and the Borrowers reasonably believe that the
insurance maintained by or on behalf of the Holding Companies, the Borrowers and
the Subsidiaries is adequate.
SECTION 3.14. LABOR MATTERS. As of the Restatement Effective Date,
there are no strikes, lockouts or slowdowns against any Holding Company,
Borrower or Subsidiary pending or, to the knowledge of the Holding Companies or
the Borrowers, threatened. The hours worked by and payments made to employees of
the Holding Companies, the Borrowers and the Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters, except to the extent that
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. All payments due from any
Holding Company, Borrower or Subsidiary, or for which any claim may be made
against any Holding Company, Borrower or Subsidiary, on account of wages and
employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of such Holding Company, Borrower or
Subsidiary. The consummation of the Restatement Transactions will not give rise
to any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which any Holding Company, Borrower
or Subsidiary is bound.
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SECTION 3.15. SOLVENCY. Immediately after the consummation of the
Restatement Transactions to occur on the Restatement Effective Date and
immediately following the making of each Loan made on the Restatement Effective
Date and after giving effect to the application of the proceeds of such Loans,
(a) the fair value of the assets of the Loan Parties, taken as a whole, at a
fair valuation, will exceed their debts and liabilities, subordinated,
contingent or otherwise; (b) the present fair saleable value of the property of
the Loan Parties, taken as a whole, will be greater than the amount that will be
required to pay the probable liability of their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Loan Parties, taken as a whole, will be
able to pay their debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (d) the Loan
Parties, taken as a whole, will not have unreasonably small capital with which
to conduct the business in which they are engaged as such business is now
conducted and is proposed to be conducted following the Restatement Effective
Date.
SECTION 3.16. SENIOR INDEBTEDNESS. The Obligations constitute "Senior
Indebtedness" under and as defined in the Subordinated Debt Documents.
SECTION 3.17. SECURITY INTERESTS. The representations and warranties
in the Security Documents are true and correct.
ARTICLE IV
CONDITIONS
SECTION 4.01. [Intentionally Omitted].
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to make
a Loan on the occasion of any Borrowing (it being understood that the
continuation or conversion of a Borrowing does not constitute the making of a
Loan for purposes of this Section 4.02), and of each Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct (except representations and
warranties not qualified as to materiality, which representations and warranties
shall be true and correct in all material respects) on and as of the date of
such Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable (except, to the extent such representations or
warranties expressly relate to an earlier date, in which case as of such earlier
date).
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
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Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Holding Companies and the Borrowers on the date thereof as to the matters
specified in paragraphs (a) and (b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated or
have been cash collateralized (to the satisfaction of the Issuing Banks) and all
LC Disbursements shall have been reimbursed, each of the Holding Companies and
the Borrowers covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Holding
Companies and the Borrowers will furnish to the Administrative Agent and each
Lender:
(a) within 90 days after the end of each fiscal year of the Borrowers
(or, during any time that either Holding Company or either Borrower is
subject to the periodic reporting requirements of the Securities Exchange
Act of 1934, as amended, such shorter period as the Securities and Exchange
Commission shall specify for the filing of annual reports on Form 10-K),
the audited consolidated and unaudited consolidating balance sheet and
related statements of operations, stockholders' equity and cash flows of
each of (i) the Holding Companies and their consolidated subsidiaries
(combined), (ii) the BC Borrower and its consolidated subsidiaries and
(iii) the Timber Borrower and its consolidated subsidiaries, in each case
as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on
by KPMG LLP or other independent public accountants of recognized national
standing (without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present fairly in
all material respects the combined financial condition and results of
operations of the entities to which such financial statements pertain on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrowers (or, during any time that
either Holding Company or either Borrower is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934, as amended,
such shorter period as the Securities and Exchange Commission shall specify
for the filing of quarterly reports on Form 10-Q), the consolidated and
consolidating balance sheet and related statements of operations,
stockholders' equity and cash flows of each of (i) the Holding Companies
and their consolidated subsidiaries (combined), (ii) the
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BC Borrower and its consolidated subsidiaries and (iii) the Timber Borrower
and its consolidated subsidiaries, in each case as of the end of and for
such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, all certified by a Financial
Officer of each Holding Company (in the case of clause (i)), the BC
Borrower (in the case of clause (ii)) or the Timber Borrower (in the case
of clause (iii)), as presenting fairly in all material respects the
financial condition and results of operations of the entities to which such
financial statements pertain on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) [Intentionally Omitted];
(d) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of each
Holding Company (i) certifying as to whether a Default has occurred and, if
a Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.12, 6.13 and
6.14, (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements
referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate and (iv) stating whether any Tax
Distributions were made during the period covered by such financial
statements and, if so, the amount thereof and setting forth a summary
description of the calculation thereof;
(e) at least 30 days prior to the commencement of each fiscal year of
the Holding Companies beginning with the fiscal year commencing January 1,
2006, a reasonably detailed combined consolidated budget for such fiscal
year (including a projected combined consolidated balance sheet and related
statements of projected operations and cash flow as of the end of and for
such fiscal year and setting forth the assumptions used for purposes of
preparing such budget) and, promptly when available, any significant
revisions of such budget;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
any of the Holding Companies, the Borrowers or the Subsidiaries with the
Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with any
national securities exchange, as the case may be; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of any
of the Holding Companies, the Borrowers or the Subsidiaries, or compliance
with the terms of any Loan Document, as the Administrative Agent or any
Lender may reasonably request.
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SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Holding Companies and
the Borrowers will furnish to the Administrative Agent and each Lender written
notice of the following promptly after any Financial Officer or other executive
officer of any of the Holding Companies or Borrowers obtains knowledge thereof:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting any of
the Holding Companies, the Borrowers or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability to any of the Holding Companies, the Borrowers or the
Subsidiaries in an aggregate amount exceeding $5,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of each of the Holding Companies
or the Borrowers setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. INFORMATION REGARDING COLLATERAL. The Holding Companies
or the Borrowers will furnish to the Administrative Agent prompt written notice
of any change (a) in any Loan Party's legal name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (b) in the case of any Loan Party that is not a "registered
organization" (as defined in Article 9 of the Uniform Commercial Code as from
time to time in effect in the State of New York), in the location of such Loan
Party's chief executive office, its principal place of business, any office in
which it maintains books or records relating to Collateral owned by it or any
office or facility at which Collateral owned by it is located (including the
establishment of any such new office or facility), (c) in any Loan Party's
identity or corporate structure, (d) in any Loan Party's "organizational
identification number" or any similar jurisdictional identification number
required for the filing of financing statements in any jurisdiction or (e) in
any Loan Party's jurisdiction of organization. The Holding Companies and the
Borrowers agree not to effect or permit any change referred to in the preceding
sentence unless all filings have been made (or have been prepared and delivered
to the Administrative Agent for filing) under the Uniform Commercial Code or
otherwise that are required in order for the Administrative Agent and Collateral
Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. The Holding Companies and the
Borrowers also agree promptly to notify the Administrative Agent if any material
portion of the Collateral is damaged or destroyed.
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SECTION 5.04. EXISTENCE; CONDUCT OF BUSINESS. Each of the Holding
Companies and the Borrowers will, and will cause each of the Subsidiaries to, do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material
to the conduct of its business; PROVIDED that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.03. The Timber Borrower will do or cause to be done, and cause each of the
Timber Installment Note Subsidiaries to do or cause to be done, all things
necessary to preserve the legal existence of each Timber Installment Note
Subsidiary as a Delaware limited liability company and to observe and comply
with its limited liability company operating agreement.
SECTION 5.05. PAYMENT OF OBLIGATIONS. Each of the Holding Companies
and the Borrowers will, and will cause each of the Subsidiaries to, pay its
Indebtedness and other obligations, including Tax liabilities, before the same
shall become delinquent or in default, except (a) where (i) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (ii)
such Holding Company, Borrower or Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (iii) such contest
effectively suspends collection of the contested obligation and the enforcement
of any Lien securing such obligation, or (b) except for Tax liabilities, where
the failure to make payment (individually or in the aggregate) could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06. MAINTENANCE OF PROPERTIES. Each of the Holding Companies
and the Borrowers will, and will cause each of the Subsidiaries to, maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted and subject to casualty and
condemnation events (in which case such property shall be repaired or replaced
as promptly as practicable).
SECTION 5.07. INSURANCE. Each of the Holding Companies and the
Borrowers will, and will cause each of the Subsidiaries to, maintain, with
financially sound and reputable insurance companies (a) insurance in such
amounts (with no greater risk retention) and against such risks as are
customarily maintained by companies of established repute engaged in the same or
similar businesses operating in the same or similar locations and (b) all
insurance required to be maintained pursuant to the Security Documents. The
Holding Companies and the Borrowers will furnish (or cause to be furnished) to
the Lenders, upon request of the Administrative Agent, information in reasonable
detail as to the insurance so maintained.
SECTION 5.08. CASUALTY AND CONDEMNATION. The Holding Companies and the
Borrowers (a) will furnish to the Administrative Agent prompt written notice of
any casualty or other insured damage to any material portion of any Collateral
or the commencement of any action or proceeding for the taking of any material
portion of the Collateral or any part thereof or interest therein under power of
eminent domain or by condemnation or similar proceeding and (b) will ensure that
the Net Proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are
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collected and applied in accordance with the applicable provisions of the
Security Documents.
SECTION 5.09. BOOKS AND RECORDS; INSPECTION RIGHTS. Each of the
Holding Companies and the Borrowers will, and will cause each of the
Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its
business and activities. Each of the Holding Companies and the Borrowers will,
and will cause each of the Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and (so long as a representative of the Holding Companies or
Borrowers has been afforded a reasonable opportunity to be present at such
discussions) independent accountants, all at such reasonable times and as often
as reasonably requested; PROVIDED that, unless a Default has occurred and is
continuing, the Borrowers shall not be required to pay the expense of any such
visit by a representative of a Lender and shall only be required to pay the
expense of two such visits by a representative of the Administrative Agent
during any fiscal year.
SECTION 5.10. COMPLIANCE WITH LAWS. Each of the Holding Companies and
the Borrowers will, and will cause each of the Subsidiaries to, comply with all
laws, rules, regulations and orders of any Governmental Authority applicable to
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.11. USE OF PROCEEDS AND LETTERS OF CREDIT. The proceeds of
the Tranche D Term Loans will be used only to prepay Tranche B Term Loans
outstanding on the Restatement Effective Date (other than any Tranche B Term
Loans that have been exchanged for Tranche D Term Loans pursuant to the
Amendment and Restatement Agreement). The proceeds of the Revolving Loans and
Swingline Loans will be used only for general corporate purposes. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations G, U and X. Letters of Credit will be issued only for
general corporate purposes.
SECTION 5.12. ADDITIONAL SUBSIDIARIES. If any additional Subsidiary is
formed or acquired after the Original Effective Date, the Borrowers will, within
five Business Days after such Subsidiary is formed or acquired, notify the
Administrative Agent and the Lenders thereof (which notice shall indicate the
name of such Subsidiary, the jurisdiction in which it is organized, whether such
Subsidiary is a BC Subsidiary or a Timber Subsidiary and its status, if
applicable, as a Foreign Subsidiary or a Receivables Subsidiary or a Subsidiary
Loan Party) and cause the Collateral and Guarantee Requirement to be satisfied
with respect to such Subsidiary (if it is a Subsidiary Loan Party) and with
respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or
on behalf of any Loan Party.
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SECTION 5.13. FURTHER ASSURANCES. (a) Each of the Holding Companies
and the Borrowers will, and will cause each Subsidiary Loan Party to, execute
any and all further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording of
financing statements, fixture filings, mortgages, deeds of trust and other
documents), which may be required under any applicable law, or which the
Administrative Agent or the Required Lenders may reasonably request, to cause
the Collateral and Guarantee Requirement to be and remain satisfied, all at the
expense of the Loan Parties. The Holding Companies and the Borrowers also agree
to provide to the Administrative Agent, from time to time upon request, evidence
reasonably satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the Security
Documents.
(b) If any material assets (including (i) any real property
constituting Timberland Assets acquired pursuant to a Permitted Timberland Asset
Swap, (ii) any real property acquired pursuant to a Permitted Operating Asset
Swap if a Mortgaged Property was transferred pursuant to such Permitted
Operating Asset Swap and (iii) any other material real property or material
improvements thereto or any material interest therein, howsoever acquired) are
acquired by any Loan Party after the Original Effective Date (other than assets
constituting Collateral under the Collateral Agreement that become subject to
the Lien of the Collateral Agreement upon acquisition thereof), the Holding
Companies and the Borrowers will notify the Administrative Agent and the Lenders
thereof, and, if requested by the Administrative Agent or the Required Lenders,
the Holding Companies and the Borrowers will cause such assets to be subjected
to a Lien securing the Obligations and will take, and cause the Subsidiary Loan
Parties to take, such actions as shall be necessary or reasonably requested by
the Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Loan
Parties.
SECTION 5.14. INTEREST RATE PROTECTION. As promptly as practicable,
and in any event within 90 days after the Original Effective Date, the Borrowers
will enter into, and thereafter maintain in effect for the periods specified
below, one or more interest rate protection agreements on such terms and with
such parties as shall be reasonably satisfactory to the Administrative Agent,
the effect of which shall be that (a) for a period of at least three years after
the Original Effective Date, at least 30% of the consolidated Long-Term
Indebtedness of the Borrowers outstanding as of the Original Effective Date (as
reduced at or before the date that such interest protection agreement becomes
effective) will be Indebtedness that either bears interest at a fixed rate or
the interest cost of which is hedged pursuant to such interest rate protection
agreements and (b) for a period of at least one year after the Original
Effective Date, at least an additional 20% of the consolidated Long-Term
Indebtedness of the Borrowers outstanding as of the Original Effective Date (as
reduced at or before the date that such interest protection agreement becomes
effective) will be Indebtedness that either bears interest at a fixed rate or
the interest cost of which is hedged pursuant to such interest protection
agreements.
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SECTION 5.15. FISCAL PERIODS. Each of the Holding Companies and the
Borrowers will, and will cause each of the Subsidiaries to, have a fiscal year
ending on December 31 and fiscal quarters ending on the last day of each
calendar quarter.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated or have been cash
collateralized (to the satisfaction of the Issuing Banks) and all LC
Disbursements shall have been reimbursed, each of the Holding Companies and the
Borrowers covenants and agrees with the Lenders that:
SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES; DESIGNATED
SENIOR INDEBTEDNESS. (a) The BC Borrower will not, and will not permit any BC
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(i) Indebtedness created under the Loan Documents;
(ii) the Subordinated Debt and the Senior Unsecured Debt;
(iii) Indebtedness existing on the Original Effective Date and set
forth in Schedule 6.01 and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal amount
thereof (other than by capitalization of interest and fees) or result in an
earlier maturity date or decreased weighted average life thereof;
(iv) Indebtedness of (A) the BC Borrower to any BC Subsidiary (other
than a Receivables Subsidiary) or to the Timber Borrower or (B) any BC
Subsidiary to the BC Borrower or any other BC Subsidiary (other than a
Receivables Subsidiary); PROVIDED that Indebtedness of any BC Subsidiary
that is not a Loan Party to the BC Borrower or any Subsidiary Loan Party
shall be subject to Section 6.04;
(v) Guarantees by the BC Borrower of Indebtedness of any BC Subsidiary
(other than a Receivables Subsidiary) and by any BC Subsidiary (other than
a Receivables Subsidiary) of Indebtedness of the BC Borrower or any other
BC Subsidiary (other than a Receivables Subsidiary); PROVIDED that (A)
Guarantees by the BC Borrower or any BC Subsidiary that is a Subsidiary
Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall
be subject to Section 6.04 and (B) a BC Subsidiary that is not a Loan Party
shall not Guarantee Indebtedness of any Loan Party;
(vi) Indebtedness of the BC Borrower or any BC Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets after the Original Effective Date, including Capital Lease
Obligations and any
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Indebtedness assumed in connection with the acquisition of any such assets
or secured by a Lien on any such assets prior to the acquisition thereof,
or Capital Lease Obligations resulting from sale-leaseback transactions
consummated in compliance with Section 6.06, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof (other than by capitalization of interest and
fees) or result in an earlier maturity date or decreased weighted average
life thereof; PROVIDED that (A), except for Capital Lease Obligations
resulting from sale-leaseback transactions pursuant to clause (b) of
Section 6.06, such Indebtedness is incurred prior to or within 90 days
after such acquisition or the completion of such construction or
improvement and (B) the aggregate principal amount of Indebtedness
permitted by this clause (vi) shall not exceed $50,000,000 at any time
outstanding;
(vii) Indebtedness of any Person that becomes a BC Subsidiary after
the Original Effective Date; PROVIDED that (A) such Indebtedness exists at
the time such Person becomes a BC Subsidiary and is not created in
contemplation of or in connection with such Person becoming a BC Subsidiary
and (B) the aggregate principal amount of Indebtedness permitted by this
clause (vii) shall not exceed $50,000,000 at any time outstanding;
(viii) Indebtedness of any Receivables Subsidiary incurred pursuant to
any Permitted Receivables Financing;
(ix) purchase price adjustment and similar obligations incurred by the
BC Borrower or any BC Subsidiary in connection with a Permitted
Acquisition, to the extent such obligations would otherwise constitute
Indebtedness; and
(x) other unsecured Indebtedness in an aggregate principal
amount not exceeding $25,000,000 at any time outstanding; PROVIDED that
the aggregate principal amount of Indebtedness of the BC Subsidiaries
permitted by this clause (x) shall not exceed $15,000,000 at any time
outstanding.
(b) The Timber Borrower will not, and will not permit any Timber
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(i) Indebtedness created under the Loan Documents;
(ii) Guarantees by the Timber Borrower or any Timber Subsidiary of the
Subordinated Debt and the Senior Unsecured Debt; PROVIDED that such
Guarantees in respect of the Subordinated Debt shall be subordinated on the
same terms as the Subordinated Debt;
(iii) Indebtedness existing on the Original Effective Date and set
forth in Schedule 6.01 and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted average
life thereof;
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(iv) Indebtedness of (A) the Timber Borrower to any Timber Subsidiary
or to the BC Borrower or (B) any Timber Subsidiary to the Timber Borrower
or to any other Timber Subsidiary;
(v) Guarantees by the Timber Borrower of Indebtedness of any Timber
Subsidiary and by any Timber Subsidiary of Indebtedness of the Timber
Borrower or any other Timber Subsidiary; and
(vi) Indebtedness incurred to finance the acquisition, construction or
improvement of any fixed or capital assets acquired after the Original
Effective Date, including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or secured by
a Lien on any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date
or decreased weighted average life thereof; PROVIDED that (A) such
Indebtedness is incurred prior to or within 90 days after such acquisition
or the completion of such construction or improvement and (B) the aggregate
principal amount of Indebtedness permitted by this clause (vi) shall not
exceed $20,000,000 at any time outstanding.
(c) The Timber Borrower will not permit any of the Timber Installment
Note Subsidiaries to create, incur, assume or permit to exist any Indebtedness,
except Indebtedness created under the Installment Note Documents.
(d) Neither Holding Company will create, incur, assume or permit to
exist any Indebtedness except Indebtedness created under the Loan Documents and
Guarantees in respect of the Senior Unsecured Debt and Subordinated Debt.
(e) Neither the Holding Companies nor the Borrowers will, nor will
they permit any Subsidiary to, issue any preferred stock or other preferred
Equity Interests, other than (i) Qualified Preferred Stock issued by the Holding
Companies and (ii) preferred Equity Interests issued by BC Holdings in
connection with the BC Corporate Conversion that would constitute Qualified
Preferred Stock but for the requirement that such Equity Interests be redeemed
upon consummation of the Contemplated IPO.
(f) The Borrowers will not, and the Borrowers will not permit any
Subsidiary to, designate any Indebtedness (other than the Obligations) as
"Designated Senior Indebtedness" for purposes of, and as defined in, any of the
Subordinated Debt Documents.
SECTION 6.02. LIENS. (a) The BC Borrower will not, and will not permit
any BC Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(i) Liens created under the Loan Documents;
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(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the BC Borrower or any BC
Subsidiary existing on the Original Effective Date and set forth in
Schedule 6.02(a); PROVIDED that (i) such Lien shall not apply to any other
property or asset of the BC Borrower or any BC Subsidiary and (ii) such
Lien shall secure only those obligations which it secures on the Original
Effective Date and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof (other than with
respect to (A) the capitalization of interest and (B) the capitalization of
any prepayment premiums payable in respect of the obligations so extended,
renewed or replaced);
(iv) any Lien on any property or asset acquired after the Original
Effective Date and existing prior to the acquisition thereof by the BC
Borrower or any BC Subsidiary or existing on any property or asset of any
Person that becomes a BC Subsidiary after the Original Effective Date that
exists prior to the time such Person becomes a BC Subsidiary; PROVIDED that
(A) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a BC Subsidiary, as the case may be,
(B) such Lien shall not apply to any other property or assets of the BC
Borrower or any BC Subsidiary and (C) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a BC Subsidiary, as the case may be, and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof (other than with respect to (A) the capitalization
of interest and (B) the capitalization of any prepayment premiums payable
in respect of the obligations so extended, renewed or replaced);
(v) Liens on fixed or capital assets acquired, constructed or improved
by the BC Borrower or any BC Subsidiary after the Original Effective Date
and Liens on assets attributable to Capital Lease Obligations with respect
to such assets; PROVIDED that (A) such security interests secure
Indebtedness permitted by clause (vi) of Section 6.01(a), (B) except for
such Liens attributable to Capital Lease Obligations resulting from
sale-leaseback transactions pursuant to clause (b) of Section 6.06, such
security interests and the Indebtedness secured thereby are incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement, (C) the Indebtedness secured thereby does not
exceed 100% of the cost of acquiring, constructing or improving such fixed
or capital assets and (D) such security interests shall not apply to any
other property or assets of the BC Borrower or any BC Subsidiary;
(vi) assignments and sales of Receivables and Related Security
pursuant to a Permitted Receivables Financing and Liens arising pursuant to
a Permitted Receivables Financing on Receivables and Related Security sold
or financed in connection with such Permitted Receivables Financing;
(vii) Liens arising from precautionary UCC financing statements filed
with respect to any lease permitted by this Agreement;
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(viii) customary rights of set-off, revocation, refund or chargeback
under deposit agreements or under the Uniform Commercial Code of banks or
other financial institutions where the BC Borrower or any BC Subsidiary
maintains deposits (other than deposits intended as cash collateral) in the
ordinary course of business;
(ix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(x) Liens on insurance policies and the proceeds thereof securing the
financing of the premiums with respect thereto;
(xi) licenses, sublicenses, leases and subleases entered into in the
ordinary course of business and any landlords' liens arising under any such
leases;
(xii) Liens arising solely under Article 4 of the Uniform Commercial
Code relating to collection on items in collection and documents and
proceeds related thereto;
(xiii) obligations with respect to repurchase agreements of the type
described in clause (d) of the definition of Permitted Investments; and
(xiv) other Liens not otherwise permitted by this Section securing
Indebtedness in an aggregate amount, when taken together with the aggregate
amount of all Indebtedness secured by Liens permitted in reliance on clause
(xii) of Section 6.02(b), not exceeding $25,000,000 at any time
outstanding.
(b) The Timber Borrower will not, and will not permit any Timber
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Timber Borrower or any
Timber Subsidiary existing on the Original Effective Date and set forth in
Schedule 6.02(b); PROVIDED that (i) such Lien shall not apply to any other
property or asset of the Timber Borrower or any Timber Subsidiary and (ii)
such Lien shall secure only those obligations which it secures on the
Original Effective Date and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof (other than
with respect to (A) the capitalization of interest and (B) the
capitalization of any prepayment premiums payable in respect of the
obligations so extended, renewed or replaced);
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(iv) any Lien on any property or asset acquired after the Original
Effective Date and existing prior to the acquisition thereof by the Timber
Borrower or any Timber Subsidiary; PROVIDED that (A) such Lien is not
created in contemplation of or in connection with such acquisition, (B)
such Lien shall not apply to any other property or assets of the Timber
Borrower or any Timber Subsidiary and (C) such Lien shall secure only those
obligations which it secures on the date of such acquisition and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof (other than with respect to (A) the
capitalization of interest and (B) the capitalization of any prepayment
premiums payable in respect of the obligations so extended, renewed or
replaced);
(v) Liens on fixed or capital assets acquired, constructed or improved
by the Timber Borrower or any Timber Subsidiary after the Original
Effective Date; PROVIDED that (A) such security interests secure
Indebtedness permitted by clause (vi) of Section 6.01(b), (B) such security
interests and the Indebtedness secured thereby are incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement, (C) the Indebtedness secured thereby does not
exceed 100% of the cost of acquiring, constructing or improving such fixed
or capital assets and (D) such security interests shall not apply to any
other property or assets of the Timber Borrower or any Timber Subsidiary;
(vi) customary rights of set-off, revocation, refund or chargeback
under deposit agreements or under the Uniform Commercial Code of banks or
other financial institutions where the Timber Borrower or any Timber
Subsidiary maintains deposits (other than deposits intended as cash
collateral) in the ordinary course of business;
(vii) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(viii) Liens on insurance policies and the proceeds thereof securing
the financing of the premiums with respect thereto;
(ix) licenses, sublicenses, leases and subleases entered into in the
ordinary course of its business and landlords' liens arising under any such
leases;
(x) Liens arising solely under Article 4 of the Uniform Commercial
Code relating to collection on items in collection and documents and
proceeds related thereto;
(xi) obligations with respect to repurchase agreements of the type
described in clause (d) of the definition of Permitted Investments; and
(xii) other Liens not otherwise permitted by this Section securing
Indebtedness in an aggregate amount, when taken together with the aggregate
79
amount of all Indebtedness secured by Liens permitted in reliance on clause
(xiv) of Section 6.02(a), not exceeding $25,000,000 at any time
outstanding.
(c) Neither Holding Company will create, incur, assume or permit to
exist any Lien on any property or asset now owned or hereafter acquired by it,
or assign or sell any income or revenues (including accounts receivable) or
rights in respect thereof, except Liens created under the Loan Documents and
Permitted Encumbrances.
SECTION 6.03. FUNDAMENTAL CHANGES. (a) None of the Holding Companies
or the Borrowers will, nor will they permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any BC Subsidiary (other than a Receivables
Subsidiary) may merge into the BC Borrower in a transaction in which the BC
Borrower is the surviving entity, (ii) any BC Subsidiary (other than a
Receivables Subsidiary) may merge into any other BC Subsidiary (other than a
Receivables Subsidiary) in a transaction in which the surviving entity is a BC
Subsidiary and (if any party to such merger is a Subsidiary Loan Party) is a
Subsidiary Loan Party, (iii) any BC Subsidiary (other than a Receivables
Subsidiary) may liquidate or dissolve if the BC Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the BC
Borrower and is not materially disadvantageous to the Lenders, (iv) the BC
Borrower may permit another Person to merge or consolidate with the BC Borrower
or a BC Subsidiary (other than a Receivables Subsidiary) in order to effect a
Permitted Acquisition that is permitted by Section 6.04 (provided that the
surviving entity is the BC Borrower or a wholly-owned BC Subsidiary); PROVIDED
that any such merger involving a Person that is not a wholly owned BC Subsidiary
immediately prior to such merger shall not be permitted unless also permitted by
Section 6.04, (v) any Timber Subsidiary may merge into the Timber Borrower in a
transaction in which the Timber Borrower is the surviving entity, (vi) any
Timber Subsidiary may merge into any other Timber Subsidiary in a transaction in
which the surviving entity is a Timber Subsidiary, (vii) any Timber Subsidiary
may liquidate or dissolve if the Timber Borrower determines in good faith that
such liquidation or dissolution is in the best interests of the Timber Borrower
and is not materially disadvantageous to the Lenders, (viii) a BC Subsidiary or
a Timber Subsidiary may merge into and consolidate with another Person in order
to effect a transaction in which all the Equity Interests of such Subsidiary
owned directly or indirectly by the BC Borrower or the Timber Borrower,
respectively, would be disposed of; PROVIDED that such transaction is (A)
treated as a sale of the Equity Interests of such Subsidiary for all purposes of
this Agreement and (B) permitted by and conducted in compliance with (and
treated for all purposes of this Agreement as a sale of the Equity Interests of
such Subsidiary pursuant to) Section 6.05(a)(v) (with respect to a merger or
consolidation involving a BC Subsidiary) or Section 6.05(c)(ii) (with respect to
a merger or consolidation involving a Timber Subsidiary), and (ix) BC Holdings
may effect the BC Corporate Conversion.
(b) The BC Borrower will not, and will not permit any BC Subsidiary
to, engage to any material extent in any business other than businesses
conducted by the
80
Operating Businesses at the time of the Acquisition and businesses reasonably
related thereto. The Timber Borrower will not, and will not permit any Timber
Subsidiary to, engage to any material extent in any business other than
ownership of the Timberland Assets, the harvesting and sale of timber therefrom,
the sale of Timberland Assets and businesses reasonably related thereto.
(c) Neither Holding Company will engage in any business or activity
other than (i) in the case of BC Holdings, (A) the ownership of all the
outstanding Equity Interests of the BC Borrower and activities incidental
thereto and (B) the consummation of the Contemplated IPO and activities
incidental thereto and (ii) in the case of Timber Holdings, the ownership of all
the outstanding Equity Interests of the Timber Borrower and activities
incidental thereto. Neither Holding Company will own or acquire any assets
(other than Equity Interests of the Borrowers, cash and Permitted Investments)
or incur any liabilities (other than liabilities under the Loan Documents,
Guarantees in respect of the Senior Unsecured Debt and Subordinated Debt,
liabilities imposed by law, including tax liabilities, and other liabilities
incidental to its existence and permitted business and activities).
(d) The Timber Borrower will not permit either of the Timber
Installment Note Subsidiaries to (i) engage in any business or activity (other
than those activities expressly contemplated by the Installment Note Documents),
(ii) own or acquire any assets (other than as expressly contemplated by the
Installment Note Documents) or (iii) incur any liabilities (other than as
expressly contemplated by the Installment Note Documents, liabilities imposed by
law, and other liabilities incidental to its existence and permitted business
and activities).
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. (a) The BC Borrower will not, and will not permit any of the BC
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned BC Subsidiary prior to such merger)
any Equity Interests in or evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person constituting a business unit,
except:
(i) the Acquisition;
(ii) Permitted Investments;
(iii) investments, loans, advances and Guarantees existing on the
Original Effective Date and set forth on Schedule 6.04(a);
(iv) investments by the BC Borrower and the BC Subsidiaries in Equity
Interests in their respective Subsidiaries; PROVIDED that (A) any such
Equity Interests held by a Loan Party shall be pledged to the extent
required to satisfy the
81
Collateral and Guarantee Requirement and (B) the aggregate amount of
investments by Loan Parties in, and loans and advances by Loan Parties to,
and Guarantees by Loan Parties of Indebtedness and other obligations of,
Subsidiaries that are not Loan Parties (excluding all such investments,
loans, advances and Guarantees existing on the Original Effective Date that
are set forth on Schedule 6.04(a)), shall not exceed $25,000,000 at any
time outstanding;
(v) loans or advances made by the BC Borrower to any BC Subsidiary and
made by any BC Subsidiary to the BC Borrower or any other BC Subsidiary or
made by the BC Borrower to the Timber Borrower; PROVIDED that (A) any such
loans and advances made by a Loan Party shall be evidenced by a promissory
note pledged to the extent required to satisfy the Collateral and Guarantee
Requirement and (B) the amount of such loans and advances made by Loan
Parties to Subsidiaries that are not Loan Parties shall be subject to the
limitation set forth in clause (a)(iv) above;
(vi) Guarantees constituting Indebtedness permitted by Section 6.01(a)
and Guarantees by the BC Borrower of other obligations of any BC Subsidiary
(other than a Receivables Subsidiary) and by any BC Subsidiary (other than
a Receivables Subsidiary) of other obligations of the BC Borrower or any
other BC Subsidiary (other than a Receivables Subsidiary); PROVIDED that
(A) a BC Subsidiary shall not Guarantee the Subordinated Debt or the Senior
Unsecured Debt unless (1) such BC Subsidiary also has Guaranteed the
Obligations pursuant to the Collateral Agreement, (2) such Guarantee of the
Subordinated Debt is subordinated to such Guarantee of the Obligations on
terms no less favorable to the Lenders than the subordination provisions of
the Subordinated Debt and (3) such Guarantee of the Subordinated Debt or
the Senior Unsecured Debt, as applicable, provides for the release and
termination thereof, without action by any party, upon any release and
termination of such Guarantee of the Obligations, (B) a BC Subsidiary that
is not a Loan Party shall not Guarantee any obligations of any Loan Party
and (C) the aggregate principal amount of Indebtedness and other
obligations of Subsidiaries that are not Loan Parties that is Guaranteed by
any Loan Party shall be subject to the limitation set forth in clause
(a)(iv) above;
(vii) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(viii) Permitted Acquisitions; PROVIDED that (A) the consideration for
each Permitted Acquisition shall consist solely of cash, Indebtedness
permitted by clause (vi), (ix) or (x) of Section 6.01(a), Equity Interests
of BC Holdings or a combination thereof, (B) the sum of all consideration
for Permitted Acquisitions (other than Equity Interests of BC Holdings) and
the principal amount of all Indebtedness permitted by clause (vii) of
Section 6.01(a) that results from Permitted Acquisitions (calculated based
on the outstanding principal amount thereof as of the date of each
Permitted Acquisition, regardless of whether subsequently repaid) shall not
exceed $200,000,000 on a cumulative basis
82
subsequent to the Original Effective Date, and (C) the amount of
consideration for Permitted Acquisitions that result in Subsidiaries that
are not Loan Parties shall be subject to the limitation set forth in clause
(a)(iv) above (with the amount of such consideration to be allocated
ratably among the assets and businesses acquired pursuant to a Permitted
Acquisition for this purpose, based on the fair value thereof, as
reasonably determined by a Financial Officer of the BC Borrower and
certified to the Administrative Agent, and the amount so allocated to
Subsidiaries that are not Loan Parties being treated as investments therein
for purposes of the limitation in clause (a)(iv) above);
(ix) investments consisting of non-cash consideration received by the
BC Borrower or any BC Subsidiary in connection with any sale, transfer,
lease or other disposition of assets permitted by Section 6.05(a);
(x) deposits, prepayments and other credits made or extended to
suppliers (A) in the ordinary course of business and consistent with past
practices of the Operating Businesses or (B) otherwise in an amount not to
exceed $5,000,000 at any time outstanding;
(xi) loans or advances to employees, officers or directors of the BC
Borrower or any BC Subsidiary made in the ordinary course of business in an
aggregate principal amount, when combined with all such loans or advances
made pursuant to clause (xi) of Section 6.04(b), not to exceed $5,000,000
at any time outstanding;
(xii) Swap Agreements permitted by Section 6.07;
(xiii) Specified Investments;
(xiv) minority investments made in cooperatives required to obtain
goods or services in the ordinary course of business, not to exceed
$5,000,000 at any time outstanding; and
(xv) investments not otherwise permitted by this Section; PROVIDED
that the aggregate amount of investments made on or after the Original
Effective Date in reliance upon this clause (xv) and clause (xv) of Section
6.04(b) (determined on the basis of the fair market value of the assets
invested at the time so invested, in the case of non-cash investments)
shall not exceed $10,000,000 at any time outstanding.
(b) The Timber Borrower will not, and will not permit any Timber
Subsidiary to, purchase, hold or acquire (including pursuant to any merger with
any Person) any Equity Interests in or evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except:
83
(i) the Acquisition;
(ii) Permitted Investments;
(iii) investments existing on the Original Effective Date and set
forth on Schedule 6.04(b);
(iv) investments by the Timber Borrower and the Timber Subsidiaries in
Equity Interests in their respective Subsidiaries; PROVIDED that any such
Equity Interests shall be pledged to the extent required to satisfy the
Collateral and Guarantee Requirement;
(v) loans or advances made by the Timber Borrower to any Timber
Subsidiary or made by any Timber Subsidiary to the Timber Borrower or any
other Timber Subsidiary or made by the Timber Borrower to the BC Borrower;
PROVIDED that any such loans and advances shall be evidenced by a
promissory note pledged to the extent required to satisfy the Collateral
and Guarantee Requirement;
(vi) investments made on or prior to the Original Effective Date in
Equity Interests in the Timber Installment Note Subsidiaries in an
aggregate amount not to exceed $1,635,250,000;
(vii) Guarantees constituting Indebtedness permitted by Section
6.01(b) and Guarantees by the Timber Borrower of other obligations of any
Timber Subsidiary and by any Timber Subsidiary of other obligations of the
Timber Borrower or any other Timber Subsidiary; PROVIDED that a Timber
Subsidiary shall not Guarantee the Subordinated Debt or the Senior
Unsecured Debt unless (A) such Timber Subsidiary also has Guaranteed the
Obligations pursuant to the Collateral Agreement, (B) such Guarantee of the
Subordinated Debt is subordinated to such Guarantee of the Obligations on
terms no less favorable to the Lenders than the subordination provisions of
the Subordinated Debt and (C) such Guarantee of the Subordinated Debt or
the Senior Unsecured Debt, as applicable, provides for the release and
termination thereof, without action by any party, upon any release and
termination of such Guarantee of the Obligations;
(viii) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(ix) investments consisting of non-cash consideration received by the
Timber Borrower or any Timber Subsidiary in connection with any sale,
transfer, lease or other disposition of assets permitted by Section 6.05(b)
or 6.05(c);
(x) deposits, prepayments and other credits made or extended to
suppliers in the ordinary course of business and consistent with past
practices of the Sellers of the Timberland Assets;
84
(xi) loans or advances to employees, officers or directors of the
Timber Borrower or any Timber Subsidiary made in the ordinary course of
business in an aggregate principal amount, when combined with all such
loans or advances made pursuant to clause (xi) of Section 6.04(a), not to
exceed $5,000,000 at any time outstanding;
(xii) Swap Agreements permitted by Section 6.07;
(xiii) Specified Investments;
(xiv) cash investments in Equity Interests of BC Holdings; PROVIDED
that any such investment is made either (A) at the time of or promptly
after receipt by the Timber Borrower or any Timber Subsidiary of Net
Proceeds of a Prepayment Event or a Timberland Prepayment Event and is made
for the purpose of (and does not exceed the amount necessary for, when
taken together with any other amounts transferred to or invested in BC
Holdings, the BC Borrower or any BC Subsidiary that are permitted by this
Agreement for the same purpose) funding any prepayment of Tranche B Term
Borrowings or Tranche D Term Borrowings required by Section 2.11 as a
result of such Prepayment Event or Timberland Prepayment Event or (B) after
receipt by the Timber Borrower or any Timber Subsidiary of any Excess
Timber Consideration consisting of cash and is made for the purpose of (and
does not exceed the amount necessary for, when taken together with any
other amounts of such cash transferred to or invested in BC Holdings, the
BC Borrower or any BC Subsidiary that are permitted by this Agreement for
the same purpose and the amount of Restricted Payments made with Excess
Timber Consideration) funding any redemption or repurchase of Senior
Unsecured Debt or Subordinated Debt pursuant to clause (v) of Section
6.08(b); and
(xv) investments not otherwise permitted by this Section; PROVIDED
that the aggregate amount of investments made on or after the Original
Effective Date in reliance upon this clause (xv) and clause (xv) of Section
6.04(a) (determined on the basis of the fair market value of the assets
invested at the time so invested, in the case of non-cash investments)
shall not exceed $10,000,000 at any time outstanding.
SECTION 6.05. ASSET SALES. (a) The BC Borrower will not, and will not
permit any of the BC Subsidiaries to, sell, transfer, lease or otherwise dispose
of any asset, including any Equity Interest owned by it, nor will the BC
Borrower permit any of the BC Subsidiaries to issue any additional Equity
Interest in such BC Subsidiary, except:
(i) sales of inventory, used or surplus equipment and Permitted
Investments, in each case in the ordinary course of business;
(ii) sales, transfers and dispositions to the BC Borrower or a BC
Subsidiary; PROVIDED that any such sales, transfers or dispositions
involving a
85
Subsidiary that is not a Loan Party shall be made in compliance with
Section 6.09;
(iii) Permitted Operating Asset Swaps;
(iv) sales or transfers of Receivables and interests therein, together
with Related Security, pursuant to a Permitted Receivables Financing;
(v) sales, transfers and other dispositions of assets (other than to a
Holding Company or to the Timber Borrower or a Timber Subsidiary) that are
not permitted by any other clause of this Section 6.05(a); PROVIDED that
(A) in the case of any such sale, transfer or disposition of Equity
Interests of a BC Subsidiary, such sale, transfer or disposition shall
include all Equity Interests of and other investments in and loans and
advances to such BC Subsidiary (and any other BC Subsidiary in which such
sold BC Subsidiary holds an Equity Interest) and, after giving effect
thereto, none of the Borrowers and the Subsidiaries shall owe any
Indebtedness to the BC Subsidiary so sold, transferred or otherwise
disposed of, and (B) the aggregate fair market value of all assets sold,
transferred or otherwise disposed of in reliance upon this clause (v) and
clause (vi) of paragraph (b) below shall not exceed $50,000,000 during any
fiscal year of the Borrowers plus an additional $50,000,000 in the
aggregate during the period from the Restatement Effective Date through
December 31, 2006; and
(vi) sales of any fixed or capital assets pursuant to a sale-leaseback
transaction in compliance with clause (a) of Section 6.06;
PROVIDED that (A) all sales, transfers, leases and other dispositions permitted
by this paragraph (a) (other than those permitted by clause (ii) above) shall be
made for fair value and (B) shall be (1) in the case of clause (i) above, for
cash consideration (including accounts receivable on customary terms in the
ordinary course of business), (2) in the case of clause (iii) above, for
consideration permitted for a Permitted Operating Asset Swap, (3) in the case of
clause (iv) above, for cash consideration or Subordinated Receivables Transfer
Debt and (4) in the case of clause (v) above, for at least 80% cash
consideration.
(b) The Timber Borrower will not, and will not permit any of the
Timber Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset,
including any Equity Interest owned by it, nor will the Timber Borrower permit
any of the Timber Subsidiaries to issue any additional Equity Interests in such
Timber Subsidiary, except:
(i) sales of inventory (including sales of timber and cutting rights),
used or surplus equipment and Permitted Investments, in each case in the
ordinary course of business;
(ii) sales, transfers and dispositions to the Timber Borrower or a
Timber Subsidiary;
(iii) Permitted Timberland Asset Swaps;
86
(iv) sales, transfers and dispositions permitted by paragraph (c)
below;
(v) sales, transfers and dispositions of Non-Cash Timberlands
Consideration; and
(vi) sales, transfers and other dispositions of assets (other than (x)
interests in real property, (y) Equity Interests in a Timber Subsidiary and
(z) to a Holding Company or to the BC Borrower or a BC Subsidiary) that are
not permitted by any other clause of this Section 6.05(b); PROVIDED that
the aggregate fair market value of all assets sold, transferred or
otherwise disposed of in reliance upon this clause (vi) and clause (v) of
paragraph (a) above shall not exceed $50,000,000 during any fiscal year of
the Borrowers;
PROVIDED that (A) all sales, transfers and dispositions permitted by this
paragraph (b) (other than those permitted by clauses (ii) and (v) above) shall
be made for fair value and (B) shall be (1) in the case of clause (i) above, for
cash consideration (including accounts receivable on customary terms in the
ordinary course of business), (2) in the case of clause (iii) above, for
consideration permitted for a Permitted Timberland Asset Swap and (3) in the
case of clause (vi) above, for at least 80% cash consideration.
(c) Notwithstanding the limitations in paragraph (b) above:
(i) the Timber Borrower and any Timber Subsidiary may sell Timberland
Assets (other than to a Holding Company, the BC Borrower or a BC
Subsidiary);
(ii) the Timber Borrower and Timber Subsidiaries may sell the Equity
Interests of any Timber Subsidiary (other than to a Holding Company, the BC
Borrower or a BC Subsidiary); PROVIDED that (A) such sale shall include all
Equity Interests of and other investments in and loans and advances to such
Timber Subsidiary (and any other Timber Subsidiary in which such sold
Timber Subsidiary holds an Equity Interest) and (B) after giving effect
thereto, none of the Borrowers and the Subsidiaries shall owe any
Indebtedness to the Timber Subsidiary so sold; and
(iii) Timber Holdings may sell the Equity Interests of the Timber
Borrower (other than to a Holding Company, the BC Borrower or a BC
Subsidiary); PROVIDED that (A) such sale shall include all Equity Interests
of and other investments in and loans and advances to the Timber Borrower
and the Timber Subsidiaries, (B) any loans, advances or other Indebtedness
of the Timber Borrower or any Timber Subsidiary owed to the BC Borrower or
any BC Subsidiary at the time of such sale shall be repaid in full, (C) at
the time of such sale and after giving effect thereto, no Default shall
have occurred and be continuing and the Administrative Agent shall have
received a certificate to such effect signed by a Financial Officer of each
of the Borrowers, (D) prior to or concurrently with such sale, the Timber
Borrower shall have paid any amounts accrued and owing by it under this
Agreement, and (E) the amendment to (or
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amendment and restatement of) this Agreement contemplated by Section 9.15
shall have been executed and delivered;
PROVIDED that all sales pursuant to this paragraph (c) (A) shall be made for
fair value and (B) shall be made for at least 50% cash consideration.
SECTION 6.06. SALE AND LEASEBACK TRANSACTIONS. The Borrowers will not,
and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred, except (a) for any such sale of any fixed or capital assets
by the BC Borrower or any BC Subsidiary that is made for cash consideration in
an amount not less than the cost of such fixed or capital asset and is
consummated within 90 days after the BC Borrower or such BC Subsidiary acquires
or completes the construction of such fixed or capital asset and (b) this
Section 6.06 shall not prohibit the BC Borrower or any BC Subsidiary from
engaging in a sale or transfer of property permitted by clause (v) of Section
6.05(a) and thereafter leasing such property, PROVIDED that (i) such sale or
transfer is made solely for cash consideration, (ii) any Capital Lease
Obligations of the BC Borrower or any BC Subsidiary created thereby are
permitted under Section 6.01(a) and (iii) such sale or transfer shall be treated
as a Prepayment Event (regardless of whether such sale or transfer would
otherwise fall within the definition of that term) and any Net Proceeds received
in respect thereof shall be subject to the provisions of Section 2.11(c),
provided that the reinvestment provisions of Section 2.11(c) shall not apply to
any such Net Proceeds.
SECTION 6.07. SWAP AGREEMENTS. Neither Borrower will, nor will they
permit any Subsidiary to, enter into any Swap Agreement, other than (a) Swap
Agreements entered into to hedge or mitigate risks to which either Borrower or
any such Subsidiary has actual exposure (other than those in respect of (i)
Equity Interests of any Holding Company, Borrower or Subsidiary, (ii) the
Subordinated Debt or (iii) the Senior Unsecured Debt), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates
(from fixed to floating rates, from one floating rate to another floating rate
or otherwise) with respect to any interest-bearing liability or investment of
either Borrower or any Subsidiary.
SECTION 6.08. RESTRICTED PAYMENTS; CERTAIN PAYMENTS OF INDEBTEDNESS.
(a) None of the Holding Companies or the Borrowers will, nor will they permit
any Subsidiary to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except (i) Subsidiaries may declare and pay dividends or
make distributions ratably with respect to their capital stock or membership
interests, (ii) the BC Borrower may make Restricted Payments, not exceeding
$5,000,000 during any fiscal year, pursuant to and in accordance with stock
option plans or other benefit plans for management or employees of the BC
Borrower and the BC Subsidiaries, (iii) the BC Borrower and the Timber Borrower
may make distributions to BC Holdings and Timber Holdings, respectively, at such
times and in such amounts, not exceeding $5,000,000 during any fiscal year, as
shall
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be necessary to permit each of BC Holdings and Timber Holdings to discharge its
permitted liabilities, (iv) if at the time thereof and after giving effect
thereto no Default has occurred and is continuing, the Timber Borrower may
distribute to Timber Holdings, and Timber Holdings may distribute, any Excess
Timber Consideration (excluding any Excess Timber Consideration consisting of
cash that is transferred to or invested in BC Holdings, the BC Borrower or any
BC Subsidiary for the purpose of funding any redemption or repurchase of Senior
Unsecured Debt or Subordinated Debt pursuant to clause (v) of paragraph (b) of
this Section), (v) each Holding Company may redeem the Equity Interests of such
Holding Company, and may make distributions to FPH so that FPH may make such
redemptions of Equity Interests of FPH, in each case from former members of
management, former employees, or former directors of Loan Parties, and each
Borrower may make distributions to its Holding Company as necessary to fund such
redemptions, PROVIDED that the aggregate amount applied for all such purposes
shall not exceed $3,000,000 during any fiscal year, (vi) the Holding Companies
and the Borrowers may pay (by distribution or otherwise) management fees to
Madison Dearborn of up to $1,000,000 in the aggregate in any fiscal year, (vii)
distributions by the Borrowers to the Holding Companies to pay directors'
out-of-pocket expenses and indemnification obligations owing to directors,
(viii) the Timber Borrower may distribute to Timber Holdings, and Timber
Holdings may distribute, any amount of the Net Proceeds received in respect of a
Timberland Prepayment Event that is required to be used to prepay Tranche D Term
Borrowings pursuant to Section 2.11, PROVIDED that (A) the amount so distributed
is immediately reinvested in BC Holdings, and invested by BC Holdings in the BC
Borrower and thereupon promptly used for such purpose and (B) such distribution
and reinvestment is made pursuant to procedures satisfactory to the
Administrative Agent, (ix) the Timber Borrower may distribute to Timber
Holdings, and Timber Holdings may distribute, any Equity Interests of BC
Holdings acquired by the Timber Borrower or any Timber Subsidiary pursuant to
clause (xiv) of Section 6.04(b), (x) each Borrower may make distributions to the
Holding Companies, and each Holding Company may in turn make distributions to
FPH, (A) not exceeding $500,000 in the aggregate during any fiscal year, at such
times as shall be necessary to permit FPH to discharge its corporate maintenance
obligations and (B) not exceeding $500,000 in the aggregate during any fiscal
year, at such times as shall be necessary to permit FPH to discharge its
obligations related to its portion of common expenses shared with any of the
Holding Companies or the Borrowers, (xi) [Intentionally Omitted], (xii) for so
long as BC Holdings is a pass-through or disregarded entity for United States
Federal income tax purposes, the BC Borrower may make distributions to BC
Holdings, and BC Holdings shall in turn be permitted, to make Tax Distributions
in respect of any taxable year of BC Holdings equal to the product of (A) the
amount of taxable income allocated to the Members for such taxable year, less
the amount of taxable loss allocated to the Members for all prior taxable years
(except to the extent such taxable losses have previously been taken into
account under this provision), times (B) the highest aggregate marginal
statutory Federal, state and local income tax rate (determined taking into
account the deductibility of state and local income taxes for Federal income tax
purposes) to which any of the direct or indirect Members of BC Holdings who is
an individual is subject for such year; and BC Holdings shall be permitted to
make such Tax Distributions pursuant to this clause (xii) on a quarterly basis
during such taxable year based on the best estimate
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of the chief financial officer of BC Holdings of the amounts specified in
clauses (A) and (B) above; PROVIDED that if the aggregate amount of the
estimated Tax Distributions made in any taxable year of BC Holdings exceeds the
actual maximum amount of Tax Distributions for that year as finally determined,
the amount of any Tax Distributions in the succeeding taxable year (or, if
necessary, any subsequent taxable years) shall be reduced by the amount of such
excess, (xiii) after consummation of the Contemplated IPO, the Borrowers and the
Holding Companies may declare or make, or agree to pay or make, or incur
obligations to make, Restricted Payments in cash; PROVIDED that (A) the
aggregate amount of such Restricted Payments under this clause (xiii) plus the
aggregate amount of cash consideration applied pursuant to clause (vii) of
Section 6.08(b) shall not exceed the aggregate Net Proceeds received from the
Contemplated IPO and (B) all such Restricted Payments under this clause (xiii)
must be made within 180 days after the date of consummation of the Contemplated
IPO, (xiv) after consummation of the Contemplated IPO, BC Holdings may declare
and pay dividends in cash, and the BC Borrower may make distributions to BC
Holdings to fund such dividends; PROVIDED that (A) at the time of and after
giving effect to any such dividend, no Default shall have occurred and be
continuing, (B) subject to clause (C) below, at the time of and after giving
effect to any such dividend, the aggregate amount of dividends paid in reliance
upon this clause (xiv) since the Restatement Effective Date shall not exceed an
amount equal to the sum of (1) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from the Original Effective Date
to the end of the most recent fiscal quarter ending prior to the date of such
dividend for which internal financial statements are available (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus
(2) in the event of the occurrence of a Prepayment Event described in clause (c)
of the definition of the term Prepayment Event, an amount equal to 50% of the
Net Proceeds from such Prepayment Event and (C) dividends may be paid in
reliance upon this clause (xiv) in an aggregate amount of up to $35,000,000
notwithstanding whether such dividends would be permitted by clause (B) above,
but any such dividends paid in reliance upon this clause (C) shall be included
in determining whether any dividends may be paid in reliance upon clause (B)
above and (xv) after consummation of the Contemplated IPO, the BC Borrower may
make distributions to BC Holdings, and BC Holdings may in turn make
distributions to FPH at such times as shall be necessary to permit FPH to
reimburse the expenses of Madison Dearborn incurred in connection with the
consummation of the Contemplated IPO, but any such distributions shall be
deducted in calculating Net Proceeds from the Contemplated IPO.
(b) None of the Holding Companies or the Borrowers will, nor will
either Borrower permit any Subsidiary to, make or agree to pay or make, directly
or indirectly, any payment or other distribution (whether in cash, securities or
other property) of or in respect of principal of or interest on any
Indebtedness, or any payment or other distribution (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancelation or termination of
any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
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(ii) payment of interest and principal payments as and when due in
respect of any Indebtedness, other than payments in respect of the
Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section
6.01;
(iv) payment of secured Indebtedness that becomes due as a result of
the voluntary sale or transfer or involuntary condemnation of the property
or assets securing such Indebtedness;
(v) if at the time thereof and after giving effect thereto no Default
has occurred and is continuing, the BC Borrower may redeem or repurchase
Senior Unsecured Debt or Subordinated Debt for cash consideration; PROVIDED
that (A) at the time of and after giving effect to any such redemption or
repurchase, the aggregate amount applied for such purposes shall not exceed
the aggregate amount of Excess Timber Consideration consisting of cash that
has been transferred to or invested in BC Holdings, the BC Borrower and the
BC Subsidiaries in accordance with this Agreement for the purpose of
funding such redemptions and repurchases, (B) any Senior Unsecured Debt or
Subordinated Debt so redeemed or repurchased shall be retired and cancelled
and (C) the BC Borrower shall notify the Administrative Agent of any such
redemption or repurchase, setting forth the amount applied for such purpose
and a description of the method of funding such redemption or repurchase,
prior to the time of such redemption or repurchase;
(vi) payment of Indebtedness to a Borrower or a Subsidiary; and
(vii) after consummation of the Contemplated IPO, the BC Borrower may
redeem or repurchase Senior Unsecured Debt or Subordinated Debt for cash
consideration; PROVIDED that (A) the aggregate amount applied for such
purposes plus the aggregate amount of Restricted Payments made pursuant to
clause (xiii) of Section 6.08(a) shall not exceed the aggregate Net
Proceeds received from the Contemplated IPO, (B) all such redemptions and
repurchases must be made within 180 days after the date of consummation of
the Contemplated IPO and (C) any Senior Unsecured Debt or Subordinated Debt
so redeemed or repurchased shall be retired and cancelled.
SECTION 6.09. TRANSACTIONS WITH AFFILIATES. None of the Holding
Companies or the Borrowers will, nor will either Borrower permit any Subsidiary
to, sell, lease or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or otherwise engage in
any other transactions with, any of its Affiliates, except (a) transactions in
the ordinary course of business that do not involve either Holding Company or
either Timber Installment Note Subsidiary and are at prices and on terms and
conditions not less favorable to the relevant Borrower or Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the BC Borrower and BC Subsidiaries that are
Subsidiary Loan Parties not involving any other Affiliate, (c) transactions
between or
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among the Timber Borrower and the Timber Subsidiaries not involving any other
Affiliate, (d) the payment to Madison Dearborn of management fees in compliance
with clause (vi) of Section 6.08(a), (e) transactions entered into pursuant to
and in compliance with the Supply Agreement, (f) transactions pursuant to and in
compliance with the agreements entered into on the Original Effective Date
described on Schedule 6.09, (g) any Restricted Payment permitted by Section 6.08
and (h) the issuance or exchange of Equity Interests of BC Holdings in order to
effect the BC Corporate Conversion.
SECTION 6.10. RESTRICTIVE AGREEMENTS. None of the Holding Companies or
the Borrowers will, nor will either Borrower permit any Subsidiary to, directly
or indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of any Holding Company, any Borrower or any Subsidiary to create, incur
or permit to exist any Lien upon any of its property or assets, or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its Equity Interests, or to make or repay loans or advances to
the Borrowers or any Subsidiary or to Guarantee Indebtedness of the Borrowers or
any other Subsidiary; PROVIDED that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by any Loan Document, Subordinated
Debt Document or Senior Unsecured Debt Document, (ii) the foregoing shall not
apply to restrictions and conditions existing on the Original Effective Date
identified on Schedule 6.10 (but shall apply to any extension or renewal of, or
any amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause
(a) of the foregoing shall not apply to restrictions or conditions imposed by
any agreement relating to secured Indebtedness permitted by this Agreement or
any Permitted Receivables Financing if such restrictions or conditions apply
only to the property or assets securing such Indebtedness or the Receivables and
Related Security subject to such Permitted Receivables Financing, as the case
may be, (v) clause (a) of the foregoing shall not apply to customary provisions
in leases and other contracts restricting the assignment thereof and (vi) clause
(b) of the foregoing shall not apply to restrictions or conditions imposed on a
Receivables Subsidiary by a Permitted Receivables Financing.
SECTION 6.11. AMENDMENT OF MATERIAL DOCUMENTS. None of the Holding
Companies or the Borrowers will, nor will either Borrower permit any Subsidiary
to, amend, modify or waive any of its rights under (a) any Subordinated Debt
Document, (b) any Senior Unsecured Debt Document, (c) its certificate of
incorporation, by-laws or other organizational documents (other than those of BC
Holdings in connection with the BC Corporate Conversion), (d) the Acquisition
Agreement, (e) the Additional Consideration Agreement, (f) the Supply Agreement
or (g) any agreement listed on Schedule 6.09, other than any such amendments or
modifications that are not adverse to the interests of the Lenders. The Timber
Borrower will not permit any amendment or modification of the limited liability
company operating agreement of either Timber Installment Note Subsidiary or any
Installment Note Document, other than
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any such amendments or modifications that are not adverse to the interests of
the Lenders.
SECTION 6.12. INTEREST EXPENSE COVERAGE RATIO. The Holding Companies
will not permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Cash
Interest Expense, in each case for any period of four consecutive fiscal
quarters ending on any quarter-end date during any period set forth below, to be
less than the ratio set forth below opposite such period:
Period Ratio
------ -----
March 31, 2005 to and including
December 31, 2005 1.875 to 1.000
January 1, 2006 to and including
December 31, 2006 2.000 to 1.000
January 1, 2007 to and including
December 31, 2007 2.000 to 1.000
January 1, 2008 to and including
December 31, 2008 2.125 to 1.000
January 1, 2009 to and including
December 31, 2009 2.375 to 1.000
January 1, 2010 to and including
December 31, 2010 2.625 to 1.000
Thereafter 2.750 to 1.000
For purposes of determining compliance with this Section 6.12 for any period of
four consecutive fiscal quarters ending on or prior to September 30, 2005,
Consolidated Cash Interest Expense with respect to each fiscal quarter ending on
or prior to December 31, 2004 shall be deemed to be equal to 25% of the
annualized amount of Consolidated Cash Interest Expense accruing from the
Original Effective Date to the end of the four-quarter period for which
compliance is being determined.
SECTION 6.13. LEVERAGE RATIO. The Holding Companies will not permit
the Leverage Ratio as of any quarter-end date during any period set forth below
to exceed the ratio set forth opposite such period:
Period Ratio
------ -----
March 31, 2005 to and including
December 31, 2005 7.50 to 1.00
January 1, 2006 to and including
December 31, 2006 6.00 to 1.00
January 1, 2007 to and including
December 31, 2007 5.00 to 1.00
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Period Ratio
------ -----
January 1, 2008 to and including
December 31, 2008 4.75 to 1.00
January 1, 2009 to and including
December 31, 2009 4.50 to 1.00
January 1, 2010 to and including
December 31, 2010 4.00 to 1.00
Thereafter 3.75 to 1.00
SECTION 6.14. CAPITAL EXPENDITURES. The Holding Companies and the
Borrowers will not permit the aggregate amount of Capital Expenditures made by
the Holding Companies, the Borrowers and the Subsidiaries to exceed (a)
$40,000,000 during the period from the Original Effective Date to and including
December 31, 2004 and (b) $240,000,000 during any fiscal year ending thereafter;
PROVIDED that 100% of the unused amount of any Capital Expenditures permitted to
be made during each period and not made during such period may be carried over
and made at any time during the next succeeding two fiscal years (and any amount
so carried over shall be deemed the first amount applied for Capital
Expenditures during such next succeeding two fiscal years).
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) either Borrower shall fail to pay any principal of any Loan or
fail to pay any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) either Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document, when
and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of any of the Holding Companies, the Borrowers or the Subsidiaries in any
Loan Document or any amendment or modification thereof or waiver
thereunder, or in any certificate, financial statement or other document
furnished by or on behalf of a Loan Party to an Agent or the Lenders
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
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(d) any of the Holding Companies or the Borrowers shall fail to
observe or perform any covenant, condition or agreement contained in
Section 5.02, 5.04 (with respect to the existence of any of the Holding
Companies or the Borrowers) or 5.11 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to either of the Borrowers (which notice will be
given at the request of any Lender);
(f) any of the Holding Companies, the Borrowers or the Subsidiaries
shall fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when and as
the same shall become due and payable (or, if applicable under the terms of
such Indebtedness without giving effect to any amendment entered into in
connection with the failure to make such payment, within any period of
grace allowed with respect to such payment);
(g) any event or condition occurs that (i) results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity or (ii) results in the termination
of a Permitted Receivables Financing prior to its scheduled termination
(other than a voluntary termination by the BC Borrower) or enables or
permits the financing parties thereunder or any trustee or agent on their
behalf to terminate a Permitted Receivables Financing; PROVIDED that this
clause (g) shall not apply (A) unless and until all applicable grace or
cure periods shall have passed and (B) to Indebtedness that becomes due as
a result of the voluntary sale or transfer of property or assets or as a
result of the application (other than by reason of a breach or default by a
Loan Party) of any provision in such Indebtedness that requires any Loan
Party to prepay a portion (but less than substantially all) of such
Indebtedness then outstanding or that requires any Loan Party to offer to
redeem or repurchase some (but less than substantially all) of such
Indebtedness then outstanding;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of any of the Holding Companies, the Borrowers or any
Material Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for any of the Holding Companies, the Borrowers or any Material Subsidiary
or for a substantial part of its assets, and, in
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any such case, such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) any of the Holding Companies, the Borrowers or any Material
Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any of the Holding Companies, the Borrowers or any
Material Subsidiary or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) any of the Holding Companies, the Borrowers or the Material
Subsidiaries shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $15,000,000 (to the extent not covered by independent
third party insurance as to which the insurer is rated at least "A" by A.M.
Best Company, has been notified of the potential claim and does not dispute
coverage) shall be rendered against any of the Holding Companies, the
Borrowers, the Subsidiaries or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by one or more judgment creditors to attach or levy upon any assets
of any of the Holding Companies, the Borrowers or the Subsidiaries to
enforce one or more of any such judgments in an aggregate amount in excess
of $15,000,000;
(l) an ERISA Event shall have occurred that, when taken together with
all other ERISA Events that have occurred, would reasonably be expected to
result in a Material Adverse Effect;
(m) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral (other than Collateral with an aggregate
fair market value not exceeding $5,000,000), with the priority required by
the applicable Security Document, except (i) as a result of the sale or
other disposition of the applicable Collateral in a transaction permitted
under the Loan Documents, (ii) as a result of the Collateral Agent's
failure to maintain possession of any stock certificates, promissory notes
or other instruments delivered to it under the Collateral Agreement, (iii)
as a result of the Collateral Agent's failure to file or record any UCC
financing statement or other document delivered to it for filing or
recording
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or (iv) as a result of the applicable Security Document not requiring
perfection with respect to such Collateral;
(n) any Guarantee of the Obligations purported to be created under any
Loan Document shall cease to be, or shall be asserted by any Loan Party not
to be, in full force and effect; PROVIDED that this clause (n) shall not
apply to any Guarantee that ceases to be in full force and effect in
accordance with the express terms of any applicable Loan Document; or
(o) a Change in Control shall occur;
then, and in every such event (other than an event with respect to either
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the BC Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
each of the Borrowers; and in case of any event with respect to the BC Borrower
described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrowers accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each of the Borrowers.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Banks hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with any of the Holding Companies, the Borrowers or the
Subsidiaries or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
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The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing as directed by
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02), and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to any of the Holding Companies, the
Borrowers or the Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by a Holding Company, a Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrowers), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in good faith in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-
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agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Banks and the BC
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor approved by the BC Borrower (which approval (i) shall not
be unreasonably withheld or delayed and (ii) shall not be required during the
continuance of an Event of Default). If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrowers to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrowers and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
Each party hereto agrees and acknowledges that (i) the Syndication
Agent and the Joint Lead Arrangers do not have any duties or responsibilities in
their capacities as Syndication Agent and Joint Lead Arrangers, respectively,
hereunder and shall not have, or become subject to, any liability hereunder in
such capacities and (ii) the exculpation provisions contained herein relating to
the Administrative Agent shall be equally applicable to the Syndication Agent
and the Syndication Agent shall receive the full benefit thereof.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to either of the Holding Companies, to it at c/o Madison
Dearborn Capital Partners IV, L.P., Three First Xxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, Attention of Xxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxx
(Telecopy No. (000) 000-0000);
(ii) if to either Borrower, to it at 0000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Xxx 00, Xxxxx, XX 00000, Attention of Chief Executive Officer and Chief
Financial Officer (Telecopy No. (000) 000-0000);
(iii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A.,
Agent Bank Services Group, 0000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention
of Xxxx Xxxxxx (Telecopy No. (000) 000-0000) and, in the event of the
delivery of a Borrowing Request, Xxxx Xxxx (Telecopy No. (000) 000-0000),
with a copy to JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000);
(iv) if to JPMorgan Chase Bank, N.A. as Issuing Bank, to it at Agent
Bank Services Group, 0000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention of
Xxxx Xxxxxx (Telecopy No. (000) 000-0000), with a copy to JPMorgan Chase
Bank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx
Xxxxxx (Telecopy No. (000) 000-0000);
(v) if to the Committed Swingline Lender, to JPMorgan Chase Bank,
N.A., Agent Bank Services Group, 0000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000,
Attention of Xxxx Xxxxxx (Telecopy No. (000) 000-0000), with a copy to
JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000); and
(vi) if to any other Lender or Issuing Bank, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; PROVIDED that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrowers may, in their discretion, agree to accept notices and other
communications to it hereunder by electronic communications
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pursuant to procedures approved by it; PROVIDED that approval of such procedures
may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt. All notices received by any Holding Company or
Borrower hereunder shall be deemed for all purposes under this Agreement to have
been received by each of the Holding Companies and the Borrowers.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the
Administrative Agent, any Issuing Bank, any Lender or any Loan Party in
exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Issuing Banks, the Lenders and the Loan Parties
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or any
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as contemplated by Section 9.15, neither this Agreement nor
any other Loan Document nor any provision hereof or thereof may be waived,
amended or modified except, in the case of this Agreement, pursuant to an
agreement or agreements in writing entered into by the Holding Companies, the
Borrowers and the Required Lenders or, in the case of any other Loan Document,
pursuant to an agreement or agreements in writing entered into by the
Administrative Agent and the Loan Party or Loan Parties that are parties
thereto, in each case with the consent of the Required Lenders; PROVIDED that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce or forgive the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the maturity of any Loan, or any scheduled date of
payment of the principal amount of any Term Loan under Section 2.10, or the
required date of reimbursement of any LC Disbursement, or any date for the
payment of any interest or fees payable hereunder, or reduce or forgive the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
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consent of each Lender, (v) change any of the provisions of this Section or the
percentage set forth in the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as the case
may be), (vi) release any material Guarantee under the Collateral Agreement
(except as expressly provided in the Collateral Agreement), or limit the
applicable Loan Party's liability in respect of any such material Guarantee,
without the written consent of each Lender, (vii) release all or substantially
all of the Collateral from the Liens of the Security Documents (other than the
releases expressly permitted by the Security Documents), without the written
consent of each Lender, or (viii) change any provisions of any Loan Document in
a manner that by its terms adversely affects the rights in respect of payments
due to Lenders holding Loans of any Class differently than those holding Loans
of any other Class, without the written consent of Lenders holding a majority in
interest of the outstanding Loans and unused Commitments of each affected Class;
PROVIDED FURTHER that (A) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, any Issuing Bank or the
Swingline Lender without the prior written consent of the Administrative Agent,
such Issuing Bank or the Swingline Lender, as the case may be, and (B) any
waiver, amendment or modification of this Agreement that by its terms affects
the rights or duties under this Agreement of one Class of Lenders (but not other
Classes) may be effected by an agreement or agreements in writing entered into
by the Holding Companies, the Borrowers and requisite percentage in interest of
the affected Class of Lenders that would be required to consent thereto under
this Section if such Class of Lenders were the only Class of Lenders hereunder
at the time. Notwithstanding the foregoing, any provision of this Agreement may
be amended by an agreement in writing entered into by the Holding Companies, the
Borrowers, the Required Lenders and the Administrative Agent (and, if their
rights or obligations are affected thereby, each Issuing Bank and the Swingline
Lender) if (i) by the terms of such agreement the Commitment of each Lender not
consenting to the amendment provided for therein shall terminate upon the
effectiveness of such amendment and (ii) at the time such amendment becomes
effective, each Lender not consenting thereto receives payment in full of the
principal of and interest accrued on each Loan made by it and all other amounts
owing to it or accrued for its account under this Agreement.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Borrowers
jointly and severally agree to pay (i) all reasonable out-of-pocket expenses
incurred by the Agents and their respective Affiliates, including the reasonable
fees, charges and disbursements of counsel for each of the Agents, in connection
with the syndication of the credit facilities provided for herein, the
preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by any Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by either Agent, any Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for either of the Agents, any Issuing Bank or any
Lender, in
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connection with the enforcement or protection of its rights in connection with
the Loan Documents, including its rights under this Section, or in connection
with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrowers jointly and severally agree to indemnify each Agent,
each Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "INDEMNITEE") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Restatement
Transactions or any other transactions contemplated hereby, (ii) any Loan or
Letter of Credit or the use of the proceeds therefrom (including any refusal by
an Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any Mortgaged Property or any other
property currently or formerly owned or operated by any of the Borrowers or the
Subsidiaries, or any Environmental Liability related in any way to any of the
Borrowers or the Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; PROVIDED that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from (i) the gross negligence, wilful
misconduct or bad faith of such Indemnitee or (ii) a dispute arising exclusively
between or among the Agents, the Lenders and/or the Issuing Banks.
(c) To the extent that the Borrowers fail to pay any amount required
to be paid by them to the Administrative Agent, any Issuing Bank or Committed
Swingline Lender under paragraph (a) or (b) of this Section, (i) each Lender
severally agrees to pay to the Administrative Agent, such Lender's pro rata
share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount that is owing to the
Administrative Agent and (ii) each Revolving Lender severally agrees to pay to
such Issuing Bank or the Committed Swingline Lender, as the case by be, such
Revolving Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount that
is owing to such Issuing Bank or the Committed Swingline Lender, as the case may
be; PROVIDED, in each case, that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, such Issuing Bank or the Committed
Swingline Lender in its capacity as such. For purposes of clause (i) above, a
Lender's "pro rata share" shall be determined based upon its share of the sum of
the total Revolving Exposures, outstanding Term Loans and unused Commitments at
the time. For purposes of clause
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(ii) above, a Revolving Lender's "pro rata share" shall be determined based upon
its share of the sum of the total Revolving Exposures and unused Revolving
Commitments at the time.
(d) To the extent permitted by applicable law, none of the Holding
Companies, the Borrowers, the Agents, the Lenders or the Issuing Banks shall
assert, and each hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Restatement Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i)
neither Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by a Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Banks and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld or delayed) of:
(A) the BC Borrower; PROVIDED that no consent of the BC Borrower shall
be required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default has occurred and is continuing,
any other assignee; and
(B) the Administrative Agent; PROVIDED that no consent of the
Administrative Agent shall be required for an assignment of all or any
portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved
Fund; and
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(C) each Issuing Bank; PROVIDED that no consent of any Issuing Bank
shall be required for an assignment of all or any portion of a Term Loan.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender's Commitment or Loans of any Class, the
amount of the Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent)
shall not be less than $5,000,000 or, in the case of a Term Loan,
$1,000,000 unless the BC Borrower and the Administrative Agent otherwise
consent; PROVIDED that no such consent of the BC Borrower shall be required
if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (B) shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or
Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 to be paid by the assignor or
assignee; PROVIDED that only one such fee shall be payable in connection
with simultaneous assignments to or by two or more related Approved Funds;
and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
For purposes of this Section 9.04(b), the term "Approved Fund" has the
following meaning:
"APPROVED FUND" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course and that is administered or managed
by, or has as its principal investment advisor, a Lender, an Affiliate of a
Lender or an entity or an Affiliate of an entity that administers or manages a
Lender or is the principal investment advisor of a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and
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Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 9.04 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the BC Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be conclusive, and each of the Holding Companies, the
Borrowers, the Administrative Agent, the Issuing Banks and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the
Borrowers, any Issuing Bank and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrowers, the
Administrative Agent, the Issuing Banks or the Committed Swingline Lender, sell
participations to one or more banks or other entities (a "PARTICIPANT") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
PROVIDED that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Holding Companies,
the Borrowers, the Administrative Agent, the Issuing Banks and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the Loan Documents and
to approve any amendment, modification or waiver of any provision of the Loan
Documents; PROVIDED that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f)
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of this Section, the Borrowers agree that each Participant shall be entitled to
the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (c)(ii)
of this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the BC
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the BC Borrower is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the BC Borrower, to comply with
Section 2.17(e) as though it were a Lender.
(d) Any Lender may, without the consent of either Borrower or the
Administrative Agent, at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; PROVIDED that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, any Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the other
Loan Documents
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and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If (a) an Event of Default (other than
with respect to clause (a) or (b) of Article VII) shall have occurred and be
continuing and the Loans shall have been declared due and payable by the
Administrative Agent or (b) an Event of Default shall have occurred and be
continuing with respect to clause (a) or (b) of Article VII, each Lender and
each of its Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of either Borrower against any of and all the
obligations of the Borrowers now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. In
the event that any Lender or an Affiliate of a Lender exercises its rights under
this Section 9.08, such Lender shall promptly thereafter provide to the BC
Borrower notice thereof (it being understood that a Lender's failure to provide
such notice shall not affect its rights under this Section 9.08). The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of the Holding Companies and the Borrowers hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right
108
that the Administrative Agent, any Issuing Bank or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement or any other Loan
Document against either Holding Company, either Borrower or its properties in
the courts of any jurisdiction.
(c) Each of the Holding Companies and the Borrowers hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in the first sentence of
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE RESTATEMENT
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Administrative Agent, the
Issuing Banks and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal
109
process, (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to (i) any assignee of or Participant in, or
any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (ii) any pledgee referred to in Section 9.04(d) or (iii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to either of the Borrowers and their
obligations, (g) with the consent of any of the Holding Companies or the
Borrowers or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential
basis from a source other than any of the Holding Companies or the Borrowers.
For the purposes of this Section, "INFORMATION" means all information received
from any of the Holding Companies or the Borrowers relating to any of the
Holding Companies or the Borrowers or their business, other than any such
information that is available to the Administrative Agent, any Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by any of the Holding
Companies or the Borrowers. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "CHARGES"), shall exceed the
maximum lawful rate (the "MAXIMUM RATE") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. USA PATRIOT ACT. Each Lender hereby notifies each of the
Borrowers and the Holding Companies that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)),
(the "ACT"), it is required to obtain, verify and record information that
identifies each of the Borrowers and the Holding Companies, which information
includes the name and address of each of the Borrowers and the Holding Companies
and other information that will allow such Lender to identify each of the
Borrowers and the Holding Companies in accordance with the Act.
110
SECTION 9.15. SALE OF TIMBER BORROWER. (a) If all of the Equity
Interests of the Timber Borrower are sold in compliance with Section 6.05(c),
then, upon consummation of such sale, the Timber Borrower (and, upon
satisfaction of all payments required to be made hereunder as a result of such
sale, Timber Holdings) shall cease to be parties to this Agreement and shall be
released from their obligations hereunder and, subject to paragraph (b) below,
the provisions of this Agreement applicable to Timber Holdings, the Timber
Borrower and the Timber Subsidiaries shall cease to apply; PROVIDED that the
foregoing shall not be construed to relieve the BC Borrower and the BC
Subsidiaries from their Guarantees under the Collateral Agreement in respect of
any Obligations of the Timber Borrower that would have survived the termination
of this Agreement if Timber Holdings and the Timber Borrower had remained as
parties hereto and such release had not occurred.
(b) In connection with any such sale of the Equity Interests of the
Timber Borrower, BC Holdings, the BC Borrower and the Administrative Agent shall
enter into an amendment to (or amendment and restatement of) this Agreement in
order to reflect the elimination of the provisions of this Agreement applicable
to Timber Holdings, the Timber Borrower and the Timber Subsidiaries; PROVIDED
that no such amendment (or amendment and restatement) shall alter or amend in
any material way the covenants set forth in Sections 6.12, 6.13 and 6.14 without
the consent of the Required Lenders (it being understood that any change to the
numerical thresholds set forth in such covenants will be deemed to be material).
The Administrative Agent will furnish a draft of such amendment (or amendment
and restatement) to the Lenders not less than three Business Days prior to
execution and delivery thereof, and will furnish copies thereof to the Lenders
after execution and delivery thereof. Each Lender authorizes the Administrative
Agent to enter into such amendment (or amendment and restatement) and such
amendment (or amendment and restatement) shall be binding on all the parties
hereto and shall not require the consent or approval of any Lender.
SECTION 9.16. EFFECTIVENESS OF AMENDMENT AND RESTATEMENT. After the
Restatement Effective Date, all obligations of the Borrowers under the Original
Credit Agreement shall become obligations of the Borrowers hereunder, secured by
the Security Documents, and the provisions of the Original Credit Agreement
shall be superceded by the provisions hereof.
ARTICLE X
RELEASE OF TIMBER PARTIES AND AMENDMENT AND RESTATEMENT AFTER INITIAL PUBLIC
OFFERING
SECTION 10.01. RELEASE AND AMENDMENT. (a) After the Contemplated IPO
is consummated, upon receipt by the Administrative Agent of a certificate signed
on behalf of each of the Borrowers by the President, a Vice President or a
Financial Officer thereof to the effect that (i) the Contemplated IPO has been
consummated, (ii) neither Timber Holdings, the Timber Borrower nor any Timber
Subsidiary has any material assets, (iii) neither the BC Borrower nor any of the
BC Subsidiaries owes any Indebtedness to Timber Holdings, the Timber Borrower or
any Timber Subsidiary and (iv) after giving effect to the releases referred to
below, neither Timber Holdings, the
111
Timber Borrower nor any Timber Subsidiary shall be liable, pursuant to a
Guarantee or otherwise, for any Indebtedness of the BC Borrower or any BC
Subsidiary, then:
(A) each of Timber Holdings, the Timber Borrower and the Timber
Subsidiaries shall be released from its obligations under each Loan
Document to which it is a party and shall cease to be a party thereto, and
any Collateral owned by Timber Holdings, the Timber Borrower or any Timber
Subsidiary shall be released from the Liens granted under the Security
Documents; and
(B) this Agreement shall thereupon be deemed amended and restated to
read in its entirety as set forth in Exhibit E, as modified to reflect any
amendments to this Agreement subsequent to the Restatement Effective Date
("SECOND RESTATED CREDIT AGREEMENT").
(b) The Lenders hereby (i) authorize the Collateral Agent to execute
and deliver any amendments or modifications to the Security Documents that the
Collateral Agent determines to be necessary or appropriate to reflect the
releases referred to above and (ii) consent to all such amendments or
modifications.
(c) Promptly following receipt by the Administrative Agent of the
certificate described in paragraph (a) of this Section, the Administrative Agent
will notify the Lenders thereof. BC Holdings, the BC Borrower and the
Administrative Agent will execute an agreement in the form of Exhibit E, with
the blanks appropriately filled (and modified to reflect any amendments to this
Agreement subsequent to the Restatement Effective Date), and distribute copies
thereof to the Lenders; PROVIDED that the failure to do so shall not affect the
effectiveness of the amendment and restatement of this Agreement as described
above.
EXHIBIT E
TO RESTATED CREDIT AGREEMENT
================================================================================
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
[-], 2005
among
BOISE CASCADE COMPANY,
BOISE CASCADE, L.L.C.,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
----------
X.X. XXXXXX SECURITIES INC.
and
XXXXXX BROTHERS INC.,
as Joint Lead Arrangers and
Joint Bookrunners
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent
COBANK, ACB,
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
and
XXXXXXX SACHS CREDIT PARTNERS L.P.
as Documentation Agents
================================================================================
[CS&M No. 6701-411]
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms..............................................................................1
SECTION 1.02. Classification of Loans and Borrowings....................................................32
SECTION 1.03. Terms Generally...........................................................................32
SECTION 1.04. Accounting Terms; GAAP....................................................................32
SECTION 1.05. Certificates..............................................................................33
ARTICLE II
The Credits
SECTION 2.01. Revolving Commitments; Tranche D Term Loans...............................................33
SECTION 2.02. Loans and Borrowings......................................................................33
SECTION 2.03. Requests for Borrowings...................................................................34
SECTION 2.04. Swingline Loans...........................................................................35
SECTION 2.05. Letters of Credit.........................................................................37
SECTION 2.06. Funding of Borrowings.....................................................................41
SECTION 2.07. Interest Elections........................................................................42
SECTION 2.08. Termination and Reduction of Commitments..................................................43
SECTION 2.09. Repayment of Loans; Evidence of Debt......................................................44
SECTION 2.10. Amortization of Term Loans................................................................45
SECTION 2.11. Prepayment of Loans.......................................................................46
SECTION 2.12. Fees......................................................................................48
SECTION 2.13. Interest..................................................................................49
SECTION 2.14. Alternate Rate of Interest................................................................50
SECTION 2.15. Increased Costs...........................................................................50
SECTION 2.16. Break Funding Payments....................................................................52
SECTION 2.17. Taxes.....................................................................................52
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...............................53
SECTION 2.19. Mitigation Obligations; Replacement of Lenders............................................55
SECTION 2.20. Increase in Revolving Credit Commitments..................................................56
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers......................................................................58
SECTION 3.02. Authorization; Enforceability.............................................................58
SECTION 3.03. Governmental Approvals; No Conflicts......................................................58
SECTION 3.04. Financial Condition; No Material Adverse Change...........................................58
SECTION 3.05. Properties................................................................................59
SECTION 3.06. Litigation and Environmental Matters......................................................60
SECTION 3.07. Compliance with Laws and Agreements.......................................................61
SECTION 3.08. Investment and Holding Company Status.....................................................61
SECTION 3.09. Taxes.....................................................................................61
SECTION 3.10. ERISA.....................................................................................61
SECTION 3.11. Disclosure................................................................................61
SECTION 3.12. Subsidiaries..............................................................................62
SECTION 3.13. Insurance.................................................................................62
SECTION 3.14. Labor Matters.............................................................................62
SECTION 3.15. Solvency..................................................................................62
SECTION 3.16. Senior Indebtedness.......................................................................63
SECTION 3.17. Security Interests........................................................................63
ARTICLE IV
Conditions
SECTION 4.01. [Intentionally Omitted]...................................................................63
SECTION 4.02. Each Credit Event.........................................................................63
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information................................................64
SECTION 5.02. Notices of Material Events................................................................65
SECTION 5.03. Information Regarding Collateral..........................................................66
SECTION 5.04. Existence; Conduct of Business............................................................66
SECTION 5.05. Payment of Obligations....................................................................66
SECTION 5.06. Maintenance of Properties.................................................................67
SECTION 5.07. Insurance.................................................................................67
SECTION 5.08. Casualty and Condemnation.................................................................67
SECTION 5.09. Books and Records; Inspection Rights......................................................67
SECTION 5.10. Compliance with Laws......................................................................67
SECTION 5.11. Use of Proceeds and Letters of Credit.....................................................68
SECTION 5.12. Additional Subsidiaries...................................................................68
SECTION 5.13. Further Assurances........................................................................68
SECTION 5.14. Interest Rate Protection..................................................................69
SECTION 5.15. Fiscal Periods............................................................................69
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities; Designated Senior Indebtedness...................69
SECTION 6.02. Liens.....................................................................................71
SECTION 6.03. Fundamental Changes.......................................................................73
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.................................74
SECTION 6.05. Asset Sales...............................................................................76
SECTION 6.06. Sale and Leaseback Transactions...........................................................77
SECTION 6.07. Swap Agreements...........................................................................77
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.....................................77
SECTION 6.09. Transactions with Affiliates..............................................................80
SECTION 6.10. Restrictive Agreements....................................................................80
SECTION 6.11. Amendment of Material Documents...........................................................81
SECTION 6.12. Interest Expense Coverage Ratio...........................................................81
SECTION 6.13. Leverage Ratio............................................................................82
SECTION 6.14. Capital Expenditures......................................................................82
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices...................................................................................88
SECTION 9.02. Waivers; Amendments.......................................................................89
SECTION 9.03. Expenses; Indemnity; Damage Waiver........................................................90
SECTION 9.04. Successors and Assigns....................................................................92
SECTION 9.05. Survival..................................................................................95
SECTION 9.06. Counterparts; Integration; Effectiveness..................................................95
SECTION 9.07. Severability..............................................................................96
SECTION 9.08. Right of Setoff...........................................................................96
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process................................96
SECTION 9.10. WAIVER OF JURY TRIAL......................................................................97
SECTION 9.11. Headings..................................................................................97
SECTION 9.12. Confidentiality...........................................................................97
SECTION 9.13. Interest Rate Limitation..................................................................98
SECTION 9.14. USA Patriot Act...........................................................................98
SECTION 9.15. First Restated Credit Agreement; Effectiveness of Second Restated Credit Agreement........98
SCHEDULES:
Schedule 2.01 -- Revolving Commitments
Schedule 3.05(d) --Real Property
Schedule 3.05(e) -- Purchase Rights on Mortgaged Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02(a) -- Existing BC Borrower Liens
Schedule 6.04(a) -- Existing BC Borrower Investments
Schedule 6.09 -- Original Effective Date Agreements
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- [Intentionally Omitted]
Exhibit C -- Form of Guarantee and Collateral Agreement
Exhibit D -- Form of Perfection Certificate
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as
of [-], 2005, among BOISE CASCADE COMPANY, BOISE CASCADE,
L.L.C., the LENDERS party hereto and JPMORGAN CHASE BANK,
N.A., as Administrative Agent.
WHEREAS, BC Holdings, Boise Land & Timber Holdings Corp., the BC
Borrower, Boise Land & Timber Corp., the lenders party thereto and JPMorgan
Chase Bank, N.A. (f/k/a/ JPMorgan Chase Bank), as administrative agent, were
parties to the Credit Agreement dated as of October 29, 2004 (the "ORIGINAL
CREDIT AGREEMENT"), as amended and in effect immediately prior to the First
Restatement Effective Date (as defined herein);
WHEREAS, BC Holdings, Boise Land & Timber Holdings Corp., the BC
Borrower, Boise Land & Timber Corp., the Required Restatement Lenders (as
defined therein) and JPMorgan Chase Bank, N.A., as administrative agent, entered
into an Amendment and Restatement Agreement dated as of April 18, 2005 (the
"AMENDMENT AND RESTATEMENT AGREEMENT");
WHEREAS, pursuant to the Amendment and Restatement Agreement, on the
First Restatement Effective Date the Original Credit Agreement was amended and
restated in the form of the Amended and Restated Credit Agreement dated as of
April 18, 2005 (the "FIRST RESTATED CREDIT AGREEMENT");
WHEREAS, Section 10.01 of the First Restated Credit Agreement provides
for the amendment and restatement of the First Restated Credit Agreement in the
form of this Agreement, subject to the satisfaction of the conditions specified
therein; and
WHEREAS, such conditions have been satisfied on the Second Restatement
Effective Date;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"ACCOUNT" means, collectively, (a) an "account" as such term is
defined in the Uniform Commercial Code as in effect from time to time in the
State of New York or under other relevant law, and (b) any rights of the BC
Borrower or any Subsidiary to
2
payment for goods sold or leased or services performed, including all such
rights evidenced by an account, note, contract, security agreement, chattel
paper, or other evidence of indebtedness or security.
"ACQUIRED BUSINESSES" has the meaning assigned to such term in the
Original Credit Agreement.
"ACQUISITION" means the acquisition by the Subsidiaries of all of the
assets exclusively or primarily related to or used exclusively or primarily in
the conduct of the Operating Businesses prior to the Original Effective Date.
"ACQUISITION AGREEMENT" has the meaning assigned to such term in the
Original Credit Agreement.
"ADDITIONAL CONSIDERATION AGREEMENT" has the meaning assigned to such
term in the Acquisition Agreement.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/32 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders hereunder. The terms
"Administrative Agent" and "Collateral Agent" are used interchangeably and shall
not be construed to distinguish separate roles, functions or duties.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified; PROVIDED
that, solely for purposes of Section 6.09, a Person shall not be an "Affiliate"
of BC Holdings or the BC Borrower solely by reason of being commonly Controlled
by Madison Dearborn if (a) such Person is not Controlled by BC Holdings or the
BC Borrower and (b) the Equity Interests in such Person owned or Controlled,
directly or indirectly, by Madison Dearborn represent less than 20% of each of
the aggregate ordinary voting power and the aggregate equity value represented
by such Person's outstanding Equity Interests.
"AGENTS" means the Administrative Agent and the Syndication Agent.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
3
"AMENDMENT AND RESTATEMENT AGREEMENT" has the meaning assigned to such
term in the recitals hereto.
"APPLICABLE PERCENTAGE" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"APPLICABLE RATE" means, for any day (a) with respect to any Tranche D
Term Loan, (i) until sub-clause (ii) of this clause (a) becomes effective (A) in
the case of an ABR Loan, 0.75% per annum and (B) in the case of a Eurodollar
Loan, 1.75% per annum or (ii) effective on and after the first date that the
credit facilities under this Agreement are rated both BB or better by S&P and
Ba2 or better by Xxxxx'x (and the Administrative Agent shall have received a
certificate to such effect signed on behalf of the BC Borrower by a Financial
Officer), (A) in the case of an ABR Loan, 0.50% per annum and (B) in the case of
a Eurodollar Loan, 1.50% per annum; and (b) with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan, the applicable rate per annum set
forth below under the caption "ABR Spread" or "Eurodollar Spread", as the case
may be, based upon the Leverage Ratio as of the most recent determination date;
PROVIDED that prior to delivery of consolidated financial statements for the
fiscal quarter ending March 31, 2005, the Applicable Rate in respect of
Revolving Loans shall be determined by reference to Category 1 below:
ABR Eurodollar
Leverage Ratio: Spread Spread
------------------------------------------------------------------------------
CATEGORY 1
Greater than 4.00 to 1.00 1.25% 2.25%
CATEGORY 2
Greater than 3.50 to 1.00
but less than or equal to 4.00 to 1.00 1.00% 2.00%
CATEGORY 3
Greater than 3.00 to 1.00
but less than or equal to 3.50 to 1.00 0.75% 1.75%
CATEGORY 4
Less than or equal to 3.00 to 1.00 0.50% 1.50%
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of the BC Borrower's fiscal year based upon the
consolidated financial statements of BC Holdings delivered pursuant to Section
5.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the date of delivery to the Administrative Agent of such
consolidated financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change; PROVIDED that
the Leverage Ratio shall be deemed to be in Category 1 (A) at any time that
4
an Event of Default has occurred and is continuing or (B) at the option of the
Administrative Agent or at the request of the Required Lenders if the BC
Borrower fails to deliver the consolidated financial statements of BC Holdings
required to be delivered pursuant to Section 5.01(a) or (b), during the period
from the expiration of the time for delivery thereof until such consolidated
financial statements are delivered.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"BC BORROWER" means Boise Cascade, L.L.C., a Delaware limited
liability company that is a wholly owned subsidiary of BC Holdings.
"BC CORPORATE CONVERSION" has the meaning assigned to such term in the
First Restated Credit Agreement.
"BC HOLDINGS" means Boise Cascade Company, a Delaware corporation
(successor to
Boise Cascade Holdings, L.L.C., a Delaware limited liability
company).
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States of America.
"BORROWER" means the BC Borrower.
"BORROWING" means (a) all Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"BORROWING REQUEST" means a request by the BC Borrower for a Borrowing
in accordance with Section 2.03.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; PROVIDED that, when used in connection with a Eurodollar Loan,
the term "BUSINESS DAY" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CAPITAL EXPENDITURES" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of BC Holdings, the
BC Borrower and its consolidated Subsidiaries that are (or would be) set forth
as capital expenditures in a consolidated statement of cash flows of BC Holdings
for such period prepared in accordance with GAAP and (b) the principal portion
of Capital Lease Obligations incurred by BC Holdings, the BC Borrower and its
consolidated Subsidiaries during such period; PROVIDED that Capital Expenditures
shall not include (i) the purchase price paid in connection with a Permitted
Acquisition, (ii) expenditures made pursuant to any election to apply Net
Proceeds of a Prepayment Event described in clause (a) or (b) of the definition
of the term "Prepayment Event" to acquire assets as contemplated by the
5
proviso to Section 2.11(c), (iii) the non-cash consideration transferred or
disposed of in connection with a Permitted Operating Asset Swap, (iv) any
Specified Investment and (v) payments required to be made by any Loan Party
under the Additional Consideration Agreement.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person of any Equity Interest
in the BC Borrower (other than the ownership by BC Holdings of Equity Interests
in the BC Borrower); (b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the Original Effective Date), other than
Madison Dearborn, of Equity Interests representing 35% or more of either the
aggregate ordinary voting power or the aggregate equity value represented by the
issued and outstanding Equity Interests of BC Holdings; (c) occupation of a
majority of the seats (other than vacant seats) on the board of directors of BC
Holdings by Persons who were neither nominated by the board of directors of BC
Holdings nor appointed by directors so nominated; (d) the acquisition, by reason
of a written agreement, of direct or indirect Control of BC Holdings or the BC
Borrower by any Person or group other than Madison Dearborn; or (e) the
occurrence of a "Change of Control", as defined in the Subordinated Debt
Documents or the Senior Unsecured Debt Documents.
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation
after the Original Effective Date, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the Original Effective Date or (c) compliance by any Lender or any Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or such Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the Original Effective Date.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Tranche D Term Loans or Swingline Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Commitment or
Tranche D Commitment.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
6
"COLLATERAL" means any and all "Collateral", as defined in any
applicable Security Document.
"COLLATERAL AGENT" means JPMorgan Chase Bank, N.A., as collateral
agent under the Security Documents. The terms "Administrative Agent" and
"Collateral Agent" are used interchangeably and shall not be construed to
distinguish separate roles, functions or duties.
"COLLATERAL AGREEMENT" means the Guarantee and Collateral Agreement
among each of BC Holdings, the BC Borrower, the Subsidiary Loan Parties and the
Administrative Agent, substantially in the form of Exhibit C.
"COLLATERAL AND GUARANTEE REQUIREMENT" means the requirement that:
(a) the Administrative Agent shall have received from each Loan Party
either (i) a counterpart of the Collateral Agreement duly executed and
delivered on behalf of such Loan Party or (ii) in the case of any Person
that becomes a Loan Party after the Original Effective Date, a supplement
to the Collateral Agreement, in the form specified therein, duly executed
and delivered on behalf of such Loan Party;
(b) all outstanding Equity Interests of the BC Borrower and each
Subsidiary owned by or on behalf of any Loan Party shall have been pledged
pursuant to the Collateral Agreement (except that the Loan Parties shall
not be required to pledge more than 65% of the outstanding voting Equity
Interests of any Foreign Subsidiary that is not a Loan Party) and the
Administrative Agent shall have received certificates or other instruments
representing all such Equity Interests, together with stock powers or other
instruments of transfer with respect thereto endorsed in blank;
(c) all Indebtedness of each of BC Holdings, the BC Borrower and the
Subsidiaries that is owing to any Loan Party shall be evidenced by a
promissory note and shall have been pledged pursuant to the Collateral
Agreement and the Administrative Agent shall have received all such
promissory notes, together with instruments of transfer with respect
thereto endorsed in blank; PROVIDED that Indebtedness of any such Person
owing to a Loan Party shall not be required to be evidenced by a promissory
note (but shall nevertheless constitute Collateral) if the aggregate
principal amount of outstanding Indebtedness of such Person owing to Loan
Parties and not so evidenced by promissory notes does not exceed
$5,000,000;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create the
Liens intended to be created by the Collateral Agreement and perfect such
Liens to the extent required by, and with the priority required by, the
Collateral Agreement,
7
shall have been filed, registered or recorded or delivered to the
Administrative Agent for filing, registration or recording;
(e) the Administrative Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid first
Lien on the Mortgaged Property described therein, free of any other Liens
except as expressly permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent or
the Required Lenders may reasonably request, and (iii) such surveys,
abstracts, appraisals, legal opinions and other documents as the
Administrative Agent or the Required Lenders may reasonably request with
respect to any such Mortgage or Mortgaged Property;
(f) each Loan Party shall have obtained all material consents and
approvals required to be obtained by it in connection with the execution
and delivery of all Security Documents to which it is a party, the
performance of its obligations thereunder and the granting by it of the
Liens thereunder; and
(g) the Administrative Agent shall be reasonably satisfied that all
warehousemen, bailees, agents or processors which have in their possession
or control any Inventory with a fair market value in excess of $5,000,000
at any one time have been notified of the Liens created by the Security
Documents in such Inventory and that the BC Borrower shall have used
reasonable efforts to cause each such warehouseman, bailee, agent or
processor to (i) acknowledge in writing, in form and substance satisfactory
to the Administrative Agent, that such warehouseman, agent, bailee or
processor holds the Inventory for the benefit of the Administrative Agent
subject to the Liens created by the Security Documents and shall act upon
the instructions of the Administrative Agent without further consent from
any Loan Party, and (ii) agree to waive and release any Lien held by it
with respect to such Inventory, whether arising by operation of law or
otherwise.
"COMMITMENT" means a Revolving Commitment or Tranche D Commitment, or
any combination thereof (as the context requires).
"COMMITTED SWINGLINE LENDER" means JPMorgan Chase Bank, N.A., in its
capacity as lender of Committed Swingline Loans hereunder.
"COMMITTED SWINGLINE LOAN" means a Loan made by the Committed
Swingline Lender pursuant to Section 2.04(a).
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period, the excess
of (a) the sum (without duplication) of (i) the interest expense (including
imputed interest expense in respect of Capital Lease Obligations) of BC
Holdings, the BC Borrower and the Subsidiaries for such period, determined on a
consolidated basis in accordance with
8
GAAP, (ii) any cash payments made during such period in respect of obligations
referred to in clause (b)(iii) below that were amortized or accrued in a
previous period and (iii) interest-equivalent costs associated with any
Permitted Receivables Financing, whether accounted for as interest expense or
loss on the sale of Receivables, minus (b) the sum of (i) interest income of BC
Holdings, the BC Borrower and the Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP, (ii) to the extent included in such
consolidated interest expense for such period, non-cash amounts attributable to
amortization of financing costs paid in a previous period, plus (iii) to the
extent included in such consolidated interest expense for such period, non-cash
amounts attributable to amortization of debt discounts or accrued interest
payable in kind for such period.
"CONSOLIDATED EBITDA" means, for any period, the sum of Consolidated
Net Income for such period, plus the following, without duplication, to the
extent deducted in calculating such Consolidated Net Income:
(a) all income tax expense of BC Holdings, the BC Borrower and the
Subsidiaries, on a consolidated basis;
(b) all interest expense of BC Holdings, the BC Borrower and the
Subsidiaries, on a consolidated basis;
(c) depreciation, depletion and amortization expense of BC Holdings,
the BC Borrower and the Subsidiaries, on a consolidated basis (in each case
excluding amortization expense attributable to a prepaid item that was paid
in cash in a prior period);
(d) any management fees paid to Madison Dearborn in such period, not
to exceed $2,000,000 for any consecutive four quarter period;
(e) any non-recurring costs and expenses incurred in connection with
the Acquisition, including non-recurring costs and expenses incurred in
connection with the Financing Transactions and severance costs, facility
closure and related restructuring costs incurred within 18 months of the
Original Effective Date, in an aggregate amount for all periods not to
exceed $25,000,000;
(f) any non-recurring costs and expenses related to (i) any public or
private offering of Equity Interests of BC Holdings or the BC Borrower,
(ii) any investment or acquisition permitted by Section 6.04 or (iii)
recapitalizations or Indebtedness permitted by Section 6.01; and
(g)(i) all other non-cash charges of BC Holdings, the BC Borrower and
the Subsidiaries, on a consolidated basis (in each case excluding any such
non-cash charge to the extent that it represents an accrual of or reserve
for cash expenditures in any future period) less (ii) all non-cash items of
income of BC Holdings, the BC Borrower and the Subsidiaries, on a
consolidated basis (in each case other than accruals of revenue in the
ordinary course of business and other
9
than reversals (to the extent made without any payment in cash) of reserves
previously excluded from clause (g)(i)),
in each case for such period. Notwithstanding the foregoing, the provision for
taxes based on the income or profits of, and the depreciation, amortization and
depletion and non-cash charges of, a Subsidiary shall be added to Consolidated
Net Income to compute Consolidated EBITDA only to the extent (and in the same
proportion, including by reason of minority interests) that the net income or
loss of such Subsidiary was included in calculating Consolidated Net Income for
any purpose and, with respect to a Subsidiary that is not a Subsidiary Loan
Party, only if a corresponding amount would be permitted at the date of
determination to be dividended to a Loan Party by such Subsidiary without prior
approval (that has not been obtained), pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Subsidiary or its stockholders.
Solely for purposes of calculating the Leverage Ratio, if during any period
(each, a "REFERENCE PERIOD") (or, in the case of PRO FORMA calculations, during
the period from the last day of such Reference Period to and including the date
as of which such calculation is made) the BC Borrower or any Subsidiary shall
have made a Material Disposition or Material Acquisition (other than the
Acquisition), their Consolidated EBITDA for such Reference Period shall be
calculated after giving PRO FORMA effect thereto as if such Material Disposition
or Material Acquisition occurred on the first day of such Reference Period;
PROVIDED that such PRO FORMA calculations shall give effect to operating expense
reductions and other cost savings only to the extent that such reductions and
savings would be permitted to be reflected in a pro forma financial statement
prepared in compliance with Regulation S-X. As used in this definition,
"MATERIAL ACQUISITION" means any Permitted Acquisition or series of related
Permitted Acquisitions that involves consideration (including any non-cash
consideration) with a fair market value in excess of $20,000,000; and "MATERIAL
DISPOSITION" means any disposition of property or series of related dispositions
of property or assets (including the Equity Interests of a Subsidiary) that
involves consideration (including any non-cash consideration) with a fair market
value in excess of $20,000,000.
For purposes of this Agreement, Consolidated EBITDA for any Reference Period
that includes any period of time prior to the Acquisition shall be calculated
after giving PRO FORMA effect for such period to the Acquisition and the other
categories of adjustments to "EBITDA" used to calculate pro forma "Adjusted
EBITDA" as set forth in footnote 7 under the section of the Offering Memorandum
entitled "Offering memorandum summary--Summary historical and pro forma
condensed combined financial data" (without duplication of amounts otherwise
included in the calculation of "EBITDA" as presented in the Offering
Memorandum), it being understood that, with respect to the adjustment related to
the Additional Consideration Agreement, the adjustment shall be for a deemed
one-time receipt by the BC Borrower of $40,233,000 pursuant to such agreement
during the relevant Reference Period until such time as such Reference Period
includes an actual payment or receipt pursuant to such agreement, at which point
such actual payment or receipt shall be used in place of such deemed receipt.
10
"CONSOLIDATED NET INCOME" means, for any period, the net income or
loss of BC Holdings, the BC Borrower and the Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; PROVIDED that there
shall not be included in such Consolidated Net Income:
(a) any net income of any Person (other than BC Holdings and the BC
Borrower) if such Person is not a Subsidiary, except that, subject to the
exclusion contained in clause (c) below, the BC Borrower's equity in the
net income of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the BC Borrower or a
Subsidiary as a dividend or other distribution (subject, in the case of a
dividend or other distribution paid to a Subsidiary, to the limitations
contained in clause (b) below);
(b) any net income of any Subsidiary that is not a Subsidiary Loan
Party if such Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions by
such Subsidiary, directly or indirectly, to the BC Borrower, except that:
(i) subject to the exclusion contained in clause (c) below, the
BC Borrower's equity in the net income of any such Subsidiary for such
period shall be included in such Consolidated Net Income to the extent
that the net income of such Subsidiary would be permitted at the date
of determination to be dividended to the BC Borrower without any prior
approval or waiver (that has not been obtained) pursuant to the terms
of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules or governmental regulations applicable to that
Subsidiary or its stockholders (subject, in the case of a dividend or
other distribution paid to another Subsidiary, to the limitation
contained in this clause (i)) and
(ii) the BC Borrower's equity in a net loss of any such
Subsidiary for such period shall be included in determining such
Consolidated Net Income;
(c) any gain or loss realized upon the sale or other disposition of
any assets of BC Holdings, the BC Borrower or any Subsidiary or any other
Person (including pursuant to any sale-and-leaseback arrangement) which are
not sold or otherwise disposed of in the ordinary course of business and
any gain (or loss) realized upon the sale or other disposition of any
Equity Interests of any Person;
(d) extraordinary gains or losses;
(e) any unrealized Statement of Financial Accounting Standards No. 133
gain or loss in respect of any Swap Agreement;
(f) any non-cash gains or losses attributable to the early
extinguishment of Indebtedness;
11
(g) unusual or non-recurring non-cash gains or losses;
(h) any non-cash goodwill impairment charges resulting from the
application of Statement of Financial Accounting Standards No. 142; and
(i) any non-cash compensation charge or expense, including any such
charge or expense arising from grants of stock options or restricted stock
or other equity-incentive programs for the benefit of officers, directors
and employees of BC Holdings, the BC Borrower or any Subsidiary,
in each case for such period. Notwithstanding the foregoing, any amounts
received and any amounts paid by BC Holdings, the BC Borrower or any Subsidiary
under the Additional Consideration Agreement during such period shall be added
and subtracted, respectively, in calculating Consolidated Net Income, without
duplication.
"CONTEMPLATED IPO" means the initial offering by BC Holdings of its
Equity Interests to the public, by means of an offering registered with the
Securities and Exchange Commission, as contemplated by the Registration
Statement on Form S-1 filed on February 11, 2005 (File No. 333-122770), as
amended or supplemented from time to time.
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person
through the right to exercise voting power or by contract. "CONTROLLING" and
"CONTROLLED" have meanings correlative thereto.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"ELIGIBLE SWAP ASSETS" means, in the case of a Permitted Operating
Asset Swap, assets constituting warehousing or distribution facilities
(including any related equipment and interests in real property associated
therewith).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions or legally binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the protection of the environment, preservation or
reclamation of natural resources, the management, release or threatened release
of any Hazardous Material or to occupational health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties
12
or indemnities), of any of BC Holdings, the BC Borrower or the Subsidiaries
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the BC Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Plan
(other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the BC Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the BC Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the BC Borrower or any of its ERISA Affiliates
of any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the receipt by the BC Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the BC
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"EURODOLLAR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VII.
13
"EXCESS CASH FLOW" means, for any fiscal year, the sum (without
duplication) of:
(a) the consolidated net income (or loss) of BC Holdings, the BC
Borrower and its consolidated Subsidiaries for such fiscal year, adjusted
to exclude any gains or losses attributable to Prepayment Events or
Permitted Operating Asset Swaps; PLUS
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining such consolidated net income (or loss) for such
fiscal year; PLUS
(c) the aggregate amount of payments received by any Loan Party
pursuant to the Additional Consideration Agreement during such fiscal year;
PLUS
(d) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such fiscal year plus (ii) the net amount, if any, by
which the consolidated deferred revenues of BC Holdings, the BC Borrower
and its consolidated Subsidiaries increased during such fiscal year; MINUS
(e) the sum of (i) any non-cash gains included in determining such
consolidated net income (or loss) for such fiscal year plus (ii) the
amount, if any, by which Net Working Capital increased during such fiscal
year plus (iii) the net amount, if any, by which the consolidated deferred
revenues of BC Holdings, the BC Borrower and its consolidated Subsidiaries
decreased during such fiscal year; MINUS
(f) Capital Expenditures for such fiscal year, except to the extent
attributable to (i) the incurrence of Capital Lease Obligations or
otherwise financed by incurring Long-Term Indebtedness or (ii) the
reinvestment of Net Proceeds received in respect of any Prepayment Events;
MINUS
(g) the aggregate amount of payments made by any Loan Party pursuant
to the Additional Consideration Agreement during such fiscal year; MINUS
(h) the amount of Tax Distributions paid in cash during such fiscal
year in compliance with Section 6.08; MINUS
(i) the amount of any expenses related to severance costs, facility
closure and related restructuring costs incurred in connection with the
Acquisition and paid within 18 months of the Original Effective Date by any
of BC Holdings, the BC Borrower or the Subsidiaries which expenses are not
otherwise deducted in calculating the consolidated net income (or loss) of
BC Holdings, the BC Borrower and its consolidated Subsidiaries as a result
of the application of purchase accounting principles; MINUS
(j) the aggregate principal amount of Long-Term Indebtedness repaid or
prepaid by the BC Borrower and its consolidated Subsidiaries during such
fiscal
14
year, excluding (i) Indebtedness in respect of Revolving Loans, Swingline
Loans and LC Exposure unless (and then only to the extent that) the
Revolving Commitments are also reduced, (ii) Term Loans prepaid pursuant to
Section 2.11, (iii) repayments or prepayments of Long-Term Indebtedness
financed by incurring other Long-Term Indebtedness, (iv) repayments or
prepayments of Long-Term Indebtedness (other than Loans) deducted in
calculating the amount of Net Proceeds in connection with any Prepayment
Event and (v) repayments or prepayments of Unsecured Senior Debt or
Subordinated Debt pursuant to clause (vii) of Section 6.08(b); MINUS
(k) the aggregate amount of dividends paid in cash by BC Holdings
during such fiscal year pursuant to clause (x) of Section 6.08(a).
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, any Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the BC Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the BC Borrower
under Section 2.19(b)), any withholding tax that (i) is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.17(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the BC Borrower with respect to any withholding tax
pursuant to Section 2.17(a).
"EXISTING LETTERS OF CREDIT" means the letters of credit listed on
Schedule 1.01 to the Original Credit Agreement.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means, in respect of any Person, the chief
financial officer, principal accounting officer, treasurer or controller of such
Person.
"FINANCING TRANSACTIONS" has the meaning assigned to such term in the
Original Credit Agreement.
15
"FIRST RESTATED CREDIT AGREEMENT" has the meaning assigned to such
term in the recitals hereto.
"FIRST RESTATEMENT EFFECTIVE DATE" means the "Restatement Effective
Date", as defined in the Amendment and Restatement Agreement.
"FIRST RESTATEMENT TRANSACTIONS" means (a) the execution, delivery and
performance by each Loan Party of the Loan Documents to which it is, or is to
be, a party, the borrowing of Loans, the use of the proceeds thereof and the
issuance of Letters of Credit hereunder and (b) the prepayment of the Tranche B
Term Loans.
"FOREIGN LENDER" means any Lender that is organized under the laws of
a jurisdiction other than that in which the BC Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"FPH" means Forest Products Holdings, L.L.C., a Delaware limited
liability company and a direct subsidiary of Madison Dearborn Capital Partners,
IV, L.P.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease (including pursuant to any "synthetic lease") property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; PROVIDED, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
16
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HOLDING COMPANIES" has the meaning assigned to such term in the
Original Credit Agreement.
"HOLDING COMPANY" means BC Holdings.
"IMMATERIAL SUBSIDIARIES" means, at any time, Subsidiaries, that, on a
consolidated basis with their respective Subsidiaries and treated as if all such
Subsidiaries and their respective Subsidiaries were combined and consolidated as
a single Subsidiary, (a) had consolidated assets representing less than 2% of
the consolidated assets of BC Holdings as of the last day of the most recently
ended fiscal quarter for which financial statements are available, (b) accounted
for less than 2% of the consolidated revenues of BC Holdings for the period of
four consecutive fiscal quarters most recently ended for which financial
statements are available and (c) accounted for less than 2% of Consolidated
EBITDA of BC Holdings for the period of four consecutive fiscal quarters most
recently ended for which financial statements are available.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding accounts
payable due within one year and accrued expenses, in each case incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed;
PROVIDED that if recourse for such Indebtedness is limited to such property, the
amount of Indebtedness arising under this clause (f) shall be limited to the
lesser of (i) the outstanding principal amount thereof and (ii) the fair market
value of the property subject to such Lien, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
17
"INTEREST ELECTION REQUEST" means a request by the BC Borrower to
convert or continue a Borrowing in accordance with Section 2.07.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"INTEREST PERIOD" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
(or, with respect to a Eurodollar Revolving Borrowing, one week or, with the
consent of each Lender participating in such Borrowing, nine or twelve months)
thereafter, as the applicable Borrower may elect; PROVIDED, that (a) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, (b) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period and (c) on one occasion, an
Interest Period for a Eurodollar Tranche D Term Borrowing may be selected by the
BC Borrower for a period of less than two months ending on June 30, 2005
(subject to clause (a) above). For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"INVENTORY" has the meaning assigned to such term in the Collateral
Agreement.
"ISSUING BANK" means, as the context may require, (a) JPMorgan Chase
Bank, N.A., in its capacity as an issuer of Letters of Credit hereunder, and (b)
any other Revolving Lender that becomes an Issuing Bank pursuant to Section
2.05(j), in its capacity as an issuer of Letters of Credit hereunder, and, in
each case, its successors in such capacity as provided in Section 2.05(i). Any
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of such Issuing Bank, in which case the term "Issuing
Bank" shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.
"LC DISBURSEMENT" means a payment made by any Issuing Bank pursuant to
a Letter of Credit.
18
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the BC Borrower at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"LENDERS" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lenders.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement (whether issued before or after the Second Restatement Effective
Date).
"LEVERAGE RATIO" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of BC Holdings ended on such date (or, if such date
is not the last day of a fiscal quarter, ended on the last day of the fiscal
quarter of BC Holdings most recently ended prior to such date).
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period; PROVIDED that, in the case of a
Eurodollar Tranche D Term Borrowing with an Interest Period described in clause
(c) of the proviso to the definition of the term "Interest Period", the
Administrative Agent may determine the LIBO Rate by any other means that it
determines to reasonably reflect the rate for dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not available
at such time for any reason, then the "LIBO RATE" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of
19
securities, any purchase option, call or similar right of a third party with
respect to such securities.
"LOAN DOCUMENTS" means this Agreement, the Amendment and Restatement
Agreement, the Reaffirmation Agreement, the Collateral Agreement and the other
Security Documents.
"LOAN PARTIES" means BC Holdings, the BC Borrower and the Subsidiary
Loan Parties.
"LOANS" means the loans made by the Lenders to the BC Borrower
pursuant to this Agreement (whether made before or after the Second Restatement
Effective Date); PROVIDED that, for purposes of calculating Excess Cash Flow or
any prepayment required by Section 2.11(d), the term "Loans" also includes
"Loans"' as defined in the Original Credit Agreement.
"LONG-TERM INDEBTEDNESS" means any Indebtedness that, in accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
"MADISON DEARBORN" means Madison Dearborn Capital Partners, IV, L.P.,
its Affiliates and investment funds under common management with Madison
Dearborn Capital Partners, IV, L.P., but excluding any such Affiliate that is
(a) a "portfolio company", (b) a Person that is Controlled by, or under common
Control with, Madison Dearborn Capital Partners, IV, L.P., or any of its
Affiliates and conducts any business other than investment activities and
activities incidental thereto or (c) Controlled by a Person described in clause
(a) or (b) above.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, financial condition or results of operations of BC Holdings, the BC
Borrower and the Subsidiaries, taken as a whole, (b) the ability of any Loan
Party to perform any of its material obligations under any Loan Document or (c)
the rights of the Lenders under the Loan Documents.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements, of
any one or more of BC Holdings, the BC Borrower and the Subsidiaries in an
aggregate principal amount exceeding $25,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of any of BC
Holdings, the BC Borrower or the Subsidiaries in respect of any Swap Agreement
at any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that BC Holdings, the BC Borrower or such Subsidiary would be
required to pay if such Swap Agreement were terminated at such time.
"MATERIAL SUBSIDIARY" means any Subsidiary that is not an Immaterial
Subsidiary.
"MEMBERS" means the holders of the Equity Interests of
Boise Cascade
Holdings, L.L.C.
20
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be reasonably
satisfactory in form and substance to the Collateral Agent.
"MORTGAGED PROPERTY" means, initially, the real property set forth on
Schedule 3.05(c) that is identified on such Schedule as Mortgaged Property and
the improvements thereto, and includes each other parcel of real property and
improvements thereto owned by the BC Borrower or any Subsidiary with respect to
which a Mortgage is granted.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NET PROCEEDS" means, with respect to any event (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
fees and out-of-pocket expenses paid by any of BC Holdings, the BC Borrower and
the Subsidiaries to third parties (other than Affiliates) in connection with
such event, (ii) in the case of a sale, transfer or other disposition of an
asset (including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made by any of BC Holdings, the BC Borrower and the Subsidiaries as a result of
such event to repay Indebtedness (other than Loans) owed to third parties
secured by such asset, and (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by any of BC Holdings, the BC Borrower and the
Subsidiaries, and the amount of any reserves established by BC Holdings, the BC
Borrower and the Subsidiaries to fund contingent liabilities reasonably
estimated to be payable to third parties, in each case during the year that such
event occurred or the next succeeding year and that are directly attributable to
such event (as determined reasonably and in good faith by the chief financial
officer of BC Holdings or the BC Borrower).
"NET WORKING CAPITAL" means, at any date, (a) the consolidated current
assets of BC Holdings, the BC Borrower and its consolidated Subsidiaries as of
such date (excluding cash and Permitted Investments) minus (b) the consolidated
current liabilities of BC Holdings, the BC Borrower and its consolidated
Subsidiaries as of such date (excluding current liabilities in respect of
Indebtedness). Net Working Capital at any date may be a positive or negative
number. Net Working Capital increases when it becomes more positive or less
negative and decreases when it becomes less positive or more negative.
"OBLIGATIONS" has the meaning assigned to such term in the Collateral
Agreement.
21
"OFFERING MEMORANDUM" means the offering memorandum dated October 15,
2004 relating to the Senior Unsecured Debt and the Subordinated Debt.
"OPERATING BUSINESSES" means the forest products and distribution
businesses (and assets comprising such businesses) acquired by the BC Borrower
and its Subsidiaries pursuant to the Acquisition Agreement, including, (a) their
paper manufacturing, conversion, distribution and sales operations, (b) their
building solutions manufacturing and conversion operations, (c) their packaging
and newsprint manufacturing, conversion, distribution and sales operations, (d)
certain of their aviation operations and (e) their transportation operations.
"ORIGINAL CREDIT AGREEMENT" has the meaning assigned to such term in
the recitals hereto.
"ORIGINAL EFFECTIVE DATE" means October 29, 2004.
"OTHER TAXES" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERFECTION CERTIFICATE" means a certificate in the form of Exhibit D
or any other form approved by the Collateral Agent.
"PERMITTED ACQUISITION" means any acquisition by the BC Borrower or
any Subsidiary of all or substantially all the assets of, or all the Equity
Interests in, a Person or division or line of business of a Person if,
immediately after giving effect thereto, (a) no Default has occurred and is
continuing or would result therefrom, (b) any such business shall comply with
the permitted businesses of the BC Borrower and the Subsidiaries as provided in
Section 6.03(b), (c) all of the Equity Interests of each Subsidiary formed for
the purpose of or resulting from such acquisition shall be owned directly by the
BC Borrower or a Subsidiary and all actions required to be taken with respect to
each such acquired or newly formed Subsidiary under Sections 5.12 and 5.13 have
been taken, (d) BC Holdings, the BC Borrower and the Subsidiaries are in
COMPLIANCE, on a pro forma basis after giving effect to such acquisition (and
any operating expense reductions related thereto that would be permitted to be
deducted in any calculation of Consolidated EBITDA in accordance with the
definition of such term contained herein), with the covenants contained in
Sections 6.12 and 6.13 recomputed as at the last day of the most recently ended
fiscal quarter of BC Holdings for which financial statements are available, as
if such acquisition had occurred on the first day of each relevant period for
testing such compliance and (e) the BC Borrower has delivered to the
Administrative Agent an officers' certificate to the effect set forth in clauses
(a), (b), (c) and (d) above, together with all relevant financial information
for the Person or
22
assets to be acquired and reasonably detailed calculations demonstrating
satisfaction of the requirement set forth in clause (d) above.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 60 days
or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the BC Borrower or any Subsidiary;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, at
least an A2 credit rating from S&P or at least a P2 credit rating from
Xxxxx'x;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or
23
offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a
combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above; and
(e) demand deposit accounts with commercial banks.
"PERMITTED OPERATING ASSET SWAP" means any transfer of Eligible Swap
Assets by the BC Borrower or any Subsidiary in which at least 95% of the
consideration received by the transferor consists of Eligible Swap Assets (and
any balance of such consideration consists of cash); PROVIDED that (a) after
giving effect to such transfer, the aggregate fair market value of all assets
transferred pursuant to Permitted Operating Asset Swaps (i) during any fiscal
year of the BC Borrower, on a cumulative basis, shall not exceed $20,000,000 and
(ii) during the term of this Agreement, on a cumulative basis, shall not exceed
$40,000,000 and (b) all actions required to be taken pursuant to Sections 5.12
and 5.13 with respect to any Eligible Swap Assets so received as consideration
shall be taken.
"PERMITTED RECEIVABLES FINANCING" means financing arrangements
pursuant to which the BC Borrower or one or more of the Subsidiaries (or a
combination thereof) realizes cash proceeds in respect of Receivables and
Related Security by selling or otherwise transferring such Receivables and
Related Security (on a non-recourse basis, other than Standard Securitization
Undertakings) to one or more Receivables Subsidiaries, and such Receivables
Subsidiary or Receivables Subsidiaries realize cash proceeds in respect of such
Receivables and Related Security pursuant to a revolving committed financing
arrangement; PROVIDED that (a) the BC Borrower shall deliver to the
Administrative Agent copies of all documentation entered into in connection with
any such financing arrangements and (b) the BC Borrower represents, in a
certificate of a Financial Officer of the BC Borrower delivered to the
Administrative Agent, that the terms and conditions of such financing
arrangements are customary for accounts receivable securitization financings.
The "funded amount" or "principal amount" of any Permitted Receivables Financing
at any time shall be the principal amount of Receivables Financing Debt in
respect thereof.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the BC Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under ERISA
be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
24
"PLEDGED COLLATERAL" has the meaning assigned to such term in the
Collateral Agreement.
"PREPAYMENT EVENT" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of BC Holdings,
the BC Borrower or any Subsidiary (other than a Receivables Subsidiary),
other than (i) dispositions described in clauses (i), (ii), (iii) and (iv)
of Section 6.05(a), and (ii) other dispositions resulting in aggregate Net
Proceeds not exceeding $5,000,000 during any fiscal year of the BC
Borrower; or
(b) any insured casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding of,
any property or asset of BC Holdings, the BC Borrower or any Subsidiary
other than those resulting in aggregate Net Proceeds not exceeding
$5,000,000 during any fiscal year of the BC Borrower; or
(c) the issuance by BC Holdings, the BC Borrower or any Subsidiary of
any Equity Interests, or the receipt by BC Holdings, the BC Borrower or any
Subsidiary of any capital contribution, other than (i) any such issuance of
Equity Interests to, or receipt of any such capital contribution from, BC
Holdings, the BC Borrower or a Subsidiary, (ii) the issuance of Equity
Interests of BC Holdings to employees of BC Holdings, the BC Borrower or
any Subsidiary in their capacity as such pursuant to employee benefit plans
and employment arrangements; (iii) the issuance of Equity Interests of BC
Holdings pursuant to the Contemplated IPO, (iv) the issuance of Equity
Interests of BC Holdings to fund Specified Investments or (v) the issuance
of Equity Interests of BC Holdings to Madison Dearborn; or
(d) the incurrence by BC Holdings, the BC Borrower or any Subsidiary
of any Indebtedness, other than Indebtedness permitted by Section 6.01; or
(e) any transfer of Receivables pursuant to a Permitted Receivables
Financing; PROVIDED that any such transfer will be treated as a Prepayment
Event only to the extent that, after giving effect thereto, the aggregate
funded amount of such Permitted Receivables Financing exceeds the greatest
aggregate funded amount previously outstanding thereunder.
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"QUALIFIED PREFERRED STOCK" means any preferred Equity Interest of BC
Holdings that (a) is not subject to any requirement to pay mandatory cash
dividends or similar distributions, (b) is not subject to any mandatory
redemption or repurchase requirement (whether pursuant to a sinking fund
obligation, or at the option of the holder
25
thereof, or upon the occurrence of specified events, or otherwise), (c) is not
convertible, or exchangeable, other than into or for common Equity Interests of
BC Holdings or Qualified Preferred Stock, and (d) does not entitle the holder
thereof to any other rights or remedies that could subject BC Holdings, the BC
Borrower or any Subsidiary to any mandatory payment obligation; PROVIDED that
the foregoing shall not be construed to prohibit rights to receive dividends and
distributions in preference to those paid on any other Equity Interests of BC
Holdings (if and when paid).
"RECEIVABLE" means an Account owing to the BC Borrower or any
Subsidiary (before its transfer to a Receivables Subsidiary), whether now
existing or hereafter arising, together with all cash collections and other cash
proceeds in respect of such Account, including all yield, finance charges or
other related amounts accruing in respect thereof and all cash proceeds of
Related Security with respect to such Receivable.
"RECEIVABLES FINANCING DEBT" means, as of any date with respect to any
Permitted Receivables Financing, the amount of the outstanding Receivables
subject to such Permitted Receivables Financing that would be required to
discharge all principal obligations to financing parties (and would not be
returned, directly or indirectly, to the BC Borrower or any Subsidiary) if all
such Receivables were to be collected at such date and such Permitted
Receivables Financing were to be terminated at such date.
"RECEIVABLES SUBSIDIARY" means a wholly owned Subsidiary that does not
engage in any activities other than participating in one or more Permitted
Receivables Financings and activities incidental thereto; PROVIDED that (a) such
Subsidiary does not have any Indebtedness other than (i) Indebtedness incurred
pursuant to a Permitted Receivables Financing owed to financing parties
supported by Receivables and Related Security and (ii) Subordinated Receivables
Transfer Debt, (b) neither BC Holdings, the BC Borrower nor any other Subsidiary
Guarantees any Indebtedness or other obligation of such Subsidiary, other than
Standard Securitization Undertakings and (c) all Equity Interests of and other
investments in such Subsidiary that are owned by the BC Borrower or any other
Subsidiary (including any Subordinated Receivables Transfer Debt) are pledged
pursuant to the Collateral Agreement.
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents,
and advisors and trustees of such Person and such Person's Affiliates.
"RELATED SECURITY" means, with respect to any Receivable: (a) all of
the BC Borrower's or the applicable Subsidiary's right, title and interest in
and to any goods, the sale of which gave rise to such Receivable; (b) all
security pledged, assigned, hypothecated or granted to or held by the BC
Borrower or the applicable Subsidiary to secure such Receivable; (c) all
guaranties, endorsements and indemnifications on, or of, such Receivable or any
of the foregoing (other than by any of BC Holdings, the BC Borrower and the
Subsidiaries that is not a Receivables Subsidiary); (d) all powers of attorney
for the execution of any evidence of indebtedness or security or other writing
in
26
connection therewith; (e) all books, records, ledger cards and invoices related
to such Receivable or any of the foregoing, whether maintained electronically,
in paper form or otherwise; (f) all evidences of the filing of financing
statements and other statements and the registration of other instruments in
connection therewith and amendments thereto, notices to other creditors or
secured parties, and certificates from filing or other registration officers;
(g) all credit information, reports and memoranda relating thereto; (h) all
other writings related thereto; and (i) all proceeds of any of the foregoing.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
BC Holdings, the BC Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in BC Holdings, the BC Borrower or any
Subsidiary or any option, warrant or other right to acquire any such Equity
Interests in BC Holdings, the BC Borrower or any Subsidiary.
"REVOLVING AVAILABILITY PERIOD" means the period from and including
the Original Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"REVOLVING COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01 (as of the
First Restatement Effective Date), or in the Assignment and Assumption pursuant
to which such Lender shall have assumed its Revolving Commitment, as applicable.
The aggregate amount of the Lenders' Revolving Commitments as of the First
Restatement Effective Date was $475,000,000.
"REVOLVING EXPOSURE" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure and Swingline Exposure at such time.
"REVOLVING LENDER" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
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"REVOLVING LOAN" means a Loan made pursuant to Section 2.01(a) and
includes any "Revolving Loan" outstanding under the First Restated Credit
Agreement on the Second Restatement Effective Date.
"REVOLVING MATURITY DATE" means October 29, 2010.
"S&P" means Standard & Poor's.
"SECOND RESTATEMENT EFFECTIVE DATE" means [-], 2005, [insert date on
which the conditions specified in Section 10.01 of the First Restated Credit
Agreement are satisfied].
"SECURED PARTIES" has the meaning assigned to such term in the
Collateral Agreement.
"SECURITY DOCUMENTS" means the Collateral Agreement, the Mortgages and
each other security agreement or other instrument or document executed and
delivered pursuant to Section 5.12 or 5.13 to secure any of the Obligations.
"SELLER PARENT" means OfficeMax Incorporated (f/k/a Boise Cascade
Corporation), a Delaware corporation.
"SENIOR UNSECURED DEBT" means (a) the senior unsecured notes issued by
the BC Borrower on the Original Effective Date in the aggregate principal amount
of $250,000,000 and the Indebtedness represented thereby (the "INITIAL SENIOR
UNSECURED DEBT") and (b) any senior unsecured debt securities issued by the BC
Borrower after the Original Effective Date to refinance the Initial Senior
Unsecured Debt; PROVIDED that (i) such senior unsecured debt securities do not
mature earlier than, or require any scheduled payment of principal, sinking fund
payment or similar payment prior to, the scheduled maturity date of the Initial
Senior Unsecured Debt, (ii) the Indebtedness in respect of such senior unsecured
debt securities is not Guaranteed by any Person that did not Guarantee (and is
not permitted by this Agreement to Guarantee) the Initial Senior Unsecured Debt,
(iii) the aggregate principal amount of such senior unsecured debt securities
does not exceed the aggregate principal amount of Initial Senior Unsecured Debt
refinanced thereby plus capitalized interest and any applicable redemption
premiums paid in respect of the refinancing thereof, (iv) the portion of the
interest rate payable in cash in respect of such senior unsecured debt
securities does not exceed the interest rate in respect of the Initial Senior
Unsecured Debt, (v) such senior unsecured debt securities are not supported by
any letter of credit or other credit enhancement, (vi) the terms and conditions
of such senior unsecured debt securities and any Senior Unsecured Debt Documents
in respect thereof (including covenants, events of default and any provisions
relating to any mandatory redemption or required offer to repurchase such senior
unsecured debt securities) are no less favorable in any material respect to the
Loan Parties and the Lenders than the terms and conditions of the Initial Senior
Unsecured Debt and the Senior Unsecured Debt Documents in respect of the Initial
Senior Unsecured Debt and (vii) the Initial Senior Unsecured Debt being
refinanced by such
28
senior unsecured debt securities is repaid on the same date that such senior
unsecured debt securities are issued.
"SENIOR UNSECURED DEBT DOCUMENTS" means any indenture under which any
Senior Unsecured Debt is issued and all other instruments, agreements and other
documents evidencing or governing any Senior Unsecured Debt or providing for any
Guarantee or other right in respect thereof.
"SPECIFIED INVESTMENT" means any investment by the BC Borrower or any
Subsidiary that is financed solely with Net Proceeds received from the issuance
of Equity Interests by BC Holdings after the First Restatement Effective Date,
PROVIDED that (i) the Administrative Agent receives written notice describing
such investment concurrently with or promptly following the issuance of such
Equity Interests and (ii) such investment is made within 90 days of receipt by
BC Holdings of such Net Proceeds.
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, covenants and indemnities made by the BC Borrower or any Subsidiary
in connection with a Permitted Receivables Financing that are customary for
accounts receivables securitization financings; PROVIDED that Standard
Securitization Undertakings shall not include any Guarantee of any Indebtedness
or collectability of any Receivables.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"SUBORDINATED DEBT" means (a) the senior subordinated notes issued by
the BC Borrower on the Original Effective Date in the aggregate principal amount
of $400,000,000 and the Indebtedness represented thereby (the "INITIAL
SUBORDINATED DEBT") and (b) any subordinated debt securities issued by the BC
Borrower after the Original Effective Date to refinance the Initial Subordinated
Debt; PROVIDED that (i) such subordinated debt securities do not mature earlier
than, or require any scheduled payment of principal, sinking fund payment or
similar payment prior to, the scheduled maturity date of the Initial
Subordinated Debt, (ii) the Indebtedness in respect of such subordinated debt
securities is not Guaranteed by any Person that did not Guarantee (and is not
permitted by this Agreement to Guarantee) the Initial Subordinated Debt, (iii)
the aggregate principal amount of such subordinated debt securities does not
exceed the aggregate principal amount of Initial Subordinated Debt refinanced
thereby plus capitalized interest and any applicable redemption premiums paid in
respect of the
29
refinancing thereof, (iv) the portion of the interest rate payable in cash in
respect of such subordinated debt securities does not exceed the interest rate
in respect of the Initial Subordinated Debt, (v) such subordinated debt
securities are unsecured and are not supported by any letter of credit or other
credit enhancement, (vi) the terms and conditions of such subordinated debt
securities and any Subordinated Debt Documents in respect thereof (including
subordination provisions, covenants, events of default and any provisions
relating to any mandatory redemption or required offer to repurchase such
subordinated debt securities) are no less favorable in any material respect to
the Loan Parties and the Lenders than the terms and conditions of the Initial
Subordinated Debt and the Subordinated Debt Documents in respect of the Initial
Subordinated Debt and (vii) the Initial Subordinated Debt being refinanced by
such subordinated debt securities is repaid on the same date that such
subordinated debt securities are issued.
"SUBORDINATED DEBT DOCUMENTS" means any indenture under which any
Subordinated Debt is issued and all other instruments, agreements and other
documents evidencing or governing any Subordinated Debt or providing for any
Guarantee or other right in respect thereof.
"SUBORDINATED RECEIVABLES TRANSFER DEBT" means Indebtedness of a
Receivables Subsidiary owed to the BC Borrower or a Subsidiary and incurred to
finance the purchase of Receivables and Related Security from the BC Borrower or
a Subsidiary in connection with a Permitted Receivables Financing; PROVIDED that
(a) such Indebtedness is evidenced by a promissory note pledged pursuant to the
Collateral Agreement and (b) all proceeds of such Indebtedness are applied by
such Receivables Subsidiary to pay the purchase price of such Receivables and
Related Security.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the BC Borrower.
"SUBSIDIARY LOAN PARTY" means any Subsidiary that is not a Foreign
Subsidiary or a Receivables Subsidiary.
"SUPPLY AGREEMENT" means the Paper Purchase Agreement dated October
29, 2004, between Boise White Paper, L.L.C. and Seller Parent, amending and
superseding the Paper Purchase Agreement Term Sheet dated April 28, 2004 between
Seller Parent and Boise Office Solutions.
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"SWAP AGREEMENT" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; PROVIDED that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of BC Holdings, the BC Borrower or the Subsidiaries shall be a Swap
Agreement.
"SWINGLINE EXPOSURE" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"SWINGLINE LENDERS" means the Committed Swingline Lender and any
Uncommitted Swingline Lenders.
"SWINGLINE LOAN" means a Committed Swingline Loan or an Uncommitted
Swingline Loan.
"SYNDICATION AGENT" means Xxxxxx Commercial Paper Inc., in its
capacity as syndication agent for the Lenders.
"TAX DISTRIBUTIONS" means cash distributions by BC Holdings to the
Members in respect of its Equity Interests for the purpose of providing the
Members with funds to pay the tax liability attributable to their shares of the
taxable income of
Boise Cascade Holdings, L.L.C. and its consolidated
subsidiaries.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERM LOANS" means Tranche D Term Loans; PROVIDED that, for purposes
of calculating Excess Cash Flow or any prepayment required by Section 2.11(d)
the term "Term Loans" also includes "Term Loans" as defined in the Original
Credit Agreement.
"TIMBER BORROWER" has the meaning assigned to such term in the
Original Credit Agreement.
"TIMBERLAND ASSETS" has the meaning assigned to such term in the
Original Credit Agreement.
"TIMBER SUBSIDIARY" has the meaning assigned to such term in the
Original Credit Agreement.
"TOTAL INDEBTEDNESS" means, as of any date, the sum (without
duplication) of (a) the aggregate principal amount of Indebtedness of BC
Holdings, the BC Borrower and the Subsidiaries outstanding as of such date, in
the amount that would be reflected on
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a balance sheet prepared as of such date on a consolidated basis in accordance
with GAAP, plus (b) the aggregate principal amount of Indebtedness of BC
Holdings, the BC Borrower and the Subsidiaries outstanding as of such date that
is not required to be reflected on a balance sheet in accordance with GAAP,
determined on a consolidated basis (but, in each case, excluding (i) Receivables
Financing Debt and (ii) obligations arising under the Additional Consideration
Agreement) as of such date minus (c) cash on hand and Permitted Investments of
BC Holdings, the BC Borrower and the Subsidiaries as of such date (other than
any such cash or Permitted Investments subject to any Lien (other than (i) Liens
securing Indebtedness described in clause (a) or (b) above and (ii) Permitted
Encumbrances that would not prohibit, limit, or otherwise impair the ability of
the BC Borrower to use such cash and Permitted Investments to pay the
Obligations hereunder)) in an aggregate amount not to exceed $35,000,000;
PROVIDED that, for purposes of clause (b) above, the term "Indebtedness" shall
not include contingent obligations of the BC Borrower or any Subsidiary as an
account party in respect of any letter of credit or letter of guaranty unless
such letter of credit or letter of guaranty supports an obligation that
constitutes Indebtedness.
"TRANCHE B TERM LOAN" has the meaning assigned to such term in the
Original Credit Agreement.
"TRANCHE D COMMITMENT" has the meaning assigned to such term in the
Amendment and Restatement Agreement.
"TRANCHE D LENDER" means a Lender with an outstanding Tranche D Term
Loan.
"TRANCHE D MATURITY DATE" means October 28, 2011.
"TRANCHE D TERM LOAN" means a Loan made pursuant to Section 3 of the
Amendment and Restatement Agreement.
"TRANSACTIONS" has the meaning assigned to such term in the Original
Credit Agreement.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"UNCOMMITTED SWINGLINE LENDER" means, at any time, any Revolving
Lender or Tranche D Lender that holds an Uncommitted Swingline Loan outstanding
at such time.
"UNCOMMITTED SWINGLINE LOAN" means a Loan made pursuant to Section
2.04(d); PROVIDED that any such Loan shall cease to constitute a "Loan" for all
purposes of the Loan Documents if the holder of such Loan is neither a Revolving
Lender nor a Tranche D Lender.
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"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (E.G., a
"Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class and Type
(E.G., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (E.G., a "Revolving Borrowing") or by Type (E.G., a
"Eurodollar Borrowing") or by Class and Type (E.G., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; PROVIDED
that, if the BC Borrower notifies the Administrative Agent that the BC Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Original Effective Date in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the BC Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
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SECTION 1.05. CERTIFICATES. All certificates and other documents or
statements of any sort provided, executed or attested to by any officer,
director or employee of any Loan Party shall be treated as being provided,
executed or attested to on behalf of such Loan Party, and not in such officer's,
director's or employee's individual capacity.
ARTICLE II
THE CREDITS
SECTION 2.01. REVOLVING COMMITMENTS; TRANCHE D TERM LOANS. (a) Subject
to the terms and conditions set forth herein, each Revolving Lender agrees to
make Revolving Loans to the BC Borrower from time to time during the Revolving
Availability Period in an aggregate principal amount that will not result in
such Revolving Lender's Revolving Exposure exceeding such Lender's Revolving
Commitment. Within the foregoing limits and subject to the terms and conditions
set forth herein, the BC Borrower may borrow, prepay and reborrow Revolving
Loans.
(b) The Tranche D Term Loans constitute Loans made pursuant to this
Agreement for all purposes of the Loan Documents. Amounts repaid or prepaid in
respect of Tranche D Term Loans may not be reborrowed.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; PROVIDED that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the BC
Borrower may request in accordance herewith; PROVIDED that each Eurodollar Term
Borrowing that has an Interest Period beginning prior to the date that is 30
days after the First Restatement Effective Date shall have an Interest Period
with a duration of one month. Each Committed Swingline Loan shall be an ABR
Loan. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
PROVIDED that (i) any exercise of such option shall not affect the obligation of
the BC Borrower to repay such Loan in accordance with the terms of this
Agreement and (ii) the BC Borrower shall be entitled to treat any Lender
exercising such option as the Lender in respect of such Eurodollar Loan for all
purposes hereunder, including Section 2.15.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral
34
multiple of $1,000,000 and not less than $5,000,000; PROVIDED that an ABR
Revolving Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the total Revolving Commitments or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Each
Committed Swingline Loan shall be in an amount that is an integral multiple of
$500,000 and not less than $1,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time; PROVIDED that there shall not at any
time be more than a total of 12 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the BC
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or Tranche D Maturity Date, as applicable.
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Borrowing, the BC
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurodollar Borrowing, not later than 12:00 noon, New York City
time, three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 2:00 p.m., New York City time, one
Business Day before the date of the proposed Borrowing; PROVIDED that any such
notice of an ABR Revolving Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e) may be given not later than
10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the BC Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing or
a Tranche D Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest Period
to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(vi) the location and number of the BC Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any
35
requested Eurodollar Revolving Borrowing, then the BC Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each participating Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. SWINGLINE LOANS. (a) Subject to the terms and conditions
set forth herein, the Committed Swingline Lender agrees to make Committed
Swingline Loans to the BC Borrower from time to time during the Revolving
Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding
Swingline Loans exceeding $40,000,000 or (ii) the sum of the total Revolving
Exposures exceeding the total Revolving Commitments; PROVIDED that the Committed
Swingline Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Within the foregoing limits and subject to the terms
and conditions set forth herein, the BC Borrower may borrow, prepay and reborrow
Committed Swingline Loans.
(b) To request a Committed Swingline Loan, the BC Borrower shall
notify the Administrative Agent of such request by telephone (confirmed by
telecopy), not later than 1:00 p.m., New York City time, on the day of a
proposed Committed Swingline Loan. Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day) and amount of
the requested Committed Swingline Loan. The Administrative Agent will promptly
advise the Committed Swingline Lender of any such notice received from the BC
Borrower. The Committed Swingline Lender shall make each Committed Swingline
Loan available to the BC Borrower by means of a credit to the general deposit
account of the BC Borrower with the Committed Swingline Lender (or, in the case
of a Committed Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(e), by remittance to the applicable
Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such
Committed Swingline Loan.
(c) The Committed Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Committed Swingline Loans outstanding.
Such notice shall specify the aggregate amount of Committed Swingline Loans in
which Revolving Lenders will participate. Promptly upon receipt of such notice,
the Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender's Applicable Percentage of such Committed
Swingline Loan or Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Committed Swingline Lender, such
Lender's Applicable Percentage of such Committed Swingline Loan or Loans. Each
Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Committed Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or
36
reduction whatsoever. Each Revolving Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, MUTATIS MUTANDIS, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the Committed Swingline Lender the amounts so received by it
from the Revolving Lenders. The Administrative Agent shall notify the BC
Borrower of any participations in any Committed Swingline Loan acquired pursuant
to this paragraph, and thereafter payments in respect of such Committed
Swingline Loan shall be made to the Administrative Agent and not to the
Committed Swingline Lender. Any amounts received by the Committed Swingline
Lender from the BC Borrower (or other party on behalf of the BC Borrower) in
respect of a Committed Swingline Loan after receipt by the Committed Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Committed Swingline Lender, as their interests may appear;
PROVIDED that any such payment so remitted shall be repaid to the Committed
Swingline Lender or to the Administrative Agent, as applicable, if and to the
extent such payment is required to be refunded to the BC Borrower for any
reason. The purchase of participations in a Committed Swingline Loan pursuant to
this paragraph shall not relieve the BC Borrower of any default in the payment
thereof.
(d) Any Revolving Lender or Tranche D Lender may (but shall not have
any obligation to) agree to make, and make, Uncommitted Swingline Loans to the
BC Borrower from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$40,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments; PROVIDED that an Uncommitted Swingline Loan shall not be
borrowed to refinance an outstanding Swingline Loan. Within the foregoing limits
and subject to the terms and conditions set forth herein, the BC Borrower may
borrow, prepay and reborrow Uncommitted Swingline Loans.
(e) Any Uncommitted Swingline Loan may be made pursuant to such
procedures as shall be separately agreed between the BC Borrower and the
relevant Lender, subject to the following provisions of this paragraph. Each
Lender in respect of an Uncommitted Swingline Loan that is not the same Person
as the Person serving as the Administrative Agent shall notify the
Administrative Agent of (i) the amount of such Uncommitted Swingline Loan prior
to making such Loan and (ii) any repayment of the principal of such Uncommitted
Swingline Loan (in whole or in part) and the amount of such repayment, promptly
upon receipt of such repayment.
(f) It is understood that paragraph (c) of this Section shall not
apply to Uncommitted Swingline Loans and the Revolving Lenders shall not have
any obligation to acquire participations in such Loans.
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SECTION 2.05. LETTERS OF CREDIT. (a) GENERAL. Subject to the terms and
conditions set forth herein, the BC Borrower may request the issuance of Letters
of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the Revolving Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the BC Borrower to, or entered into by the BC Borrower with, any
Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the BC Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the relevant Issuing Bank selected by the BC Borrower to issue such Letter of
Credit and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the applicable Issuing Bank, the
BC Borrower also shall submit a letter of credit application on such Issuing
Bank's standard form in connection with any request for a Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the BC
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed $150,000,000 and (ii) the total Revolving Exposures shall not exceed the
total Revolving Commitments.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension), subject to renewal
provisions reasonably acceptable to the applicable Issuing Bank (which shall in
any event permit such Issuing Bank to disallow renewal) and (ii) the date that
is five Business Days prior to the Revolving Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, the
Issuing Bank in respect of such Letter of Credit hereby grants to each Revolving
Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the
38
Administrative Agent, for the account of the applicable Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by such Issuing Bank
and not reimbursed by the BC Borrower on the date due as provided in paragraph
(e) of this Section, or of any reimbursement payment required to be refunded to
the BC Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. If an Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the BC Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on (i) the date that
such LC Disbursement is made, if the BC Borrower shall have received notice of
such LC Disbursement prior to 10:00 a.m., New York City time, on the Business
Day immediately preceding the date that such LC Disbursement is made or (ii)
otherwise, the Business Day immediately following the later of the date that
such LC Disbursement is made or the date of receipt by the BC Borrower of notice
of such LC Disbursement; PROVIDED that, if such LC Disbursement is not less than
the applicable minimum borrowing amount, the BC Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the BC
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If the BC Borrower
fails to make such payment when due, the Administrative Agent shall notify each
Revolving Lender of the applicable LC Disbursement, the payment then due from
the BC Borrower in respect thereof and such Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each Revolving Lender shall
pay to the Administrative Agent its Applicable Percentage of the payment then
due from the BC Borrower, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, MUTATIS
MUTANDIS, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Revolving Lenders. Promptly following receipt
by the Administrative Agent of any payment from the BC Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then to such
Lenders and such Issuing Bank as their interests may appear. Any payment made by
a Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the BC Borrower of its obligation to reimburse such LC Disbursement.
39
(f) OBLIGATIONS ABSOLUTE. The BC Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the BC Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of any
Issuing Bank; PROVIDED that the foregoing shall not be construed to excuse an
Issuing Bank from liability to the BC Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the BC Borrower to the extent permitted by applicable law)
suffered by the BC Borrower that are caused by such Issuing Bank's failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or wilful misconduct on
the part of an Issuing Bank (as finally determined by a court of competent
jurisdiction), such Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the applicable Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) DISBURSEMENT PROCEDURES. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Such Issuing Bank shall
promptly notify the Administrative Agent and the BC Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing Bank
has made or will make an LC Disbursement thereunder; PROVIDED that any failure
to give or delay in giving such notice shall not relieve the BC Borrower of its
obligation to reimburse such Issuing Bank and the Revolving Lenders with respect
to any such LC Disbursement.
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(h) INTERIM INTEREST. If an Issuing Bank shall make any LC
Disbursement, then, unless the BC Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof
shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the BC Borrower reimburses
such LC Disbursement, at the rate per annum then applicable to ABR Revolving
Loans; PROVIDED that, if the BC Borrower fails to reimburse such LC Disbursement
when due pursuant to paragraph (e) of this Section, then Section 2.13(d) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of
the applicable Issuing Bank, except that interest accrued on and after the date
of payment by any Revolving Lender pursuant to paragraph (e) of this Section to
reimburse such Issuing Bank shall be for the account of such Lender to the
extent of such payment.
(i) REPLACEMENT OR TERMINATION OF AN ISSUING BANK. Any Issuing Bank
may be replaced at any time by written agreement among the BC Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.
