EXHIBIT 10.27
Execution Copy
FIRST AGREEMENT REGARDING AMENDMENTS TO LOAN DOCUMENTS
This FIRST AGREEMENT REGARDING AMENDMENTS TO LOAN DOCUMENTS (this
"Amendment Agreement") is entered into as of the 28th day of March, 2003, by
and among Standard Gypsum L.P., a Delaware limited partnership, formerly known
as Standard Gypsum L.L.C., a Texas limited liability company (the "Borrower"),
Temple-Inland, Inc., a Delaware corporation ("Temple-Inland"), Temple-Inland
Forest Products Corporation, a Delaware corporation ("Temple FPC"), Caraustar
Industries, Inc., a North Carolina corporation ("Caraustar"), and Toronto
Dominion (Texas), Inc., as Administrative Agent for the Lenders and the Issuing
Bank (the "Administrative Agent").
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to that certain First Amended and Restated Loan Agreement dated as of
May 1, 1999, as amended and restated by that certain Second Amended and
Restated Loan Agreement dated as of August 1, 1999 (as heretofore amended and
restated, the "Loan Agreement"); and
WHEREAS, an affiliate of the Administrative Agent (the "Issuing Bank")
has issued for the account of the Borrower a letter of credit in the aggregate
original face amount of $46,643,014 (the "First Letter of Credit") pursuant to
that certain Reimbursement Agreement dated as of May 1, 1999, between the
Borrower and the Issuing Bank, as amended by that certain Amendment and
Confirmation dated as of December 29, 2000, and that certain Second Amendment
to Reimbursement Agreement dated as of April 12, 2001, each by and between the
Borrower and the Administrative Agent (as amended, the "First Reimbursement
Agreement"); and
WHEREAS, the Issuing Bank has also issued for the account of the
Borrower an additional letter of credit in the aggregate original face amount
of $10,095,891 (the "Second Letter of Credit" and, collectively with the First
Letter of Credit, the "Letter of Credit") pursuant to that certain
Reimbursement Agreement dated as of August 1, 1999, between the Borrower and
the Issuing Bank, as amended by that certain Amendment and Confirmation dated
as of December 29, 2000, and that certain Second Amendment to Reimbursement
Agreement dated as of April 12, 2001, each by and between the Borrower and the
Administrative Agent (as amended, the "Second Reimbursement Agreement" and,
collectively with the First Reimbursement Agreement, the "Reimbursement
Agreement"); and
WHEREAS, Toronto Dominion (Texas), Inc., is acting as Administrative
Agent for itself and the other Lenders and for the benefit of the Issuing Bank
in connection with
the transactions contemplated in the Loan Agreement and the Reimbursement
Agreement; and
WHEREAS, obligations of the Borrower under the Loan Agreement, the
Reimbursement Agreement and the other Loan Documents are guaranteed by that
certain First Amended and Restated Parent Guaranty dated as of May 1, 1999, by
Temple FPC in favor of the Administrative Agent, as amended and restated by
that certain Second Amended and Restated Parent Guaranty dated as of August 1,
1999 (as amended and restated, the "Temple FPC Guaranty"); and
WHEREAS, obligations of Temple FPC under the Temple FPC Guaranty are
guaranteed by that certain First Amended and Restated Parent Guaranty dated as
of May 1, 1999, by Temple-Inland in favor of the Administrative Agent, as
amended and restated by that certain Second Amended and Restated Parent
Guaranty dated as of August 1, 1999, and as amended by that certain First
Amendment to Parent Guaranty, dated as of April 12, 2001, between the
Administrative Agent and Temple-Inland (as amended and restated, the
"Temple-Inland Guaranty"); and
WHEREAS, obligations of the Borrower under the Loan Agreement, the
Reimbursement Agreement and the other Loan Documents are guaranteed by that
certain First Amended and Restated Parent Guaranty dated as of May 1, 1999, by
Caraustar in favor of Administrative Agent, as amended and restated by that
certain Second Amended and Restated Parent Guaranty dated as of August 1, 1999,
and as amended by that certain Amendment to Parent Guaranty dated as of
September 29, 2000, that certain Second Amendment to Parent Guaranty and Waiver
dated as of March 13, 2001, that certain Third Amendment to Parent Guaranty
dated as of April 12, 2001, that certain Fourth Amendment to Parent Guaranty
dated as of January 18, 2002 and effective as of September 30, 2001, that
certain Revised Fifth Amendment to Parent Guaranty dated as of September 23,
2002, and that certain Sixth Amendment to Parent Guaranty dated as of December
30, 2002, each by and between Caraustar and the Administrative Agent (as
amended and restated, the "Caraustar Guaranty, and collectively with the Temple
FPC Guaranty and the Temple-Inland Guaranty, the "Parent Guaranties"); and
WHEREAS, the obligations of Caraustar under the Caraustar Guaranty are
secured by certain of Caraustar's assets pursuant to that certain Security
Agreement dated as of September 23, 2002, among Caraustar, certain subsidiaries
of Caraustar and Bank of America, N.A., as collateral agent for the Secured
Parties (as defined therein) (the "Caraustar Security Agreement"); and
WHEREAS, the Temple FPC Guaranty and the Temple-Inland Guaranty are
intended to remain in place; and
WHEREAS, pursuant to Section 2.9 of the Reimbursement Agreement, the
Borrower has requested the Issuing Bank to renew the Letter of Credit; and
WHEREAS, to induce the Issuing Bank to renew the Letter of Credit,
Caraustar has agreed to replace the Caraustar Guaranty with an irrevocable,
standby letter of credit in an amount equal to fifty percent (50%) of the
Obligations (the "Caraustar Letter of Credit") which will be issued no later
than the date hereof; and
WHEREAS, in connection with the issuance of the Caraustar Letter of
Credit, the Borrower, the Administrative Agent, the Lenders, the Issuing Bank,
Temple FPC, Caraustar and Temple-Inland have agreed to (a) certain amendments
to the Loan Agreement and the Reimbursement Agreement, (b) the cancellation of
the Caraustar Guaranty and (c) the termination of the Administrative Agent's
security interest and other rights and remedies under the Caraustar Security
Agreement; and
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree that all capitalized terms not otherwise
defined herein shall have the meanings ascribed to such terms in the Loan
Agreement and further agree as follows:
1. Amendment to Article 1 of the Loan Agreement.
Article 1 of the Loan Agreement is hereby amended and modified by amending and
restating the defined term "Parent Guaranties" in its entirety as follows:
""Parent Guaranties" shall mean, collectively, the guaranty
by Temple FPC guaranteeing fifty percent (50%) of the Obligations, the
guaranty by Temple-Inland supporting the Parent Guaranty of Temple
FPC, and the Caraustar Letter of Credit, each such item to be in
substantially the form attached hereto as Exhibits X-0, X-0 and D-3,
respectively."
2. Amendment to Article 1 of the Loan Agreement.
Article 1 of the Loan Agreement is hereby amended and modified by adding the
defined terms "Amendment Agreement", "Amendment Agreement Effective Date" and
"Caraustar Letter of Credit" in the appropriate alphabetical location:
""Amendment Agreement" shall mean that certain First
Agreement Regarding Amendments to Loan Documents, dated as of March
28, 2003, by and among the Borrower, Temple-Inland, Temple FPC,
Caraustar and the Administrative Agent."
""Amendment Agreement Effective Date" shall mean the first
date upon which the conditions to effectiveness in the Amendment
Agreement have been fulfilled to the satisfaction of the
Administrative Agent in its sole discretion."
""Caraustar Letter of Credit" shall mean the irrevocable,
standby
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letter of credit issued as of the Amendment Agreement Effective Date
on behalf of Caraustar by Bank of America, N.A. for the benefit of the
Administrative Agent to secure fifty percent (50%) of the Obligations,
such letter of credit to be in the form attached hereto as Exhibit
D-3, together with any successor or replacement letter of credit
issued by a commercial bank, insurance company or other financial
institution acceptable to the Administrative Agent, in its sole
discretion."
3. Amendment to Exhibits to the Loan Agreement. The
Exhibits of the Loan Agreement are hereby amended and modified by deleting the
existing Exhibit D-3 in its entirety and substituting therefor Exhibit D-3
attached hereto.
4. Amendment to Recitals of the First Reimbursement
Agreement. The Recitals of the First Reimbursement Agreement are hereby amended
and modified by amending and restating Recital A in its entirety as follows:
"A. In accordance with the provisions of that certain First
Amended and Restated Loan Agreement dated as of May 1, 1999, as
amended and restated by that certain Second Amended and Restated Loan
Agreement dated as of August 1, 1999, each by and between Account
Party and Toronto Dominion (Texas), Inc., a Subsidiary of the Bank
(the "Administrative Agent"), and as amended by that certain First
Agreement Regarding Amendments to Loan Documents dated as of March 28,
2003, by and among Account Party, Temple-Inland Forest Products
Corporation, Temple-Inland, Inc., Caraustar Industries, Inc. and the
Administrative Agent (as amended and restated and as otherwise
amended, modified, supplemented, restated or extended from time to
time, the "Loan Agreement"), Account Party has requested a letter of
credit with a maximum Stated Amount (as defined below) be issued on
its behalf for the benefit of The First National Bank of Chicago, as
Indenture Trustee ("Beneficiary") under that certain Indenture of
Trust dated as of May 1, 1999 (the "Indenture"), between Beneficiary
and The Industrial Development Board of Xxxxxxx County (the
"Issuer")."
5. Amendment to Section 7.1(c) of the First
Reimbursement Agreement. Section 7.1(c) of the First Reimbursement Agreement is
hereby amended and modified by amending and such Section in its entirety as
follows:
"(c) "Event of Default under the Loan Agreement or Loan
Documents. The occurrence of any Event of Default under the Loan
Agreement or any Loan Document, as such terms are defined in the Loan
Agreement."
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6. Recitals of the Second Reimbursement Agreement. The
Recitals of the Second Reimbursement Agreement are hereby amended and modified
by amending and restating Recital A in its entirety as follows:
"A. In accordance with the provisions of that certain First
Amended and Restated Loan Agreement dated as of May 1, 1999, as
amended and restated by that certain Second Amended and Restated Loan
Agreement dated as of August 1, 1999, each by and between Account
Party and Toronto Dominion (Texas), Inc., a Subsidiary of the Bank
(the "Administrative Agent"), and as amended by that certain First
Agreement Regarding Amendments to Loan Documents dated as of March 28,
2003, by and among Account Party, Temple-Inland Forest Products
Corporation, Temple-Inland, Inc., Caraustar Industries, Inc. and the
Administrative Agent (as amended and restated and as otherwise
amended, modified, supplemented, restated or extended from time to
time, the "Loan Agreement"), Account Party has requested a letter of
credit with a maximum Stated Amount (as defined below) be issued on
its behalf for the benefit of The First National Bank of Chicago, as
Indenture Trustee ("Beneficiary") under that certain Indenture of
Trust dated as of August 1, 1999 (the "Indenture"), between
Beneficiary and The Industrial Development Board of Xxxxxxx County
(the "Issuer")."
7. Amendment to Section 7.1(c) of the Second
Reimbursement Agreement. Section 7.1(c) of the Second Reimbursement Agreement
is hereby amended and modified by amending and such Section in its entirety as
follows:
"(c) "Event of Default under the Loan Agreement or Loan
Documents. The occurrence of any Event of Default under the Loan
Agreement or any Loan Document, as such terms are defined in the Loan
Agreement."
8. Additional Covenants.
(a) The Caraustar Letter of Credit shall remain in full
force and effect at all times after the Amendment Agreement Effective Date
until the first to occur of (i) ten (10) days following the date on which the
Letter of Credit is surrendered or cancelled, (ii) January 15, 2004, or (iii)
the date on which the entire amount of the Caraustar Letter of Credit has been
drawn.
(b) The Borrower shall continue to pay to the
Administrative Agent letter of credit fees in amount equal to (i) the letter of
credit fee as determined pursuant to the grid set forth in Section 2.3 of the
Reimbursement Agreement, with respect to the fifty percent (50%) of the
Obligations guaranteed under the Temple FPC Guaranty and the Temple-Inland
Guaranty, and (ii) seventy-five (75) basis points on the face amount of the
Caraustar Letter of Credit, with respect to the fifty percent (50%) of the
Obligations
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guaranteed under the Caraustar Guaranty. Such letter of credit fees shall be
due and payable quarterly in arrears on the last day of each fiscal quarter
during which the Letter of Credit was outstanding. Such letter of credit fees
shall be fully earned when due and non-refundable when paid. The fee described
in clause (i) shall be subject to adjustment (upwards or downwards), as
appropriate, effective as of the date on which Standard & Poor's Rating
Service, a division of The McGraw Hill Companies, Inc., a New York corporation,
and its successors, or Xxxxx'x Investors Service, Inc., a Delaware corporation,
and its successors, announces a rating change that results in a change in such
fee.
(c) On October 28, 2003, in the event the Letter of
Credit has not been surrendered or cancelled or fully drawn on or before such
date, the Borrower shall pay to the Administrative Agent a one-time fee of
2.00% of the available undrawn amount of the Caraustar Letter of Credit at such
date. Such fee shall be fully earned when due and nonrefundable when paid.
9. References. All references to the Loan Agreement,
the First Reimbursement Agreement and the Second Reimbursement Agreement
therein and in any other Loan Document shall be a reference to such Loan
Documents as amended and modified by this Amendment Agreement.
10. No Other Amendments. The execution, delivery and
effectiveness of this Amendment Agreement shall not operate as a waiver of any
right, power or remedy of the Administrative Agent under the Loan Agreement,
the First Reimbursement Agreement, the Second Reimbursement Agreement or any of
the other Loan Documents, nor constitute a waiver of any provision of the Loan
Agreement, the First Reimbursement Agreement, the Second Reimbursement
Agreement or any of the other Loan Documents. Except for the amendments
expressly set forth and referred to above, each of the Loan Agreement, the
First Reimbursement Agreement and the Second Reimbursement Agreement shall
remain unchanged and in full force and effect and is hereby in all respects
ratified and confirmed.
11. Representations and Warranties. The Borrower hereby
represents and warrants to the Administrative Agent
as follows:
(a) The Borrower has the corporate power and
authority (i) to enter into this Amendment Agreement and (ii) to do all acts
and things as are required or contemplated hereunder to be done, observed and
performed by it;
(b) This Amendment Agreement has been duly
authorized, validly executed and delivered by one or more authorized
signatories, and each of this Amendment Agreement and the Loan Agreement, the
First Reimbursement Agreement and the Second Reimbursement Agreement, as
amended by this Amendment Agreement, constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms; and
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(c) The execution and delivery of this
Amendment Agreement and performance by the Borrower of its Obligations under
the Loan Agreement, the First Reimbursement Agreement and the Second
Reimbursement Agreement, as amended this Amendment Agreement, do not and will
not require the consent or approval of any regulatory authority or governmental
authority or agency having jurisdiction over the Borrower which has not already
been obtained and are not and will not be in contravention of or in conflict
with the articles of incorporation or by-laws of the Borrower or the provisions
of any applicable law or any material indenture, agreement or other instrument
to which the Borrower is a party or by which its assets or properties are bound
or affected.
12. Reimbursement of Costs and Expenses. The Borrower
hereby agrees to reimburse the Administrative Agent on demand for all costs
(including reasonable attorneys' fees and expenses) incurred by the
Administrative Agent in negotiating, documenting and consummating this
Amendment Agreement, the Caraustar Letter of Credit, any other documents
referred to herein, and the transactions contemplated hereby and thereby.
13. Reaffirmation. The Borrower hereby repeats and
reaffirms all representations and warranties made by the Borrower in the Loan
Agreement and the other Loan Documents to which it is a party as of the date
hereof with the same force and effect as if such representations and warranties
were set forth in this Amendment Agreement in full except to the extent such
representations expressly relate to an earlier date or have been updated to the
extent permitted by the Loan Agreement.
14. Reaffirmation, Consent and Representations by Temple
FPC and Temple-Inland. Each of Temple FPC and Temple-Inland hereby:
(a) reaffirms its continuing obligations to the
Administrative Agent, the Issuing Bank and the Lenders under the Parent
Guaranty to which it is a party, and agrees that the transactions contemplated
by this Amendment Agreement shall not in any way affect the validity and
enforceability of such Parent Guaranty, or reduce, impair or discharge the
obligations of such Person thereunder;
(b) consents to this Amendment Agreement; and
(c) acknowledges and agrees to the terms of
this Amendment Agreement.
15. Consent and Representations by Caraustar. Caraustar
hereby:
(a) consents to this Amendment Agreement;
(b) acknowledges and agrees to the terms of
this Amendment Agreement; and
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(c) represents to the Administrative Agent
that:
(i) it has the corporate power and
authority (A) to enter into this Amendment Agreement and (B) to do all acts and
things as are required or contemplated hereunder to be done, observed and
performed by it;
(ii) this Amendment Agreement has been
duly authorized, validly executed and delivered by one or more authorized
signatories, and this Amendment Agreement constitutes the legal, valid and
binding obligation of Caraustar, enforceable against Caraustar in accordance
with its terms; and
(iii) the execution and delivery of this
Amendment Agreement, and the performance by Caraustar of this Amendment
Agreement, do not and will not require the consent or approval of any
regulatory authority or governmental authority or agency having jurisdiction
over Caraustar which has not already been obtained and are not and will not be
in contravention of or in conflict with the articles of incorporation or
by-laws of Caraustar or the provisions of any applicable law or any material
indenture, agreement or other instrument to which Caraustar is a party or by
that its assets or properties are bound or affected.
16. Conditions Precedent to Effectiveness. This
Amendment Agreement shall be effective as of the date first written above upon
the occurrence of each of the following terms and conditions:
(a) The Administrative Agent shall have
received duly executed counterparts of this Amendment Agreement signed by each
party hereto;
(b) The receipt by the Administrative Agent of
the Caraustar Letter of Credit;
(c) The continued truth and accuracy of the
representations and warranties contained in the Loan Documents; and
(d) The receipt by the Administrative Agent of
an amendment fee payable by Standard Gypsum in the amount of $35,461.82, which
amendment fee shall be fully earned upon the execution of the Amendment
Agreement and non-refundable when paid.
17. Terminations. Upon the effectiveness of this
Amendment Agreement, (a) the Caraustar Guaranty shall be terminated, except for
those provisions that, by their terms, survive the termination thereof, and (b)
the Administrative Agent shall have no further security interest in, lien upon,
or remedies with respect to the assets of Caraustar pledged by Caraustar
pursuant to the Caraustar Security Agreement.
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18. Counterparts. This Amendment Agreement may be
executed in multiple counterparts, each of which shall be deemed to be an
original and all of which, taken together, shall constitute one and the same
agreement. In proving this Amendment Agreement in any judicial proceeding, it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom such enforcement is sought. Any signatures
delivered by a party by facsimile transmission shall be deemed to be an
original signature hereto.
19. Governing Law. This Amendment Agreement shall be
deemed to be made pursuant to the internal laws of the State of New York with
respect to agreements made and to be performed wholly in the State of New York,
and shall be construed, interpreted, performed and enforced in accordance
therewith.
20. Loan Document. This Amendment Agreement shall be
deemed to be a Loan Document for all purposes.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties thereto have executed this Amendment
Agreement or caused it to be executed under seal by their duly authorized
officers effective as of the day and year first written above.
BORROWER: STANDARD GYPSUM L.P.
By: /s/ Xxxxx X. Xxxxxx
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Title: Assistant Treasurer
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ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., on behalf
of the Lenders and the Issuing Bank
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Title: XXXXX XXXXXX
VICE PRESIDENT
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PARENT GUARANTORS: CARAUSTAR INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Its: V.P. and CFO
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TEMPLE-INLAND FOREST PRODUCTS CORPORATION
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Its: V.P. and Assistant Treasurer
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TEMPLE-INLAND, INC.
By: /s/ Xxxxx X. Xxxxxx
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Its: Treasurer
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[SIGNATURE PAGE TO FOLLOW]
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Acknowledged and agreed: BANK OF AMERICA, N.A., as collateral agent
for the Secured Parties under the Caraustar
Security Agreement
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Its: Vice President
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