EXHIBIT 10.4
FOURTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"AMENDMENT"), dated as of December 23, 1997, is entered into among Crown Pacific
Limited Partnership, a Delaware limited partnership (the "COMPANY"), the several
financial institutions from time to time party to the Credit Agreement referred
to below (collectively, the "BANKS"; individually, a "BANK"), Bank of America
National Trust and Savings Association, as agent for the Banks (in such
capacity, the "AGENT"), and ABN AMRO Bank, N.V. and Societe Generale, as
co-agents for the Banks (in such capacity, the "CO-AGENTS").
RECITALS
WHEREAS, the Company, the Banks, the Co-Agents and the Agent are
parties to the Amended and Restated Credit Agreement dated as of July 31,
1996, as amended by the First Amendment to Amended and Restated Credit
Agreement dated as of October 15, 1996, and the Second Amendment to Amended
and Restated Credit Agreement dated as of March 31, 1997, and the Third
Amendment to Amended and Restated Credit Agreement dated as of October, 10,
1997 (as so amended, the "CREDIT AGREEMENT"), pursuant to which the Banks
have extended certain credit facilities to the Company;
WHEREAS, the Company, the Banks, the Co-Agents and the Agent now hereby
wish to amend the Credit Agreement in certain respects, all as set forth in
greater detail below;
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. DEFINED TERMS. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings assigned to them in the Credit
Agreement.
2. AMENDMENTS TO THE CREDIT AGREEMENT. The Credit Agreement is
hereby amended as follows:
(a) Section 1.1 shall be amended by deleting the definition of
"Senior Debt" and adding the following in its stead:
"SENIOR DEBT" means, as to the Company, as of any date
of determination, without duplication, all outstanding
unsecured Indebtedness of the Company of the type described
in clauses (a), (b), or (d) of the definition of
Indebtedness herein and all Indebtedness represented by the
Senior Notes, this Agreement and
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the Facility B Credit Agreement (including "L/C
Obligations" as defined therein), but not including any
Indebtedness subordinated to the Obligations upon terms and
conditions satisfactory to the Agent and the Banks.
(b) The definition of "Trillium Note" in Section 1.1 shall be amended
by deleting the word "note" and inserting the word "notes" in its stead.
(c) Subsection 2.7(a)(iii) shall be amended by deleting the first
sentence thereof and inserting the following in its stead: "Subject to payment
of any amounts owing under Section 3.4, if the Company shall incur any Senior
Debt for borrowed money pursuant to subsection 7.6(i) (other than (a) Loans,
(b) Senior Debt to the extent used within 10 Business Days after its incurrence
to repay in whole or in part the Trillium Note, and (c) Senior Debt to the
extent used within 10 Business Days after its incurrence to repay in whole or in
part Senior Debt assumed by the Company in connection with the acquisition of
the assets of Alliance Wholesale Lumber), the Company shall prepay, on the later
of the date the Company receives the net proceeds thereof and the date such debt
ceases to be excluded from this subsection pursuant to the 10 Business Day
limitation in clauses (b) or (c) of the preceding parenthetical, the outstanding
principal amount of the loans in an amount equal to the net proceeds of such
Senior Debt."
(d) Subsection 2.7(b) shall be amended by deleting that portion of
the first sentence thereof that ends at the first semicolon, and inserting the
following phrase in its stead: "The Aggregate Commitment shall be permanently
reduced from time to time by the amount of any mandatory prepayment of Loans
required by subsection 2.7(a)(i) and by the amount of any Senior Debt incurred
by the Company pursuant to subsection 7.6(i) (other than (a) Loans, (b) Senior
Debt evidenced by the Trillium Note, (c) Senior Debt to the extent used to repay
the Trillium Note in whole or in part within 10 Business Days after its
incurrence, (d) Senior Debt in an amount not to exceed $24,500,000 assumed by
the Company in connection with the acquisition of the assets of Alliance
Wholesale Lumber, (e) Senior Debt in an amount not to exceed $24,500,000 to the
extent used within 10 Business Days after its incurrence to repay in whole or in
part Senior Debt assumed by the Company in connection with the acquisition of
the assets of Alliance Wholesale Lumber, and (f) Senior Debt in an amount not to
exceed $15,500,000 to the extent used within 10 Business Days after its
incurrence to repay in whole or in part outstanding Loans);".
(d) Subsection 2.8(b) shall be amended by deleting the date
"December 31, 1999" and inserting "December 31, 2000" in its stead.
(e) A new Subsection 7.5(ee) shall be inserted between existing
subsections 7.5(e) and 7.5(f):
(ee) Acquisitions as long as (x) after giving
effect to such Acquisition, the Company remains engaged
solely in a Permitted Business on a consolidated basis,
and (y) in the case of an Acquisition of stock or other
equity interests, the Person
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acquired is domiciled in, and substantially all of its
assets are located in, the United States, Canada, Mexico or
New Zealand, or, in the case of an Acquisition of assets,
substantially all of such assets are located in the United
States, Canada, Mexico or New Zealand;
(f) Subsection 7.5(f) shall be amended by inserting the word "solely"
after the word "engaged" in clause (w) thereof.
(g) Section 7.11 shall be amended by adding the following new
clause (c) at the end thereof: "and (c) Subsidiaries of the Company may declare
and make dividends or distributions to the Company."
3. REPRESENTATIONS AND WARRANTIES. The Company hereby represents
and warrants to the Agent, the Co-Agents and the Banks as follows:
(a) No Default or Event of Default exists.
(b) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary partnership and corporate
and other action and do not and will not require any registration with, consent
or approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable. The Credit Agreement as
amended by this Amendment constitutes the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with its
respective terms, without defense, counterclaim or offset.
(c) All representations and warranties of the Company contained in
the Credit Agreement are true and correct as though made on and as of the date
hereof (except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true and correct as of such
earlier date).
(d) The Company is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the Agent, any
of the Co-Agents, any Banks or any other Person.
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4. AMENDMENT FEE. In consideration of the execution of this
Amendment by the Agent and the Banks, the Company agrees to pay on the Effective
Date to the Agent for the pro rata distribution to the Banks in accordance with
their Commitments an amendment fee equal to 0.04% of the Aggregate Commitment.
5. EFFECTIVE DATE. This Amendment will become effective on the
first Business Day (the "Effective Date") upon which the Agent has received
(a) this Amendment executed by the Company, the Agent, and each Bank, and in
sufficient copies for each Bank and (b) payment of the amendment referred to in
Section 4 of this Amendment in immediately available funds.
6. RESERVATION OF RIGHTS. The Company acknowledges and agrees that
the execution and delivery by the Agent and the Banks of this Amendment shall
not be deemed to create a course of dealing or otherwise obligate the Agent or
the Banks to forbear or execute similar amendments under the same or similar
circumstances in the future.
7. MISCELLANEOUS.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and effect
and all references therein and in the other Loan Documents to the Credit
Agreement shall henceforth refer to the Credit Agreement as amended by this
Amendment. This Amendment shall be deemed incorporated into, and a part of, the
Credit Agreement.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. No third party
beneficiaries are intended in connection with this Amendment.
(c) This Amendment shall be governed by, and construed in accordance
with, the law of the State of California; provided, however, that the Agent and
the Banks shall retain all rights arising under federal law.
(d) This Amendment may be executed in any number of counterparts,
each of which when so executed shall be deemed an original, and all such
counterparts taken together shall be deemed to constitute but one and the same
instrument.
(e) This Amendment, together with the Credit Agreement, contains the
entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment, or the
Credit Agreement, respectively.
(g) The Company covenants to pay to or reimburse the Agent, upon
demand, for all costs and expenses (including allocated costs of in-house
counsel) incurred in connection with the development, preparation, negotiation,
execution and delivery of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their duly authorized officers as of the date
first above written.
CROWN PACIFIC LIMITED PARTNERSHIP, a
Delaware limited partnership
By: CROWN PACIFIC MANAGEMENT LIMITED
PARTNERSHIP, a Delaware limited
partnership, its general partner
By:
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Title:
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent and as a
Bank
By:
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Title:
---------------------------------
ABN AMRO BANK N.V., as Co-Agent and as a
Bank
By:
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Title:
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By:
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Title:
---------------------------------
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SOCIETE GENERALE, as Co-Agent and as a
Bank
By:
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Title:
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BANK OF MONTREAL
By:
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Title:
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THE BANK OF NOVA SCOTIA
By:
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Title:
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BANQUE PARIBAS
By:
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Title:
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By:
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Title:
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0
XXXXX XXXX XX XXXXXXXXXX, N.A.
By:
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Title:
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KEYBANK NATIONAL ASSOCIATION
By:
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Title:
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XXXXX FARGO BANK, N.A.
By:
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Title:
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