An Issuing Bank's obligations to issue additional Letters of Credit hereunder
may be terminated at any time by written agreement among the BC Borrower, the
Administrative Agent and such Issuing Bank; PROVIDED that after giving effect
thereto there is at least one remaining Issuing Bank obligated to issue Letters
of Credit. The Administrative Agent shall notify the Lenders of any such
replacement or termination of an Issuing Bank. At the time any such replacement
or termination shall become effective, the BC Borrower shall pay all unpaid fees
accrued for the account of the replaced or terminated Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, the
successor Issuing Bank shall have all the rights and obligations of the replaced
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter. After the replacement or termination of an Issuing Bank hereunder,
the replaced or terminated Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement or termination, but shall not be required to issue additional
Letters of Credit.
(j) ADDITION OF ISSUING BANK. Any Revolving Lender may at any time
become an Issuing Bank hereunder by written agreement between the BC Borrower
and such Revolving Lender, subject to notice to and the consent (not to be
unreasonably withheld) of the Administrative Agent. From and after the effective
date of any such Revolving Lender becoming an Issuing Bank, such Revolving
Lender shall have the rights and obligations of an Issuing Bank under this
Agreement. Any Revolving Lender that becomes an Issuing Bank shall not cease to
be an Issuing Bank hereunder if it later ceases to be a Revolving Lender
hereunder.
(k) CASH COLLATERALIZATION. If any Event of Default shall occur and be
continuing, on the Business Day that the BC Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the BC Borrower shall deposit in an account with the
Administrative Agent, in the name
41
of the Administrative Agent and for the benefit of the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; PROVIDED that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to the BC Borrower described in clause (h)
or (i) of Article VII. The BC Borrower also shall deposit cash collateral
pursuant to this paragraph as and to the extent required by Section 2.11(b).
Each such deposit shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the BC Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Administrative Agent and at the BC
Borrower's risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse any
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the BC Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated (but subject to the
consent of Revolving Lenders with LC Exposure representing greater than 50% of
the total LC Exposure), be applied to satisfy other obligations of the BC
Borrower under this Agreement. If the BC Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned
to the BC Borrower within three Business Days after all Events of Default have
been cured or waived.
(l) CERTAIN NOTICES BY ISSUING BANKS. Each Issuing Bank that is not
the same Person as the Person serving as the Administrative Agent shall notify
the Administrative Agent of (i) the amount and expiration date of each Letter of
Credit issued by such Issuing Bank at or prior to the time of issuance thereof,
(ii) any amendment or modification to any such Letter of Credit at or prior to
the time of such amendment or modification and (iii) any termination, surrender,
cancelation or expiry of any such Letter of Credit at or prior to the time of
such termination, surrender, cancelation or expiration.
(m) EXISTING LETTERS OF CREDIT. All Existing Letters of Credit shall
be deemed to be Letters of Credit issued under this Agreement as of the Original
Effective Date and thereupon shall constitute Letters of Credit for all purposes
of the Loan Documents.
SECTION 2.06. FUNDING OF BORROWINGS. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; PROVIDED that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
BC Borrower by promptly crediting the amounts so received, in like funds, to an
account of the BC Borrower maintained with the Administrative Agent in New York
City and designated by the BC
42
Borrower in the applicable Borrowing Request; PROVIDED that ABR Revolving Loans
made to finance the reimbursement of an LC Disbursement as provided in Section
2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing
Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the BC Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the BC Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the BC Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation or (ii) in the case of the
BC Borrower, the interest rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.07. INTEREST ELECTIONS. (a) Each Revolving Borrowing and
Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
BC Borrower may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The BC Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the BC Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the BC Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the BC
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the
43
portions thereof to be allocated to each resulting Borrowing (in which case
the information to be specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the BC Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the BC Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the BC Borrower, then, so long as
an Event of Default is continuing (i) no outstanding Borrowing may be converted
to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.08. TERMINATION AND REDUCTION OF COMMITMENTS. (a) Unless
previously terminated, the Revolving Commitments shall terminate on the
Revolving Maturity Date. The Tranche D Commitments terminated on the First
Restatement Effective Date upon funding of the Tranche D Term Loans.
(b) The BC Borrower may at any time terminate, or from time to time
reduce, the Revolving Commitments; PROVIDED that (i) each such reduction shall
be in an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000 and (ii) the BC Borrower shall not terminate or reduce the Revolving
Commitments if, after giving effect to any concurrent prepayment of the
Revolving Loans in accordance with Section 2.11, the sum of the Revolving
Exposures would exceed the total Revolving Commitments.
(c) The BC Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Commitments under paragraph (b) of
this
44
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Revolving Lenders of the contents thereof. Each notice
delivered by the BC Borrower pursuant to this Section shall be irrevocable;
PROVIDED that a notice of termination of the Revolving Commitments delivered by
the BC Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the BC
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction
of the Commitments of any Class shall be permanent. Each reduction of the
Revolving Commitments shall be made ratably among the Lenders in accordance with
their respective Revolving Commitments.
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The BC
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Tranche D Term Loan of such Lender as provided in Section 2.10
and (iii) to each Swingline Lender the then unpaid principal amount of each
Swingline Loan of such Lender on the earlier of the Revolving Maturity Date and
the date that is five Business Days after such Swingline Loan is made; PROVIDED
that on each date that a Revolving Borrowing is made, the BC Borrower shall
repay all Swingline Loans that were outstanding on the date such Borrowing was
requested.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the BC Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made to the BC Borrower hereunder, the Class
and Type thereof and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
BC Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the BC Borrower to
repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the BC Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if
45
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.10. AMORTIZATION OF TERM LOANS. (a) Subject to adjustment
pursuant to paragraph (c) of this Section, the BC Borrower shall repay Tranche D
Term Borrowings on each date set forth below in the aggregate principal amount
set forth opposite such date:
Date Amount
---------------------------------------------------------------------
June 30, 2005 $ 2,100,000
September 30, 2005 $ 2,100,000
December 31, 2005 $ 2,100,000
March 31, 2006 $ 2,100,000
June 30, 2006 $ 2,100,000
September 30, 2006 $ 2,100,000
December 31, 2006 $ 2,100,000
March 31, 2007 $ 2,100,000
June 30, 2007 $ 2,100,000
September 30, 2007 $ 2,100,000
December 31, 2007 $ 2,100,000
March 31, 2008 $ 2,100,000
June 30, 2008 $ 2,100,000
September 30, 2008 $ 2,100,000
December 31, 2008 $ 2,100,000
March 31, 2009 $ 2,100,000
June 30, 2009 $ 2,100,000
September 30, 2009 $ 2,100,000
December 31, 2009 $ 2,100,000
March 31, 2010 $ 2,100,000
June 30, 2010 $ 2,100,000
September 30, 2010 $ 2,100,000
March 31, 2011 $ 396,900,000
Tranche D Maturity Date $ 396,900,000
(b) To the extent not previously paid all Tranche D Term Loans shall
be due and payable on the Tranche D Maturity Date.
(c) Any prepayment of a Tranche D Term Borrowing shall be applied to
reduce the subsequent scheduled repayments of the Tranche D Term Borrowings to
be made pursuant to this Section in the direct chronological order of maturity.
If the initial aggregate amount of the Lenders' Tranche D Commitments exceeds
the aggregate
46
principal amount of Tranche D Term Loans made on the First Restatement Effective
Date, then the scheduled repayments of Tranche D Term Borrowings to be made
pursuant to this Section shall be reduced ratably by an aggregate amount equal
to such excess.
(d) Prior to any repayment of any Tranche D Term Borrowings hereunder,
the BC Borrower shall select the Borrowing or Borrowings to be repaid and shall
notify the Administrative Agent by telephone (confirmed by telecopy) of such
selection not later than 11:00 a.m., New York City time, three Business Days
before the scheduled date of such repayment. Each repayment of a Tranche D Term
Borrowing shall be applied ratably to the Loans included in the repaid
Borrowing. Repayments of Tranche D Term Borrowings shall be accompanied by
accrued interest on the amount repaid.
SECTION 2.11. PREPAYMENT OF LOANS. (a) The BC Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section.
(b) In the event and on each occasion that the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the BC Borrower shall prepay
Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are
outstanding, deposit cash collateral in an account with the Administrative Agent
pursuant to Section 2.05(k)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of BC Holdings, the BC Borrower or any Subsidiary in
respect of any Prepayment Event, the BC Borrower shall, within three Business
Days after such Net Proceeds are so received, prepay Term Borrowings in an
aggregate amount equal to 100% of such Net Proceeds (or, in the case of a
Prepayment Event described in clause (c) of the definition of the term
Prepayment Event, 50% of such Net Proceeds); PROVIDED that, in the case of any
event described in clause (a) or (b) of the definition of the term Prepayment
Event and subject to Section 6.06, if the BC Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer of the BC Borrower to
the effect that the BC Borrower or its Subsidiaries intend to apply the Net
Proceeds from such event (or a portion thereof specified in such certificate),
within 360 days after receipt of such Net Proceeds, to acquire real property,
equipment or other tangible assets to be used in the business of the BC Borrower
or its Subsidiaries, and certifying that no Default has occurred and is
continuing, then no prepayment shall be required pursuant to this paragraph in
respect of the Net Proceeds in respect of such event (or the portion of such Net
Proceeds specified in such certificate, if applicable) except to the extent of
any such Net Proceeds therefrom that have not been so applied by the end of such
360-day period, at which time a prepayment shall be required in an amount equal
to such Net Proceeds that have not been so applied. In addition, in the event
and on each occasion that the BC Borrower or any Subsidiary shall sell, lease or
otherwise dispose of any asset (whether or not such transaction shall constitute
a Prepayment Event), if the BC Borrower would be required to prepay or redeem,
or to offer to prepay or redeem, any Subordinated Debt or any Senior Unsecured
Debt as a result of such transaction unless the proceeds of such transaction are
applied within a specified period to prepay Term Borrowings (or
47
otherwise reinvested as permitted in accordance with the terms of such
Subordinated Debt or Senior Unsecured Debt, as applicable), then the BC Borrower
shall (unless such proceeds are otherwise reinvested within the specified period
in a manner that relieves the BC Borrower of any such requirement in respect of
the Subordinated Debt or Senior Unsecured Debt, as applicable) prepay Term
Borrowings within such specified period to the extent necessary to relieve the
BC Borrower of any such requirement.
(d) Following the end of each fiscal year of the BC Borrower,
commencing with the fiscal year ending December 31, 2005, the BC Borrower shall
prepay Term Borrowings in an aggregate amount equal to the excess, if any, of
(A) 50% of Excess Cash Flow for such fiscal year over (B) the aggregate
principal amount of Term Loans optionally prepaid during the period from and
including March 31 of the fiscal year for which Excess Cash Flow is being
calculated to but excluding March 31 of the fiscal year during which such
prepayment is being made (or, if earlier, the date on which such prepayment is
made); PROVIDED that (i) the aggregate prepayment amount required by this
paragraph in respect of a fiscal year shall be calculated based upon 25%
(instead of 50%) of Excess Cash Flow for such fiscal year if the Leverage Ratio
is less than or equal to 3.5 to 1.0 on the last day of such fiscal year and (ii)
no prepayment shall be required by this paragraph in respect of Excess Cash Flow
for any fiscal year if the Leverage Ratio is less than or equal to 3.0 to 1.0 on
the last day of such fiscal year. Each prepayment pursuant to this paragraph
shall be made on or before the date on which financial statements are delivered
pursuant to Section 5.01 with respect to the fiscal year for which Excess Cash
Flow is being calculated (and in any event within 90 days after the end of such
fiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings under
this Section, the BC Borrower shall select the Borrowing or Borrowings to be
prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (f) of this Section.
(f) The BC Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the relevant Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; PROVIDED that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the relevant Lenders of the contents thereof.
Each partial prepayment of any Borrowing shall
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be in an amount that would be permitted in the case of an advance of a Borrowing
of the same Type as provided in Section 2.02, except as necessary to apply fully
the required amount of a mandatory prepayment. Each prepayment of a Borrowing
shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.13.
(g) All prepayments of Tranche D Term Loans effected on or prior to
December 31, 2005 with the proceeds of a substantially concurrent issuance or
incurrence of new secured credit facilities (excluding a refinancing of all the
facilities outstanding under this Agreement in connection with another
transaction not permitted by this Agreement (as determined prior to giving
effect to any amendment or waiver of this Agreement being adopted in connection
with such transaction) so long as the primary purpose of such transaction is not
to refinance Indebtedness hereunder at an Applicable Rate or similar interest
rate spread more favorable to the BC Borrower), shall be accompanied by a
prepayment fee equal to 1.00% of the aggregate amount of such prepayments if the
Applicable Rate or similar interest rate spread applicable to such new term
loans is or, upon the satisfaction of certain conditions, could be less than the
Applicable Rate applicable to the Tranche D Term Loans, as the case may be, as
of the date hereof.
SECTION 2.12. FEES. (a) The BC Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at the rate of 0.50% per annum on the average daily unused
amount of the Revolving Commitment of such Lender during the period from and
including the Original Effective Date to but excluding the date on which such
Revolving Commitment terminates. Accrued commitment fees shall be payable in
arrears on the last day of March, June, September and December of each year and
on the date on which the Revolving Commitments terminate, commencing on the
first such date to occur after the Original Effective Date. All commitment fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day). For purposes of computing commitment fees, a Revolving Commitment of
a Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender
shall be disregarded for such purpose).
(b) The BC Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as applicable for purposes of determining the interest rate applicable to
Eurodollar Revolving Loans on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Original Effective Date
to but excluding the later of the date on which such Lender's Revolving
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to each Issuing Bank a fronting fee, which shall accrue at
the rate of 0.25% per annum (or such other rate separately agreed upon between
the BC Borrower and such Issuing Bank) on the average daily amount of the LC
Exposure attributable to Letters of Credit issued by such Issuing Bank
(excluding any portion thereof attributable
49
to unreimbursed LC Disbursements) during the period from and including the
Original Effective Date to but excluding the later of the date of termination of
the Revolving Commitments and the date on which there ceases to be any such LC
Exposure, as well as such Issuing Bank's standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation fees and fronting fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Original Effective Date; PROVIDED that all
such fees shall be payable on the date on which the Revolving Commitments
terminate and any such fees accruing after the date on which the Revolving
Commitments terminate shall be payable on demand. Any other fees payable to an
Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The BC Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed to
be payable to the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the applicable
Issuing Bank, in the case of fees payable to it) for distribution, in the case
of commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR Borrowing
(including each Committed Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(c) Each Uncommitted Swingline Loan shall bear interest at such rate
per annum as shall be separately agreed by the BC Borrower and the relevant
Uncommitted Swingline Lender; PROVIDED that such rate shall not exceed the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the BC Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
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(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; PROVIDED that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Revolving Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the BC Borrower and
the Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the BC Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by
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such Lender or any Letter of Credit issued by such Issuing Bank or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
BC Borrower agrees to pay to such Lender or such Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or such
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or an Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or such Issuing Bank's capital or on the capital of
such Lender's or such Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a
level below that which such Lender or such Issuing Bank or such Lender's or such
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or such Issuing Bank's policies and the
policies of such Lender's or such Issuing Bank's holding company with respect to
capital adequacy), then from time to time the BC Borrower agrees to pay to such
Lender or such Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or such Issuing Bank or such Lender's or
such Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or such Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the BC Borrower and shall be conclusive
absent manifest error. The BC Borrower shall pay such Lender or such Issuing
Bank, as the case may be, the amount shown as due on any such certificate within
10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; PROVIDED
that the BC Borrower shall not be required to compensate a Lender or an Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or such Issuing Bank, as
the case may be, notifies the BC Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender's or such Issuing Bank's
intention to claim compensation therefor; PROVIDED FURTHER that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
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SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(f) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the BC Borrower pursuant
to Section 2.19, then, in any such event, the BC Borrower shall compensate each
Lender for the loss, cost and expense attributable to such event. In the case of
a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined reasonably and in good faith by such Lender to be
the excess, if any, of (i) the amount of interest which would have accrued on
the principal amount of such Loan had such event not occurred, at the Adjusted
LIBO Rate that would have been applicable to such Loan, for the period from the
date of such event to the last day of the then current Interest Period therefor
(or, in the case of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the BC Borrower and shall be conclusive absent
manifest error. The BC Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. TAXES. (a) Any and all payments by or on account of any
obligation of the BC Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; PROVIDED that if the BC Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the BC Borrower shall make such deductions and (iii) the BC Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the BC Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The BC Borrower shall indemnify the Administrative Agent, each
Lender and each Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or such Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of the BC
Borrower hereunder or under any other Loan Document (including Indemnified Taxes
or Other Taxes imposed or asserted on or
53
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the BC Borrower by a Lender or an
Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a
Lender or an Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the BC Borrower to a Governmental Authority, the BC Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the BC
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the BC Borrower (with
a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the BC Borrower as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Foreign Lender has received written notice from the BC Borrower advising it of
the availability of such exemption or reduction and supplying all applicable
documentation.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the BC Borrower or with respect to which the BC
Borrower has paid additional amounts pursuant to this Section 2.17, it shall pay
over such refund to the BC Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by the BC Borrower under this Section
2.17 with respect to the Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); PROVIDED, that the BC Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the BC Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent or
such Lender in the event the Administrative Agent or such Lender is required to
repay such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems
confidential) to the BC Borrower or any other Person.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. (a) The BC Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement
54
of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to the time expressly required hereunder or under such other
Loan Document for such payment (or, if no such time is expressly required, prior
to 12:00 noon, New York City time), on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
except payments to be made directly to an Issuing Bank or a Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Committed Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans,
Term Loans and participations in LC Disbursements and Committed Swingline Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans, Term Loans and participations
in LC Disbursements and Committed Swingline Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Term Loans and
participations in LC Disbursements and Committed Swingline Loans; PROVIDED that
(i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by the BC Borrower pursuant to and in
55
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the BC Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The BC
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against the BC Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the BC Borrower in the amount of such
participation.
(d) Unless the Administrative Agent shall have received notice from
the BC Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or an Issuing Bank hereunder
that the BC Borrower will not make such payment, the Administrative Agent may
assume that the BC Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
such Issuing Bank, as the case may be, the amount due. In such event, if the BC
Borrower has not in fact made such payment, then each of the Lenders or the
applicable Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or such Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
any Lender requests compensation under Section 2.15, or if the BC Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The BC
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
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(b) If any Lender requests compensation under Section 2.15, or if the
BC Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the BC
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); PROVIDED that (i) the BC Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, each Issuing Bank and the Committed
Swingline Lender), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the BC Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to
Section 2.17, such assignment will result in a material reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the BC Borrower to require such
assignment and delegation cease to apply.
SECTION 2.20. INCREASE IN REVOLVING CREDIT COMMITMENTS. (a) The BC
Borrower may, by written notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Revolving Lenders), request that the
total Revolving Commitments be increased (a "REVOLVING COMMITMENT INCREASE");
PROVIDED that the total Revolving Commitments shall not be increased by more
than $25,000,000 during the term of this Agreement pursuant to this Section.
Such notice shall set forth (i) the amount of the requested increase in the
total Revolving Commitments and the date on which such increase is requested to
become effective and (ii) whether the BC Borrower desires to effect all or any
portion of such increase by offering the Revolving Lenders the opportunity to
ratably increase their Revolving Commitments. If such notice indicates that the
BC Borrower elects to offer Revolving Lenders the opportunity to ratably
increase their Revolving Commitments, the Administrative Agent will notify the
Revolving Lenders of such offer and the amount of the proposed increase to be
offered ratably to the Revolving Lenders, and each Revolving Lender shall, by
notice to the BC Borrower and the Administrative Agent given not more than 10
days after the date of the BC Borrower's notice, either agree to increase its
Revolving Commitment by all or a portion of the offered amount or decline to
increase its Revolving Commitment (and any Revolving Lender that does not
deliver such a notice within such period of 10 days shall be deemed to have
declined to increase its Revolving Commitment). Regardless of whether the BC
Borrower's notice elects to offer Revolving Lenders the opportunity to ratably
increase their Revolving Commitments, the BC Borrower may arrange for one or
more banks or other financial institutions (any such bank or other financial
institution being called an "AUGMENTING REVOLVING LENDER"), which may include
any Lender, to
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extend Revolving Commitments or increase their existing Revolving Commitments in
order to effect all or part of the proposed increase in the total Revolving
Commitments; PROVIDED that each Augmenting Revolving Lender, if not already a
Lender hereunder, shall be subject to the approval of the Administrative Agent,
each Issuing Bank and the Committed Swingline Lender (such approvals not to be
unreasonably withheld), and the BC Borrower and each Augmenting Revolving Lender
shall execute all such documentation as the Administrative Agent shall
reasonably specify to evidence its Revolving Commitment and/or its status as a
Revolving Lender hereunder. Any increase in the total Revolving Commitments may
be made in an amount which is less than the increase requested by the BC
Borrower if the BC Borrower so elects.
(b) On the effective date (the "REVOLVING COMMITMENT INCREASE
EFFECTIVE DATE") of any Revolving Commitment Increase, if any Revolving Loans
are outstanding, the BC Borrower (i) shall prepay all Revolving Loans then
outstanding (including all accrued but unpaid interest thereon) and (ii) may, at
its option, fund such prepayment by simultaneously borrowing Revolving Loans of
the Types and for the Interest Periods specified in a Borrowing Request
delivered pursuant to Section 2.03, which Revolving Loans shall be made by the
Revolving Lenders ratably in accordance with their respective Revolving
Commitments (calculated after giving effect to the Revolving Commitment
Increase); PROVIDED that such prepayment of Revolving Loans pursuant to this
paragraph shall not be required if such Revolving Commitment Increase is
effected entirely by ratably increasing the Revolving Commitments of the
existing Revolving Lenders. The payments made pursuant to clause (i) above in
respect of each Eurodollar Loan shall be subject to Section 2.16.
(c) Increases and new Revolving Commitments created pursuant to this
Section 2.20 shall become effective on the date specified in the notice
delivered by the BC Borrower pursuant to the first sentence of paragraph (a)
above; PROVIDED that the BC Borrower may, with the consent of the Administrative
Agent (such consent not to be unreasonably withheld), extend such date by up to
30 days by delivering written notice to the Administrative Agent no less than
three Business Days prior to the date specified in the notice delivered by the
BC Borrower pursuant to the first sentence of paragraph (a) above.
(d) Notwithstanding the foregoing, no increase in the total Revolving
Commitments (or in the Revolving Commitment of any Revolving Lender) or addition
of an Augmenting Revolving Lender shall become effective under this Section
unless (i) on the Revolving Commitment Increase Effective Date, the conditions
set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied and the
Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Financial Officer of the BC Borrower, and (ii) the
Administrative Agent shall have received (with sufficient copies for each of the
Lenders) (A) documents consistent with those delivered on the First Restatement
Effective Date under clauses (b) and (c) of Section 7 of the Amendment and
Restatement Agreement and (B) to the extent requested by the Administrative
Agent, documents consistent with those delivered on the First Restatement
Effective Date under clauses (f)(ii)(A) and (B) of Section 7 of the Amendment
and Restatement Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of BC Holdings and the BC Borrower represents and warrants to the
Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of BC Holdings, the BC
Borrower and the Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The First Restatement
Transactions to be entered into by each Loan Party are within such Loan Party's
corporate or limited liability company powers and have been duly authorized by
all necessary corporate or limited liability company and, if required,
stockholder action. This Agreement has been duly executed and delivered by each
of BC Holdings and the BC Borrower and constitutes, and each other Loan Document
to which any Loan Party is to be a party, when executed and delivered by such
Loan Party, will constitute, a legal, valid and binding obligation of BC
Holdings, the BC Borrower or such Loan Party (as the case may be), enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The First
Restatement Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect and
except filings necessary to perfect Liens created under the Loan Documents, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of any of BC Holdings, the BC Borrower or the
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon any of BC Holdings, the BC Borrower or the Subsidiaries or its assets, or
give rise to a right thereunder to require any payment to be made by any of BC
Holdings, the BC Borrower or the Subsidiaries, and (d) will not result in the
creation or imposition of any Lien on any asset of any of BC Holdings, the BC
Borrower or the Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE. (a) BC
Holdings and the BC Borrower have heretofore furnished to the Lenders (i)
consolidated and consolidating balance sheets and related statements of income,
stockholders' equity and cash flows of each of (x) the Acquired Businesses,
taken as a whole, (y) the Timberland Assets, on a stand-alone basis and (z) the
Operating
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Businesses, taken as a whole, in each case as of and for the fiscal years ended
December 31, 2003, reported on by KPMG LLP, independent public accountants and
(ii) the audited consolidated and unaudited consolidating balance sheet and
related statements of operations, stockholders' equity and cash flows of each of
(x) the Holding Companies and their consolidated subsidiaries (combined), (y)
the BC Borrower and its consolidated subsidiaries and (z) the Timber Borrower
and its consolidated subsidiaries, in each case as of December 31, 2004, and for
the periods January 1, 2004, through October 28, 2004, and October 29, 2004,
through December 31, 2004, reported on (in the case of such audited statements)
by KPMG LLP. Such financial statements present fairly, in all material respects,
the financial position and results of operations and cash flows of (A) in the
case of the financial statements referred to in clause (i) above, the Acquired
Businesses, the Timberland Assets and the Operating Businesses and (B) in the
case of the financial statements referred to in clause (ii) above, the Persons
referred to therein, in each case as of such dates and for such periods, in
accordance with GAAP.
(b) The Holding Companies, the BC Borrower and the Timber Borrower
have heretofore furnished to the Lenders the pro forma combined consolidated
balance sheet of the Holding Companies as of December 31, 2004, prepared giving
effect to the First Restatement Transactions as if the First Restatement
Transactions had occurred on such date. Such pro forma combined consolidated
balance sheet (i) has been prepared in good faith based on assumptions believed
by the Holding Companies, the BC Borrower and the Timber Borrower to be
reasonable, (ii) is based on the best information available to the Holding
Companies, the BC Borrower and the Timber Borrower after due inquiry, (iii)
accurately reflects all adjustments necessary to give effect to the First
Restatement Transactions and (iv) presents fairly, in all material respects, the
pro forma financial position of the Holding Companies and their consolidated
subsidiaries as of December 31, 2004, as if the First Restatement Transactions
had occurred on such date.
(c) Except as disclosed in the financial statements referred to above
or the notes thereto and except for the Disclosed Matters, after giving effect
to the First Restatement Transactions, none of BC Holdings, the BC Borrower or
the Subsidiaries has, as of the First Restatement Effective Date, any material
contingent liabilities, unusual long-term commitments or unrealized losses.
(d) Since December 31, 2004, there has been no change or effect that
is or would reasonably be expected to be materially adverse to the business,
financial condition or results of operations of BC Holdings, the BC Borrower and
the Subsidiaries, taken as a whole.
SECTION 3.05. PROPERTIES. (a) Each of BC Holdings, the BC Borrower and
the Subsidiaries has good title to, or valid leasehold interests in, or other
valid and enforceable rights to use, all its real and personal property material
to its business (including its Mortgaged Properties), except for minor defects
in title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
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(b) Each of BC Holdings, the BC Borrower and the Subsidiaries owns, or
is licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by BC
Holdings, the BC Borrower and the Subsidiaries does not infringe upon the rights
of any other Person, except for any such infringements that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) [Intentionally Omitted].
(d) Schedule 3.05(d) sets forth the address or legal description of
each parcel of real property that is owned or leased by the BC Borrower or any
Subsidiary as of the First Restatement Effective Date after giving effect to the
First Restatement Transactions, in each case indicating whether such real
property is owned or leased, the record owner of such real property.
(e) As of the First Restatement Effective Date, none of BC Holdings,
the BC Borrower or the Subsidiaries has received notice of, or has knowledge of,
any pending or contemplated condemnation proceeding affecting any Mortgaged
Property or any sale or disposition thereof in lieu of condemnation. Except as
set forth on Schedule 3.05(e), as of the First Restatement Effective Date,
neither any Mortgaged Property nor any interest therein is subject to any right
of first refusal, option to purchase or other contractual right to purchase such
Mortgaged Property or interest therein.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of BC Holdings or the BC
Borrower, threatened against or affecting any of BC Holdings, the BC Borrower or
the Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve any of the Loan Documents or
the First Restatement Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, none of BC Holdings, the BC
Borrower or the Subsidiaries (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received written notice of any claim with
respect to any Environmental Liability or (iv) knows of any facts, conditions or
circumstances that would reasonably be expected to result in any Environmental
Liability.
(c) Since the Original Effective Date, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
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SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of BC
Holdings, the BC Borrower and the Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. None of BC
Holdings, the BC Borrower or the Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of BC Holdings, the BC Borrower and the
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) any Taxes that are being contested in good
faith by appropriate proceedings and for which BC Holdings, the BC Borrower or
such BS Subsidiary, as applicable, has set aside on its books adequate reserves
or (b) to the extent that the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent annual financial statements reflecting such amounts, exceed
the fair market value of the assets of such Plan by an amount that, if required
to be paid, would reasonably be expected to result in a Material Adverse Effect,
and the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent annual
financial statements reflecting such amounts, exceed the fair market value of
the assets of all such underfunded Plans by an amount that, if required to be
paid, would reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. DISCLOSURE. BC Holdings and the BC Borrower have
disclosed to the Lenders all agreements, instruments and corporate or other
restrictions to which any of BC Holdings, the BC Borrower or the Subsidiaries is
subject, and all other matters known to any of them, that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect. None of the reports, financial statements, certificates or other
information furnished by or on behalf of any Loan Party to the Administrative
Agent or any Lender in connection with the negotiation of this Agreement or any
other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of
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fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; PROVIDED that, with respect to projected financial information, BC
Holdings and the BC Borrower represent only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. SUBSIDIARIES. BC Holdings does not have any subsidiaries
other than the BC Borrower and the Subsidiaries. Schedule 3.12 sets forth the
name and jurisdiction of organization of, and the direct or indirect ownership
interest of the BC Borrower in, each Subsidiary and identifies each such
Subsidiary that is a Subsidiary Loan Party, in each case as of the First
Restatement Effective Date.
SECTION 3.13. INSURANCE. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of BC Holdings, the BC Borrower and the
Subsidiaries as of the First Restatement Effective Date. As of the First
Restatement Effective Date, all premiums due and payable in respect of such
insurance have been paid. BC Holdings and the BC Borrower reasonably believe
that the insurance maintained by or on behalf of BC Holdings, the BC Borrower
and the Subsidiaries is adequate.
SECTION 3.14. LABOR MATTERS. As of the First Restatement Effective
Date, there are no strikes, lockouts or slowdowns against BC Holdings, the BC
Borrower or any Subsidiary pending or, to the knowledge of BC Holdings or the BC
Borrower, threatened. The hours worked by and payments made to employees of BC
Holdings, the BC Borrower and the Subsidiaries have not been in violation of the
Fair Labor Standards Act or any other applicable Federal, state, local or
foreign law dealing with such matters, except to the extent that the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. All payments due from BC Holdings, the BC
Borrower or any Subsidiary, or for which any claim may be made against BC
Holdings, the BC Borrower or any Subsidiary, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of BC Holdings, the BC Borrower or any Subsidiary, as
applicable. The consummation of the First Restatement Transactions will not give
rise to any right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which BC Holdings, the BC
Borrower or any Subsidiary is bound.
SECTION 3.15. SOLVENCY. Immediately after the consummation of the
First Restatement Transactions to occur on the First Restatement Effective Date
and immediately following the making of each Loan made on the First Restatement
Effective Date and after giving effect to the application of the proceeds of
such Loans, (a) the fair value of the assets of the Loan Parties, taken as a
whole, at a fair valuation, will exceed their debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of the Loan Parties, taken as a whole, will be greater than the
amount that will be required to pay the probable liability of their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) the Loan Parties, taken as a
whole, will be able to pay
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their debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) the Loan Parties,
taken as a whole, will not have unreasonably small capital with which to conduct
the business in which they are engaged as such business is now conducted and is
proposed to be conducted following the First Restatement Effective Date.
SECTION 3.16. SENIOR INDEBTEDNESS. The Obligations constitute "Senior
Indebtedness" under and as defined in the Subordinated Debt Documents.
SECTION 3.17. SECURITY INTERESTS. The representations and warranties
in the Security Documents are true and correct.
ARTICLE IV
CONDITIONS
SECTION 4.01. [Intentionally Omitted].
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to make
a Loan on the occasion of any Borrowing (it being understood that the
continuation or conversion of a Borrowing does not constitute the making of a
Loan for purposes of this Section 4.02), and of each Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct (except representations and
warranties not qualified as to materiality, which representations and warranties
shall be true and correct in all material respects) on and as of the date of
such Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable (except, to the extent such representations or
warranties expressly relate to an earlier date, in which case as of such earlier
date).
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by BC
Holdings and the BC Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full
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and all Letters of Credit shall have expired or terminated or have been cash
collateralized (to the satisfaction of the Issuing Banks) and all LC
Disbursements shall have been reimbursed, each of BC Holdings and the BC
Borrower covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. BC Holdings
and the BC Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the BC
Borrower (or, during any time that BC Holdings or the BC Borrower is
subject to the periodic reporting requirements of the Securities Exchange
Act of 1934, as amended, such shorter period as the Securities and Exchange
Commission shall specify for the filing of annual reports on Form 10-K),
the audited consolidated and unaudited consolidating balance sheet and
related statements of operations, stockholders' equity and cash flows of
each of (i) BC Holdings and its consolidated subsidiaries and (ii) the BC
Borrower and its consolidated subsidiaries, in each case as of the end of
and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by KPMG LLP or other
independent public accountants of recognized national standing (without a
"going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the entities
to which such financial statements pertain on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the BC Borrower (or, during any time that
BC Holdings or the BC Borrower is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended, such
shorter period as the Securities and Exchange Commission shall specify for
the filing of quarterly reports on Form 10-Q), the consolidated and
consolidating balance sheet and related statements of operations,
stockholders' equity and cash flows of each of (i) BC Holdings and its
consolidated subsidiaries and (ii) the BC Borrower and its consolidated
subsidiaries, in each case as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous
fiscal year, all certified by a Financial Officer of BC Holdings (in the
case of clause (i)) or the BC Borrower (in the case of clause (ii)), as
presenting fairly in all material respects the financial condition and
results of operations of the entities to which such financial statements
pertain on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of BC
Holdings (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the
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details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Sections 6.12, 6.13 and 6.14, (iii) stating whether any
change in GAAP or in the application thereof has occurred since the date of
the audited financial statements referred to in Section 3.04 and, if any
such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate and (iv) stating whether
any Tax Distributions were made during the period covered by such financial
statements and, if so, the amount thereof and setting forth a summary
description of the calculation thereof;
(d) at least 30 days prior to the commencement of each fiscal year of
BC Holdings beginning with the fiscal year commencing January 1, 2006, a
reasonably detailed consolidated budget for such fiscal year (including a
projected consolidated balance sheet and related statements of projected
operations and cash flow as of the end of and for such fiscal year and
setting forth the assumptions used for purposes of preparing such budget)
and, promptly when available, any significant revisions of such budget;
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
any of BC Holdings, the BC Borrower or the Subsidiaries with the Securities
and Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national securities
exchange, as the case may be; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of any
of BC Holdings, the BC Borrower or the Subsidiaries, or compliance with the
terms of any Loan Document, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. BC Holdings and the BC
Borrower will furnish to the Administrative Agent and each Lender written notice
of the following promptly after any Financial Officer or other executive officer
of either BC Holdings or the BC Borrower obtains knowledge thereof:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting any of
BC Holdings, the BC Borrower or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability to any of BC Holdings, the BC Borrower or the
Subsidiaries in an aggregate amount exceeding $5,000,000; and
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(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of BC Holdings or the BC Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 5.03. INFORMATION REGARDING COLLATERAL. BC Holdings or the BC
Borrower will furnish to the Administrative Agent prompt written notice of any
change (a) in any Loan Party's legal name or in any trade name used to identify
it in the conduct of its business or in the ownership of its properties, (b) in
the case of any Loan Party that is not a "registered organization" (as defined
in Article 9 of the Uniform Commercial Code as from time to time in effect in
the State of New York), in the location of such Loan Party's chief executive
office, its principal place of business, any office in which it maintains books
or records relating to Collateral owned by it or any office or facility at which
Collateral owned by it is located (including the establishment of any such new
office or facility), (c) in any Loan Party's identity or corporate structure,
(d) in any Loan Party's "organizational identification number" or any similar
jurisdictional identification number required for the filing of financing
statements in any jurisdiction or (e) in any Loan Party's jurisdiction of
organization. BC Holdings and the BC Borrower agree not to effect or permit any
change referred to in the preceding sentence unless all filings have been made
(or have been prepared and delivered to the Administrative Agent for filing)
under the Uniform Commercial Code or otherwise that are required in order for
the Administrative Agent and Collateral Agent to continue at all times following
such change to have a valid, legal and perfected security interest in all the
Collateral. BC Holdings and the BC Borrower also agree promptly to notify the
Administrative Agent if any material portion of the Collateral is damaged or
destroyed.
SECTION 5.04. EXISTENCE; CONDUCT OF BUSINESS. Each of BC Holdings and
the BC Borrower will, and will cause each of the Subsidiaries to, do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence and the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business; PROVIDED that the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.05. PAYMENT OF OBLIGATIONS. Each of BC Holdings and the BC
Borrower will, and will cause each of the Subsidiaries to, pay its Indebtedness
and other obligations, including Tax liabilities, before the same shall become
delinquent or in default, except (a) where (i) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (ii) BC Holdings, the
BC Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (iii) such contest effectively
suspends collection of the contested obligation and the enforcement of any Lien
securing such obligation, or (b) except for Tax liabilities, where the failure
to make payment (individually or in the aggregate) could not reasonably be
expected to result in a Material Adverse Effect.
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SECTION 5.06. MAINTENANCE OF PROPERTIES. Each of BC Holdings and the
BC Borrower will, and will cause each of the Subsidiaries to, maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted and subject to casualty and
condemnation events (in which case such property shall be repaired or replaced
as promptly as practicable).
SECTION 5.07. INSURANCE. Each of BC Holdings and the BC Borrower will,
and will cause each of the Subsidiaries to, maintain, with financially sound and
reputable insurance companies (a) insurance in such amounts (with no greater
risk retention) and against such risks as are customarily maintained by
companies of established repute engaged in the same or similar businesses
operating in the same or similar locations and (b) all insurance required to be
maintained pursuant to the Security Documents. BC Holdings and the BC Borrower
will furnish (or cause to be furnished) to the Lenders, upon request of the
Administrative Agent, information in reasonable detail as to the insurance so
maintained.
SECTION 5.08. CASUALTY AND CONDEMNATION. BC Holdings and the BC
Borrower (a) will furnish to the Administrative Agent prompt written notice of
any casualty or other insured damage to any material portion of any Collateral
or the commencement of any action or proceeding for the taking of any material
portion of the Collateral or any part thereof or interest therein under power of
eminent domain or by condemnation or similar proceeding and (b) will ensure that
the Net Proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance with
the applicable provisions of the Security Documents.
SECTION 5.09. BOOKS AND RECORDS; INSPECTION RIGHTS. Each of BC
Holdings and the BC Borrower will, and will cause each of the Subsidiaries to,
keep proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and
activities. Each of BC Holdings and the BC Borrower will, and will cause each of
the Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and (so long as a
representative of BC Holdings or the BC Borrower has been afforded a reasonable
opportunity to be present at such discussions) independent accountants, all at
such reasonable times and as often as reasonably requested; PROVIDED that,
unless a Default has occurred and is continuing, the BC Borrower shall not be
required to pay the expense of any such visit by a representative of a Lender
and shall only be required to pay the expense of two such visits by a
representative of the Administrative Agent during any fiscal year.
SECTION 5.10. COMPLIANCE WITH LAWS. Each of BC Holdings and the BC
Borrower will, and will cause each of the Subsidiaries to, comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
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SECTION 5.11. USE OF PROCEEDS AND LETTERS OF CREDIT. The proceeds of
the Tranche D Term Loans will be used only to prepay Tranche B Term Loans
outstanding on the First Restatement Effective Date (other than any Tranche B
Term Loans that have been exchanged for Tranche D Term Loans pursuant to the
Amendment and Restatement Agreement). The proceeds of the Revolving Loans and
Swingline Loans will be used only for general corporate purposes. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations G, U and X. Letters of Credit will be issued only for
general corporate purposes.
SECTION 5.12. ADDITIONAL SUBSIDIARIES. If any additional Subsidiary is
formed or acquired after the Original Effective Date, the BC Borrower will,
within five Business Days after such Subsidiary is formed or acquired, notify
the Administrative Agent and the Lenders thereof (which notice shall indicate
the name of such Subsidiary, the jurisdiction in which it is organized and its
status, if applicable, as a Foreign Subsidiary or a Receivables Subsidiary or a
Subsidiary Loan Party) and cause the Collateral and Guarantee Requirement to be
satisfied with respect to such Subsidiary (if it is a Subsidiary Loan Party) and
with respect to any Equity Interest in or Indebtedness of such Subsidiary owned
by or on behalf of any Loan Party.
SECTION 5.13. FURTHER ASSURANCES. (a) Each of BC Holdings and the BC
Borrower will, and will cause each Subsidiary Loan Party to, execute any and all
further documents, financing statements, agreements and instruments, and take
all such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust and other documents),
which may be required under any applicable law, or which the Administrative
Agent or the Required Lenders may reasonably request, to cause the Collateral
and Guarantee Requirement to be and remain satisfied, all at the expense of the
Loan Parties. BC Holdings and the BC Borrower also agree to provide to the
Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Security Documents.
(b) If any material assets (including (i) any real property acquired
pursuant to a Permitted Operating Asset Swap if a Mortgaged Property was
transferred pursuant to such Permitted Operating Asset Swap and (ii) any other
material real property or material improvements thereto or any material interest
therein, howsoever acquired) are acquired by any Loan Party after the Original
Effective Date (other than assets constituting Collateral under the Collateral
Agreement that become subject to the Lien of the Collateral Agreement upon
acquisition thereof), BC Holdings and the BC Borrower will notify the
Administrative Agent and the Lenders thereof, and, if requested by the
Administrative Agent or the Required Lenders, BC Holdings and the BC Borrower
will cause such assets to be subjected to a Lien securing the Obligations and
will take, and cause the Subsidiary Loan Parties to take, such actions as shall
be necessary or reasonably requested by the Administrative Agent to grant and
perfect such Liens, including actions described in paragraph (a) of this
Section, all at the expense of the Loan Parties.
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SECTION 5.14. INTEREST RATE PROTECTION. As promptly as practicable,
and in any event within 90 days after the Original Effective Date, the BC
Borrower will enter into, and thereafter maintain in effect for the periods
specified below, one or more interest rate protection agreements on such terms
and with such parties as shall be reasonably satisfactory to the Administrative
Agent, the effect of which shall be that (a) for a period of at least three
years after the Original Effective Date, at least 30% of the consolidated
Long-Term Indebtedness of the BC Borrower outstanding as of the Original
Effective Date (as reduced at or before the date that such interest protection
agreement becomes effective) will be Indebtedness that either bears interest at
a fixed rate or the interest cost of which is hedged pursuant to such interest
rate protection agreements and (b) for a period of at least one year after the
Original Effective Date, at least an additional 20% of the consolidated
Long-Term Indebtedness of the BC Borrower outstanding as of the Original
Effective Date (as reduced at or before the date that such interest protection
agreement becomes effective) will be Indebtedness that either bears interest at
a fixed rate or the interest cost of which is hedged pursuant to such interest
protection agreements.
SECTION 5.15. FISCAL PERIODS. Each of BC Holdings and the BC Borrower
will, and will cause each of the Subsidiaries to, have a fiscal year ending on
December 31 and fiscal quarters ending on the last day of each calendar quarter.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated or have been cash
collateralized (to the satisfaction of the Issuing Banks) and all LC
Disbursements shall have been reimbursed, each of BC Holdings and the BC
Borrower covenants and agrees with the Lenders that:
SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES; DESIGNATED
SENIOR INDEBTEDNESS. (a) The BC Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(i) Indebtedness created under the Loan Documents;
(ii) the Subordinated Debt and the Senior Unsecured Debt;
(iii) Indebtedness existing on the Original Effective Date and set
forth in Schedule 6.01 and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal amount
thereof (other than by capitalization of interest and fees) or result in an
earlier maturity date or decreased weighted average life thereof;
(iv) Indebtedness of (A) the BC Borrower to any Subsidiary (other than
a Receivables Subsidiary) or (B) any Subsidiary to the BC Borrower or any
other Subsidiary (other than a Receivables Subsidiary); PROVIDED that
Indebtedness of
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any Subsidiary that is not a Loan Party to the BC Borrower or any
Subsidiary Loan Party shall be subject to Section 6.04;
(v) Guarantees by the BC Borrower of Indebtedness of any Subsidiary
(other than a Receivables Subsidiary) and by any Subsidiary (other than a
Receivables Subsidiary) of Indebtedness of the BC Borrower or any other
Subsidiary (other than a Receivables Subsidiary); PROVIDED that (A)
Guarantees by the BC Borrower or any Subsidiary that is a Subsidiary Loan
Party of Indebtedness of any Subsidiary that is not a Loan Party shall be
subject to Section 6.04 and (B) a Subsidiary that is not a Loan Party shall
not Guarantee Indebtedness of any Loan Party;
(vi) Indebtedness of the BC Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets after the Original Effective Date, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition
of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, or Capital Lease Obligations resulting from
sale-leaseback transactions consummated in compliance with Section 6.06,
and extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof (other than by
capitalization of interest and fees) or result in an earlier maturity date
or decreased weighted average life thereof; PROVIDED that (A), except for
Capital Lease Obligations resulting from sale-leaseback transactions
pursuant to clause (b) of Section 6.06, such Indebtedness is incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement and (B) the aggregate principal amount of
Indebtedness permitted by this clause (vi) shall not exceed $50,000,000 at
any time outstanding;
(vii) Indebtedness of any Person that becomes a Subsidiary after the
Original Effective Date; PROVIDED that (A) such Indebtedness exists at the
time such Person becomes a Subsidiary and is not created in contemplation
of or in connection with such Person becoming a Subsidiary and (B) the
aggregate principal amount of Indebtedness permitted by this clause (vii)
shall not exceed $50,000,000 at any time outstanding;
(viii) Indebtedness of any Receivables Subsidiary incurred pursuant to
any Permitted Receivables Financing;
(ix) purchase price adjustment and similar obligations incurred by the
BC Borrower or any Subsidiary in connection with a Permitted Acquisition,
to the extent such obligations would otherwise constitute Indebtedness; and
(x) other unsecured Indebtedness in an aggregate principal amount not
exceeding $25,000,000 at any time outstanding; PROVIDED that the aggregate
principal amount of Indebtedness of the Subsidiaries permitted by this
clause (x) shall not exceed $15,000,000 at any time outstanding.
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(b) BC Holdings will not create, incur, assume or permit to exist any
Indebtedness except Indebtedness created under the Loan Documents and Guarantees
in respect of the Senior Unsecured Debt and Subordinated Debt.
(c) Neither BC Holdings nor the BC Borrower will, nor will they permit
any Subsidiary to, issue any preferred stock or other preferred Equity
Interests, other than (i) Qualified Preferred Stock issued by BC Holdings and
(ii) preferred Equity Interests issued by BC Holdings in connection with the BC
Corporate Conversion that would constitute Qualified Preferred Stock but for the
requirement that such Equity Interests be redeemed upon consummation of the
Contemplated IPO.
(d) The BC Borrower will not, and the BC Borrower will not permit any
Subsidiary to, designate any Indebtedness (other than the Obligations) as
"Designated Senior Indebtedness" for purposes of, and as defined in, any of the
Subordinated Debt Documents.
SECTION 6.02. LIENS. (a) The BC Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the BC Borrower or any
Subsidiary existing on the Original Effective Date and set forth in
Schedule 6.02(a); PROVIDED that (i) such Lien shall not apply to any other
property or asset of the BC Borrower or any Subsidiary and (ii) such Lien
shall secure only those obligations which it secures on the Original
Effective Date and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof (other than with
respect to (A) the capitalization of interest and (B) the capitalization of
any prepayment premiums payable in respect of the obligations so extended,
renewed or replaced);
(iv) any Lien on any property or asset acquired after the Original
Effective Date and existing prior to the acquisition thereof by the BC
Borrower or any Subsidiary or existing on any property or asset of any
Person that becomes a Subsidiary after the Original Effective Date that
exists prior to the time such Person becomes a Subsidiary; PROVIDED that
(A) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (B)
such Lien shall not apply to any other property or assets of the BC
Borrower or any Subsidiary and (C) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be, and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof (other than with respect to (A) the capitalization
of interest and
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(B) the capitalization of any prepayment premiums payable in respect of the
obligations so extended, renewed or replaced);
(v) Liens on fixed or capital assets acquired, constructed or improved
by the BC Borrower or any Subsidiary after the Original Effective Date and
Liens on assets attributable to Capital Lease Obligations with respect to
such assets; PROVIDED that (A) such security interests secure Indebtedness
permitted by clause (vi) of Section 6.01(a), (B) except for such Liens
attributable to Capital Lease Obligations resulting from sale-leaseback
transactions pursuant to clause (b) of Section 6.06, such security
interests and the Indebtedness secured thereby are incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement, (C) the Indebtedness secured thereby does not
exceed 100% of the cost of acquiring, constructing or improving such fixed
or capital assets and (D) such security interests shall not apply to any
other property or assets of the BC Borrower or any Subsidiary;
(vi) assignments and sales of Receivables and Related Security
pursuant to a Permitted Receivables Financing and Liens arising pursuant to
a Permitted Receivables Financing on Receivables and Related Security sold
or financed in connection with such Permitted Receivables Financing;
(vii) Liens arising from precautionary UCC financing statements filed
with respect to any lease permitted by this Agreement;
(viii) customary rights of set-off, revocation, refund or chargeback
under deposit agreements or under the Uniform Commercial Code of banks or
other financial institutions where the BC Borrower or any Subsidiary
maintains deposits (other than deposits intended as cash collateral) in the
ordinary course of business;
(ix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(x) Liens on insurance policies and the proceeds thereof securing the
financing of the premiums with respect thereto;
(xi) licenses, sublicenses, leases and subleases entered into in the
ordinary course of business and any landlords' liens arising under any such
leases;
(xii) Liens arising solely under Article 4 of the Uniform Commercial
Code relating to collection on items in collection and documents and
proceeds related thereto;
(xiii) obligations with respect to repurchase agreements of the type
described in clause (d) of the definition of Permitted Investments; and
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(xiv) other Liens not otherwise permitted by this Section securing
Indebtedness in an aggregate amount not exceeding $25,000,000 at any time
outstanding.
(b) BC Holdings will not create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect thereof, except Liens created under the Loan Documents and Permitted
Encumbrances.
SECTION 6.03. FUNDAMENTAL CHANGES. (a) Neither BC Holdings nor the BC
Borrower will, nor will they permit any Subsidiary to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate
with it, or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Subsidiary (other than a Receivables Subsidiary) may merge
into the BC Borrower in a transaction in which the BC Borrower is the surviving
entity, (ii) any Subsidiary (other than a Receivables Subsidiary) may merge into
any other Subsidiary (other than a Receivables Subsidiary) in a transaction in
which the surviving entity is a Subsidiary and (if any party to such merger is a
Subsidiary Loan Party) is a Subsidiary Loan Party, (iii) any Subsidiary (other
than a Receivables Subsidiary) may liquidate or dissolve if the BC Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the BC Borrower and is not materially disadvantageous to the
Lenders, (iv) the BC Borrower may permit another Person to merge or consolidate
with the BC Borrower or a Subsidiary (other than a Receivables Subsidiary) in
order to effect a Permitted Acquisition that is permitted by Section 6.04
(provided that the surviving entity is the BC Borrower or a wholly-owned
Subsidiary); PROVIDED that any such merger involving a Person that is not a
wholly owned Subsidiary immediately prior to such merger shall not be permitted
unless also permitted by Section 6.04 and (v) a Subsidiary may merge into and
consolidate with another Person in order to effect a transaction in which all
the Equity Interests of such Subsidiary owned directly or indirectly by the BC
Borrower would be disposed of; PROVIDED that such transaction is (A) treated as
a sale of the Equity Interests of such Subsidiary for all purposes of this
Agreement and (B) permitted by and conducted in compliance with (and treated for
all purposes of this Agreement as a sale of the Equity Interests of such
Subsidiary pursuant to) Section 6.05(a)(v).
(b) The BC Borrower will not, and will not permit any Subsidiary to,
engage to any material extent in any business other than businesses conducted by
the Operating Businesses at the time of the Acquisition and businesses
reasonably related thereto.
(c) BC Holdings will not engage in any business or activity other than
(i) the ownership of all the outstanding Equity Interests of the BC Borrower and
activities incidental thereto and (ii) consummation of the Contemplated IPO and
activities incidental thereto. BC Holdings will not own or acquire any assets
(other than Equity Interests of the BC Borrower, cash and Permitted Investments)
or incur any liabilities (other than liabilities under the Loan Documents,
Guarantees in respect of the Senior Unsecured Debt and Subordinated Debt,
liabilities imposed by law, including tax
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liabilities, and other liabilities incidental to its existence and permitted
business and activities).
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES
AND ACQUISITIONS. (a) The BC Borrower will not, and will not permit any of the
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Subsidiary prior to such merger) any
Equity Interests in or evidences of indebtedness or other securities (including
any option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(i) the Acquisition;
(ii) Permitted Investments;
(iii) investments, loans, advances and Guarantees existing on the
Original Effective Date and set forth on Schedule 6.04(a);
(iv) investments by the BC Borrower and the Subsidiaries in Equity
Interests in their respective Subsidiaries; PROVIDED that (A) any such
Equity Interests held by a Loan Party shall be pledged to the extent
required to satisfy the Collateral and Guarantee Requirement and (B) the
aggregate amount of investments by Loan Parties in, and loans and advances
by Loan Parties to, and Guarantees by Loan Parties of Indebtedness and
other obligations of, Subsidiaries that are not Loan Parties (excluding all
such investments, loans, advances and Guarantees existing on the Original
Effective Date that are set forth on Schedule 6.04(a)), shall not exceed
$25,000,000 at any time outstanding;
(v) loans or advances made by the BC Borrower to any Subsidiary and
made by any Subsidiary to the BC Borrower or any other Subsidiary; PROVIDED
that (A) any such loans and advances made by a Loan Party shall be
evidenced by a promissory note pledged to the extent required to satisfy
the Collateral and Guarantee Requirement and (B) the amount of such loans
and advances made by Loan Parties to Subsidiaries that are not Loan Parties
shall be subject to the limitation set forth in clause (a)(iv) above;
(vi) Guarantees constituting Indebtedness permitted by Section 6.01(a)
and Guarantees by the BC Borrower of other obligations of any Subsidiary
(other than a Receivables Subsidiary) and by any Subsidiary (other than a
Receivables Subsidiary) of other obligations of the BC Borrower or any
other Subsidiary (other than a Receivables Subsidiary); PROVIDED that (A) a
Subsidiary shall not Guarantee the Subordinated Debt or the Senior
Unsecured Debt unless (1) such Subsidiary also has Guaranteed the
Obligations pursuant to the Collateral Agreement, (2) such Guarantee of the
Subordinated Debt is subordinated to such Guarantee of the Obligations on
terms no less favorable to the Lenders than the
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subordination provisions of the Subordinated Debt and (3) such Guarantee of
the Subordinated Debt or the Senior Unsecured Debt, as applicable, provides
for the release and termination thereof, without action by any party, upon
any release and termination of such Guarantee of the Obligations, (B) a
Subsidiary that is not a Loan Party shall not Guarantee any obligations of
any Loan Party and (C) the aggregate principal amount of Indebtedness and
other obligations of Subsidiaries that are not Loan Parties that is
Guaranteed by any Loan Party shall be subject to the limitation set forth
in clause (a)(iv) above;
(vii) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(viii) Permitted Acquisitions; PROVIDED that (A) the consideration for
each Permitted Acquisition shall consist solely of cash, Indebtedness
permitted by clause (vi), (ix) or (x) of Section 6.01(a), Equity Interests
of BC Holdings or a combination thereof, (B) the sum of all consideration
for Permitted Acquisitions (other than Equity Interests of BC Holdings) and
the principal amount of all Indebtedness permitted by clause (vii) of
Section 6.01(a) that results from Permitted Acquisitions (calculated based
on the outstanding principal amount thereof as of the date of each
Permitted Acquisition, regardless of whether subsequently repaid) shall not
exceed $200,000,000 on a cumulative basis subsequent to the Original
Effective Date, and (C) the amount of consideration for Permitted
Acquisitions that result in Subsidiaries that are not Loan Parties shall be
subject to the limitation set forth in clause (a)(iv) above (with the
amount of such consideration to be allocated ratably among the assets and
businesses acquired pursuant to a Permitted Acquisition for this purpose,
based on the fair value thereof, as reasonably determined by a Financial
Officer of the BC Borrower and certified to the Administrative Agent, and
the amount so allocated to Subsidiaries that are not Loan Parties being
treated as investments therein for purposes of the limitation in clause
(a)(iv) above);
(ix) investments consisting of non-cash consideration received by the
BC Borrower or any Subsidiary in connection with any sale, transfer, lease
or other disposition of assets permitted by Section 6.05(a);
(x) deposits, prepayments and other credits made or extended to
suppliers (A) in the ordinary course of business and consistent with past
practices of the Operating Businesses or (B) otherwise in an amount not to
exceed $5,000,000 at any time outstanding;
(xi) loans or advances to employees, officers or directors of the BC
Borrower or any Subsidiary made in the ordinary course of business in an
aggregate principal amount not to exceed $5,000,000 at any time
outstanding;
(xii) Swap Agreements permitted by Section 6.07;
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(xiii) Specified Investments;
(xiv) minority investments made in cooperatives required to obtain
goods or services in the ordinary course of business, not to exceed
$5,000,000 at any time outstanding; and
(xv) investments not otherwise permitted by this Section; PROVIDED
that the aggregate amount of investments made on or after the Original
Effective Date in reliance upon this clause (xv) (determined on the basis
of the fair market value of the assets invested at the time so invested, in
the case of non-cash investments) shall not exceed $10,000,000 at any time
outstanding.
SECTION 6.05. ASSET SALES. (a) The BC Borrower will not, and will not
permit any of the Subsidiaries to, sell, transfer, lease or otherwise dispose of
any asset, including any Equity Interest owned by it, nor will the BC Borrower
permit any of the Subsidiaries to issue any additional Equity Interest in such
Subsidiary, except:
(i) sales of inventory, used or surplus equipment and Permitted
Investments, in each case in the ordinary course of business;
(ii) sales, transfers and dispositions to the BC Borrower or a
Subsidiary; PROVIDED that any such sales, transfers or dispositions
involving a Subsidiary that is not a Loan Party shall be made in compliance
with Section 6.09;
(iii) Permitted Operating Asset Swaps;
(iv) sales or transfers of Receivables and interests therein, together
with Related Security, pursuant to a Permitted Receivables Financing;
(v) sales, transfers and other dispositions of assets (other than to
BC Holdings) that are not permitted by any other clause of this Section
6.05(a); PROVIDED that (A) in the case of any such sale, transfer or
disposition of Equity Interests of a Subsidiary, such sale, transfer or
disposition shall include all Equity Interests of and other investments in
and loans and advances to such Subsidiary (and any other Subsidiary in
which such sold Subsidiary holds an Equity Interest) and, after giving
effect thereto, none of the BC Borrower and the Subsidiaries shall owe any
Indebtedness to the Subsidiary so sold, transferred or otherwise disposed
of, and (B) the aggregate fair market value of all assets sold, transferred
or otherwise disposed of in reliance upon this clause (v) shall not exceed
$50,000,000 during any fiscal year of the BC Borrower plus an additional
$50,000,000 in the aggregate during the period from the First Restatement
Effective Date through December 31, 2006; and
(vi) sales of any fixed or capital assets pursuant to a sale-leaseback
transaction in compliance with clause (a) of Section 6.06;
PROVIDED that (A) all sales, transfers, leases and other dispositions permitted
by this paragraph (a) (other than those permitted by clause (ii) above) shall be
made for fair
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value and (B) shall be (1) in the case of clause (i) above, for cash
consideration (including accounts receivable on customary terms in the ordinary
course of business), (2) in the case of clause (iii) above, for consideration
permitted for a Permitted Operating Asset Swap, (3) in the case of clause (iv)
above, for cash consideration or Subordinated Receivables Transfer Debt and (4)
in the case of clause (v) above, for at least 80% cash consideration.
(b) [Intentionally Omitted].
SECTION 6.06. SALE AND LEASEBACK TRANSACTIONS. The BC Borrower will
not, and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred, except (a) for any such sale of any fixed or capital assets
by the BC Borrower or any Subsidiary that is made for cash consideration in an
amount not less than the cost of such fixed or capital asset and is consummated
within 90 days after the BC Borrower or such Subsidiary acquires or completes
the construction of such fixed or capital asset and (b) this Section 6.06 shall
not prohibit the BC Borrower or any Subsidiary from engaging in a sale or
transfer of property permitted by clause (v) of Section 6.05(a) and thereafter
leasing such property, PROVIDED that (i) such sale or transfer is made solely
for cash consideration, (ii) any Capital Lease Obligations of the BC Borrower or
any Subsidiary created thereby are permitted under Section 6.01(a) and (iii)
such sale or transfer shall be treated as a Prepayment Event (regardless of
whether such sale or transfer would otherwise fall within the definition of that
term) and any Net Proceeds received in respect thereof shall be subject to the
provisions of Section 2.11(c), provided that the reinvestment provisions of
Section 2.11(c) shall not apply to any such Net Proceeds.
SECTION 6.07. SWAP AGREEMENTS. The BC Borrower will not, nor will it
permit any Subsidiary to, enter into any Swap Agreement, other than (a) Swap
Agreements entered into to hedge or mitigate risks to which the BC Borrower or
any such Subsidiary has actual exposure (other than those in respect of (i)
Equity Interests of BC Holdings, the BC Borrower or any Subsidiary, (ii) the
Subordinated Debt or (iii) the Senior Unsecured Debt), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates
(from fixed to floating rates, from one floating rate to another floating rate
or otherwise) with respect to any interest-bearing liability or investment of
the BC Borrower or any Subsidiary.
SECTION 6.08. RESTRICTED PAYMENTS; CERTAIN PAYMENTS OF INDEBTEDNESS.
(a) None of BC Holdings or the BC Borrower will, nor will they permit any
Subsidiary to, declare or make, or agree to pay or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, except (i) Subsidiaries may declare and pay dividends or make distributions
ratably with respect to their capital stock or membership interests, (ii) the BC
Borrower may make Restricted Payments, not exceeding $5,000,000 during any
fiscal year, pursuant to and in accordance with stock option plans or other
benefit plans for management or employees
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of the BC Borrower and the Subsidiaries, (iii) the BC Borrower may make
distributions to BC Holdings at such times and in such amounts, not exceeding
$5,000,000 during any fiscal year, as shall be necessary to permit BC Holdings
to discharge its permitted liabilities, (iv) BC Holdings may redeem its Equity
Interests and may make distributions to FPH so that FPH may make such
redemptions of Equity Interests of FPH, in each case from former members of
management, former employees, or former directors of Loan Parties, and the BC
Borrower may make distributions to BC Holdings as necessary to fund such
redemptions, PROVIDED that the aggregate amount applied for all such purposes
shall not exceed $3,000,000 during any fiscal year, (v) BC Holdings and the BC
Borrower may pay (by distribution or otherwise) management fees to Madison
Dearborn of up to $1,000,000 in the aggregate in any fiscal year, (vi)
distributions by the BC Borrower to BC Holdings to pay directors' out-of-pocket
expenses and indemnification obligations owing to directors, (vii) the BC
Borrower may make distributions to BC Holdings, and BC Holdings may in turn make
distributions to FPH, (A) not exceeding $500,000 in the aggregate during any
fiscal year, at such times as shall be necessary to permit FPH to discharge its
corporate maintenance obligations and (B) not exceeding $500,000 in the
aggregate during any fiscal year, at such times as shall be necessary to permit
FPH to discharge its obligations related to its portion of common expenses
shared with BC Holdings or the BC Borrower, (viii) for so long as BC Holdings is
a pass-through or disregarded entity for United States Federal income tax
purposes, the BC Borrower may make distributions to BC Holdings, and BC Holdings
shall in turn be permitted, to make Tax Distributions in respect of any taxable
year of BC Holdings equal to the product of (A) the amount of taxable income
allocated to the Members for such taxable year, less the amount of taxable loss
allocated to the Members for all prior taxable years (except to the extent such
taxable losses have previously been taken into account under this provision),
times (B) the highest aggregate marginal statutory Federal, state and local
income tax rate (determined taking into account the deductibility of state and
local income taxes for Federal income tax purposes) to which any of the direct
or indirect Members of BC Holdings who is an individual is subject for such
year; and BC Holdings shall be permitted to make such Tax Distributions pursuant
to this clause (viii) on a quarterly basis during such taxable year based on the
best estimate of the chief financial officer of BC Holdings of the amounts
specified in clauses (A) and (B) above; PROVIDED that if the aggregate amount of
the estimated Tax Distributions made in any taxable year of BC Holdings exceeds
the actual maximum amount of Tax Distributions for that year as finally
determined, the amount of any Tax Distributions in the succeeding taxable year
(or, if necessary, any subsequent taxable years) shall be reduced by the amount
of such excess, (ix) after consummation of the Contemplated IPO, the BC Borrower
and BC Holdings may declare or make, agree to pay or make, or incur obligations
to make, Restricted Payments in cash; PROVIDED that (A) the aggregate amount of
such Restricted Payments under this clause (ix) (including those made by the
Holding Companies, the BC Borrower or the Timber Borrower under clause (xiii) of
Section 6.08 of the First Restated Credit Agreement) plus the aggregate amount
of cash consideration applied pursuant to clause (vii) of Section 6.08(b) shall
not exceed the aggregate Net Proceeds received from the Contemplated IPO and (B)
all such Restricted Payments under this clause (ix) must be made within 180 days
after the date of consummation of the Contemplated IPO, (x) after consummation
of the Contemplated IPO, BC Holdings may declare and pay
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dividends in cash, and the BC Borrower may make distributions to BC Holdings to
fund such dividends; PROVIDED that (A) at the time of and after giving effect to
any such dividend, no Default shall have occurred and be continuing, (B) subject
to clause (C) below, at the time of and after giving effect to any such
dividend, the aggregate amount of dividends paid in reliance upon this clause
(x) since the First Restatement Effective Date shall not exceed an amount equal
to the sum of (1) 50% of the Consolidated Net Income accrued during the period
(treated as one accounting period) from the Original Effective Date to the end
of the most recent fiscal quarter ending prior to the date of such dividend for
which internal financial statements are available (or, in case such Consolidated
Net Income shall be a deficit, minus 100% of such deficit), plus (2) in the
event of the occurrence of a Prepayment Event described in clause (c) of the
definition of the term Prepayment Event, an amount equal to 50% of the Net
Proceeds from such Prepayment Event and (C) dividends may be paid in reliance
upon this clause (x) in an aggregate amount of up to $35,000,000 notwithstanding
whether such dividends would be permitted by clause (B) above, but any such
dividends paid in reliance upon this clause (C) shall be included in determining
whether any dividends may be paid in reliance upon clause (B) above and (xi)
after consummation of the Contemplated IPO, the BC Borrower may make
distributions to BC Holdings, and BC Holdings may in turn make distributions to
FPH at such times as shall be necessary to permit FPH to reimburse the expenses
of Madison Dearborn incurred in connection with the consummation of the
Contemplated IPO, but any such distributions shall be deducted in calculating
Net Proceeds from the Contemplated IPO.
(b) Neither BC Holdings nor the BC Borrower will, nor will the BC
Borrower permit any Subsidiary to, make or agree to pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities or
other property) of or in respect of principal of or interest on any
Indebtedness, or any payment or other distribution (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancelation or termination of
any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of interest and principal payments as and when due in
respect of any Indebtedness, other than payments in respect of the
Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section
6.01;
(iv) payment of secured Indebtedness that becomes due as a result of
the voluntary sale or transfer or involuntary condemnation of the property
or assets securing such Indebtedness;
(v) [Intentionally Omitted];
(vi) payment of Indebtedness to the BC Borrower or a Subsidiary; and
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(vii) after consummation of the Contemplated IPO, the BC Borrower may
redeem or repurchase Senior Unsecured Debt or Subordinated Debt for cash
consideration; PROVIDED that (A) the aggregate amount applied for such
purposes plus the aggregate amount of Restricted Payments made pursuant to
clause (ix) of Section 6.08(a) shall not exceed the aggregate Net Proceeds
received from the Contemplated IPO, (B) all such redemptions and
repurchases must be made within 180 days after the date of consummation of
the Contemplated IPO and (C) any Senior Unsecured Debt or Subordinated Debt
so redeemed or repurchased shall be retired and cancelled.
SECTION 6.09. TRANSACTIONS WITH AFFILIATES. Neither BC Holdings nor
the BC Borrower will, nor will the BC Borrower permit any Subsidiary to, sell,
lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions in the
ordinary course of business that do not involve BC Holdings and are at prices
and on terms and conditions not less favorable to the BC Borrower or relevant
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (b) transactions between or among the BC Borrower and Subsidiaries that
are Subsidiary Loan Parties not involving any other Affiliate, (c)
[Intentionally Omitted], (d) the payment to Madison Dearborn of management fees
in compliance with clause (v) of Section 6.08(a), (e) transactions entered into
pursuant to and in compliance with the Supply Agreement, (f) transactions
pursuant to and in compliance with the agreements entered into on the Original
Effective Date described on Schedule 6.09, (g) any Restricted Payment permitted
by Section 6.08 and (h) the issuance or exchange of Equity Interests of BC
Holdings in order to effect the BC Corporate Conversion.
SECTION 6.10. RESTRICTIVE AGREEMENTS. Neither BC Holdings nor the BC
Borrower will, nor will the BC Borrower permit any Subsidiary to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of BC Holdings, the BC Borrower or any Subsidiary to create, incur or
permit to exist any Lien upon any of its property or assets, or (b) the ability
of any Subsidiary to pay dividends or other distributions with respect to any
shares of its Equity Interests, or to make or repay loans or advances to the BC
Borrower or any Subsidiary or to Guarantee Indebtedness of the BC Borrower or
any other Subsidiary; PROVIDED that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by any Loan Document, Subordinated
Debt Document or Senior Unsecured Debt Document, (ii) the foregoing shall not
apply to restrictions and conditions existing on the Original Effective Date
identified on Schedule 6.10 (but shall apply to any extension or renewal of, or
any amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause
(a) of the foregoing shall not apply to restrictions or conditions imposed by
any agreement relating to secured Indebtedness permitted by this Agreement or
any Permitted Receivables Financing if such restrictions or conditions apply
only to the
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property or assets securing such Indebtedness or the Receivables and Related
Security subject to such Permitted Receivables Financing, as the case may be,
(v) clause (a) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof and (vi) clause
(b) of the foregoing shall not apply to restrictions or conditions imposed on a
Receivables Subsidiary by a Permitted Receivables Financing.
SECTION 6.11. AMENDMENT OF MATERIAL DOCUMENTS. Neither BC Holdings nor
the BC Borrower will, nor will the BC Borrower permit any Subsidiary to, amend,
modify or waive any of its rights under (a) any Subordinated Debt Document, (b)
any Senior Unsecured Debt Document, (c) its certificate of incorporation,
by-laws or other organizational documents, (d) the Acquisition Agreement, (e)
the Additional Consideration Agreement, (f) the Supply Agreement or (g) any
agreement listed on Schedule 6.09, other than any such amendments or
modifications that are not adverse to the interests of the Lenders.
SECTION 6.12. INTEREST EXPENSE COVERAGE RATIO. BC Holdings will not
permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Cash Interest
Expense, in each case for any period of four consecutive fiscal quarters ending
on any quarter-end date during any period set forth below, to be less than the
ratio set forth below opposite such period:
Period Ratio
------ -----
March 31, 2005 to and including 1.875 to 1.000
December 31, 2005
January 1, 2006 to and including 2.000 to 1.000
December 31, 2006
January 1, 2007 to and including 2.000 to 1.000
December 31, 2007
January 1, 2008 to and including 2.125 to 1.000
December 31, 2008
January 1, 2009 to and including 2.375 to 1.000
December 31, 2009
January 1, 2010 to and including 2.625 to 1.000
December 31, 2010
Thereafter 2.750 to 1.000
For purposes of determining compliance with this Section 6.12 for any period of
four consecutive fiscal quarters ending on or prior to September 30, 2005,
Consolidated Cash Interest Expense with respect to each fiscal quarter ending on
or prior to December 31, 2004 shall be deemed to be equal to 25% of the
annualized amount of Consolidated Cash Interest Expense accruing from the
Original Effective Date to the end of the four-quarter period for which
compliance is being determined.
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SECTION 6.13. LEVERAGE RATIO. BC Holdings will not permit the Leverage
Ratio as of any quarter-end date during any period set forth below to exceed the
ratio set forth opposite such period:
Period Ratio
------ -----
March 31, 2005 to and including 7.50 to 1.00
December 31, 2005
January 1, 2006 to and including 6.00 to 1.00
December 31, 2006
January 1, 2007 to and including 5.00 to 1.00
December 31, 2007
January 1, 2008 to and including 4.75 to 1.00
December 31, 2008
January 1, 2009 to and including 4.50 to 1.00
December 31, 2009
January 1, 2010 to and including 4.00 to 1.00
December 31, 2010
Thereafter 3.75 to 1.00
SECTION 6.14. CAPITAL EXPENDITURES. BC Holdings and the BC Borrower
will not permit the aggregate amount of Capital Expenditures made by BC
Holdings, the BC Borrower and the Subsidiaries to exceed (a) $40,000,000 during
the period from the Original Effective Date to and including December 31, 2004
and (b) $240,000,000 during any fiscal year ending thereafter; PROVIDED that
100% of the unused amount of any Capital Expenditures permitted to be made
during each period and not made during such period may be carried over and made
at any time during the next succeeding two fiscal years (and any amount so
carried over shall be deemed the first amount applied for Capital Expenditures
during such next succeeding two fiscal years).
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) the BC Borrower shall fail to pay any principal of any Loan or
fail to pay any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the BC Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document, when
and as the
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same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of any of BC Holdings, the BC Borrower or the Subsidiaries in any Loan
Document or any amendment or modification thereof or waiver thereunder, or
in any certificate, financial statement or other document furnished by or
on behalf of a Loan Party to an Agent or the Lenders pursuant to or in
connection with any Loan Document or any amendment or modification thereof
or waiver thereunder, shall prove to have been incorrect in any material
respect when made or deemed made;
(d) either BC Holdings or the BC Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Section 5.02,
5.04 (with respect to the existence of BC Holdings or the BC Borrower) or
5.11 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the BC Borrower (which notice will be given at
the request of any Lender);
(f) any of BC Holdings, the BC Borrower or the Subsidiaries shall fail
to make any payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness, when and as the same shall
become due and payable (or, if applicable under the terms of such
Indebtedness without giving effect to any amendment entered into in
connection with the failure to make such payment, within any period of
grace allowed with respect to such payment);
(g) any event or condition occurs that (i) results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity or (ii) results in the termination
of a Permitted Receivables Financing prior to its scheduled termination
(other than a voluntary termination by the BC Borrower) or enables or
permits the financing parties thereunder or any trustee or agent on their
behalf to terminate a Permitted Receivables Financing; PROVIDED that this
clause (g) shall not apply (A) unless and until all applicable grace or
cure periods shall have passed and (B) to Indebtedness that becomes due as
a result of the voluntary sale or transfer of property or assets or as a
result of the application (other than by reason of a breach or default by a
Loan Party) of any provision in such Indebtedness that requires any Loan
Party to prepay a portion (but less than substantially all) of such
Indebtedness then outstanding or that requires any Loan
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Party to offer to redeem or repurchase some (but less than substantially
all) of such Indebtedness then outstanding;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of any of BC Holdings, the BC Borrower or any Material
Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for any
of BC Holdings, the BC Borrower or any Material Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) any of BC Holdings, the BC Borrower or any Material Subsidiary
shall (i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for any of BC Holdings, the BC Borrower or any Material Subsidiary
or for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;
(j) any of BC Holdings, the BC Borrower or the Material Subsidiaries
shall become unable, admit in writing its inability or fail generally to
pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $15,000,000 (to the extent not covered by independent
third party insurance as to which the insurer is rated at least "A" by A.M.
Best Company, has been notified of the potential claim and does not dispute
coverage) shall be rendered against any of BC Holdings, the BC Borrower,
the Subsidiaries or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by
one or more judgment creditors to attach or levy upon any assets of any of
BC Holdings, the BC Borrower or the Subsidiaries to enforce one or more of
any such judgments in an aggregate amount in excess of $15,000,000;
(l) an ERISA Event shall have occurred that, when taken together with
all other ERISA Events that have occurred, would reasonably be expected to
result in a Material Adverse Effect;
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(m) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral (other than Collateral with an aggregate
fair market value not exceeding $5,000,000), with the priority required by
the applicable Security Document, except (i) as a result of the sale or
other disposition of the applicable Collateral in a transaction permitted
under the Loan Documents, (ii) as a result of the Collateral Agent's
failure to maintain possession of any stock certificates, promissory notes
or other instruments delivered to it under the Collateral Agreement, (iii)
as a result of the Collateral Agent's failure to file or record any UCC
financing statement or other document delivered to it for filing or
recording or (iv) as a result of the applicable Security Document not
requiring perfection with respect to such Collateral;
(n) any Guarantee of the Obligations purported to be created under any
Loan Document shall cease to be, or shall be asserted by any Loan Party not
to be, in full force and effect; PROVIDED that this clause (n) shall not
apply to any Guarantee that ceases to be in full force and effect in
accordance with the express terms of any applicable Loan Document; or
(o) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the BC
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the BC Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the BC Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the BC Borrower; and in case of any event with respect to the BC Borrower
described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
BC Borrower accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the BC Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Banks hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative
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Agent by the terms of the Loan Documents, together with such actions and powers
as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with any of BC Holdings, the BC Borrower or the
Subsidiaries or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing as directed by
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02), and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to any of BC Holdings, the BC Borrower or the
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by BC Holdings, the BC Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the BC Borrower), independent
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accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in good faith in accordance with the advice of
any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Banks and the BC
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor approved by the BC Borrower (which approval (i) shall not
be unreasonably withheld or delayed and (ii) shall not be required during the
continuance of an Event of Default). If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the BC Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the BC Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
Each party hereto agrees and acknowledges that (i) the Syndication
Agent and the Joint Lead Arrangers do not have any duties or responsibilities in
their capacities
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as Syndication Agent and Joint Lead Arrangers, respectively, hereunder and shall
not have, or become subject to, any liability hereunder in such capacities and
(ii) the exculpation provisions contained herein relating to the Administrative
Agent shall be equally applicable to the Syndication Agent and the Syndication
Agent shall receive the full benefit thereof.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to BC Holdings, to it at c/o Madison Dearborn Capital Partners
IV, L.P., Three First Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000,
Attention of Xxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxx (Telecopy No. (312)
895-1001);
(ii) if to the BC Borrower, to it at 0000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Xxx 00, Xxxxx, XX 00000, Attention of Chief Executive Officer and Chief
Financial Officer (Telecopy No. (000) 000-0000);
(iii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A.,
Agent Bank Services Group, 0000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention
of Xxxx Xxxxxx (Telecopy No. (000) 000-0000) and, in the event of the
delivery of a Borrowing Request, Xxxx Xxxx (Telecopy No. (000) 000-0000),
with a copy to JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000);
(iv) if to JPMorgan Chase Bank, N.A., as Issuing Bank, to it at Agent
Bank Services Group, 0000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention of
Xxxx Xxxxxx (Telecopy No. (000) 000-0000), with a copy to JPMorgan Chase
Bank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx
Xxxxxx (Telecopy No. (000) 000-0000);
(v) if to the Committed Swingline Lender, to JPMorgan Chase Bank,
N.A., Agent Bank Services Group, 0000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000,
Attention of Xxxx Xxxxxx (Telecopy No. (000) 000-0000), with a copy to
JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000); and
(vi) if to any other Lender or Issuing Bank, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by
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the Administrative Agent; PROVIDED that the foregoing shall not apply to notices
pursuant to Article II unless otherwise agreed by the Administrative Agent and
the applicable Lender. The Administrative Agent or the BC Borrower may, in their
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; PROVIDED that
approval of such procedures may be limited to particular notices or
communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt. All notices received by BC Holdings or the BC
Borrower hereunder shall be deemed for all purposes under this Agreement to have
been received by each of BC Holdings and the BC Borrower.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the
Administrative Agent, any Issuing Bank, any Lender or any Loan Party in
exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Issuing Banks, the Lenders and the Loan Parties
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or any
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by BC Holdings, the BC Borrower and the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by the Administrative Agent and the Loan Party or Loan
Parties that are parties thereto, in each case with the consent of the Required
Lenders; PROVIDED that no such agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce or forgive
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the maturity of any
Loan, or any scheduled date of payment of the principal amount of any Term Loan
under Section 2.10, or the required date of reimbursement of any LC
Disbursement, or any date for the payment of any interest or fees payable
hereunder, or reduce or forgive the amount of,
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waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each
Lender, (v) change any of the provisions of this Section or the percentage set
forth in the definition of "Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), (vi) release any
material Guarantee under the Collateral Agreement (except as expressly provided
in the Collateral Agreement), or limit the applicable Loan Party's liability in
respect of any such material Guarantee, without the written consent of each
Lender, (vii) release all or substantially all of the Collateral from the Liens
of the Security Documents (other than the releases expressly permitted by the
Security Documents), without the written consent of each Lender, or (viii)
change any provisions of any Loan Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding Loans
of any Class differently than those holding Loans of any other Class, without
the written consent of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each affected Class; PROVIDED FURTHER that (A)
no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent, any Issuing Bank or the Swingline Lender without
the prior written consent of the Administrative Agent, such Issuing Bank or the
Swingline Lender, as the case may be, and (B) any waiver, amendment or
modification of this Agreement that by its terms affects the rights or duties
under this Agreement of one Class of Lenders (but not other Classes) may be
effected by an agreement or agreements in writing entered into by BC Holdings,
the BC Borrower and requisite percentage in interest of the affected Class of
Lenders that would be required to consent thereto under this Section if such
Class of Lenders were the only Class of Lenders hereunder at the time.
Notwithstanding the foregoing, any provision of this Agreement may be amended by
an agreement in writing entered into by BC Holdings, the BC Borrower, the
Required Lenders and the Administrative Agent (and, if their rights or
obligations are affected thereby, each Issuing Bank and the Swingline Lender) if
(i) by the terms of such agreement the Commitment of each Lender not consenting
to the amendment provided for therein shall terminate upon the effectiveness of
such amendment and (ii) at the time such amendment becomes effective, each
Lender not consenting thereto receives payment in full of the principal of and
interest accrued on each Loan made by it and all other amounts owing to it or
accrued for its account under this Agreement.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVERU (a) The BC Borrower
agrees to pay (i) all reasonable out-of-pocket expenses incurred by the Agents
and their respective Affiliates, including the reasonable fees, charges and
disbursements of counsel for each of the Agents, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of the Loan Documents or any amendments, modifications or waivers
of the provisions thereof (whether or not the transactions contemplated hereby
or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by any Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for
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payment thereunder and (iii) all out-of-pocket expenses incurred by either
Agent, any Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for either of the Agents, any Issuing Bank or any
Lender, in connection with the enforcement or protection of its rights in
connection with the Loan Documents, including its rights under this Section, or
in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The BC Borrower agrees to indemnify each Agent, each Issuing Bank
and each Lender, and each Related Party of any of the foregoing Persons (each
such Person being called an "INDEMNITEE") against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any Loan
Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the First Restatement Transactions or any
other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by an Issuing Bank to honor
a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any Mortgaged Property or any other property currently or
formerly owned or operated by any of the BC Borrower or the Subsidiaries, or any
Environmental Liability related in any way to any of the BC Borrower or the
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
PROVIDED that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
resulted from (i) the gross negligence, wilful misconduct or bad faith of such
Indemnitee or (ii) a dispute arising exclusively between or among the Agents,
the Lenders and/or the Issuing Banks.
(c) To the extent that the BC Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, any Issuing Bank or
Committed Swingline Lender under paragraph (a) or (b) of this Section, (i) each
Lender severally agrees to pay to the Administrative Agent, such Lender's pro
rata share (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount that is owing to the
Administrative Agent and (ii) each Revolving Lender severally agrees to pay to
such Issuing Bank or the Committed Swingline Lender, as the case by be, such
Revolving Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount that
is owing to such Issuing Bank or the Committed Swingline Lender, as the case may
be; PROVIDED, in each case, that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, such Issuing Bank or the Committed
Swingline Lender in its capacity as such. For purposes of clause (i) above, a
Lender's "pro rata share" shall
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be determined based upon its share of the sum of the total Revolving Exposures,
outstanding Term Loans and unused Commitments at the time. For purposes of
clause (ii) above, a Revolving Lender's "pro rata share" shall be determined
based upon its share of the sum of the total Revolving Exposures and unused
Revolving Commitments at the time.
(d) To the extent permitted by applicable law, none of BC Holdings,
the BC Borrower, the Agents, the Lenders or the Issuing Banks shall assert, and
each hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the First
Restatement Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i)
the BC Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the BC Borrower without such consent shall
be null and void) and (ii) no Lender may assign or otherwise transfer its rights
or obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Banks and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld or delayed) of:
(A) the BC Borrower; PROVIDED that no consent of the BC Borrower shall
be required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default has occurred and is continuing,
any other assignee; and
(B) the Administrative Agent; PROVIDED that no consent of the
Administrative Agent shall be required for an assignment of all or any
portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved
Fund; and
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(C) each Issuing Bank; PROVIDED that no consent of any Issuing Bank
shall be required for an assignment of all or any portion of a Term Loan.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender's Commitment or Loans of any Class, the
amount of the Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent)
shall not be less than $5,000,000 or, in the case of a Term Loan,
$1,000,000 unless the BC Borrower and the Administrative Agent otherwise
consent; PROVIDED that no such consent of the BC Borrower shall be required
if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (B) shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or
Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 to be paid by the assignor or
assignee; PROVIDED that only one such fee shall be payable in connection
with simultaneous assignments to or by two or more related Approved Funds;
and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
For purposes of this Section 9.04(b), the term "Approved Fund" has the
following meaning:
"APPROVED FUND" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course and that is administered or managed
by, or has as its principal investment advisor, a Lender, an Affiliate of a
Lender or an entity or an Affiliate of an entity that administers or manages a
Lender or is the principal investment advisor of a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and
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Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 9.04 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the BC Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be conclusive, and each of BC Holdings, the BC Borrower, the
Administrative Agent, the Issuing Banks and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the BC Borrower, any
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the BC Borrower, the
Administrative Agent, the Issuing Banks or the Committed Swingline Lender, sell
participations to one or more banks or other entities (a "PARTICIPANT") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
PROVIDED that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) BC Holdings, the BC
Borrower, the Administrative Agent, the Issuing Banks and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the Loan Documents and
to approve any amendment, modification or waiver of any provision of the Loan
Documents; PROVIDED that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this
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Section, the BC Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (c)(ii)
of this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the BC
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the BC Borrower is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the BC Borrower, to comply with
Section 2.17(e) as though it were a Lender.
(d) Any Lender may, without the consent of the BC Borrower or the
Administrative Agent, at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; PROVIDED that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, any Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the other
Loan Documents
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and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If (a) an Event of Default (other than
with respect to clause (a) or (b) of Article VII) shall have occurred and be
continuing and the Loans shall have been declared due and payable by the
Administrative Agent or (b) an Event of Default shall have occurred and be
continuing with respect to clause (a) or (b) of Article VII, each Lender and
each of its Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of the BC Borrower against any of and all the
obligations of the BC Borrower now or hereafter existing under this Agreement
held by such Lender, irrespective of whether or not such Lender shall have made
any demand under this Agreement and although such obligations may be unmatured.
In the event that any Lender or an Affiliate of a Lender exercises its rights
under this Section 9.08, such Lender shall promptly thereafter provide to the BC
Borrower notice thereof (it being understood that a Lender's failure to provide
such notice shall not affect its rights under this Section 9.08). The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of BC Holdings and the BC Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the
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Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other Loan Document
against BC Holdings, the BC Borrower or its properties in the courts of any
jurisdiction.
(c) Each of BC Holdings and the BC Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in the first sentence of
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE FIRST RESTATEMENT
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Administrative Agent, the
Issuing Banks and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of
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any remedies hereunder or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (ii) any pledgee referred to in Section 9.04(d) or (iii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the BC Borrower and its obligations, (g) with
the consent of BC Holdings or the BC Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, any Issuing
Bank or any Lender on a nonconfidential basis from a source other than BC
Holdings or the BC Borrower. For the purposes of this Section, "INFORMATION"
means all information received from BC Holdings or the BC Borrower relating to
BC Holdings or the BC Borrower or their business, other than any such
information that is available to the Administrative Agent, any Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by BC Holdings or the
BC Borrower. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "MAXIMUM RATE") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. USA PATRIOT ACT. Each Lender hereby notifies the BC
Borrower and BC Holdings that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), (the
"Act"), it is required to obtain, verify and record information that identifies
the BC Borrower and BC Holdings, which information includes the name and address
of the BC Borrower and BC Holdings and other information that will allow such
Lender to identify the BC Borrower and BC Holdings in accordance with the Act.
SECTION 9.15. FIRST RESTATED CREDIT AGREEMENT; EFFECTIVENESS OF SECOND
RESTATED CREDIT AGREEMENT. After the Second Restatement Effective Date, all
obligations of the BC Borrower under the First Restated Credit Agreement shall
become
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obligations of the BC Borrower hereunder, secured by the Security Documents, and
the provisions of the First Restated Credit Agreement shall be superseded by the
provisions hereof.
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IN WITNESS WHEREOF, BC Holdings, the BC Borrower and the
Administrative Agent are executing and delivering this Agreement by their
respective authorized officers pursuant to Section 10.01 of the First Restated
Credit Agreement in order to confirm the effectiveness hereof, as of the day and
year first written above.
BOISE CASCADE COMPANY,
by
----------------------------
Name:
Title:
Principal Place of Business:
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
TIN: [00-0000000]
BOISE CASCADE, L.L.C.,
by
----------------------------
Name:
Title:
Principal Place of Business:
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
TIN: 00-0000000
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JPMORGAN CHASE BANK, N.A., as
Administrative Agent,
by
-------------------------
Name:
Title:
