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Exhibit 4.1
EXECUTION
COPY
SEVENTH WAIVER TO
DEBTOR-IN-POSSESSION CREDIT AND SECURITY
AGREEMENT
SEVENTH WAIVER , dated
as of February 1, 2008 (this “ Waiver” ),
to the Debtor-in-Possession Credit and Security Agreement, dated as
of November 19, 2007, as amended by the First Amendment and
Waiver to the Debtor-in-Possession Credit and Security Agreement
dated as of December 20, 2007 (as heretofore amended or
otherwise modified, the “ Credit Agreement ”),
by and among POPE & TALBOT, INC., a Delaware corporation,
as a debtor and debtor-in-possession under the US Bankruptcy Code
and as a debtor company under the CCAA (the “ Parent
”), POPE & TALBOT LTD., a Canadian corporation, as a
debtor and debtor-in-possession under the US Bankruptcy Code, and
as a debtor company under the CCAA (the “ Borrower
”), the Guarantors set forth on the signature pages thereto,
the several banks and other financial institutions or entities from
time to time parties thereto (the “ Lenders ”),
WELLS FARGO FINANCIAL CORPORATION CANADA, a Nova Scotia unlimited
liability company, as administrative agent (in such capacity,
together with its permitted successors and assigns, the “
Administrative Agent ”), ABLECO FINANCE LLC, as
Collateral Agent (in such capacity, together with its permitted
successors and assigns, the “ Collateral Agent
”), and ABLECO FINANCE LLC, as Term Loan B Agent (in such
capacity, together with its permitted successors and assigns, the
“ Term Loan B Agent ” and together with the
Administrative Agent and the Collateral Agent, each an “
Agent ” and collectively, the “ Agents
”).
WHEREAS, the Borrower, the
Parent, the Agents and the Lenders entered into that certain Sixth
Waiver to the Credit Agreement dated as of January 25, 2008 in
order to waive certain provisions of the Credit Agreement, subject
to the terms and conditions set forth therein; and
WHEREAS, the Agents and the
Lenders are willing to enter into this Waiver in order to waive
certain provisions of the Credit Agreement, subject to the terms
and conditions set forth in this Waiver.
NOW, THEREFORE, the Parent,
the Borrower, the Agents and the Lenders hereby agree as
follows:
1. Capitalized Terms .
Any capitalized term used herein which is defined in the Credit
Agreement shall have the meaning assigned to it in the Credit
Agreement.
2. Limited Waivers
.
(a) In accordance with
Section 10.1 of the Credit Agreement and notwithstanding any
of the provisions otherwise set forth in the Credit Agreement, as
of the Waiver Effective Date, the Majority Facility Lenders in
respect of the Term Loan and the Majority Revolving Credit Facility
Lenders hereby irrevocably and permanently waive any Default or
Event of Default whether now existing or hereafter arising
under:
(i) Section 8 (aa) of
the Credit Agreement resulting from the occurrence of a Material
Adverse Deviation (x) with respect to the disbursement line
items for (A) Payroll Taxes and Benefits on a cumulative basis
for all periods ended on or prior to January 25, 2008,
(B) Chemical payments during the week ended January 25,
2008 and on a cumulative basis for all periods ended on or prior to
January 25, 2008, (C) Tax payments during the week ended
January 25, 2008 and on a cumulative basis for all periods
ended on or prior to January 25, 2008 and (D) Utilities
payments on a cumulative basis for all periods ended on or prior to
January 25, 2008 and (y) with respect to the line item
for Cash receipts during the week ended January 25, 2008;
and
(ii) Section 8(c) of the
Credit Agreement resulting from the failure to consummate the sale
of the wood products business prior to January 31, 2008 in
accordance with Section 6.17(b)(iv) of the Credit
Agreement.
(b) The waiver set forth in
this Section 2 shall (i) become effective after
satisfaction of the conditions set forth in Section 3,
(ii) shall be effective only in this specific instance and for
the specific purposes set forth herein, and (iii) does not
allow for any other or further departure from the terms and
conditions of the Credit Agreement or any other Loan Document,
which terms and conditions shall continue in full force and
effect.
3. Conditions . This
Waiver shall become effective as of February 1, 2008, but only
upon the satisfaction in full, in a manner reasonably satisfactory
to the Agents, of the following conditions precedent (the first
date upon which all such conditions have been satisfied being
herein called the “ Waiver Effective Date
”):
(a) Representations and
Warranties . The representations and warranties contained in
this Waiver and in Section 4 of the Credit Agreement and in
each other Loan Document, certificate or other writing delivered on
or on behalf of any Loan Party to any Agent or any Lender pursuant
to the Credit Agreement or any other Loan Document on or prior to
the Waiver Effective Date shall be true and correct on and as of
the Waiver Effective Date as though made on and as of such date
(except where such representations and warranties relate to an
earlier date in which case such representations and warranties
shall be true and correct as of such earlier date).
(b) No Event of
Default . No Default or Event of Default shall have occurred
and be continuing on the Waiver Effective Date or would result from
this Waiver becoming effective in accordance with its
terms.
(c) Delivery of
Documents . The Collateral Agent shall have received on or
before the Waiver Effective Date the following, each in form and
substance reasonably satisfactory to the Collateral Agent and,
unless indicated otherwise, dated the Waiver Effective
Date:
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(i) counterparts of this
Waiver which bear the signatures of the Parent, the Borrower, the
Agents and the Majority Facility Lenders in respect of the Term
Loan and the Majority Revolving Credit Facility Lenders;
and
(ii) an acknowledgment and
consent, in the form attached as Exhibit A to this Waiver, duly
executed by each Guarantor.
(d) Proceedings . All
legal matters incident to this Waiver shall be reasonably
satisfactory to the Agents and their counsel.
4. Representations and
Warranties . To induce the Agents and Lenders to enter into
this Waiver, each of the Parent and the Borrower hereby represents
and warrants to the Agents and Lenders as follows:
(a) Organization, Good
Standing, Etc. Each Loan Party (i) is duly organized,
validly existing and in good standing under the laws of the state
or jurisdiction of its organization, (ii) has all requisite
power and authority to conduct the business in which it is
currently engaged, and to execute and deliver this Waiver, and to
consummate the transactions contemplated hereby and by the Credit
Agreement, and (iii) is duly qualified to do business and is
in good standing in each jurisdiction in which its ownership, lease
or operation of Property or the conduct of its business requires
such qualification, except where the failure to be so qualified
could not reasonably be expected to have a Material Adverse
Effect.
(b) Authorization,
Etc. The execution, delivery and performance of this Waiver and
each other Loan Document being executed in connection with this
Waiver by each Loan Party that is a party thereto, and the
performance of the Credit Agreement hereby (i) have been duly
authorized by all necessary action, (ii) do not and will not
contravene any Loan Party’s Constituent Documents or any
applicable law or any material contractual restriction binding on
or otherwise affecting it or any of its properties, (iii) do
not and will not result in or require the creation of any Lien
(other than pursuant to any Loan Document) upon or with respect to
any of its properties, and (iv) do not and will not result in
any default, noncompliance, suspension, revocation, impairment,
forfeiture or nonrenewal of any material permit, license,
authorization or approval applicable to its operations or any of
its properties.
(c) Governmental
Approvals . No authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority or
other regulatory body is required in connection with the due
execution, delivery and performance by any Loan Party of this
Waiver or any other Loan Document to which it is a party being
executed in connection with this Waiver, or for the performance of
the Credit Agreement.
(d) Enforceability of Loan
Documents . Each of this Waiver, the Credit Agreement and each
other Loan Document is a legal, valid and binding obligation of
each Loan Party party thereto, enforceable against such Loan Party
in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws of general application relating to
the enforcement of creditor’s rights and by general equitable
principles.
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(e) Representations and
Warranties; No Event of Default . The representations and
warranties herein, in Section 4 of the Credit Agreement and in
each other Loan Document are true and correct on and as of the
Waiver Effective Date as though made on and as of such date (except
where such representations and warranties relate to an earlier date
in which case such representations and warranties shall be true and
correct as of such earlier date), and no Default or Event of
Default has occurred and is continuing as of the Waiver Effective
Date or would result from this Waiver becoming effective in
accordance with its terms.
(f) Existing
Indentures . No consent with respect to the execution, delivery
or performance of this Waiver is required under the Existing
Indentures.
5. Continued Effectiveness
of the Credit Agreement and Loan Documents . Each of the Parent
and the Borrower hereby (i) acknowledges and consents to this
Waiver, (ii) confirms and agrees that each Loan Document to
which it is a party is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects, and
(iii) confirms and agrees that to the extent that any such
Loan Document purports to assign or pledge to the Collateral Agent
for the ratable benefit of the Secured Parties, or to grant to the
Collateral Agent for the ratable benefit of the Secured Parties a
security interest in or Lien on, any Collateral as security for the
Obligations of any Loan Party from time to time existing in respect
of the Credit Agreement and the Loan Documents, such pledge,
assignment and/or grant of the security interest or Lien is hereby
ratified and confirmed in all respects. This Waiver does not and
shall not affect any of the Obligations of any Loan Party, other
than as expressly provided herein.
6. Waiver as Loan
Document . Each of the Parent and the Borrower hereby
acknowledges and agrees that this Waiver constitutes a “Loan
Document” under the Credit Agreement. Accordingly, it shall
be an Event of Default under the Credit Agreement if (i) any
representation or warranty made by the Parent or the Borrower under
or in connection with this Waiver shall have been untrue, false or
misleading in any material respect when made, or (ii) the
Parent or the Borrower shall fail to perform or observe any term,
covenant or agreement contained in this Waiver.
7. Miscellaneous
.
(a) This Waiver may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to
be an original but all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of this
Waiver by telefacsimile or electronic mail shall be equally
effective as delivery of an original executed counterpart of this
Waiver. Any party delivering an executed counterpart of this Waiver
by telefacsimile or electronic mail also shall deliver an original
executed counterpart of this Waiver, but the failure to deliver an
original executed counterpart shall not affect the validity,
enforceability and binding effect of this Waiver.
(b) Section and paragraph
headings herein are included for convenience of reference only and
shall not constitute a part of this Waiver for any other
purpose.
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(c) The Borrower will pay on
demand all reasonable fees, costs and expenses of the Agents in
connection with the preparation, execution and delivery of this
Waiver and all documents incidental hereto, including, without
limitation, the reasonable fees, disbursements and other charges of
counsel to the Collateral Agent and the Administrative
Agent.
(d) THIS WAIVER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
(e) Any provision of this
Waiver that is prohibited or unenforceable in any jurisdiction
shall, as to suc
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