Exhibit 10.7
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GUARANTEE AND COLLATERAL AGREEMENT
dated as of
October 29, 2004
among
BOISE CASCADE HOLDINGS, L.L.C.,
BOISE LAND & TIMBER HOLDINGS CORP.,
BOISE CASCADE, L.L.C.,
BOISE LAND & TIMBER CORP.,
THE SUBSIDIARIES IDENTIFIED HEREIN
and
JPMORGAN CHASE BANK,
as Collateral Agent
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TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Credit Agreement.................................................................1
SECTION 1.02. Other Defined Terms..............................................................1
ARTICLE II
Guarantee
SECTION 2.01. Guarantee........................................................................5
SECTION 2.02. Guarantee of Payment.............................................................5
SECTION 2.03. No Limitations...................................................................5
SECTION 2.04. Reinstatement....................................................................6
SECTION 2.05. Agreement To Pay; Subrogation....................................................6
SECTION 2.06. Information......................................................................6
SECTION 2.07. Limitation on Guarantees.........................................................7
ARTICLE III
Pledge of Securities
SECTION 3.01. Delivery of the Pledged Collateral...............................................7
SECTION 3.02. Representations, Warranties and Covenants........................................8
SECTION 3.03. Certification of Limited Liability Company and Limited
Partnership Interests............................................................9
SECTION 3.04. Registration in Nominee Name; Denominations......................................9
SECTION 3.05. Voting Rights; Dividends and Interest............................................9
ARTICLE IV
Security Interests in Personal Property
SECTION 4.01. Security Interest................................................................11
SECTION 4.02. Representations and Warranties...................................................13
SECTION 4.03. Other Actions....................................................................18
SECTION 4.04. Covenants Regarding Patent, Trademark and Copyright Collateral...................20
ARTICLE V
Remedies
SECTION 5.01. Remedies Upon Default............................................................22
SECTION 5.02. Application of Proceeds..........................................................24
SECTION 5.03. Grant of License to Use Intellectual Property....................................24
SECTION 5.04. Securities Act...................................................................25
SECTION 5.05. Registration.....................................................................25
ARTICLE VI
Indemnity, Subrogation and Subordination
SECTION 6.01. Indemnity and Subrogation........................................................26
SECTION 6.02. Contribution and Subrogation.....................................................26
SECTION 6.03. Subordination....................................................................27
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices..........................................................................27
SECTION 7.02. Waivers; Amendment...............................................................27
SECTION 7.03. Collateral Agent's Fees and Expenses; Indemnification............................28
SECTION 7.04. Successors and Assigns...........................................................29
SECTION 7.05. Survival of Agreement............................................................29
SECTION 7.06. Counterparts; Effectiveness; Several Agreement...................................29
SECTION 7.07. Severability.....................................................................29
SECTION 7.08. Right of Set-Off.................................................................30
SECTION 7.09. Governing Law; Jurisdiction; Consent to Service of Process.......................30
SECTION 7.10. WAIVER OF JURY TRIAL.............................................................31
SECTION 7.11. Headings.........................................................................31
SECTION 7.12. Security Interest Absolute.......................................................31
SECTION 7.13. Termination or Release...........................................................31
SECTION 7.14. Additional Subsidiaries..........................................................32
SECTION 7.15. Collateral Agent Appointed Attorney-in-Fact......................................33
SCHEDULES
Schedule I Subsidiary Parties
Schedule II Pledged Stock; Debt Securities
Schedule III Intellectual Property
Schedule IV Insurance Requirements
Schedule V Descriptions of Timber Mortgaged Property
Schedule VI Commercial Tort Claims
Schedule VII Deposit Accounts
EXHIBITS
Exhibit I Form of Supplement
Exhibit II Form of Perfection Certificate
GUARANTEE AND COLLATERAL AGREEMENT dated as of October 29,
2004, among
BOISE CASCADE HOLDINGS, L.L.C., BOISE LAND & TIMBER
HOLDINGS CORP., BOISE CASCADE, L.L.C., BOISE LAND & TIMBER CORP.,
the Subsidiaries of Boise Cascade, L.L.C. and Boise Land & Timber
Corp. identified herein and JPMORGAN CHASE BANK, as Collateral
Agent.
Reference is made to the Credit Agreement dated as of October 29,
2004, (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among Boise Cascade, L.L.C., Boise Land & Timber Corp.,
Boise Cascade Holdings, L.L.C., Boise Land & Timber Holdings Corp., the Lenders
party thereto and JPMorgan Chase Bank, as Administrative Agent. The Lenders have
agreed to extend credit to the Borrowers subject to the terms and conditions set
forth in the Credit Agreement. The obligations of the Lenders to extend such
credit are conditioned upon, among other things, the execution and delivery of
this Agreement. Each of the Holding Companies and the Subsidiary Parties are
affiliates of the Borrowers, will derive substantial benefits from the extension
of credit to the Borrowers pursuant to the Credit Agreement and are willing to
execute and deliver this Agreement in order to induce the Lenders to extend such
credit. Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CREDIT AGREEMENT. (a) Capitalized terms used in this
Agreement and not otherwise defined herein have the meanings specified in the
Credit Agreement. All terms defined in the
New York UCC (as defined herein) and
not defined in this Agreement have the meanings specified therein; the term
"instrument" shall have the meaning specified in Article 9 of the
New York UCC.
(b) The rules of construction specified in Section 1.03 of the Credit
Agreement also apply to this Agreement.
SECTION 1.02. OTHER DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ACCOUNT DEBTOR" means any Person who is or who may become obligated
to any Grantor under, with respect to or on account of an Account.
"ARTICLE 9 COLLATERAL" has the meaning assigned to such term in
Section 4.01.
"CASH MANAGEMENT OBLIGATIONS" means the obligations of any Loan Party
owed to a Lender or an Affiliate of a Lender in respect of any overdraft and
related liabilities to a Lender or an Affiliate of a Lender arising from
treasury, depositary and cash management services or any automated clearinghouse
transfer of funds.
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"COLLATERAL" means Article 9 Collateral and Pledged Collateral.
"COPYRIGHT LICENSE" means any written agreement, now or hereafter in
effect, granting any right to any third party under any copyright now or
hereafter owned by any Grantor or that such Grantor otherwise has the right to
license, or granting any right to any Grantor under any copyright now or
hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"COPYRIGHTS" means all of the following now owned or hereafter
acquired by any Grantor: (a) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise, and (b) all registrations and applications
for registration of any such copyright in the United States or any other
country, including registrations, recordings, supplemental registrations and
pending applications for registration in the United States Copyright Office,
including those listed on Schedule III.
"CREDIT AGREEMENT" has the meaning assigned to such term in the
preliminary statement of this Agreement.
"FEDERAL SECURITIES LAWS" has the meaning assigned to such term in
Section 5.04.
"GENERAL INTANGIBLES" means all choses in action and causes of action
and all other intangible personal property of every kind and nature (other than
Accounts) now owned or hereafter acquired by any Grantor, including corporate or
other business records, indemnification claims, contract rights (including
rights under leases, whether entered into as lessor or lessee, Swap Agreements,
the Acquisition Agreement, the Additional Consideration Agreement, the Supply
Agreement and other agreements). Intellectual Property, goodwill, registrations,
franchises, tax refund claims and any letter of credit, guarantee, claim,
security interest or other security held by or granted to any Grantor to secure
payment by an Account Debtor of any of the Accounts.
"GRANTORS" means the Holding Companies, the Borrowers and the
Subsidiary Parties.
"GUARANTORS" means the Holding Companies, the Borrowers and the
Subsidiary Parties.
"INTELLECTUAL PROPERTY" means all intellectual and similar property of
every kind and nature now owned or hereafter acquired by any Grantor, including
inventions, designs, Patents, Copyrights, Licenses, Trademarks, trade secrets,
confidential or proprietary technical and business information, know-how,
show-how or other data or information, software and databases and all
embodiments or fixations thereof and related documentation, registrations and
franchises, and all additions, improvements and accessions to, and books and
records describing or used in connection with, any of the foregoing.
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"LICENSE" means any Patent License, Trademark License, Copyright
License or other license or sublicense agreement to which any Grantor is a
party, including those listed on Schedule III.
"LOAN DOCUMENT OBLIGATIONS" means (a) the obligation of each Borrower
to pay (i) the principal of and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans made to such Borrower, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (ii) each
payment required to be made by the BC Borrower under the Credit Agreement in
respect of any Letter of Credit, when and as due, including payments in respect
of reimbursement of disbursements, interest thereon and obligations to provide
cash collateral, and (iii) all other monetary obligations of such Borrower to
any of the Secured Parties under the Credit Agreement and each of the other Loan
Documents, including obligations to pay fees, expense reimbursement obligations
and indemnification obligations, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) and (b) the
monetary obligations of each other Loan Party under or pursuant to this
Agreement and each of the other Loan Documents.
"
NEW YORK UCC" means the Uniform Commercial Code as from time to time
in effect in the State of
New York.
"OBLIGATIONS" means (a) Loan Document Obligations, (b) all obligations
of each Loan Party under each Swap Agreement that (i) is in effect on the
Effective Date with a counterparty that is a Lender or an Affiliate of a Lender
as of the Effective Date or (ii) is entered into after the Effective Date with
any counterparty that is a Lender or an Affiliate of a Lender at the time such
Swap Agreement is entered into and (c) Cash Management Obligations.
"PATENT LICENSE" means any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any invention
on which a patent, now or hereafter owned by any Grantor or that any Grantor
otherwise has the right to license, is in existence, or granting to any Grantor
any right to make, use or sell any invention on which a patent, now or hereafter
owned by any third party, is in existence, and all rights of any Grantor under
any such agreement.
"PATENTS" means all of the following now owned or hereafter acquired
by any Grantor: (a) all letters patent of the United States or the equivalent
thereof in any other country, all registrations and recordings thereof, and all
applications for letters patent of the United States or the equivalent thereof
in any other country, including registrations, recordings and pending
applications in the United States Patent and Trademark Office or any similar
offices in any other country, including those listed on Schedule III, and (b)
all reissues, continuations, divisions, continuations-in-part, renewals or
extensions thereof, and the inventions disclosed or claimed therein, including
the right to make, use and/or sell the inventions disclosed or claimed therein.
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"PERFECTION CERTIFICATE" means a certificate substantially in the form
of Exhibit II, completed and supplemented with the schedules and attachments
contemplated thereby, and duly executed by a Financial Officer of each Borrower.
"PLEDGED COLLATERAL" has the meaning assigned to such term in Section
3.01.
"PLEDGED DEBT SECURITIES" has the meaning assigned to such term in
Section 3.01.
"PLEDGED SECURITIES" means any promissory notes, stock certificates or
other securities now or hereafter included in the Pledged Collateral, including
all certificates, instruments or other documents representing or evidencing any
Pledged Collateral.
"PLEDGED STOCK" has the meaning assigned to such term in Section 3.01.
"PROCEEDS" has the meaning specified in Section 9-102 of the
New York
UCC.
"SECURED PARTIES" means (a) the Lenders, (b) the Collateral Agent, (c)
the Issuing Banks, (d) each counterparty to any Swap Agreement with a Loan Party
the obligations under which constitute Obligations, (e) each Lender or an
Affiliate of a Lender that is owed Cash Management Obligations, (f) the
beneficiaries of each indemnification obligation undertaken by any Loan Party
under any Loan Document and (g) the successors and assigns of each of the
foregoing.
"SECURITY INTEREST" has the meaning assigned to such term in Section
4.01.
"SUBSIDIARY PARTIES" means (a) the Subsidiaries identified on Schedule
I and (b) each other Subsidiary that becomes a party to this Agreement as a
Subsidiary Party after the Effective Date.
"TRADEMARK LICENSE" means any written agreement, now or hereafter in
effect, granting to any third party any right to use any trademark now or
hereafter owned by any Grantor or that any Grantor otherwise has the right to
license, or granting to any Grantor any right to use any trademark now or
hereafter owned by any third party, and all rights of any Grantor under any such
agreement.
"TRADEMARKS" means all of the following now owned or hereafter
acquired by any Grantor: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, trade dress, logos, other source or business identifiers, designs and
general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and
recording applications filed in connection therewith, including registrations
and registration applications in the United States Patent and Trademark Office
or any similar offices in any State of the United States or any other country or
any political subdivision thereof, and all extensions or renewals thereof,
including those listed
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on Schedule III, (b) all goodwill associated therewith or symbolized thereby and
(c) all other assets, rights and interests that uniquely reflect or embody such
goodwill.
ARTICLE II
GUARANTEE
SECTION 2.01. GUARANTEE. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, the due and punctual payment and performance of the
Obligations (including, in the case of each Borrower, the Obligations of the
other Borrower). Each of the Guarantors further agrees that the Obligations may
be extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation. Each of the Guarantors waives
presentment to, demand of payment from and protest to either Borrower or any
other Loan Party of any of the Obligations, and also waives notice of acceptance
of its guarantee and notice of protest for nonpayment.
SECTION 2.02. GUARANTEE OF PAYMENT. Each of the Guarantors further
agrees that its guarantee hereunder constitutes a guarantee of payment when due
and not of collection, and waives any right to require that any resort be had by
the Collateral Agent or any other Secured Party to any security held for the
payment of the Obligations or to any balance of any deposit account or credit on
the books of the Collateral Agent or any other Secured Party in favor of either
Borrower or any other Person.
SECTION 2.03. NO LIMITATIONS. (a) Except for termination of a
Guarantor's obligations hereunder as expressly provided in Section 7.13, the
obligations of each Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense or set-off, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
each Guarantor hereunder shall not be discharged or impaired or otherwise
affected by (i) the failure of the Collateral Agent or any other Secured Party
to assert any claim or demand or to enforce any right or remedy under the
provisions of any Loan Document or otherwise; (ii) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, any Loan Document or any other agreement, including with respect to any
other Guarantor under this Agreement (in each case, except to the extent
expressly provided for in any such rescission, waiver, amendment or
modification); (iii) the release of any security held by the Collateral Agent or
any other Secured Party for the Obligations or any of them; (iv) any default,
failure or delay, wilful or otherwise, in the performance of the Obligations; or
(v) any other act or omission that may or might in any manner or to any extent
vary the risk of any Guarantor or otherwise operate as a discharge of any
Guarantor as a matter of law or equity (other than to the extent of any payment
in full in cash of all of the Obligations). Each Guarantor expressly authorizes
the Secured Parties to take and hold security for the payment and performance of
the Obligations, to exchange, waive or release any or all such security (with or
without consideration), to
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enforce or apply such security and direct the order and manner of any sale
thereof in their sole discretion or to release or substitute any one or more
other guarantors or obligors upon or in respect of the Obligations, all without
affecting the obligations of any Guarantor hereunder.
(b) To the fullest extent permitted by applicable law, each Guarantor
waives any defense based on or arising out of any defense of either Borrower or
any other Loan Party or the unenforceability of the Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of
either Borrower or any other Loan Party, other than to the extent of any payment
in full in cash of all the Obligations. The Collateral Agent and the other
Secured Parties may, at their election, foreclose on any security held by one or
more of them by one or more judicial or nonjudicial sales, accept an assignment
of any such security in lieu of foreclosure, compromise or adjust any part of
the Obligations, make any other accommodation with either Borrower or any other
Loan Party or exercise any other right or remedy available to them against
either Borrower or any other Loan Party, without affecting or impairing in any
way the liability of any Guarantor hereunder except to the extent the
Obligations have been paid in full in cash. To the fullest extent permitted by
applicable law, each Guarantor waives any defense arising out of any such
election even though such election would otherwise operate, pursuant to
applicable law, to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of such Guarantor against either Borrower
or any other Loan Party, as the case may be, or any security.
SECTION 2.04. REINSTATEMENT. Each of the Guarantors agrees that its
guarantee hereunder shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by the Collateral Agent or any other
Secured Party upon the bankruptcy or reorganization of either Borrower, any
other Loan Party or otherwise.
SECTION 2.05. AGREEMENT TO PAY; SUBROGATION. In furtherance of the
foregoing and not in limitation of any other right that the Collateral Agent or
any other Secured Party has at law or in equity against any Guarantor by virtue
hereof, upon the failure of either Borrower or any other Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Collateral Agent
for distribution to the applicable Secured Parties in cash the amount of such
unpaid Obligation. Upon payment by any Guarantor of any sums to the Collateral
Agent as provided above, all rights of such Guarantor against either Borrower or
any other Loan Party arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subject to Article VI.
SECTION 2.06. INFORMATION. Each Guarantor assumes all responsibility
for being and keeping itself informed of each of the Borrower's and each other
Loan Party's financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations and the nature, scope and
extent of the risks that such Guarantor assumes and incurs hereunder, and agrees
that none of the Collateral
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Agent or the other Secured Parties will have any duty to advise such Guarantor
of information known to it or any of them regarding such circumstances or risks.
SECTION 2.07. LIMITATION ON GUARANTEES. All waivers and agreements
under this Article II are made by each Guarantor in its capacity as a guarantor
of the Obligations, and do not apply to any rights any Guarantor may hold
directly by virtue of its status as a Borrower or as a Grantor, subject to any
waivers or agreements given in its capacity as a Borrower or Grantor, as
applicable.
ARTICLE III
PLEDGE OF SECURITIES
SECTION 3.01. PLEDGE. As security for the payment or performance, as
the case may be, in full of the Obligations, each Grantor hereby pledges to the
Collateral Agent, its successors and assigns, for the benefit of the Secured
Parties, and hereby grants to the Collateral Agent, its successors and assigns,
for the benefit of the Secured Parties, a security interest in, all of such
Grantor's right, title and interest in, to and under (a) the shares of capital
stock and other Equity Interests owned by it and listed on Schedule II and any
other Equity Interests obtained in the future by such Grantor and the
certificates representing all such Equity Interests (the "PLEDGED STOCK");
PROVIDED that the Pledged Stock shall not include (i) more than 65% of the
issued and outstanding voting Equity Interests of any Foreign Subsidiary or (ii)
the Equity Interests in the Timber Installment Note Subsidiaries; (b)(i) the
debt securities listed opposite the name of such Grantor on Schedule II, (ii)
any debt securities in the future issued to such Grantor and (iii) the
promissory notes and any other instruments evidencing such debt securities (the
"PLEDGED DEBT SECURITIES"); (c) all other property that may be delivered to and
held by the Collateral Agent pursuant to the terms of this Section 3.01; (d)
subject to Section 3.06, all payments of principal or interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of, in exchange for or upon the conversion of,
and all other Proceeds received in respect of, the securities referred to in
clauses (a) and (b) above; (e) subject to Section 3.06, all rights and
privileges of such Grantor with respect to the securities and other property
referred to in clauses (a), (b), (c) and (d) above; and (f) all Proceeds of any
of the foregoing (the items referred to in clauses (a) through (f) above being
collectively referred to as the "PLEDGED COLLATERAL"); SUBJECT, HOWEVER, to the
terms, covenants and conditions hereinafter set forth.
SECTION 3.02. DELIVERY OF THE PLEDGED COLLATERAL. (a) Each Grantor
agrees promptly to deliver or cause to be delivered to the Collateral Agent any
and all Pledged Securities.
(b) Each Grantor will cause any Indebtedness for borrowed money in
excess of $1,000,000 owed to such Grantor by any Person to be evidenced by a
duly executed promissory note that is pledged and delivered to the Collateral
Agent pursuant to the terms hereof; PROVIDED that compliance with this paragraph
(b) will not be required to the extent compliance is not required by clause (c)
of the Collateral and Guarantee Requirement.
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(c) Upon delivery to the Collateral Agent, (i) any Pledged Securities
shall be accompanied by stock powers duly executed in blank or other instruments
of transfer satisfactory to the Collateral Agent and by such other instruments
and documents as the Collateral Agent may reasonably request and (ii) all other
property comprising part of the Pledged Collateral shall be accompanied by
proper instruments of assignment duly executed by the applicable Grantor and
such other instruments or documents as the Collateral Agent may reasonably
request. Each delivery of Pledged Securities shall be accompanied by a schedule
describing the securities, which schedule shall be attached hereto as a
supplement to Schedule II and made a part hereof; PROVIDED that failure to
attach any such schedule hereto shall not affect the validity of such pledge of
such Pledged Securities. Each schedule so delivered shall supplement any prior
schedules so delivered.
SECTION 3.03. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Grantors
jointly and severally represent, warrant and covenant to and with the Collateral
Agent, for the benefit of the Secured Parties, that:
(a) Schedule II correctly sets forth the percentage of the issued and
outstanding units of each class of the Equity Interests of any Borrower or
Subsidiary that is the issuer thereof represented by the Pledged Stock and
includes all Equity Interests, debt securities and promissory notes
required to be pledged hereunder in order to satisfy the Collateral and
Guarantee Requirement;
(b) the Pledged Stock and Pledged Debt Securities issued by Borrowers
or Subsidiaries have been duly and validly authorized and issued by the
issuers thereof and (i) in the case of Pledged Stock issued by Borrowers or
Subsidiaries, are fully paid and nonassessable and (ii) in the case of
Pledged Debt Securities issued by Borrowers or Subsidiaries, are legal,
valid and binding obligations of the issuers thereof;
(c) except for the security interests granted hereunder, each of the
Grantors (i) is and, subject to any transfers made in compliance with the
Credit Agreement, will continue to be the direct owner, beneficially and of
record, of the Pledged Securities indicated on Schedule II as owned by such
Grantor, (ii) holds the same free and clear of all Liens, other than Liens
created by this Agreement, Permitted Encumbrances and transfers made in
compliance with the Credit Agreement, (iii) will make no assignment,
pledge, hypothecation or transfer of, or create or permit to exist any
security interest in or other Lien on, the Pledged Collateral, other than
Liens created by this Agreement, Permitted Encumbrances and transfers made
in compliance with the Credit Agreement, and (iv) will defend its title or
interest thereto or therein against any and all Liens (other than the Lien
created by this Agreement and Permitted Encumbrances), however arising, of
all Persons whomsoever;
(d) except for restrictions and limitations imposed by (i) the Loan
Documents or securities laws generally and (ii) Liens permitted by the
Credit Agreement, the Pledged Collateral is and will continue to be freely
transferable and assignable, and none of the Pledged Collateral is or will
be subject to any
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option, right of first refusal, shareholders agreement, charter or by-law
provisions or contractual restriction of any nature that might prohibit,
impair, delay or otherwise affect the pledge of such Pledged Collateral
hereunder, the sale or disposition thereof pursuant hereto or the exercise
by the Collateral Agent of rights and remedies hereunder;
(e) each of the Grantors has the corporate, company or partnership (as
applicable) power and authority to pledge the Pledged Collateral pledged by
it hereunder in the manner hereby done or contemplated;
(f) no consent or approval of any Governmental Authority, any
securities exchange or any other Person was or is necessary to the validity
of the pledge effected hereby (other than (i) such as have been obtained
and are in full force and effect; and (ii) with respect to Pledged
Securities issued by Persons other than a Borrower or any Subsidiary with
an aggregate fair market value of no more than $1,000,000);
(g) by virtue of the execution and delivery by the Grantors of this
Agreement, when any Pledged Securities are delivered to the Collateral
Agent in accordance with this Agreement, the Collateral Agent will obtain a
legal, valid and perfected lien upon and security interest in such Pledged
Securities as security for the payment and performance of the Obligations;
and
(h) as of the date hereof, no Foreign Subsidiary is treated or has
elected to be treated a pass-through or disregarded entity for United
States Federal income tax purposes.
SECTION 3.04. CERTIFICATION OF LIMITED LIABILITY COMPANY AND LIMITED
PARTNERSHIP INTERESTS. Each interest in any limited liability company or limited
partnership controlled by any Grantor and pledged hereunder shall be represented
by a certificate, shall be a "security" within the meaning of Article 8 of the
New York UCC and shall be governed by Article 8 of the
New York UCC.
SECTION 3.05. REGISTRATION IN NOMINEE NAME; DENOMINATIONS. The
Collateral Agent, on behalf of the Secured Parties, shall have the right during
the continuance of an Event of Default (in its sole and absolute discretion) to
hold the Pledged Securities in its own name as pledgee or the name of its
nominee (as pledgee or as sub-agent), but shall otherwise hold the Pledged
Securities in the name of the applicable Grantor, subject to stock or transfer
powers endorsed or assigned in blank or in favor of the Collateral Agent. Each
Grantor will promptly give to the Collateral Agent copies of any notices or
other communications received by it with respect to Pledged Securities
registered in the name of such Grantor. The Collateral Agent shall at all times
during the continuance of an Event of Default have the right to exchange the
certificates representing Pledged Securities for certificates of smaller or
larger denominations for any purpose consistent with this Agreement.
SECTION 3.06. VOTING RIGHTS; DIVIDENDS AND INTEREST. (a) Unless and
until an Event of Default shall have occurred and be continuing and the
Collateral Agent
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shall have notified the Grantors that their rights under this Section 3.06 are
being suspended:
(i) Each Grantor shall be entitled to exercise any and all voting
and/or other consensual rights and powers inuring to an owner of Pledged
Securities or any part thereof for any purpose consistent with the terms of
this Agreement, the Credit Agreement and the other Loan Documents; PROVIDED
that such rights and powers shall not be exercised in any manner that could
materially and adversely affect the rights inuring to a holder of any
Pledged Securities or the rights and remedies of any of the Collateral
Agent or the other Secured Parties under this Agreement or the Credit
Agreement or any other Loan Document or the ability of the Secured Parties
to exercise the same.
(ii) The Collateral Agent shall execute and deliver to each Grantor,
or cause to be executed and delivered to such Grantor, all such proxies,
powers of attorney and other instruments as such Grantor may reasonably
request for the purpose of enabling such Grantor to exercise the voting
and/or consensual rights and powers it is entitled to exercise pursuant to
subparagraph (i) above.
(iii) Each Grantor shall be entitled to receive and retain any and all
dividends, interest, principal and other distributions paid on or
distributed in respect of the Pledged Securities to the extent and only to
the extent that such dividends, interest, principal and other distributions
are permitted by, and otherwise paid or distributed in accordance with, the
terms and conditions of the Credit Agreement, the other Loan Documents and
applicable laws; PROVIDED that any noncash dividends, interest, principal
or other distributions that would constitute Pledged Stock or Pledged Debt
Securities, whether resulting from a subdivision, combination or
reclassification of the outstanding Equity Interests of the issuer of any
Pledged Securities or received in exchange for Pledged Securities or any
part thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such issuer
may be a party or otherwise, shall be and become part of the Pledged
Collateral, and, if received by any Grantor, shall not be commingled by
such Grantor with any of its other funds or property but shall be held
separate and apart therefrom, shall be held in trust for the benefit of the
Collateral Agent and shall be forthwith delivered to the Collateral Agent
in the same form as so received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default, after the Collateral Agent shall have notified the Grantors of the
suspension of their rights under paragraph (a)(iii) of this Section 3.06, then
all rights of any Grantor to dividends, interest, principal or other
distributions that such Grantor is authorized to receive pursuant to paragraph
(a)(iii) of this Section 3.06 shall cease, and all such rights shall thereupon
become vested in the Collateral Agent, which shall have the sole and exclusive
right and authority to receive and retain such dividends, interest, principal or
other distributions. All dividends, interest, principal or other distributions
received by any Grantor contrary to the provisions of this Section 3.06 shall be
held in trust for the benefit of the Collateral Agent, shall be segregated from
other property or funds of such
11
Grantor and shall be forthwith delivered to the Collateral Agent upon demand in
the same form as so received (with any necessary endorsement). Any and all money
and other property paid over to or received by the Collateral Agent pursuant to
the provisions of this paragraph (b) shall be retained by the Collateral Agent
in an account to be established by the Collateral Agent upon receipt of such
money or other property and shall be applied in accordance with the provisions
of Section 5.02. After all Events of Default have been cured or waived and the
Borrowers have delivered to the Collateral Agent a certificate to that effect,
the Collateral Agent shall promptly repay to each Grantor (with interest at a
rate then current for deposit accounts) all dividends, interest, principal or
other distributions that such Grantor would otherwise be permitted to retain
pursuant to the terms of paragraph (a)(iii) of this Section 3.06 and that remain
in such account.
(c) Upon the occurrence and during the continuance of an Event of
Default, after the Collateral Agent shall have notified the Grantors of the
suspension of their rights under paragraph (a)(i) of this Section 3.06, then all
rights of any Grantor to exercise the voting and consensual rights and powers it
is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.06, and
the obligations of the Collateral Agent under paragraph (a)(ii) of this Section
3.06, shall cease, and all such rights shall thereupon become vested in the
Collateral Agent, which shall have the sole and exclusive right and authority to
exercise such voting and consensual rights and powers; PROVIDED that, unless
otherwise directed by the Required Lenders, the Collateral Agent shall have the
right from time to time following and during the continuance of an Event of
Default to permit the Grantors to exercise such rights.
(d) Any notice given by the Collateral Agent to the Grantors
suspending their rights under paragraph (a) of this Section 3.06 (i) may be
given by telephone if promptly confirmed in writing, (ii) may be given to one or
more of the Grantors at the same or different times and (iii) may suspend the
rights of the Grantors under paragraph (a)(i) or paragraph (a)(iii) in part
without suspending all such rights (as specified by the Collateral Agent in its
sole and absolute discretion) and without waiving or otherwise affecting the
Collateral Agent's rights to give additional notices from time to time
suspending other rights so long as an Event of Default has occurred and is
continuing.
ARTICLE IV
SECURITY INTERESTS IN PERSONAL PROPERTY
SECTION 4.01. SECURITY INTEREST. (a) As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor hereby
pledges to the Collateral Agent, its successors and assigns, for the benefit of
the Secured Parties, and hereby grants to the Collateral Agent, its successors
and assigns, for the benefit of the Secured Parties, a security interest (the
"SECURITY INTEREST") in, all right, title or interest in or to any and all of
the following assets and properties now owned or at any time hereafter acquired
by such Grantor or in which such Grantor now has or at any time in the future
may acquire any right, title or interest (collectively, the "ARTICLE 9
COLLATERAL"):
(i) all Accounts;
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(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of-Credit Rights;
(xi) commercial tort claims listed on Schedule VI;
(xii) all timber to be cut on the Timber Mortgaged Property described
on Schedule V;
(xiii) all books and records pertaining to the Article 9 Collateral;
and
(xiv) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing and all collateral security and guarantees
given by any Person with respect to any of the foregoing.
The Article 9 Collateral shall in no event include "intent-to-use"
applications or any rights under any contract, license or other agreement
regarding any General Intangible, in each case, to the extent (and only to the
extent) the grant of a security interest therein pursuant to this Agreement (i)
would invalidate the underlying rights of the Grantor in such General
Intangible, (ii) is prohibited by such contract, license or agreement without
the consent of any other party thereto, (iii) would give any other party to such
contract, license or agreement the right to terminate its obligations
thereunder, or (iv) is not permitted without consent, unless in each case, all
necessary consents to such grant of a security interest have been obtained from
the other parties thereto; PROVIDED that to the extent Section 9-408 of the
New
York UCC renders ineffective any of clauses (i) through (iv) above as any such
clause may relate to the Security Interest granted in any General Intangible
included in the Article 9 Collateral, such General Intangible shall be included
in the Article 9 Collateral; PROVIDED FURTHER that if any General Intangible is
not included in the Article 9 Collateral by reason of this paragraph, the
Grantor with an interest in such excluded General Intangible shall (i) notify
the Collateral Agent of the exclusion of the General Intangible and (ii) upon
the request of the Collateral Agent, exercise commercially reasonable efforts to
obtain consents or approvals necessary for the excluded General Intangible to
become Article 9 Collateral.
13
(b) Each Grantor hereby irrevocably authorizes the Collateral Agent at
any time and from time to time to file in any relevant jurisdiction any initial
financing statements (including fixture filings) with respect to the Article 9
Collateral or any part thereof and amendments thereto that (i) indicate the
Collateral as all assets of such Pledgor or words of similar effect as being of
an equal or lesser scope or with greater detail, and (ii) contain the
information required by Article 9 of the Uniform Commercial Code of each
applicable jurisdiction for the filing of any financing statement or amendment,
including (a) whether such Grantor is an organization, the type of organization
and any organizational identification number issued to such Grantor and (b) in
the case of a financing statement filed as a fixture filing or covering Article
9 Collateral constituting minerals or the like to be extracted or timber to be
cut, a sufficient description of the real property to which such Article 9
Collateral relates. Each Grantor agrees to provide such information to the
Collateral Agent promptly upon request.
Each Grantor also ratifies its authorization for the Collateral Agent
to file in any relevant jurisdiction any initial financing statements or
amendments thereto if filed prior to the date hereof.
The Collateral Agent is further authorized to file with the United
States Patent and Trademark Office or United States Copyright Office (or any
successor office or any similar office in any other country) such documents as
may be necessary or advisable for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by each
Grantor, without the signature of any Grantor, and naming any Grantor or the
Grantors as debtors and the Collateral Agent as secured party.
(c) The Security Interest is granted as security only and shall not
subject the Collateral Agent or any other Secured Party to, or in any way alter
or modify, any obligation or liability of any Grantor with respect to or arising
out of the Article 9 Collateral.
SECTION 4.02. REPRESENTATIONS AND WARRANTIES. The Grantors jointly and
severally represent and warrant to the Collateral Agent and the Secured Parties
that:
(a) Each Grantor has good and valid rights in and title to the Article
9 Collateral with respect to which it has purported to grant a Security
Interest hereunder and has full power and authority to grant to the
Collateral Agent the Security Interest in such Article 9 Collateral
pursuant hereto and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement, without the consent or
approval of any other Person other than any consent or approval that has
been obtained.
(b) The Perfection Certificate has been duly prepared, completed and
executed and the information set forth therein, including the exact legal
name of each Grantor, is correct and complete as of the Effective Date. The
Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations
prepared by the Collateral Agent based upon the information provided to the
Collateral Agent in the Perfection Certificate for filing in each
governmental, municipal or other office
14
specified in Schedule 4 to the Perfection Certificate (or specified by
notice from the Borrowers to the Collateral Agent after the Effective Date
in the case of filings, recordings or registrations required by Section
5.03(a) or 5.12 of the Credit Agreement), are all the filings, recordings
and registrations (other than filings required to be made in the United
States Patent and Trademark Office and the United States Copyright Office
in order to perfect the Security Interest in Article 0 Xxxxxxxxxx
xxxxxxxxxx xx Xxxxxx Xxxxxx Patents, Trademarks and Copyrights) that are
necessary to publish notice of and protect the validity of and to establish
a legal, valid and perfected security interest in favor of the Collateral
Agent (for the benefit of the Secured Parties) in respect of all Article 9
Collateral in which the Security Interest may be perfected by filing,
recording or registration in the United States (or any political
subdivision thereof) and its territories and possessions, and no further or
subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary in any such jurisdiction, except as provided
under applicable law with respect to the filing of continuation statements.
Each Grantor represents and warrants that a fully executed agreement in the
form hereof and containing a description of all Article 9 Collateral
consisting of Intellectual Property with respect to United States Patents
and United States registered Trademarks (and Trademarks for which United
States registration applications are pending) and United States registered
Copyrights has been delivered to the Collateral Agent for recording by the
United States Patent and Trademark Office and the United States Copyright
Office pursuant to 35 U.S.C. Section 261, 15 U.S.C. Section 1060 or 17
U.S.C. Section 205 and the regulations thereunder, as applicable, to
protect the validity of and to establish a legal, valid and perfected
security interest in favor of the Collateral Agent (for the benefit of the
Secured Parties) in respect of all Article 9 Collateral consisting of
Patents, Trademarks and Copyrights in which a security interest may be
perfected by filing, recording or registration in the United States (or any
political subdivision thereof) and its territories and possessions, and no
further or subsequent filing, refiling, recording, rerecording,
registration or reregistration is necessary (other than such actions as are
necessary to perfect the Security Interest with respect to any Article 9
Collateral consisting of Patents, Trademarks and Copyrights (or
registration or application for registration thereof) acquired or developed
after the date hereof).
(c) The Security Interest constitutes (i) a legal and valid security
interest in all the Article 9 Collateral securing the payment and
performance of the Obligations, (ii) subject to the filings described in
Section 4.02(b), a perfected security interest in all Article 9 Collateral
in which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United
States (or any political subdivision thereof) and its territories and
possessions pursuant to the Uniform Commercial Code and (iii) a security
interest that shall be perfected in all Article 9 Collateral in which a
security interest may be perfected upon the receipt and recording of this
Agreement with the United States Patent and Trademark Office and the United
States Copyright Office, as applicable. The Security Interest is and shall
be prior to any other Lien on any of the Article 9 Collateral, other than
Permitted
15
Encumbrances that have priority as a matter of law and Liens expressly
permitted to be prior to the Security Interest pursuant to clauses (iii),
(iv), (v) or (vi) Section 6.02(a) or clauses (iii), (iv) or (v) of Section
6.02(b) of the Credit Agreement, as applicable.
(d) The Article 9 Collateral is owned by the Grantors free and clear
of any Lien, except for Liens expressly permitted pursuant to clauses (ii),
(iii), (iv), (v) or (vi) Section 6.02(a) or clauses (ii), (iii), (iv) or
(v) of Section 6.02(b) of the Credit Agreement. None of the Grantors has
filed or consented to the filing of (i) any financing statement or
analogous document under the Uniform Commercial Code or any other
applicable laws covering any Article 9 Collateral, (ii) any assignment in
which any Grantor assigns any Collateral or any security agreement or
similar instrument covering any Article 9 Collateral with the United States
Patent and Trademark Office or the United States Copyright Office or (iii)
any assignment in which any Grantor assigns any Article 9 Collateral or any
security agreement or similar instrument covering any Article 9 Collateral
with any foreign governmental, municipal or other office, which financing
statement or analogous document, assignment, security agreement or similar
instrument is still in effect, except, in each case, for Liens expressly
permitted pursuant to clauses (ii), (iii), (iv), (v) or (vi) of Section
6.02(a) or clauses (ii), (iii), (iv) or (v) of Section 6.02(b) of the
Credit Agreement.
SECTION 4.03. COVENANTS. (a) Each Grantor shall, at its own expense,
take any and all actions necessary to defend title to the Article 9 Collateral
against all Persons and to defend the Security Interest of the Collateral Agent
in the Article 9 Collateral and the priority thereof against any Lien not
expressly permitted pursuant to Section 6.02 of the Credit Agreement.
(b) Each Grantor agrees, at its own expense, to execute, acknowledge,
deliver and cause to be duly filed all such further instruments and documents
and take all such actions as the Collateral Agent may from time to time
reasonably request to better assure, preserve, protect and perfect the Security
Interest and the rights and remedies created hereby, including the payment of
any fees and taxes required in connection with the execution and delivery of
this Agreement, the granting of the Security Interest and the filing of any
financing statements (including fixture filings) or other documents in
connection herewith or therewith. If any amount in excess of $1,000,000 payable
under or in connection with any of the Article 9 Collateral shall be or become
evidenced by any promissory note or other instrument, such note or instrument
shall be immediately pledged and delivered to the Collateral Agent, duly
endorsed in a manner reasonably satisfactory to the Collateral Agent. Without
limiting the generality of the foregoing, each Grantor hereby authorizes the
Collateral Agent, with prompt notice thereof to the Grantors, to supplement this
Agreement by supplementing Schedule III or adding additional schedules hereto to
specifically identify any asset or item that constitutes Copyrights, Licenses,
Patents or Trademarks; PROVIDED that any Grantor shall have the right,
exercisable within 10 days after it has been notified by the Collateral Agent of
the specific identification of such Collateral, to advise the Collateral Agent
in writing of any inaccuracy of the representations and warranties made by such
Grantor hereunder with
16
respect to such Collateral (and such inaccuracy shall not be a breach, Default
or Event of Default, but without prejudice to the consequences as to the breach
of any representations or warranties in the Credit Agreement). Each Grantor
agrees that it will use its best efforts to take such action as shall be
necessary in order that all representations and warranties hereunder shall be
true and correct with respect to such Collateral within 30 days after the date
it has been notified by the Collateral Agent of the specific identification of
such Collateral.
(c) The Collateral Agent and such Persons as the Collateral Agent may
reasonably designate shall have the right, at the Grantors' own cost and
expense, to inspect the Article 9 Collateral, all records related thereto (and
to make extracts and copies from such records) and the premises upon which any
of the Article 9 Collateral is located, to discuss the Grantors' affairs with
the officers of the Grantors and their independent accountants and to verify
under reasonable procedures, in accordance with Section 5.09 of the Credit
Agreement, the validity, amount, quality, quantity, value, condition and status
of, or any other matter relating to, the Article 9 Collateral, including, in the
case of Accounts or Article 9 Collateral in the possession of any third person,
by contacting (after written notice to the Grantors, PROVIDED that advance
notice shall not be required if an Event of Default has occurred and is
continuing) Account Debtors or the third person possessing such Article 9
Collateral for the purpose of making such a verification. The Collateral Agent
shall have the absolute right to share any information it gains from such
inspection or verification in compliance with Section 9.12 of the Credit
Agreement.
(d) At its option, the Collateral Agent may discharge past due taxes,
assessments, charges, fees, Liens, security interests or other encumbrances at
any time levied or placed on the Article 9 Collateral and not permitted pursuant
to Section 6.02 of the Credit Agreement, and may pay for the maintenance and
preservation of the Article 9 Collateral to the extent any Grantor fails to do
so as required by the Credit Agreement or this Agreement, and each Grantor
jointly and severally agrees to reimburse the Collateral Agent promptly upon
demand for any out-of-pocket payment made or any out-of-pocket expense incurred
by the Collateral Agent pursuant to the foregoing authorization; PROVIDED that
nothing in this paragraph shall be interpreted as excusing any Grantor from the
performance of, or imposing any obligation on the Collateral Agent or any
Secured Party to cure or perform, any covenants or other promises of any Grantor
with respect to taxes, assessments, charges, fees, Liens, security interests or
other encumbrances and maintenance as set forth herein or in the other Loan
Documents.
(e) If at any time any Grantor shall take a security interest in any
property of an Account Debtor or any other Person to secure payment and
performance of an Account in excess of $1,000,000, such Grantor shall promptly
collaterally assign such security interest to the Collateral Agent. Such
assignment need not be filed of public record unless necessary to continue the
perfected status of the security interest against creditors of and transferees
from the Account Debtor or other Person granting the security interest.
(f) Each Grantor shall remain liable to observe and perform all the
conditions and obligations to be observed and performed by it under each
contract,
17
agreement or instrument relating to the Article 9 Collateral, all in accordance
with the terms and conditions thereof, and each Grantor jointly and severally
agrees to indemnify and hold harmless the Collateral Agent and the Secured
Parties from and against any and all liability for such performance.
(g) None of the Grantors shall make or permit to be made an
assignment, pledge or hypothecation of the Article 9 Collateral or shall grant
any other Lien in respect of the Article 9 Collateral, except as permitted by
the Credit Agreement. None of the Grantors shall make or permit to be made any
transfer of the Article 9 Collateral and each Grantor shall remain at all times
in possession of the Article 9 Collateral owned by it, except that unless and
until the Collateral Agent shall notify the Grantors that an Event of Default
shall have occurred and be continuing and that during the continuance thereof
the Grantors shall not sell, convey, lease, assign, transfer or otherwise
dispose of any Article 9 Collateral (which notice may be given by telephone if
promptly confirmed in writing), the Grantors may use and dispose of the Article
9 Collateral in any lawful manner not inconsistent with the provisions of this
Agreement, the Credit Agreement or any other Loan Document. Without limiting the
generality of the foregoing, each Grantor agrees that it shall not permit any
Inventory to be in the possession or control of any warehouseman, agent, bailee,
or processor at any time unless such Grantor shall have complied with clause (g)
of the Collateral and Guarantee Requirement.
(h) None of the Grantors will, without the Collateral Agent's prior
written consent, grant any extension of the time of payment of any Accounts
included in the Article 9 Collateral, compromise, compound or settle the same
for less than the full amount thereof, release, wholly or partly, any Person
liable for the payment thereof or allow any credit or discount whatsoever
thereon, other than extensions, compromises, settlements, releases, credits or
discounts granted or made in the ordinary course of business.
(i) The Grantors, at their own expense, shall maintain or cause to be
maintained insurance covering physical loss or damage to the Inventory and
Equipment in accordance with the requirements set forth in Schedule IV hereto
and Section 5.07 of the Credit Agreement. Each Grantor irrevocably makes,
constitutes and appoints the Collateral Agent (and all officers, employees or
agents designated by the Collateral Agent) as such Grantor's true and lawful
agent (and attorney-in-fact) for the purpose, during the continuance of an Event
of Default, of making, settling and adjusting claims in respect of Article 9
Collateral under policies of insurance, endorsing the name of such Grantor on
any check, draft, instrument or other item of payment for the proceeds of such
policies of insurance and for making all determinations and decisions with
respect thereto. In the event that any Grantor at any time or times shall fail
to obtain or maintain any of the policies of insurance required hereby or to pay
any premium in whole or part relating thereto, the Collateral Agent may, without
waiving or releasing any obligation or liability of the Grantors hereunder or
any Event of Default, in its sole discretion, obtain and maintain such policies
of insurance and pay such premium and take any other actions with respect
thereto as the Collateral Agent deems advisable. All sums disbursed by the
Collateral Agent in connection with this paragraph, including reasonable
attorneys' fees, court costs, expenses and other charges relating thereto, shall
be payable, upon demand,
18
by the Grantors to the Collateral Agent and shall be additional Obligations
secured hereby.
(j) Each Grantor shall maintain, in form and manner reasonably
satisfactory to the Collateral Agent, records of its Chattel Paper and its
books, records and documents evidencing or pertaining thereto.
(k) Each Grantor hereby agrees to do or cause to be done (or, with
respect to IFA Nurseries, Inc., to use its commercially reasonable efforts to do
or cause to be done) as promptly as practicable after the date hereof (at the
expense of the Grantors) all things necessary or appropriate to ensure that the
Collateral Agent holds, for the benefit of the Secured Parties, a valid,
enforceable and perfected security interest in the Equity Interests of Boise
Cascade do Brasil LTDA and IFA Nurseries, Inc., each as set forth on Schedule
II, including (i) any and all actions required under the laws of the Federative
Republic of Brazil and (ii) amending or otherwise modifying any applicable
organizational or similar documents.
SECTION 4.04. OTHER ACTIONS. In order to further insure the
attachment, perfection and priority of, and the ability of the Collateral Agent
to enforce, the Security Interest, each Grantor agrees, in each case at such
Grantor's own expense, to take the following actions with respect to the
following Article 9 Collateral:
(a) INSTRUMENTS. If any Grantor shall at any time hold or acquire any
Instruments, such Grantor shall forthwith take all actions required to
comply with clause (c) of the Collateral and Guarantee Requirement.
(b) DEPOSIT ACCOUNTS. Each Grantor shall notify the Collateral Agent
of each deposit account at any time opened or maintained by such Grantor.
For each such deposit account, such Grantor shall, at the request of the
Collateral Agent and, with respect to the deposit accounts set forth on
Schedule VII, in any event within 90 days after the Effective Date, either
(i) cause the depositary bank to agree to comply with instructions from the
Collateral Agent to such depositary bank directing the disposition of funds
from time to time credited to such deposit account, without further consent
of such Grantor or any other Person, pursuant to an agreement satisfactory
to the Collateral Agent, or (ii) arrange for the Collateral Agent to become
the customer of the depositary bank with respect to the deposit account,
with the Grantor being permitted, only with the consent of the Collateral
Agent, to exercise rights to withdraw funds from such deposit account. The
Collateral Agent agrees with each Grantor that the Collateral Agent shall
not give any such instructions or withhold any withdrawal rights from any
Grantor unless an Event of Default has occurred and is continuing, or,
after giving effect to any withdrawal would occur. The provisions of this
paragraph shall not apply to (A) any deposit account for which any Grantor,
the depositary bank and the Collateral Agent have entered into a cash
collateral agreement specially negotiated among such Grantor, the
depositary bank and the Collateral Agent for the specific purpose set forth
therein and (B) deposit accounts for which the Collateral Agent is the
depositary.
19
(c) INVESTMENT PROPERTY. If any securities now or hereafter acquired
by any Grantor are uncertificated and are issued to such Grantor or its
nominee directly by the issuer thereof, such Grantor shall immediately
notify the Collateral Agent thereof and, at the Collateral Agent's request
and option, pursuant to an agreement in form and substance reasonably
satisfactory to the Collateral Agent, either (i) cause the issuer to agree
to comply with instructions from the Collateral Agent as to such
securities, without further consent of any Grantor or such nominee, or (ii)
arrange for the Collateral Agent to become the registered owner of the
securities. If any securities, whether certificated or uncertificated, or
other investment property now or hereafter acquired by any Grantor are held
by such Grantor or its nominee through a securities intermediary or
commodity intermediary, such Grantor shall immediately notify the
Collateral Agent thereof and, at the Collateral Agent's request and option,
pursuant to an agreement in form and substance reasonably satisfactory to
the Collateral Agent, either (i) cause such securities intermediary or (as
the case may be) commodity intermediary to agree to comply with entitlement
orders or other instructions from the Collateral Agent to such securities
intermediary as to such security entitlements, or (as the case may be) to
apply any value distributed on account of any commodity contract as
directed by the Collateral Agent to such commodity intermediary, in each
case without further consent of any Grantor or such nominee, or (ii) in the
case of Financial Assets or other Investment Property held through a
securities intermediary, arrange for the Collateral Agent to become the
entitlement holder with respect to such investment property, with the
Grantor being permitted, only with the consent of the Collateral Agent, to
exercise rights to withdraw or otherwise deal with such investment
property. The Collateral Agent agrees with each of the Grantors that the
Collateral Agent shall not give any such entitlement orders or instructions
or directions to any such issuer, securities intermediary or commodity
intermediary, and shall not withhold its consent to the exercise of any
withdrawal or dealing rights by any Grantor, unless an Event of Default has
occurred and is continuing, or, after giving effect to any such investment
and withdrawal rights would occur. The provisions of this paragraph shall
not apply to any financial assets credited to a securities account for
which the Collateral Agent is the securities intermediary.
(d) ELECTRONIC CHATTEL PAPER AND TRANSFERABLE RECORDS. If any Grantor
at any time holds or acquires an interest in any electronic chattel paper
or any "transferable record," as that term is defined in Section 201 of the
Federal Electronic Signatures in Global and National Commerce Act, or in
Section 16 of the Uniform Electronic Transactions Act as in effect in any
relevant jurisdiction, such Grantor shall promptly notify the Collateral
Agent thereof and, at the request of the Collateral Agent, shall take such
action as the Collateral Agent may reasonably request to vest in the
Collateral Agent control of such electronic chattel paper under
New York
UCC Section 9-105 or under Section 201 of the Federal Electronic Signatures
in Global and National Commerce Act or, as the case may be, Section 16 of
the Uniform Electronic Transactions Act, as in effect in such jurisdiction.
The Collateral Agent agrees with such Grantor that the Collateral Agent
will arrange, pursuant to procedures reasonably satisfactory to
20
the Collateral Agent and so long as such procedures will not result in the
Collateral Agent's loss of control, for the Grantor to make alterations to
the electronic chattel paper or transferable record permitted under NY UCC
Section 9-105 or, as the case may be, Section 201 of the Federal Electronic
Signatures in Global and National Commerce Act or Section 16 of the Uniform
Electronic Transactions Act for a party in control to allow without loss of
control, unless an Event of Default has occurred and is continuing or would
occur after taking into account any action by such Grantor with respect to
such electronic chattel paper or transferable record.
(e) LETTER-OF-CREDIT RIGHTS. If any Grantor is at any time a
beneficiary under a letter of credit now or hereafter issued in favor of
such Grantor, such Grantor shall promptly notify the Collateral Agent
thereof and, at the request and option of the Collateral Agent, such
Grantor shall, pursuant to an agreement in form and substance reasonably
satisfactory to the Collateral Agent, use reasonable efforts to either (i)
arrange for the issuer and any confirmer of such letter of credit to
consent to an assignment to the Collateral Agent of the proceeds of any
drawing under the letter of credit or (ii) arrange for the Collateral Agent
to become the transferee beneficiary of the letter of credit, with the
Collateral Agent agreeing, in each case, that the proceeds of any drawing
under the letter of credit are to be paid to the applicable Grantor unless
an Event of Default has occurred and is continuing.
(f) COMMERCIAL TORT CLAIMS. If any Grantor shall at any time hold or
acquire a commercial tort claim in an amount reasonably estimated to exceed
$1,000,000 the Grantor shall promptly notify the Collateral Agent thereof
in a writing signed by such Grantor including a summary description of such
claim and grant to the Collateral Agent in such writing a security interest
therein and in the proceeds thereof, all upon the terms of this Agreement,
with such writing to be in form and substance reasonably satisfactory to
the Collateral Agent.
(g) TIMBER TO BE CUT. If any Grantor at any time holds or acquires an
interest in real property related to or used for the purpose of growing or
harvesting timber (other than the real property described on Schedule V),
(i) such Grantor shall promptly notify the Collateral Agent thereof, (ii)
such Grantor shall promptly provide to the Collateral Agent (A) a
reasonably detailed legal description of such real property and (B) a
reasonably detailed description of the transaction in which such real
property was acquired by such Grantor and (iii) the Loan Parties will, at
the request and option of the Collateral Agent, execute and deliver such
documents and agreements (including an amendment to this Agreement)
necessary or appropriate to grant to the Collateral Agent, its successors
and assigns, for the benefit of the Secured Parties, a valid security
interest in all timber to be cut on such real property.
SECTION 4.05. COVENANTS REGARDING PATENT, TRADEMARK AND COPYRIGHT
COLLATERAL. (a) Each Grantor agrees that it will not do any act or omit do to
any act (and will exercise commercially reasonable efforts to prevent its
licensees from doing any act as omitting to do any act) whereby any Patent that
is material to the conduct of such
21
Grantor's business becomes invalidated or dedicated to the public, and agrees
that it shall continue to xxxx any products covered by a Patent with the
relevant patent number as necessary and sufficient to establish and preserve its
rights under applicable patent laws.
(b) Each Grantor (either itself or through its licensees or its
sublicensees) will, for each Trademark material to the conduct of such Grantor's
business, (i) maintain such Trademark in full force free from any claim of
abandonment or invalidity for non-use, (ii) maintain the quality of products and
services offered under such Trademark, (iii) display such Trademark with notice
of Federal or foreign registration to the extent necessary and sufficient to
establish and preserve its maximum rights under applicable law and (iv) not
knowingly use or knowingly permit the use of such Trademark in violation of any
third party rights.
(c) Each Grantor (either itself or through its licensees or
sublicensees) will, for each work covered by a material Copyright, continue to
publish, reproduce, display, adopt and distribute the work with appropriate
copyright notice as necessary and sufficient to establish and preserve its
maximum rights under applicable copyright laws.
(d) Each Grantor shall notify the Collateral Agent promptly if it
knows or has reason to know that any Patent, Trademark or Copyright material to
the conduct of its business may become abandoned, lost or dedicated to the
public, or of any materially adverse determination or development (including the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, United States Copyright Office or
any court or similar office of any country) regarding such Grantor's ownership
of any Patent, Trademark or Copyright, its right to register the same, or its
right to keep and maintain the same.
(e) In no event shall any Grantor, either itself or through any agent,
employee, licensee or designee, file an application for any Patent, Trademark or
Copyright (or for the registration of any Trademark or Copyright) with the
United States Patent and Trademark Office, United States Copyright Office or any
office or agency in any political subdivision of the United States or in any
other country or any political subdivision thereof, unless it promptly informs
the Collateral Agent, and, upon request of the Collateral Agent, executes and
delivers any and all agreements, instruments, documents and papers as the
Collateral Agent may reasonably request to evidence the Collateral Agent's
security interest in such Patent, Trademark or Copyright, and each Grantor
hereby appoints the Collateral Agent as its attorney-in-fact to execute and file
such writings for the foregoing purposes, all acts of such attorney being hereby
ratified and confirmed; such power, being coupled with an interest, is
irrevocable.
(f) Each Grantor will take all necessary steps that are consistent
with the practice in any proceeding before the United States Patent and
Trademark Office, United States Copyright Office or any office or agency in any
political subdivision of the United States or in any other country or any
political subdivision thereof, to maintain and pursue each material application
relating to the Patents, Trademarks and/or Copyrights (and to obtain the
relevant grant or registration) and to maintain each issued Patent and each
registration of the Trademarks and Copyrights that is material to the conduct of
any Grantor's business, including timely filings of applications for renewal,
affidavits of use,
22
affidavits of incontestability and payment of maintenance fees, and, if
consistent with good business judgment, to initiate opposition, interference and
cancelation proceedings against third parties.
(g) In the event that any Grantor has reason to believe that any
Article 9 Collateral consisting of a Patent, Trademark or Copyright material to
the conduct of any Grantor's business has been or is about to be infringed,
misappropriated or diluted by a third party, such Grantor promptly shall notify
the Collateral Agent and shall, if consistent with good business judgment,
promptly xxx for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as are appropriate under the circumstances to protect such
Article 9 Collateral.
(h) Upon and during the continuance of an Event of Default, each
Grantor shall use its best efforts to obtain all requisite consents or approvals
by the licensor of each Copyright License, Patent License or Trademark License
to effect the assignment of all such Grantor's right, title and interest
thereunder to the Collateral Agent or its designee.
ARTICLE V
REMEDIES
SECTION 5.01. REMEDIES UPON DEFAULT. Upon the occurrence and during
the continuance of an Event of Default, each Grantor agrees to deliver each item
of Collateral to the Collateral Agent on demand, and it is agreed that the
Collateral Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any Article 9
Collateral consisting of Intellectual Property, on demand, to cause the Security
Interest to become an assignment, transfer and conveyance of any of or all such
Article 9 Collateral by the applicable Grantors to the Collateral Agent, or to
license or sublicense, whether general, special or otherwise, and whether on an
exclusive or nonexclusive basis, any such Article 9 Collateral throughout the
world on such terms and conditions and in such manner as the Collateral Agent
shall determine (other than in violation of any then-existing licensing
arrangements to the extent that waivers thereof cannot be obtained), and (b)
with or without legal process and with or without prior notice or demand for
performance, to take possession of the Article 9 Collateral and without
liability for trespass to enter any premises where the Article 9 Collateral may
be located for the purpose of taking possession of or removing the Article 9
Collateral and, generally, to exercise any and all rights afforded to a secured
party under the Uniform Commercial Code or other applicable law. Without
limiting the generality of the foregoing, each Grantor agrees that the
Collateral Agent shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral at a public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale of securities (if it deems it advisable to do so) to
restrict the prospective bidders or purchasers to Persons who will represent and
agree that they are purchasing the Collateral for their own account for
investment and not with a view to the distribution or
23
sale thereof, and upon consummation of any such sale the Collateral Agent shall
have the right to assign, transfer and deliver to the purchaser or purchasers
thereof the Collateral so sold. Each such purchaser at any sale of Collateral
shall hold the property sold absolutely, free from any claim or right on the
part of any Grantor, and each Grantor hereby waives (to the extent permitted by
law) all rights of redemption, stay and appraisal which such Grantor now has or
may at any time in the future have under any rule of law or statute now existing
or hereafter enacted.
The Collateral Agent shall give the applicable Grantors 10 days'
written notice (which each Grantor agrees is reasonable notice within the
meaning of Section 9-611 of the
New York UCC or its equivalent in other
jurisdictions) of the Collateral Agent's intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Collateral Agent may fix and state in the notice (if any) of such sale.
At any such sale, the Collateral, or portion thereof, to be sold may be sold in
one lot as an entirety or in separate parcels, as the Collateral Agent may (in
its sole and absolute discretion) determine. The Collateral Agent shall not be
obligated to make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have been
given. The Collateral Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Collateral Agent shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may be sold again upon like
notice. At any public (or, to the extent permitted by law, private) sale made
pursuant to this Agreement, any Secured Party may bid for or purchase, free (to
the extent permitted by law) from any right of redemption, stay, valuation or
appraisal on the part of any Grantor (all said rights being also hereby waived
and released to the extent permitted by law), the Collateral or any part thereof
offered for sale and may make payment on account thereof by using any claim then
due and payable to such Secured Party from any Grantor as a credit against the
purchase price, and such Secured Party may, upon compliance with the terms of
sale, hold, retain and dispose of such property without further accountability
to any Grantor therefor. For purposes hereof, a written agreement to purchase
the Collateral or any portion thereof shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and no Grantor shall be entitled to the return of the Collateral or any portion
thereof subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default shall have
been remedied and the Obligations paid in full. As an alternative to exercising
the power of sale herein conferred upon it, the Collateral Agent may proceed by
a suit or suits at law or in equity
24
to foreclose this Agreement and to sell the Collateral or any portion thereof
pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale
pursuant to the provisions of this Section 5.01 shall be deemed to conform to
the commercially reasonable standards as provided in Section 9-610(b) of the New
York UCC or its equivalent in other jurisdictions.
SECTION 5.02. APPLICATION OF PROCEEDS. The Collateral Agent shall
apply the proceeds of any collection or sale of Collateral, including any
Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Collateral Agent in connection with such collection or sale or otherwise in
connection with this Agreement, any other Loan Document or any of the
Obligations, including all court costs and the fees and expenses of its
agents and legal counsel, the repayment of all advances made by the
Collateral Agent hereunder or under any other Loan Document on behalf of
any Grantor and any other costs or expenses incurred in connection with the
exercise of any right or remedy hereunder or under any other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts so
applied to be distributed among the Secured Parties pro rata in accordance
with the amounts of the Obligations owed to them on the date of any such
distribution); and
THIRD, to the Grantors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances (to the extent held by or
on behalf of the Collateral Agent) in accordance with this Agreement. Upon any
sale of Collateral by the Collateral Agent (including pursuant to a power of
sale granted by statute or under a judicial proceeding), the receipt of the
Collateral Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Collateral Agent or such officer or
be answerable in any way for the misapplication thereof.
SECTION 5.03. GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY. For the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Agreement at such time as the Collateral Agent shall be lawfully entitled
to exercise such rights and remedies, each Grantor hereby grants to the
Collateral Agent an irrevocable, nonexclusive license (exercisable without
payment of royalty or other compensation to the Grantors) to use, license or
sublicense any of the Article 9 Collateral consisting of Intellectual Property
now owned or hereafter acquired by such Grantor, and wherever the same may be
located, and including in such license reasonable access to all media in which
any of the licensed items may be recorded or stored and to all computer software
and programs used for the compilation or printout thereof. The use of such
license by the
25
Collateral Agent may be exercised, at the option of the Collateral Agent, upon
the occurrence and during the continuation of an Event of Default; PROVIDED that
any license, sublicense or other transaction entered into by the Collateral
Agent in accordance herewith shall be binding upon the Grantors notwithstanding
any subsequent cure of an Event of Default.
SECTION 5.04. SECURITIES ACT. In view of the position of the Grantors
in relation to the Pledged Collateral, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect (such Act and any such similar statute as from time to time in
effect being called the "FEDERAL SECURITIES LAWS") with respect to any
disposition of the Pledged Collateral permitted hereunder. Each Grantor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Collateral, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Collateral could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Collateral under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. Each Grantor recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the Pledged
Collateral, limit the purchasers to those who will agree, among other things, to
acquire such Pledged Collateral for their own account, for investment, and not
with a view to the distribution or resale thereof. Each Grantor acknowledges and
agrees that in light of such restrictions and limitations, the Collateral Agent,
in its sole and absolute discretion (a) may proceed to make such a sale whether
or not a registration statement for the purpose of registering such Pledged
Collateral or part thereof shall have been filed under the Federal Securities
Laws and (b) may approach and negotiate with a single potential purchaser to
effect such sale. Each Grantor acknowledges and agrees that any such sale might
result in prices and other terms less favorable to the seller than if such sale
were a public sale without such restrictions. In the event of any such sale, the
Collateral Agent shall incur no responsibility or liability for selling all or
any part of the Pledged Collateral at a price that the Collateral Agent, in its
sole and absolute discretion, may in good xxxxx xxxx reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price
might have been realized if the sale were deferred until after registration as
aforesaid or if more than a single purchaser were approached. The provisions of
this Section 5.04 will apply notwithstanding the existence of a public or
private market upon which the quotations or sales prices may exceed
substantially the price at which the Collateral Agent sells.
SECTION 5.05. REGISTRATION. Each Grantor agrees that, upon the
occurrence and during the continuance of an Event of Default, if for any reason
the Collateral Agent desires to sell any of the Pledged Collateral at a public
sale, it will, at any time and from time to time, upon the written request of
the Collateral Agent, use its best efforts to take or to cause the issuer of
such Pledged Collateral to take such action and prepare, distribute and/or file
such documents, as are required or advisable in the reasonable opinion of
counsel for the Collateral Agent to permit the public sale of such
26
Pledged Collateral. Each Grantor further agrees to indemnify, defend and hold
harmless the Collateral Agent, each other Secured Party, any underwriter and
their respective officers, directors, affiliates and controlling persons from
and against all losses, liabilities, expenses, costs of counsel (including,
without limitation, reasonable fees and expenses to the Collateral Agent of
legal counsel), and claims (including the costs of investigation) that they may
incur insofar as such loss, liability, expense or claim arises out of or is
based upon any alleged untrue statement of a material fact contained in any
prospectus (or any amendment or supplement thereto) or in any notification or
offering circular, or arises out of or is based upon any alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same may have been
caused by any untrue statement or omission based upon information furnished in
writing to such Grantor or the issuer of such Pledged Collateral by the
Collateral Agent or any other Secured Party expressly for use therein. Each
Grantor further agrees, upon such written request referred to above, to use its
best efforts to qualify, file or register, or cause the issuer of such Pledged
Collateral to qualify, file or register, any of the Pledged Collateral under the
Blue Sky or other securities laws of such states as may be requested by the
Collateral Agent and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. Each Grantor will bear all costs and
expenses of carrying out its obligations under this Section 5.05. Each Grantor
acknowledges that there is no adequate remedy at law for failure by it to comply
with the provisions of this Section 5.05 and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section 5.05 may be specifically enforced.
ARTICLE VI
INDEMNITY, SUBROGATION AND SUBORDINATION
SECTION 6.01. INDEMNITY AND SUBROGATION. In addition to all such
rights of indemnity and subrogation as the Guarantors may have under applicable
law (but subject to Section 6.03), each Borrower agrees that (a) in the event a
payment of an Obligation shall be made by any Guarantor (other than itself)
under this Agreement in respect of any Obligation of such Borrower, such
Borrower shall indemnify such Guarantor for the full amount of such payment and
such Guarantor shall be subrogated to the rights of the Person to whom such
payment shall have been made to the extent of such payment and (b) in the event
any assets of any Grantor (other than itself) shall be sold pursuant to this
Agreement or any other Security Document to satisfy in whole or in part an
Obligation of such Borrower owed to any Secured Party, such Borrower shall
indemnify such Grantor in an amount equal to the greater of the book value or
the fair market value of the assets so sold.
SECTION 6.02. CONTRIBUTION AND SUBROGATION. Each Guarantor and Grantor
(a "CONTRIBUTING PARTY") agrees (subject to Section 6.03) that, in the event a
payment shall be made by any other Guarantor hereunder in respect of any
Obligation or assets of any other Grantor shall be sold pursuant to any Security
Document to satisfy any Obligation owed to any Secured Party and such other
Guarantor or Grantor (the "CLAIMING PARTY") shall not have been fully
indemnified by the applicable Borrower as
27
provided in Section 6.01, the Contributing Party shall indemnify the Claiming
Party in an amount equal to the amount of such payment or the greater of the
book value or the fair market value of such assets, as the case may be, in each
case multiplied by a fraction of which the numerator shall be the net worth of
the Contributing Party (a) on the date hereof or (b) if the Contributing Party
becomes a party hereto pursuant to Section 7.14, on the date of the supplement
hereto executed and delivered by the Contributing Party, and the denominator
shall be the aggregate net worth of all the Guarantors and Grantors on the date
hereof plus, with respect to any Guarantor or Grantor becoming a party hereto
pursuant to Section 7.14, the net worth of any such Guarantor or Grantor on the
date of the supplement hereto executed and delivered by such Guarantor or
Grantor. Any Contributing Party making any payment to a Claiming Party pursuant
to this Section 6.02 shall be subrogated to the rights of such Claiming Party
under Section 6.01 to the extent of such payment.
SECTION 6.03. SUBORDINATION. (a) Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors and Grantors under
Sections 6.01 and 6.02 and all other rights of indemnity, contribution or
subrogation under applicable law or otherwise shall be fully subordinated to the
indefeasible payment in full in cash of the Obligations. No failure on the part
of either Borrower or any other Guarantor or Grantor to make the payments
required by Sections 6.01 and 6.02 (or any other payments required under
applicable law or otherwise) shall in any respect limit the obligations and
liabilities of any Guarantor or Grantor with respect to its obligations
hereunder, and each Guarantor and Grantor shall remain liable for the full
amount of the obligations of such Guarantor or Grantor hereunder.
(b) Each Guarantor and Grantor hereby agrees that all Indebtedness and
other monetary obligations owed by it to any other Guarantor, Grantor or any
other Subsidiary shall be fully subordinated to the indefeasible payment in full
in cash of the Obligations.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. NOTICES. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 9.01 of the Credit Agreement. All communications and notices
hereunder to any Subsidiary Party shall be given to it in care of the BC
Borrower as provided in Section 9.01 of the Credit Agreement.
SECTION 7.02. WAIVERS; AMENDMENT. (a) No failure or delay by the
Collateral Agent, any Issuing Bank or any Lender 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 Collateral Agent, the Issuing
Banks and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they
28
would otherwise have. No waiver of any provision of this Agreement 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 7.02, 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 Collateral Agent, any Lender or
any Issuing Bank may have had notice or knowledge of such Default at the time.
No notice or demand on any Loan Party in any case shall entitle any Loan Party
to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Collateral Agent and the Loan Party or Loan Parties with
respect to which such waiver, amendment or modification is to apply, subject to
any consent required in accordance with Section 9.02 of the Credit Agreement (it
being understood that any Person that is a Secured Party solely by virtue of
clause (f) of the definition of Secured Parties shall have no right to object to
any waiver, amendment or modification under this Agreement).
SECTION 7.03. COLLATERAL AGENT'S FEES AND EXPENSES; INDEMNIFICATION.
(a) The parties hereto agree that the Collateral Agent shall be entitled to
reimbursement of its expenses incurred hereunder as provided in Section 9.03 of
the Credit Agreement.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Grantor and each Guarantor jointly and severally
agrees to indemnify the Collateral Agent and the other Indemnitees (as defined
in Section 9.03(b) of the Credit Agreement) 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, the execution, delivery or performance of
this Agreement or any claim, litigation, investigation or proceeding relating to
any of the foregoing agreement or instrument contemplated hereby, or to the
Collateral, whether or not 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) Any such amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of paragraphs (a) and (b) of this Section 7.03 shall remain operative and in
full force and effect regardless of the termination of this Agreement or any
other Loan Document, the consummation of the transactions contemplated hereby,
the repayment of any of the Obligations, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Collateral Agent or any other Secured
Party. All amounts due under this Section 7.03 shall be payable promptly after
written demand therefor.
29
SECTION 7.04. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of any Guarantor, Grantor or the Collateral Agent
that are contained in this Agreement shall bind and inure to the benefit of
their respective successors and assigns.
SECTION 7.05. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments prepared or delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the Lenders 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
Lender or on its behalf and notwithstanding that the Collateral 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 under
the Credit Agreement, 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 any Loan Document is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitments have not expired or
terminated.
SECTION 7.06. COUNTERPARTS; EFFECTIVENESS; SEVERAL AGREEMENT. This
Agreement may be executed in counterparts, each of which shall constitute an
original but all of which when taken together shall constitute single contract.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement. This Agreement shall become effective as to any Loan Party
when a counterpart hereof executed on behalf of such Loan Party shall have been
delivered to the Collateral Agent and a counterpart hereof shall have been
executed on behalf of the Collateral Agent, and thereafter shall be binding upon
such Loan Party and the Collateral Agent and their respective permitted
successors and assigns, and shall inure to the benefit of such Loan Party, the
Collateral Agent and the other Secured Parties and their respective successors
and assigns, except that no Loan Party shall have the right to assign or
transfer its rights or obligations hereunder or any interest herein or in the
Collateral (and any such assignment or transfer shall be void) except as
expressly contemplated by this Agreement or the Credit Agreement. This Agreement
shall be construed as a separate agreement with respect to each Loan Party and
may be amended, modified, supplemented, waived or released with respect to any
Loan Party without the approval of any other Loan Party and without affecting
the obligations of any other Loan Party hereunder.
SECTION 7.07. 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. The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
30
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 7.08. RIGHT OF SET-OFF. If (a) an Event of Default (other than
with respect to clause (a) or (b) of Article VII of the Credit Agreement) 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 of
the Credit Agreement, 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 any
Subsidiary Party against any of and all the obligations of such Subsidiary Party
now or hereafter existing under this agreement owed to such Lender, irrespective
of whether or not such Lender shall have made any demand under this Agreement
and although such obligations may be unmatured. The rights of each Lender under
this Section 7.08 are in addition to other rights and remedies (including other
rights of set-off) which such Lender may have.
SECTION 7.09. 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 Loan Parties 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 this Agreement or any other 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 Collateral 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 any Grantor or Guarantor, or its properties in
the courts of any jurisdiction.
(c) Each of the Loan Parties 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 paragraph (b) of this Section 7.09.
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.
31
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7.01. 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 7.10. 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 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 7.10.
SECTION 7.11. 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 are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 7.12. SECURITY INTEREST ABSOLUTE. All rights of the Collateral
Agent hereunder, the Security Interest, the grant of a security interest in the
Pledged Collateral and all obligations of each Grantor and Guarantor hereunder
shall be absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Credit Agreement, any other Loan Document, any agreement
with respect to any of the Obligations or any other agreement or instrument
relating to any of the foregoing, (b) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement, any other Loan Document or any other agreement or instrument, (c) any
exchange, release or non-perfection of any Lien on other collateral, or any
release or amendment or waiver of or consent under or departure from any
guarantee, securing or guaranteeing all or any of the Obligations, or (d) any
other circumstance that might otherwise constitute a defense available to, or a
discharge of, any Grantor or Guarantor in respect of the Obligations or this
Agreement.
SECTION 7.13. TERMINATION OR RELEASE. (a) This Agreement, the
Guarantees made herein, the Security Interest and all other security interests
granted hereby shall terminate when all the Loan Document Obligations (other
than contingent indemnity obligations for which no claim has been made) have
been unconditionally paid in full and the Lenders have no further commitment to
lend under the Credit Agreement, the LC Exposure has been reduced to zero and
the Issuing Banks have no further obligations to issue Letters of Credit under
the Credit Agreement.
32
(b) In the event that a Subsidiary Party ceases to be a subsidiary (as
such term is used in the Credit Agreement) of either Holding Company as a result
of the consummation of any transaction permitted by the Credit Agreement, such
Subsidiary Party shall automatically be released from its obligations hereunder
and the Security Interest in the Collateral of such Subsidiary Party shall be
automatically released; PROVIDED that the Required Lenders shall have consented
to such transaction (to the extent required by the Credit Agreement) and the
terms of such consent did not provide otherwise.
(c) In the event that all the Equity Interests of the Timber Borrower
are sold and the Timber Borrower ceases to be a subsidiary (as such term is used
in the Credit Agreement) of Timber Holdings as a result of the consummation of
any transaction permitted by Section 9.15 of the Credit Agreement, the Timber
Borrower shall automatically be released from its obligations hereunder and the
Security Interest in the Collateral of the Timber Borrower shall be
automatically released; PROVIDED that the Required Lenders shall have consented
to such transaction (to the extent required by the Credit Agreement) and the
terms of such consent did not provide otherwise. In the event that Timber
Holdings and the Timber Borrower cease to be parties to the Credit Agreement
pursuant to and in accordance with Section 9.15 thereof, each of Timber
Holdings, the Timber Borrower and any Subsidiary Parties that are subsidiaries
of Timber Holdings shall automatically be released from its obligations
hereunder and the Security Interest in the Collateral of Timber Holdings, the
Timber Borrower and such Subsidiary Parties shall be automatically released.
(d) Upon any sale or other transfer by any Grantor of any Collateral
that is permitted under the Credit Agreement (other than to another Grantor), or
upon the effectiveness of any written consent to the release of the security
interest granted hereby in any Collateral pursuant to Section 9.02 of the Credit
Agreement, the security interest in such Collateral shall be automatically
released.
(e) In connection with any termination or release pursuant to
paragraph (a), (b), (c) or (d) of this Section, the Collateral Agent shall
execute and deliver to any Grantor, at such Grantor's expense, all documents
that such Grantor shall reasonably request to evidence such termination or
release. Any execution and delivery of documents pursuant to this Section 7.13
shall be without recourse to or warranty by the Collateral Agent.
SECTION 7.14. ADDITIONAL SUBSIDIARIES. Pursuant to Section 5.12 of the
Credit Agreement, each Subsidiary of a Loan Party that was not in existence or
not a Subsidiary on the date of the Credit Agreement and is not a Foreign
Subsidiary, a Receivables Subsidiary or a Timber Installment Note Subsidiary is
required to enter in this Agreement as a Subsidiary Party upon becoming such a
Subsidiary. Upon execution and delivery by the Collateral Agent and a Subsidiary
of an instrument in the form of Exhibit I hereto, such Subsidiary shall become a
Subsidiary Party hereunder with the same force and effect as if originally named
as a Subsidiary Party herein. The execution and delivery of any such instrument
shall not require the consent of any other Loan Party hereunder. The rights and
obligations of each Loan Party hereunder shall remain in full
33
force and effect notwithstanding the addition of any new Loan Party as a party
to this Agreement.
SECTION 7.15. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. Each
Grantor hereby appoints the Collateral Agent the attorney-in-fact of such
Grantor for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
is irrevocable and coupled with an interest. Without limiting the generality of
the foregoing, the Collateral Agent shall have the right, upon the occurrence
and during the continuance of an Event of Default, with full power of
substitution either in the Collateral Agent's name or in the name of such
Grantor (a) to receive, endorse, assign and/or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment relating
to the Collateral or any part thereof; (b) to demand, collect, receive payment
of, give receipt for and give discharges and releases of all or any of the
Collateral; (c) to sign the name of any Grantor on any invoice or xxxx of lading
relating to any of the Collateral; (d) to send verifications of Accounts
Receivable to any Account Debtor; (e) to commence and prosecute any and all
suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect or otherwise realize on all or any of the Collateral or
to enforce any rights in respect of any Collateral; (f) to settle, compromise,
compound, adjust or defend any actions, suits or proceedings relating to all or
any of the Collateral; (g) to notify, or to require any Grantor to notify,
Account Debtors to make payment directly to the Collateral Agent; and (h) to
use, sell, assign, transfer, pledge, make any agreement with respect to or
otherwise deal with all or any of the Collateral, and to do all other acts and
things necessary to carry out the purposes of this Agreement, as fully and
completely as though the Collateral Agent were the absolute owner of the
Collateral for all purposes; PROVIDED that nothing herein contained shall be
construed as requiring or obligating the Collateral Agent to make any commitment
or to make any inquiry as to the nature or sufficiency of any payment received
by the Collateral Agent, or to present or file any claim or notice, or to take
any action with respect to the Collateral or any part thereof or the moneys due
or to become due in respect thereof or any property covered thereby. The
Collateral Agent and the other Secured Parties shall be accountable only for
amounts actually received as a result of the exercise of the powers granted to
them herein, and neither they nor their officers, directors, employees or agents
shall be responsible to any Grantor for any act or failure to act hereunder,
except for their own gross negligence, wilful misconduct or bad faith.
34
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
BOISE CASCADE HOLDINGS, L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE LAND & TIMBER HOLDINGS
CORP.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE CASCADE, L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE LAND & TIMBER CORP.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE ALABAMA LAND & TIMBER,
L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE BUILDING SOLUTIONS
MANUFACTURING, L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
35
BOISE BUILDING SOLUTIONS
MANUFACTURING HOLDINGS CORP.,
by
/s/ Xxx Xxxxxxx
-----------------------------
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE BUILDING SOLUTIONS
DISTRIBUTION, L.L.C.,
by
/s/ Xxx Xxxxxxx
-----------------------------
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE CASCADE AVIATION, L.L.C.,
by
/s/ Xxx Xxxxxxx
-----------------------------
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BC BRAZIL INVESTMENT
CORPORATION,
by
/s/ Xxx Xxxxxxx
-----------------------------
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BC CHINA CORPORATION,
by
/s/ Xxx Xxxxxxx
-----------------------------
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BC CHILE INVESTMENT
CORPORATION,
by
/s/ Xxx Xxxxxxx
-----------------------------
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
36
BOISE CASCADE FINANCE
CORPORATION,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
B C T, INC.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE CASCADE TRANSPORTATION
HOLDINGS CORP.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE CENTRAL WASHINGTON LAND
& TIMBER, L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE IDAHO LAND & TIMBER, L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE LOUISIANA LAND & TIMBER,
L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
37
BOISE MINNESOTA LAND & TIMBER,
L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE NORTHEAST OREGON LAND &
TIMBER, L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE NORTHEAST WASHINGTON LAND &
TIMBER, L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE NORTHWEST OREGON LAND &
TIMBER, L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE PACKAGING & NEWSPRINT,
L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
BOISE SOUTHERN OREGON LAND &
TIMBER, L.L.C.,
by
/s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary and Treasurer
38
BOISE WHITE PAPER, L.L.C.,
by
/s/ Xxx Xxxxxxx
-----------------------------
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE WHITE PAPER HOLDINGS
CORP.,
by
/s/ Xxx Xxxxxxx
-----------------------------
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
INTERNATIONAL FALLS POWER
COMPANY,
by
/s/ Xxx Xxxxxxx
-----------------------------
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
MINNESOTA, DAKOTA & WESTERN
RAILWAY COMPANY,
by
/s/ Xxx Xxxxxxx
-----------------------------
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
JPMORGAN CHASE BANK, AS
COLLATERAL AGENT,
by
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
Schedule II to
the
Guarantee and
Collateral Agreement
SUBSIDIARY PARTIES
1. Boise Alabama Land & Timber, L.L.C.
2. Boise Building Solutions Manufacturing, L.L.C.
3. Boise Building Solutions Manufacturing Holdings Corp.
4. Boise Building Solutions Distribution, L.L.C.
5. Boise Cascade Aviation, L.L.C.
6. BC Brazil Investment Corporation
7. BC China Corporation
8. BC Chile Investment Corporation
9. Boise Cascade Finance Corporation
10. B C T, Inc.
11. Boise Cascade Transportation Holdings Corp.
12. Boise Central Washington Land & Timber, L.L.C.
13. Boise Idaho Land & Timber, L.L.C.
14. Boise Louisiana Land & Timber, L.L.C.
15. Boise Minnesota Land & Timber, L.L.C.
16. Boise Northeast Oregon Land & Timber, L.L.C.
17. Boise Northeast Washington Land & Timber, L.L.C.
18. Boise Northwest Oregon Land & Timber, L.L.C.
19. Boise Packaging & Newsprint, L.L.C.
20. Boise Southern Oregon Land & Timber, L.L.C.
21. Boise White Paper, L.L.C.
22. Boise White Paper Holdings Corp.
23. International Falls Power Company
24. Minnesota, Dakota & Western Railway Company
Schedule II to
the
Guarantee and
Collateral Agreement
EQUITY INTERESTS
Number and
Number of Registered Class of Percentage
Issuer Certificate Owner Equity Interest of Equity Interests
------ ----------- ----- --------------- -------------------
Boise Cascade, L.L.C. C-1 Boise Cascade 1000 Common Units 100%
Holdings, L.L.C.
Boise Cascade 1 Boise Cascade, L.L.C. 1000 Shares Common 100%
Finance Corporation Stock
Boise Building C-1 Boise Cascade, L.L.C. 1000 Common Units 100%
Solutions
Distribution, L.L.C.
Boise Building C-1 Boise Cascade, L.L.C. 1000 Common Units 100%
Solutions
Manufacturing, L.L.C.
Xxxxx Xxxxxxxx 0 Xxxxx Xxxxxxxx 0000 Shares Common 100%
Solutions Solutions Stock
Manufacturing Manufacturing, L.L.C.
Holdings Corp.
Boise Packaging & X-0 Xxxxx Xxxxxxx, X.X.X. 0000 Common Units 100%
Newsprint, L.L.C.
Boise White Paper, X-0 Xxxxx Xxxxxxx, X.X.X. 0000 Common Units 100%
L.L.C.
Boise White Paper 1 Boise White Paper, 1000 Shares Common 100%
Holdings Corp. L.L.C. Stock
Boise Cascade 1 Boise Cascade, L.L.C. 1000 Shares Common 100%
Transportation Stock
Holdings Corp.
Boise Cascade X-0 Xxxxx Xxxxxxx, X.X.X. 0000 Common Units 100%
Aviation, L.L.C.
Boise Land & 1 Boise Land & 1000 Shares 100%
Schedule II to
the
Guarantee and
Collateral Agreement
Number and
Number of Registered Class of Percentage
Issuer Certificate Owner Equity Interest of Equity Interests
------ ----------- ----- --------------- -------------------
Timber Corp. Timber Holdings Corp. Common Stock
Boise Central C-1 Boise Land & Timber 1000 Common Units 100%
Washington Land & Corp.
Timber, L.L.C.
Boise Northeast C-1 Boise Land & Timber 1000 Common Units 100%
Washington Land & Corp.
Timber, L.L.C.
Boise Northwest C-1 Boise Land & Timber 1000 Common Units 100%
Oregon Land & Corp.
Timber, L.L.C.
Boise Southern C-1 Boise Land & Timber 1000 Common Units 100%
Oregon Land & Corp.
Timber, L.L.C.
Boise Northeast C-1 Boise Land & Timber 1000 Common Units 100%
Oregon Land & Corp.
Timber, L.L.C.
Boise Idaho Land & C-1 Boise Land & Timber 1000 Common Units 100%
Timber, L.L.C. Corp.
Boise Minnesota Land C-1 Boise Land & Timber 1000 Common Units 100%
& Timber, L.L.C. Corp.
Boise Louisiana Land C-1 Boise Land & Timber 1000 Common Units 100%
& Timber, L.L.C. Corp.
Boise Alabama Land & C-1 Boise Land & Timber 1000 Common Units 100%
Timber, L.L.C. Corp.
B C T, Inc. 3 Boise Cascade 1000 Shares Common 100%
Transportation Stock
Holdings Corp.
Schedule II to
the
Guarantee and
Collateral Agreement
Number and
Number of Registered Class of Percentage
Issuer Certificate Owner Equity Interest of Equity Interests
------ ----------- ----- --------------- -------------------
Minnesota, Dakota & 73 Boise White Paper 1000 Shares Common 100%
Western Railway Holdings Corp. Stock
Company
International Falls 3 Boise White Paper 1000 Shares Common 100%
Power Company Holdings Corp. Stock
BC China Corporation 3 Boise White Paper 1000 Shares Common 100%
Holdings Corp. Stock
BC Xxxxx Xxxxxxxxxx 0 Xxxxx Xxxxxxxx 0000 Xxxxxx Common 100%
Corporation Solutions Stock
Manufacturing
Holdings Corp.
BC Brazil Investment 3 Boise Building 1000 Shares Common 100%
Corporation Solutions Stock
Manufacturing
Holdings Corp.
Boise Alljoist Ltd. 3 Boise Building 6500 Shares 65%
Solutions
Manufacturing
Holdings Corp.
Boise Cascade 5 Boise Building 6494 Shares 65%
Corporation Chile Solutions
S.A. Manufacturing
Holdings Corp.
Boise Cascade 2 BC Chile Investment 6 Shares 60%
Corporation Chile Corporation
S.A.
Boise Building 11 Boise Building 650 Shares 65%
Products Limited Solutions
Manufacturing
Holdings Corp.
Compania Industrial 1 BC Chile Investment 1 Share 1%
Puerto Montt S.A. Corporation
Schedule II to
the
Guarantee and
Collateral Agreement
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ ------ ------------ -------------
Boise Land & Timber Corp. $ 218,670,457.08 October 29, 2004 October 29, 2015
Schedule III to
the
Guarantee and
Collateral Agreement
U.S. COPYRIGHTS OWNED BY
BOISE CASCADE, L.L.C.
U.S. COPYRIGHT REGISTRATIONS
TITLE REG. NO.
----- --------
HVAC and chemical resistance handbook for the engineer and architect: a compilation / TX4026787
by Xxx Xxxxxx
Cobol programming standards manual: relative to Xxxxxxxxx Xxxx 3.2 software release TX686408
3 digit zip calculation (mainframe version): E71TRLD TXu 195502
3 digit zip code formula (personal computer version): ZTL01 TXu195501
Quanta payroll system / designed and written by Xxxxxx X. Xxxxxx TXu386684
Brkeven TXu43135
Invalue TXu43136
S S R P fiscal fitness: a game of future financial strength, for any number of players TXu76035
Washington State apples: gift box VA128987
Boise Cascade Corporation VAu27772
PENDING U.S. COPYRIGHT APPLICATIONS FOR REGISTRATION
Title Author Class Date Filed
----- ------ ----- ----------
None.
NON-U.S. COPYRIGHT REGISTRATIONS
Country Title Reg. No. Author
------- ----- -------- ------
None.
NON-U.S. PENDING COPYRIGHT APPLICATIONS FOR REGISTRATION
Country Title Author Class Date Filed
------- ----- ------ ----- ----------
None.
Schedule III to
the
Guarantee and
Collateral Agreement
LICENSES
1. DMSI (Agility) Information Systems Agreement, dated February 9, 1998, by
and between DMSI and Boise Cascade Corporation
2. DMSI (Agility) Information Systems Agreement, dated March 8, 2002, by and
between DMSI and Boise Cascade Corporation
3. Oracle Information Systems Agreement
4. PeopleSoft Information Systems Agreement
5. International Paper Company and Boise Cascade Corporation DeFor(TM)License
Agreement
6. International Business Machines Corporation and Boise Cascade Corporation
(for BPS manufacture of IBM-branded paper) Trademark License Agreement.
7. Agreement for Professional Services, dated March 16, 1994, by and between
Boise Cascade Corporation and Tartus Development
8. Professional Services Agreement, dated August 1, 2001, by and between
Boise Cascade Corporation and Optimal Planning Techniques
9. Autodesk Original Equipment Manufacturing Software Distribution License
Agreement, dated November 6, 2003, by and between Boise Cascade
Corporation and Autodesk Inc.
10. DESIGNBASE License Agreement, dated January 12, 1998, by and between Boise
Cascade Corporation and Ricoh Corporation
11. Application Developer Agreement, dated June 20, 1997, by and between Boise
Cascade Corporation and Template Graphics Software, Inc.
12. Sublicense Agreement, dated March 18, 2002, by and between Sunset Software
Technology and Boise Cascade Corporation
13. ADP eLabor Software License Agreement, dated October 30, 1998 by and
between BCC and jeTech Data Systems Inc.
14. ADP eLabor Software Support Agreement, dated March 23, 1998 by and between
BCC and jeTech Data Systems Inc
15. Maximo Software License and Maintenance Agreement, dated November 1, 1996,
by and between Boise Cascade and PSDI
Schedule III to
the
Guarantee and
Collateral Agreement
16. Amtech Software License Agreement, dated July 14, 1992 and as amended, by
and between Boise cascade Corporation and Amtech
17. User Object Sublicense Agreement, dated July 14, 1992, by and between
Boise Cascade and Amtech
18. Software License Agreement, dated August 19, 1995, by and between Boise
Cascade Corporation and Computer Concepts Corp
19. Software License and Services Agreement, dated January 15, 1995, by and
between Oil Systems, Inc. and Boise Cascade.
20. Software License Agreement, dated March 31, 1998, by and between Adaytum
Inc., and Boise Cascade Corporation ("Licensee"). (Cognos)
21. SOFTWARE license Agreement, dated June 26, 2002, by and between Brio
Software Inc. and Boise Cascade Corporation. (Hyperion)
22. Agreement for development, Licensing and Maintenance of Software, dated
June 2, 2003, by and between Boise Cascade Corporation and 3LOG Systems
Inc.
23. Major Account License Agreement, dated October 23, 2003, by and between
Movaris and Boise Cascade Corporation; provided, however, that if a
satisfactory amendment to the Transition Services Agreement is entered
into, such that Holdings and/or any of its Subsidiaries may sublicense the
software for no consideration, this Agreement will be a Retained Asset.
24. System Purchase Agreement, dated May 18, 2001 by and between Majiq, Inc.
and Boise Cascade Corporation (Tietoenator Groups)
25. Purchase Agreement for IBM Mainframe and associated software licenses for
IBM tool sets.
Schedule III to
the Guarantee and
Collateral Agreement
PATENTS OWNED BY
BOISE WHITE PAPER, L.L.C.
U.S. PATENT REGISTRATIONS
Patent No. Issue Date Country
---------- ---------- -------
5,225,118 7/6/1993 USA
5,324,584 6/28/1994 USA
5,353,996 10/11/1994 USA
5,354,426 10/11/94 USA
5,729,913 3/24/1998 USA
5,950,914 9/14/1999 USA
U.S. PATENT APPLICATIONS
Patent Application No. Filing Date Country
---------------------- ----------- -------
10/324,206 12/19/2002 USA
10/655,643 9/5/2003 USA
10/666,991 9/19/2003 USA
29/189,507 9/5/2003 USA
60/548,591 2/26/2004 USA
Erasable paper product 7/6/2004 USA
Erasable paper product 7/6/2004 USA
NON-U.S. PATENT REGISTRATIONS
Patent No. Issued Date Country
---------- ----------- -------
2,127,863 1/19/1999 Canada
2,212,842 1/15/2002 Canada
192189 6/1/1999 Mexico
Schedule III to
the Guarantee and
Collateral Agreement
NON-U.S. PATENT APPLICATIONS
Patent Application No. Filing Date Country
---------------------- ----------- -------
PCT/US03/27977 9/5/2003 PCT
XX0000000-8 9/5/2003 Brazil
93U2761 7/5/93 Brazil
Schedule III to
the Guarantee and
Collateral Agreement
PATENTS OWNED BY
BOISE PACKAGING & NEWSPRINT, L.L.C.
U.S. PATENT REGISTRATIONS
Patent No. Issue Date Country
---------- ---------- -------
4,717,120 1/5/88 USA
Schedule III to
the Guarantee and
Collateral Agreement
PATENTS OWNED BY
BOISE BUILDING SOLUTIONS MANUFACTURING, L.L.C.
NON-U.S. PATENT APPLICATIONS
Patent/Application No. Issued Date Country Grantor
---------------------- ----------- ------- -------
320370 9/1/2003 United Kingdom BBS - Manufacture
Schedule III to
the Guarantee and
Collateral Agreement
TRADEMARK/TRADE NAMES OWNED BY
BOISE CASCADE, L.L.C.
U.S. TRADEMARK REGISTRATIONS
Xxxx Reg. Date Reg. No.
---- --------- --------
CASCADE 10/10/72 0,944,711
CASCADE 11/9/76 1,052,301
BOISE CASCADE 10/3/78 1,103,419
TREE-IN-A-CIRCLE DESIGN 12/29/81 1,183,781
TREE-IN-A-CIRCLE DESIGN 8/16/88 1,500,789
TREE-IN-A-CIRCLE DESIGN 9/6/88 1,503,401
TREE-IN-A-CIRCLE DESIGN 3/6/90 1,585,562
CASCADE 1/6/98 2,127,606
BOISE 9/21/99 2,279,010
U.S. TRADEMARK APPLICATIONS
Xxxx Filing Date Application No.
---- ----------- ---------------
WORK. BUILD. CREATE 1/14/02 76/358,978
BOISE 1/14/02 76/358,793
CASCADE 1/16/04 78/352,952
CASCADE 1/16/04 78/352,784
NON-U.S. TRADEMARK REGISTRATIONS
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/2001 1825152
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/201 1825153
Schedule III to
the Guarantee and
Collateral Agreement
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/2001 1825154
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/2001 1825155
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/2001 1825156
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/2001 1825157
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/2001 1825158
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/2001 1825159
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/2001 1825160
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/2001 1825161
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/2001 1825162
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/2001 1825163
Argentina TREE-IN-A-CIRCLE DESIGN 4/16/2001 1825164
Argentina TREE-IN-A-CIRCLE DESIGN 4/18/2001 1825445
Argentina BOISE CASCADE 10/31/2001 1849591
Argentina BOISE CASCADE 10/31/2001 1849592
Argentina BOISE CASCADE 10/31/2001 1849593
Argentina BOISE CASCADE 10/31/2001 1849594
Argentina BOISE CASCADE 10/31/2001 1849595
Argentina BOISE CASCADE 10/31/2001 1849596
Argentina BOISE CASCADE 10/31/2001 1849597
Argentina BOISE CASCADE 10/31/2001 1849598
Argentina BOISE CASCADE 10/31/2001 1849599
Argentina BOISE CASCADE 10/31/2001 1849600
Argentina CASCADE 10/31/2001 1849601
Argentina CASCADE 10/31/2001 1849602
Argentina CASCADE 10/31/2001 1849604
Schedule III to
the Guarantee and
Collateral Agreement
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
Argentina CASCADE 10/31/2001 1849606
Argentina CASCADE 10/31/2001 1849607
Argentina CASCADE 10/31/2001 1849608
Argentina CASCADE 10/31/2001 1849609
Argentina CASCADE 10/31/2001 1849610
Argentina CASCADE 10/31/2001 1849611
Argentina CASCADE 10/31/2001 1849612
Argentina CASCADE 11/6/2001 0000000
Xxxxxxxxx BOISE CASCADE 11/12/2001 1851371
Argentina BOISE CASCADE 11/12/2001 1851372
Argentina CASCADE 11/12/2001 1851373
Argentina CASCADE 11/12/2001 0000000
Xxxxxxxxx BOISE CASCADE 12/17/2001 1855667
Argentina BOISE CASCADE 12/19/2001 1855853
Argentina CASCADE 10/31/2001 1861276
Canada CASCADE 5/20/29 TMDA46375
Canada TREE-FANCIFUL & DESIGN 3/15/91 TMA381,488
Chile BOISE CASCADE 7/10/1998 516.493
Chile TREE-IN-A-CIRCLE DESIGN 8/9/2002 638.842
Chile TREE-IN-A-CIRCLE DESIGN 10/25/2002 646.867
Chile BOISE CASCADE 4/28/1998 000000
Xxxxx CASCADE 2/21/2002 000000
Xxxxx CASCADE 4/28/1988 000000
Xxxxx CASCADE 3/7/1997 000000
Xxxxx CASCADE 3/7/1997 957867
Schedule III to
the Guarantee and
Collateral Agreement
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
China BOISE CASCADE CORPORATION 3/7/1997 000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 3/7/1997 000000
Xxxxx CASCADE 3/14/1997 000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 3/14/1997 000000
Xxxxx CASCADE 3/14/1997 000000
Xxxxx BOISE CASCADE CORPORATION 3/21/1997 000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 3/21/1997 000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 3/21/1997 000000
Xxxxx CASCADE 3/21/1997 000000
Xxxxx BOISE CASCADE CORPORATION 3/21/1997 000000
Xxxxx CASCADE 6/4/1998 000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 3/21/1997 000000
Xxxxx BOISE CASCADE CORPORATION 3/21/1997 000000
Xxxxx BOISE CASCADE CORPORATION 3/21/1997 000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 3/28/1997 000000
Xxxxx BOISE CASCADE 4/7/1997 000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 4/28/1997 000000
Xxxxx CASCADE 5/7/1997 0000000
Xxxxx BOISE CASCADE CORPORATION 5/7/1997 0000000
Xxxxx CASCADE 6/14/1997 0000000
Xxxxx BOISE CASCADE CORPORATION 6/14/1997 0000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 6/14/1997 0000000
Xxxxx BOISE CASCADE CORPORATION 6/28/1997 0000000
Xxxxx CASCADE 6/28/1997 0000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 6/28/1997 1039081
Schedule III to
the Guarantee and
Collateral Agreement
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
China TREE-IN-A-CIRCLE DESIGN 10/21/1997 0000000
Xxxxx BOISE CASCADE 10/21/1997 1120050
China CASCADE 10/21/1977 0000000
Xxxxx BOISE CASCADE 10/21/1997 0000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 10/21/1997 1120785
China CASCADE 10/21/1997 0000000
Xxxxx TREE-IN-A-CIRCLE 10/28/1997 0000000
Xxxxx CASCADE 10/28/1997 0000000
Xxxxx BOISE CASCADE 10/28/1997 1122582
China CASCADE 10/28/1977 0000000
Xxxxx BOISE CASCADE 10/28/1997 0000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 10/28/1997 0000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 12/21/1997 1137109
China CASCADE 1/7/1998 0000000
Xxxxx BOISE CASCADE 1/7/1998 1140051
European Community CASCADE 7/1/1996 319194
European Community TREE-IN-A-CIRCLE DESIGN 7/1/1996 319,467
European Community BOISE CASCADE 7/1/1996 000000
Xxxxxxx TREE-IN-A-CIRCLE DESIGN 6/16/81 0000000
Xxxxx BOISE CASCADE 10/31/90 0000000
Xxxxx BOISE CASCADE 12/26/90 0000000
Xxxxx BOISE CASCADE 4/30/91 0000000
Xxxxx BOISE CASCADE 7/31/11 0000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 8/30/91 0000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 12/25/91 2359174
Schedule III to
the Guarantee and
Collateral Agreement
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
Japan TREE-IN-A-CIRCLE DESIGN 1/31/92 0000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 3/31/92 0000000
Xxxxx TREE-IN-A-CIRCLE DESIGN 1/29/93 0000000
Xxxxxx BOISE CASCADE 2/26/1997 000000
Xxxxxx BOISE CASCADE 2/26/1997 000000
Xxxxxx CASCADE 2/26/1997 000000
Xxxxxx CASCADE 2/26/1997 000000
Xxxxxx TREE-IN-A-CIRCLE DESIGN 2/16/1997 000000
Xxxxxx TREE-IN-A-CIRCLE DESIGN 3/20/1997 000000
Xxxxxx TREE-IN-A-CIRCLE DESIGN 3/20/1997 000000
Xxxxxx TREE-IN-A-CIRCLE DESIGN 3/24/1997 000000
Xxxxxx BOISE CASCADE 3/25/1997 000000
Xxxxxx CASCADE 3/25/1997 000000
Xxxxxx TREE-IN-A-CIRCLE DESIGN 3/31/1997 000000
Xxxxxx TREE-IN-A-CIRCLE DESIGN 4/25/1997 000000
Xxxxxx TREE-IN-A-CIRCLE DESIGN 4/25/1997 000000
Xxxxxx BOISE CASCADE 9/26/1997 000000
Xxxxxx CASCADE 9/26/1997 000000
Xxxxxx BOISE CASCADE 10/27/1998 000000
Xxxxxx BOISE CASCADE 10/27/1998 000000
Xxxxxx BOISE CASCADE 10/27/1998 000000
Xxxxxx BOISE CASCADE 10/27/1998 000000
Xxxxxx BOISE CASCADE 10/27/1998 000000
Xxxxxx CASCADE 10/27/1998 000000
Xxxxxx CASCADE 10/27/1998 590927
Schedule III to
the Guarantee and
Collateral Agreement
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
Mexico CASCADE 10/27/1998 000000
Xxxxxx CASCADE 3/21/1997 000000
Xxxxxx CASCADE 10/27/1998 000000
Xxxxxx TREE-IN-A-CIRCLE DESIGN 11/25/1999 000000
Xxxxxx TREE-IN-A-CIRCLE DESIGN 11/25/1999 633366
New Zealand BOISE 1/3/01 630050
Xxx Xxxxxxx XXXXX 0/0/00 000000
Xxx Xxxxxxx BOISE 1/3/01 630053
Xxx Xxxxxxx XXXXX XXXXXXX 0/0/00 000000
Xxx Xxxxxxx BOISE 4/24/02 655967
Xxx Xxxxxxx XXXXX 0/00/00 000000
Xxx Xxxxxxx BOISE 4/24/02 655970
Russian Federation BOISE CASCADE 2/17/1997 150082
Russian Federation CASCADE 2/28/1997 150473
Russian Federation TREE-IN-A-CIRCLE DESIGN 4/30/1997 152054
NON-U.S. TRADEMARK APPLICATIONS
Country Xxxx Filing Date Application No.
------- ---- ----------- ---------------
Australia BOISE 7/12/02 000000
Xxxxxx BOISE 7/12/02 1,146,332
European Community BOISE 2/9/04 3654639
Schedule III to
the Guarantee and
Collateral Agreement
TRADEMARK/TRADE NAMES OWNED BY
BOISE WHITE PAPER, L.L.C.
U.S. TRADEMARK REGISTRATIONS
Xxxx Reg. Date Reg. No.
---- --------- --------
SUMMIT 11/20/62 0,740,924
PERFECTOWEB 1/26/65 0,784,025
SUMMIT 7/7/81 1,159,974
ISAP 2/3/87 1,427,763
KAP 4/14/87 1,436,639
GULFBRITE 4/28/87 1,437,630
SWIFT RIVER 12/15/87 1,468,713
TIMBERLINE BOND 11/2/93 1,802,697
LITE KOTE 3/21/1995 1,885,703
TONER GRIP 2/10/1998 2,135,927
ARRIVL 7/13/1999 2,261,702
FLEX-O-FOLD 7/27/1999 2,265,356
DATAGRIP 8/3/1999 2,267,136
CHECK PROTECT 11/16/1999 2,292,769
KNOCKOUT 9/19/2000 2,388,494
PENTAGON 12/5/2000 2,411,129
FLEXONEWS 1/30/2001 2,425,545
WYOMING BOOK 5/28/2002 2,573,147
RATTANWEAVE 7/2/2002 2,589,429
X-9000 2/11/2003 2,685,989
OH!PAQUE 2/18/2003 2,689,527
DAKOTA DIGITAL BOOK 12/23/2003 2,797,246
Schedule III to
the Guarantee and
Collateral Agreement
U.S. TRADEMARK APPLICATIONS
Xxxx Reg. Date Reg. No.
---- --------- --------
BEWARE 7/15/04 78/447,193
ADHESIVE MOCK-UP PAPER
abandonned 5/14/04 6/14/02 76/420,997
VERITHERM 5/31/01 76/265,666
SPLOX 1/23/03 78/206,517
XXXX RABBIT 1/23/03 78/206,507
CASCADE BOOK 10/4/00 76/141,772
MONTANA BOOK 10/4/00 76/141,769
NON-U.S. TRADEMARK REGISTRATIONS
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
Australia SPLOX 5/19/2003 000000
Xxxxxx ARRIVL 9/22/1999 TMA516,710
Canada WYOMING BOOK 6/27/2003 TMA584,361
Canada X-9000 5/5/2004 TMA609,400
Germany XXXXX & DESIGN 11/27/75 000000
Xxxxxx ARRIVL 11/30/1998 594848
NON-U.S. TRADEMARK APPLICATIONS
Country Xxxx Filing Date Application No.
------- ---- ----------- ---------------
Argentina SPLOX
Brazil SPLOX 826452035
Canada MONTANA BOOK 3/28/01 1,097,746
Canada OH!PAQUE 6/28/01 1,107,872
Schedule III to
the Guarantee and
Collateral Agreement
Country Xxxx Filing Date Application No.
------- ---- ----------- ---------------
Canada VERITHERM 7/27/01 1,111,018
Canada ADHESIVE MOCK-UP PAPER 10/3/02 1,154,236
Canada DAKOTA DIGITAL BOOK 4/8/03 1,173,143
Canada SPLOX 5/20/03 1,177,358
European Community SPLOX 5/20/03 0000000
Xxxxxx SPLOX 8/11/2003 803313
New Zealand SPLOX 5/19/03 679264
Schedule III to
the Guarantee and
Collateral Agreement
TRADEMARK/TRADE NAMES OWNED BY
BOISE PACKAGING & NEWSPRINT, L.L.C.
U.S. TRADEMARK REGISTRATIONS
XXXX Reg. Date Reg. No.
---- --------- --------
PERFORMAPAK 11/3/1987 1,463,445
NON-U.S. TRADEMARK REGISTRATIONS
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
Benelux X-PLY 11/6/81 378636
Finland X-PLY 10/20/83 00000
Xxxxxx X PLY 3/2/91 0000000
Xxxxx X-PLY 12/9/92 583076
Schedule III to
the Guarantee and
Collateral Agreement
TRADEMARK/TRADE NAMES OWNED BY
BOISE BUILDING SOLUTIONS MANUFACTURING, L.L.C.
U.S. TRADEMARK REGISTRATIONS
Xxxx Reg. Date Reg. No.
---- --------- --------
TRU-PLY 9/14/1965 795,880
TRU-FORM 4/5/1966 806,593
SUPER STEP 12/8/1981 1,181,130
SUPER SHELF 12/8/1981 1,181,131
VERSA-XXX 5/8/1990 1,585,401
BCI 5/1/1990 1,594,251
VERSA-XXX PLUS 5/1/1990 1,594,252
CASCADE CREST 5/19/1992 1,687,884
BC FRAMER 1/4/1994 1,815,347
VERSA-RIM 10/18/1994 1,859,173
SIMPLE FRAMING SYSTEM 5/28/1996 1,977,458
ALLJOIST 11/24/1998 2,206,077
VERSA-DECK 12/29/1998 2,215,433
KINDLE-KWIK 7/13/1999 2,261,535
VERSA-STUD 6/20/2000 2,360,614
BC CALC 10/17/2000 2,395,722
JOIST REWARDS 7/31/2001 2,474,486
BOISE GOLD 6/4/2002 2,575,790
JOIST REWARDS & DESIGN 10/22/2002 2,640,657
BOISE CLASSIC 1/21/2003 2,677,231
VERSA-STRAND 11/18/2003 2,784,632
BC TRACKER 1/20/2004 2,807,130
Schedule III to
the Guarantee and
Collateral Agreement
U.S. TRADEMARK APPLICATIONS
Xxxx Reg. Date Reg. No.
---- --------- --------
AJS 5/14/04 76/592,383
BOISE ALL BEAM 1/24/02 76/363,146
BOISE GLULAM 1/23/02 76/362,590
BOISE ALL BEAM 1/5/04 78/347,928
NON-U.S. TRADEMARK REGISTRATIONS
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
Argentina XXXXXXX ARGENTINA 8/11/1999 0000000
Xxxxxx XXXXXXX BRAZIL 7/11/2000 820684554
Canada CASCADE CREST 6/28/1991 TMA386,267
Canada ALLJOIST 8/2/97 TMA481,677
Chile XXXXXXX CHILE 9/30/1998 522,954
Mexico XXXXXXX MEXICO 6/26/1998 579408
United Kingdom VERSA-DECK 7/28/1999 2204152
Xxxxxx Xxxxxxx XXX 0/00/0000 0000000
Xxxxxx Xxxxxxx BC FRAMER 7/28/1999 2204170
United Kingdom VERSA-RIM PLUS 7/28/1999 2204173
Xxxxxx Xxxxxxx XXXXX-XXX 0/00/0000 0000000
Xxxxxx Xxxxxxx VERSA-XXX 7/28/1999 2204177
United Kingdom VERSA-XXX PLUS 7/28/1999 2204179
United Kingdom BC XXX XXXXX 0/00/0000 0000000
Xxxxxx Xxxxxxx XX CALC 2/21/2000 2223076
Xxxxxx Xxxxxxx XXXXX-XXXXXX 00/00/0000 0000000
Xxxxxx Xxxxxxx BC SLICEDBREAD 2/14/2001 2261267
Schedule III to
the Guarantee and
Collateral Agreement
NON-U.S. TRADEMARK APPLICATIONS
Country Xxxx Filing Date Application No.
------- ---- ----------- ---------------
Canada BOISE ALL BEAM 7/22/02 1,147,013
Canada BOISE GLULAM 7/22/02 1,147,014
Schedule IV to
the Guarantee and
Collateral Agreement
INSURANCE REQUIREMENTS
(a) The Holding Companies and the Borrowers will, and will cause
each Subsidiary Party to, maintain (or cause to be maintained on its behalf),
with financially sound and reputable insurance companies:
(i) fire, boiler and machinery, and extended coverage insurance, on a
replacement cost basis, with respect to all personal property and
improvements to real property (in each case constituting Collateral), in
such amounts as are customarily maintained by companies in the same or
similar business operating in the same or similar locations;
(ii) commercial general liability insurance against claims for bodily
injury, death or property damage occurring upon, about or in connection
with the use of any properties owned, occupied or controlled by it,
providing coverage with a combined single limit of not less than
$25,000,000 per occurrence and an aggregate limit of not less than
$50,000,000 and including the broad form CGL endorsement;
(iii) business interruption insurance, insuring against loss of gross
earnings for a period of not less than 12 months arising from any risks or
occurrences required to be covered by insurance pursuant to clause (i)
above; and
(iv) such other insurance as may be required by law.
Deductibles or self-insured retention shall not exceed $5,000,000 for fire,
boiler and machinery and extended coverage policies, $5,000,000 for commercial
general liability policies or 7 days for business interruption policies.
(b) Fire, boiler and machinery and extended coverage policies
maintained with respect to any Collateral shall be endorsed or otherwise amended
to include (i) a lenders' loss payable clause in favor of the Collateral Agent
and providing for losses thereunder to be payable to the Collateral Agent or its
designee, (ii) a provision to the effect that neither any Loan Party, the
Collateral Agent nor any other party shall be a coinsurer and (iii) such other
provisions as the Collateral Agent may reasonably require from time to time to
protect the interests of the Lenders. Commercial general liability policies
shall be endorsed to name the Collateral Agent as an additional insured.
Business interruption policies shall name the Collateral Agent as loss payee.
Each such policy referred to in this paragraph also shall provide that it shall
not be canceled, modified or not renewed (i) by reason of nonpayment of premium
except upon not less than 10 days' prior written notice thereof by the insurer
to the Collateral Agent (giving the Collateral Agent the right to cure defaults
in the payment of premiums) or (ii) for any other reason except upon not less
than 30 days' prior written notice thereof by the insurer to the Collateral
Agent. The Borrowers shall deliver to the Collateral Agent, prior to the
cancellation, modification or nonrenewal of any such policy of insurance, a copy
of a
2
renewal or replacement policy (or other evidence of renewal of a policy
previously delivered to the Collateral Agent) together with evidence reasonably
satisfactory to the Collateral Agent of payment of the premium therefor.
Schedule V to
the Guarantee and
Collateral Agreement
DESCRIPTIONS OF TIMBER MORTGAGED PROPERTY
See attached legal descriptions.
Schedule V to
the Guarantee and
Collateral Agreement
COMMERCIAL TORT CLAIMS
None.
Schedule VII to
the Guarantee and
Collateral Agreement
DEPOSIT ACCOUNTS
ACCOUNT HOLDER ACCOUNT LOCKBOX
NAME BANK NAME NUMBER(S) NUMBER(S)
-------------- --------- --------- ---------
Boise Cascade, L.L.C. Bank of America 1233107400 57111
1098516 34936
1233824185 N/A
1233528816 1245
1233323688 N/A
Boise Cascade, L.L.C. Mellon Bank 0000000 10425
0500873 14168, 14119,
360896, 40007,
81082, 890632,
890640, 890853
N/A
1108603 360538, 890778
0006111
Boise Cascade, L.L.C. Wachovia 2000022987811 N/A
2087340082408 101009
Boise Cascade, L.L.C. Xxxxx Fargo 4159580430 N/A
4159580448 N/A
Boise Cascade, L.L.C. US Bank 153302017725 N/A
160231102130 0256, 0270, 1136
153390924519 N/A
153302503112 N/A
153302502304 N/A
Boise Cascade, L.L.C. Northern Trust 30996490 92328
96490 75883
Exhibit I to the
Guarantee and
Collateral Agreement
SUPPLEMENT NO. __ dated as of __, to the Guarantee and
Collateral Agreement dated as of October 29, 2004, among Boise
Cascade, L.L.C., Boise Land & Timber Corp.,
Boise Cascade
Holdings, L.L.C., Boise Land & Timber Holdings Corp., each
subsidiary of Boise Cascade, L.L.C. listed on Schedule I thereto
and JPMORGAN CHASE BANK, a New York banking corporation, as
Collateral Agent.
A. Reference is made to the Credit Agreement dated as of 29, 2004 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among Boise Land & Timber Holdings Corp.,
Boise Cascade Holdings,
L.L.C., Boise Cascade, L.L.C. and Boise Land & Timber Corp., the Lenders from
time to time party thereto and JPMorgan Chase Bank, as Administrative Agent.
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement and the
Collateral Agreement referred to therein.
C. The Grantors have entered into the Collateral Agreement in order to
induce the Lenders to make Loans and the Issuing Banks to issue Letters of
Credit. Section 7.14 of Collateral Agreement provides that additional
Subsidiaries of a Borrower may become Subsidiary Parties under the Collateral
Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Subsidiary (the "NEW SUBSIDIARY") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Subsidiary Party under the Collateral Agreement in order to induce the Lenders
to make additional Loans and the Issuing Banks to issue additional Letters of
Credit and as consideration for Loans previously made and Letters of Credit
previously issued.
Accordingly, the Collateral Agent and the New Subsidiary agree as
follows:
SECTION 1. In accordance with Section 7.14 of the Collateral
Agreement, the New Subsidiary by its signature below becomes a Subsidiary Party
(and accordingly, becomes a Guarantor and a Grantor), Grantor and Guarantor
under the Collateral Agreement with the same force and effect as if originally
named therein as a Subsidiary Party and the New Subsidiary hereby (a) agrees to
all the terms and provisions of the Collateral Agreement applicable to it as a
Subsidiary Party, Grantor and Guarantor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Grantor and
Guarantor thereunder are true and correct on and as of the date hereof. In
furtherance of the foregoing, the New Subsidiary, as security for the payment
and performance in full of the Obligations (as defined in the Collateral
Agreement), does hereby create and grant to the Collateral Agent, its successors
and assigns, for the benefit of the Secured Parties, their successors and
assigns, a security interest in and lien on all of
2
the New Subsidiary's right, title and interest in and to the Collateral (as
defined in the Collateral Agreement) of the New Subsidiary. Each reference to a
"Guarantor" or "Grantor" in the Collateral Agreement shall be deemed to include
the New Subsidiary. The Collateral Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Subsidiary represents and warrants to the
Collateral Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement 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 Supplement shall become effective when the Collateral
Agent shall have received a counterpart of this Supplement that bears the
signature of the New Subsidiary and the Collateral Agent has executed a
counterpart hereof. Delivery of an executed signature page to this Supplement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Supplement.
SECTION 4. The New Subsidiary hereby represents and warrants that (a)
set forth on Schedule I attached hereto is a true and correct schedule of the
location of any and all Collateral of the New Subsidiary and (b) set forth under
its signature hereto, is the true and correct legal name of the New Subsidiary,
its jurisdiction of formation and the location of its chief executive office.
SECTION 5. Except as expressly supplemented hereby, the Collateral
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Collateral Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in
writing and given as provided in Section 7.01 of the Collateral Agreement.
SECTION 9. The New Subsidiary agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
3
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
IN WITNESS WHEREOF, the New Subsidiary and the Collateral Agent have
duly executed this Supplement to the Collateral Agreement as of the day and year
first above written.
[NAME OF NEW SUBSIDIARY],
by
------------------------------------
Name:
Title:
Legal Name:
Jurisdiction of Formation:
Location of Chief Executive office:
JPMORGAN CHASE BANK,
AS COLLATERAL AGENT
by
------------------------------------
Name:
Title:
LOCATION OF COLLATERAL
Description Location
----------- --------
EQUITY INTERESTS
Number and
Number of Registered Class of Percentage
Issuer Certificate Owner Equity Interests of Equity Interests
------ ----------- ---------- ---------------- -------------------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ ------ ------------ -------------
INTELLECTUAL PROPERTY
