| Greater than 4.00 to 1.00
|
| 1.8750
| %
| 0.8750
| %
The
Applicable Margin shall be adjusted automatically as to all Loans then outstanding (without regard to the timing of Interest Periods) three Business Days after the delivery to the
Agent of the financial reports and certificate delivered pursuant to subsections 7.1(a) and (b) and 7.2(b), respectively, for the fiscal quarter ending on December 31, 1999, and three
Business Days after delivery to the Agent of such financial reports and certificate for each fiscal quarter thereafter. If the Company fails to deliver such financial reports and certificate to the
Agent for any such fiscal quarter by the date required hereunder, then the Applicable Margin for all Loans beginning three Business Days after such date shall, until three Business Days after delivery
of such financial reports and certificate, be the next highest Applicable Margin as set forth in the chart above immediately below the previously effective Applicable Margin; thus, if the Applicable
Margin had previously been 0.1250% for Base Rate Syndicated Loans and Swingline Loans and 1.1250% for Offshore Rate Loans, a failure to deliver quarterly financials on a timely basis would cause the
Applicable Margin to be 0.3750% and 1.3750%, respectively, until three Business Days after such delivery.
"Arranger" means Banc of America Securities LLC.
2
"Asset Coverage Ratio" has the meaning specified in Section 8.4.
"Assignee" has the meaning specified in subsection 11.8(a).
"Assuming Bank" means an Eligible Assignee not previously a Bank that becomes a Bank hereunder pursuant to Section 2.18.
"Attorney Costs" means and includes all reasonable fees and disbursements of any law firm or other external counsel, the reasonable
allocated cost of internal legal services and all disbursements of internal counsel.
"Available Cash" means, with respect to any fiscal quarter and without duplication:
(a) the
sum of:
(i) all
cash receipts of the Company during such fiscal quarter from all sources;
(ii) any
reduction with respect to such fiscal quarter in a cash reserve previously established pursuant to clause (b)(ii) below (either by reversal or
utilization) from the level of such reserve at the end of the prior fiscal quarter; and
(iii) the
amount available to be borrowed on the last day of such fiscal quarter under this Agreement but only so long as the conditions relating to a Borrowing set
forth in subsections 5.2(b) and (c) would be satisfied or waived on such date;
(b) less the sum of:
(i) all
cash disbursements of the Company during such fiscal quarter, including, without limitation, disbursements for operating expenses (including, without
limitation, the amounts described in the second sentence of Section 8.7), taxes, if any, debt service (including, without limitation, the payment of principal, premium and interest), redemption
of Partnership Interests (as defined in the Company Partnership Agreement), capital expenditures and cash distributions to Partners (as defined in the Company Partnership Agreement) (but only to the
extent that such cash distributions to Partners exceed Available Cash for the immediately preceding fiscal quarter); and
(ii) any
cash reserves established with respect to such fiscal quarter, and any increase with respect to such fiscal quarter in a cash reserve established pursuant to
this clause (b)(ii) from the level of such reserve at the end of the prior fiscal quarter, in such amounts as the Managing General Partner determines in its reasonable discretion to be
necessary or appropriate (A) to provide for the proper conduct of the business of the Company (including, without limitation, reserves for future capital expenditures and those established with
respect to the Obligations hereunder, the "Obligations" under and as defined in the Facility A Credit Agreement, and the Senior Notes), provided that
the reserves established during such fiscal quarter pursuant to this clause (b)(ii) shall include an amount not less than (x) 50% of the aggregate amount of all interest in
respect of the Senior Notes to be paid on the interest payment date immediately following such fiscal quarter, (y) 100% of the aggregate amount of all accrued and unpaid interest in respect of
the Loans and Facility A Loans on the date of determination, and (z) 25% of the aggregate amount of all principal in respect of the Senior Notes scheduled to be paid during the nine calendar
month period immediately following such fiscal quarter, (B) to provide funds for distributions to the Partners in respect of any one or more of the next four fiscal quarters, or
(C) because the distribution of such amounts would be prohibited by applicable law or by any loan agreement, security agreement, mortgage, debt instrument or other agreement or obligation to
which the Company is a party or by which it is bound or its assets are subject.
3
Taxes
paid by the Company on behalf of, or amounts withheld with respect to, all or less than all of the Partners (as defined in the Company Partnership Agreement) shall not be considered cash
disbursements of the Company that reduce Available Cash, but the payment or withholding thereof shall be deemed to be a distribution of Available Cash to such Partners. Alternatively, in the
discretion of the Managing General Partner, such taxes (if pertaining to all Partners) may be considered to be cash disbursements of the Company which reduce Available Cash, but the payment or
withholding thereof shall not be deemed to be a distribution of Available Cash to such Partners.
"Bank" has the meaning specified in the introductory clause hereto. References to the "Banks" shall include Bank of America, including
in its capacity as the Issuing Bank and the Swingline Bank; for purposes of clarification only, to the extent that Bank of America may have any rights or obligations in addition to those of the Banks
due to its status as the Issuing Bank or the Swingline Bank, its status as such will be specifically referenced.
"Bank of America" means Bank of America, N.A.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et
seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per annum above the latest Federal Funds Rate; and (b) the rate
of interest in effect for such day as publicly announced from time to time by Bank of America as its "reference rate." (The "reference rate" is a rate set by Bank of America based upon various factors
including Bank of America's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below
such announced rate.) Any change in the reference rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
"Base Rate Syndicated Loan" means a Syndicated Loan or an L/C Advance that bears interest based on the Base Rate.
"Borrowing" means a borrowing hereunder consisting of Syndicated Loans of the same Type made to the Company on the same day by the
Banks, or a Swingline Loan or Loans made to the Company on the same day by the Swingline Bank, in each case pursuant to Article II, and, other than in the case of Base Rate Syndicated Loans and
Swingline Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under Section 2.3 and 2.10.
"Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in Portland, Oregon, New York City or
San Francisco are authorized or required by law to close and, if the applicable Business Day relates to any Offshore Rate Loan, means such a day on which dealings are carried on in the applicable
offshore dollar interbank market.
"Capital Additions and Improvements" means (a) additions or improvements to the capital assets owned by the Company or any of
its Subsidiaries or (b) the acquisition of existing or the construction of new capital assets (including, without limitation, timberlands and timber processing and manufacturing facilities and
related assets) made to increase the Operating Capacity of the Company and its Subsidiaries, taken as a whole, from the Operating Capacity of the Company and its Subsidiaries, taken as a whole,
existing immediately prior to such addition, improvement, acquisition or construction.
"Capital Adequacy Regulation" means any guideline, request or directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy of any bank or of any corporation controlling a bank.
"Cash Collateralize" means to pledge and deposit with or deliver to the Agent, for the benefit of (i) in the case of L/C
Obligations, the Agent, the Issuing Bank and the Banks, and (ii) in the case of
4
Offshore
Rate Loans, the Agent and the Banks, in each case as collateral for the L/C Obligations or the Offshore Rate Loans, as the case may be, cash or deposit account balances pursuant to
documentation in form and substance reasonably satisfactory to the Agent and, if applicable, the
Issuing Bank (which documents are hereby consented to by the Banks). The Company hereby grants to the Agent, for the benefit of (i) the Agent, the Issuing Bank and the Banks in the case of L/C
Obligations, and (ii) the Agent and the Banks in the case of the Offshore Rate Loans, a security interest in all such cash and deposit account balances. Derivatives of such term shall have
corresponding meaning. Cash collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America.
"Cash Flow" means, at any date of determination, the sum of the following calculated for the Company and its Subsidiaries on a
consolidated basis for the four fiscal quarter period ending on the last day of the most recent quarter for which financial reports pursuant to subsections 7.1(a) and (b) and a certificate
pursuant to subsection 7.2(b) have been delivered: (i) EBITDA for such period; (ii) plus the Net Proceeds from the sale or other
disposition of assets permitted under subsections 8.2(a), (b), (c), (d) or (f)(ii)(C) during such period, to the extent not otherwise included in determining EBITDA, plus Permitted Inclusions;
(iii) plus or minus, as applicable, in connection with any businesses (other than timberland
covered by clause (iv) below) acquired by the Company within such period, an amount equal to a good faith estimate of such additional amounts that would be included in determining EBITDA had
such businesses been owned by the Company for the entirety of such period, as certified with reasonable accompanying detail by the Chief Financial Officer of the Company based upon such Chief
Financial Officer's good faith estimates of applicable revenues and expenses arising from such businesses, and (iv) plus or minus, as applicable, in
connection with any timberland acquired by the Company within such period, an amount equal to a good faith estimate of such
additional amounts that would be included in determining EBITDA had such timberlands been owned by the Company for the entirety of such period, as certified with reasonable accompanying detail by the
Chief Financial Officer of the Company based upon such Chief Financial Officer's good faith estimates of applicable revenues and expenses arising from such timberlands and assuming aggregate timber
harvests in an amount that does not require proceeds to be placed in an escrow account pursuant to Section 8.4.
"Cash Provided by Operating Activity" means, at any date of determination, the sum of the following calculated for the Company and its
Subsidiaries on a consolidated basis for the four fiscal quarter period ending as of the last day of the most recent fiscal quarter for which financial reports pursuant to subsections 7.1(a) and
(b) and a certificate pursuant to subsection 7.2(b) have been delivered:
the
sum of all cash receipts of the Company and its Subsidiaries during such period (excluding any cash proceeds from any Interim Capital Transactions),
less the sum of:
(i) all
cash operating expenditures of the Company and its Subsidiaries during such period, including, without limitation, taxes, if any, and amounts owed to the Master
Partnership for management services rendered to the Company for which the Master Partnership is obligated to reimburse the Managing General Partner or the Special General Partner pursuant to
Section 6.4 of the Master Partnership Agreement,
(ii) all
cash debt service payments of the Company and its Subsidiaries during such period (other than payments or prepayments of principal and premium
(A) required by reason of loan agreements (including, without limitation, covenants and default provisions therein) or by lenders, in each case in connection with sales or other dispositions of
assets or (B) made in connection with refinancings or refundings of indebtedness with the proceeds from new indebtedness or from the sale of equity interests, provided, that any
5
payment
or prepayment of principal and premium, whether or not then due, shall be deemed, at the
election and in the discretion of the Managing General Partner, to be refunded or refinanced by any indebtedness incurred or to be incurred by the Company or any of its Subsidiaries simultaneously
with or within 180 days prior to or after such payment or prepayment to the extent of the principal amount of such indebtedness so incurred), and
(iii) all
cash capital expenditures of the Company and its Subsidiaries during such period, including, without limitation, cash capital expenditures made in respect of
Maintenance Capital Expenditures, but excluding (A) cash capital expenditures made in respect of Operating Capacity Acquisitions and Capital Additions and Improvements and (B) cash
expenditures made in payment of transaction expenses relating to Interim Capital Transactions,
(c) less any additions and plus any reductions to the following reserves
during such period:
(i) any
cash reserves of the Company and its Subsidiaries that the Managing General Partner deems in its reasonable discretion to be necessary or appropriate to provide
for the future cash payment of items of the type referred to in clauses (b)(i) through (iii) above including, without limitation, those reserves established with respect to the
Obligations hereunder, the "Obligations" under and as defined in the Facility A Credit Agreement, and the Senior Notes and as set forth in clause (b)(ii)(A) of the definition of "Available
Cash", and
(ii) any
other cash reserves of the Company and its Subsidiaries that the Managing General Partner deems in its reasonable discretion to be necessary or appropriate to
provide funds for distributions with respect to Units (as defined in the Master Partnership Agreement), any general partner interests in the Master Partnership and any Partnership Interests in respect
of any one or more of the next four fiscal quarters,
all
as determined on a consolidated basis with respect to the Company and its Subsidiaries and after taking into account the Managing General Partner's interest therein attributable to its general
partner interest in the Company. Where cash capital expenditures are made in part in respect of Operating Capacity Acquisitions or Capital Additions and Improvements and in part for other purposes,
the Managing General Partner's good faith allocation thereof between the portion made for Operating Capacity Acquisitions or Capital Additions and Improvements and the portion made for other purposes
shall be conclusive. Taxes paid by the Company on behalf of, or amounts withheld with respect to, all or less than all of the Partners shall not be considered cash operating expenditures of the
Company that reduce Cash Provided by Operating Activity, but the payment or withholding thereof shall be deemed to be a distribution of Available Cash to such Partners. Alternatively, in the
discretion of the Managing General Partner, such taxes (if pertaining to all Partners) may be considered to be cash operating expenditures of the Company which reduce Cash Provided by Operating
Activity, but the payment or withholding thereof shall not be deemed to be a distribution of Available Cash to such Partners.
"CERCLA" has the meaning specified in the definition of "Environmental Laws."
"Closing Date" means the date on which all conditions precedent set forth in Section 5.1 are satisfied or waived by all Banks
(or, in the case of subsection 5.1(e), waived by the Person entitled to receive such payment).
"Co-Agents" means Bank of Montreal and KeyBank National Association, in their capacity as co-agents for the
Banks.
"Code" means the Internal Revenue Code of 1986, and regulations promulgated thereunder.
6
"Collateral" means all property and interests in property and proceeds thereof now owned or hereafter acquired by the Company in or
upon which a Lien now or hereafter exists in favor of the Banks, or the Agent on behalf of the Banks, whether under this Agreement or under any other documents executed by any such Person and
delivered to the Agent or the Banks.
"Collateral Documents" means, collectively, the Security Agreement, and all other security agreements, and other similar agreements
between the Company and the Banks or the Agent for the benefit of the Banks now or hereafter delivered to the Banks or the Agent pursuant to or in connection with the transactions contemplated hereby,
and all financing statements (or comparable documents now or hereafter filed in accordance with the UCC or comparable law) against the Company as debtor in favor of the Banks or the Agent for the
benefit of the Banks as secured party.
"Collateral Event" means, as determined by the Agent, the last day of the first quarter after the Closing Date in which the Company's
ratio of Cash Flow to Interest Expense is less than 2.50 to 1.00, such event to be determined either by reference to the Compliance Certificate delivered by the Company with respect to such quarter or
otherwise by the determination of the Agent or the Required Banks that such event has occurred.
"Commitment", as to each Bank, has the meaning specified in subsection 2.1.
"Commitment Fee Percentage" means (A) for the period from the Closing Date through the date which is three Business Days after
the delivery of the financial reports and certificate delivered to the Agent pursuant to subsections 7.1(a) and (b) and 7.2(b), respectively, for the fiscal quarter ending December 31,
1999 0.350%, and (B) thereafter, a rate per annum equal to the percentage specified below opposite the Total Debt to Cash Flow Ratio (which ratio shall be calculated for the relevant four
fiscal quarter period) calculated for the periods described below.
Total Debt to Cash Flow Ratio at End of Fiscal Quarter
|
| Commitment Fee
|
|
| Less than or equal to 2.50 to 1.00
|
| 0.225
| %
|
| Greater than 2.50 to 1.00 but less than or equal to 3.00 to 1.00
|
| 0.250
| %
|
| Greater than 3.00 to 1.00, but less than or equal to 3.50 to 1.00
|
| 0.300
| %
|
| Greater than 3.50 to 1.00, but less than or equal to 4.00 to 1.00
|
| 0.350
| %
|
| Greater than 4.00 to 1.00
|
| 0.450
| %
The
Commitment Fee Percentage shall be adjusted automatically three Business Days after the delivery to the Agent of the financial reports and certificate delivered pursuant to
subsections 7.1(a) and (b) and subsection 7.2(b), respectively, for the fiscal quarter ending December 31, 1999, and three days after delivery to the Agent of such financial reports and
certificate for each fiscal quarter thereafter. If the Company fails to deliver such financial reports and certificate to the Agent for any such fiscal quarter by the date required hereunder, then the
Commitment Fee Percentage beginning three Business Days
after such date shall, until three Business Days after delivery of such financial reports and certificate, be the next highest Commitment Fee Percentage as set forth in the chart above immediately
below the previously effective Commitment Fee Percentage; thus, if the Commitment Fee Percentage had previously been 0.350%, a failure to deliver quarterly financials on a timely basis would cause the
Commitment Fee Percentage to be 0.450% until three Business Days after such delivery.
"Company" has the meaning specified in the introductory clause hereto.
"Company's Knowledge" shall mean the actual knowledge of any Person holding an office of divisional manager of the Company or any
Person holding an office senior to a divisional manager including, without limitation, any senior executive or officer of the Company.
"Company Partnership Agreement" means the Amended and Restated Agreement of Limited Partnership of the Company dated as of
December 22, 1994, between the Managing General Partner and the Master Partnership.
7
"Compliance Certificate" means a certificate substantially in the form of Exhibit C.
"Contingent Obligation" means, as to any Person, any direct or indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease, dividend, letter of credit or other obligation (the "primary obligations") of another Person (the "primary obligor"), including
any obligation of that Person (i) to purchase, repurchase or otherwise acquire such primary obligations or any security therefor, (ii) to advance or provide funds for the payment or
discharge of any such primary obligation, or to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of
income or financial condition of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation, or (iv) otherwise to assure or hold harmless the holder of any such primary obligation against loss in respect thereof
(each, a "Guaranty Obligation"); (b) with respect to any Surety Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase any materials, supplies or other property from, or to obtain the services of, another Person if the relevant contract
or other related document or obligation requires that payment for such materials, supplies or other property, or for such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever performed or tendered, or (d) in respect of any Swap Contract. The amount of any Contingent Obligation shall, in
the case of Guaranty Obligations, be deemed equal to the stated or determinable amount of the primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof, and in the case of other Contingent Obligations, shall be equal to the maximum reasonably anticipated liability in
respect thereof.
"Contractual Obligation" means, as to any Person, any provision of any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument, document or agreement to which such Person is a party or by which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under Section 2.4, the Company (a) converts Syndicated Loans of
one Type to another Type, or (b) continues as Syndicated Loans of the same Type, but with a new Interest Period, Syndicated Loans having Interest Periods expiring on such date.
"CPI" means the Consumer Price Index For All Urban Consumers (CPI-U), All Cities, (1982-84 equals 100), as
published by the U.S. Department of Labor, Bureau of Labor Statistics, or any successor publication. If the CPI should hereafter be changed, then the new base shall be converted to the
1982-84 base and the base so converted shall be used.
"Credit Extension" means and includes (a) the making of any Syndicated Loans or Swingline Loans hereunder, including any
conversion or continuation thereof, and (b) the Issuance of any Letters of Credit hereunder.
| |