Exhibit 10(o)(ii)
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of December 19, 2001, is made by and among POTLATCH CORPORATION, a Delaware
corporation (the "Borrower"), the Subsidiary Guarantors party hereto, the
several financial institutions party hereto, and BANK OF AMERICA, N.A., as
administrative agent for the Lenders (in such capacity, the "Agent"). Terms used
but not otherwise defined herein shall have the meanings provided in the Credit
Agreement described below.
RECITALS
The Borrower, the Subsidiary Guarantors party thereto, the several
financial institutions from time to time party thereto (each a "Lender" and,
collectively, the "Lenders") and the Agent are parties to a Credit Agreement
dated as of June 29, 2001 (as amended by the certain First Amendment dated as of
August 27, 2001 and as further amended, modified, restated and supplemented from
time to time, the "Credit Agreement").
The Borrower, the Subsidiary Guarantors, the Required Lenders and the
Agent have agreed to deliver and execute this Amendment on the terms and
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1 Amendment to Section 1.1. The definition of
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"Senior Subordinated Note" of Section 1.1 of the Credit Agreement is hereby
amended by inserting the word "exchanged" between the words "amended," and
"modified" found therein.
SECTION 2 Amendment to Section 8.8. Section 8.8 of the
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Credit Agreement is hereby amended by inserting the following provision
immediately at the end thereof:
Notwithstanding anything to the contrary contained in this
Section 8.8, the Credit Parties may exchange the Senior
Subordinated Notes issued on the Closing Date for new Senior
Subordinated Notes with substantially identical terms that
will be registered under the Securities Act solely in
connection with the exchange offer contemplated under the
Senior Subordinated Note Indenture and consummated in
accordance with the terms of the Exchange and Registration
Rights Agreement (as defined in the Senior Subordinated Note
Indenture and as in effect on the Closing Date)
SECTION 3 Amendment to Section 8.14. Section 8.14 of the
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Credit Agreement is hereby amended by replacing the first dollar amount listed
of "$25,000,000" with the dollar amount of "$30,000,000", which corresponds to
the maximum Consolidated Capital Expenditures permitted for the period from the
Closing Date through December 31, 2001.
SECTION 4 Further Amendment to Section 8.14. Section 8.14 of
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the Credit Agreement is further amended by inserting the following proviso at
the end of the last sentence found therein:
; provided, however, that the Credit Parties may make certain
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unanticipated capital expenditures that exceed the above
amounts solely in order to comply with Environmental Laws
while maintaining full production at the Credit Parties'
manufacturing facilities ("Unanticipated Capital
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Expenditures") so long as (a) the Borrower shall give written
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notice to the Agent at least five (5) Business Days prior to
making such Unanticipated Capital Expenditures and (b) the
aggregate amount of all such Unanticipated Capital
Expenditures shall not exceed $7,500,000 in any fiscal year
(excluding any carry forward available from any prior fiscal
year or portion thereof).
SECTION 5 Conditions of Effectiveness. The effectiveness of
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this Amendment shall be subject to the satisfaction of each of the following
conditions precedent:
(a) This Amendment. The Agent shall have received a duly
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executed counterpart of this Amendment from the Required Lenders, the
Borrower and the Subsidiary Guarantors;
(b) Representations and Warranties; No Default. As of
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the date hereof, after giving effect to the Amendment contemplated
hereby:
(i) the representations and warranties contained in
Section 6 shall be true and correct in all material
respects on and as of the date hereof as though made on and as
of such date; and
(ii) no Event of Default shall have occurred and be
continuing.
SECTION 6 Representations and Warranties. Each of the
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Borrower and the Subsidiary Guarantors hereby represents and warrants to the
Lenders and the Agent that:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by
such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Person of this Amendment.
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(d) The representations and warranties of the Credit
Parties set forth in Section 6 of the Credit Agreement are, subject to
the limitations set forth therein, true and correct in all material
respects as of the date hereof (except for those which expressly
relate to an earlier date).
(e) Subsequent to the execution and delivery of this
Amendment and after giving effect hereto, no Default or Event of
Default exists under the Credit Agreement or any of the other Credit
Documents.
(f) All of the provisions of the Credit Documents, except
as amended hereby, are in full force and effect.
SECTION 7 Miscellaneous.
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(a) Credit Agreement Otherwise Not Affected. Except as
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expressly modified pursuant hereto, the Credit Agreement shall remain
unchanged and in full force and effect and is hereby ratified and
confirmed in all respects. The Lenders' and the Agent's execution and
delivery of, or acceptance of, this Amendment and any other documents
and instruments in connection herewith shall not be deemed to create a
course of dealing or otherwise create any express or implied duty by
any of them to provide any other or further amendments, consents or
waivers in the future.
(b) No Reliance. The Credit Parties hereby acknowledge and
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confirm to the Agent and the Lenders that they are executing this
Amendment on the basis of its own investigation and for its own
reasons without reliance upon any agreement, representation,
understanding or communication by or on behalf of any other Person.
(c) Costs and Expenses. The Borrower agrees to pay to the
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Agent on demand its reasonable out-of-pocket costs and expenses, and
the reasonable fees and disbursements of its counsel, in connection
with the negotiation, preparation, execution and delivery of this
Amendment and any other documents to be delivered in connection
herewith.
(d) Binding Effect. This Amendment shall be binding
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upon, inure to the benefit of and be enforceable by the Borrower,
Subsidiary Guarantors, the Agent and each Lender and their respective
successors and assigns.
(e) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY,
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AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(f) Complete Agreement; Amendments. This Amendment
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contains the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein. This Amendment supersedes
all prior commitments, drafts, communications, discussion and
understandings, oral or written, with respect thereto. This Amendment
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may not be modified, amended or otherwise altered except in accordance
with the terms of Section 11.6 of the Credit Agreement.
(g) Severability. Whenever possible, each provision of
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this Amendment shall be interpreted in such manner as to be effective
and valid under all applicable laws and regulations. If, however, any
provision of this Amendment shall be prohibited by or invalid under
any such law or regulation in any jurisdiction, it shall, as to such
jurisdiction, be deemed modified to conform to the minimum
requirements of such law or regulation, or, if for any reason it is
not deemed so modified, it shall be ineffective and invalid only to
the extent of such prohibition or invalidity without affecting the
remaining provisions of this Amendment, or the validity or
effectiveness of such provision in any other jurisdiction.
(h) Counterparts/Telecopy. This Amendment may be executed
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in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute but
one and the same agreement. Delivery of an executed counterpart by
telecopy shall be effective as an original and shall constitute a
representation that an original will be delivered.
(i) Interpretation. This Amendment is the result of
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negotiations between and have been reviewed by counsel to the Agent,
the Credit Parties and other parties, and are the product of all
parties hereto. Accordingly, this Amendment shall not be construed
against any of the Lenders or the Agent merely because of the Agent's
or any Lender's involvement in the preparation thereof.
(j) Credit Document. This Amendment shall constitute a
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"Credit Document" under and for all purposes of the Credit Agreement
and the other Credit Documents.
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Amendment, as of the date first above written.
BORROWER: POTLATCH CORPORATION
By: _________________________
Name: _______________________
Title: ______________________
SUBSIDIARY
GUARANTORS: DULUTH & NORTHEASTERN RAILROAD CO.
By: __________________________
Name: ________________________
Title: _______________________
THE PRESCOTT AND NORTHWESTERN
RAILROAD COMPANY
By: __________________________
Name: ________________________
Title: _______________________
ST. MARIES RIVER RAILROAD COMPANY
By: __________________________
Name: ________________________
Title: _______________________
XXXXXX AND SALINE RIVER RAILROAD
COMPANY
By: __________________________
Name: ________________________
Title: _______________________
AGENT: BANK OF AMERICA, N.A.,
in its capacity as Agent
By:
Name:
Title:
LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a Lender
By:
Name:
Title:
_________________________________
Lender
By:
Name:
Title:
