EXHIBIT 10.1
PURCHASE PRICE NOTE
(90 DAY)
$55,000,000 Seattle, Washington
October ____, 1997
For value received, CROWN PACIFIC LIMITED PARTNERSHIP, a Delaware limited
partnership ("Maker"), unconditionally promises to pay to the order of
TRILLIUM CORPORATION, a Washington corporation ("Holder"), the principal sum
of Fifty-five Million Dollars ($55,000,000), and to pay interest on the
outstanding principal amount hereof from the date hereof until repaid at the
rates set forth hereinafter. Principal and interest are payable to Holder by
wire transfer to Holder's account No. 67652-008 at Seafirst Bank (ABA No.
000000000), or to such other account or at such other place as Holder may
direct, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts. Principal and interest shall be payable as hereinafter provided.
1. DEFINITIONS
For all purposes of this Note, "Crown Credit Agreement" means the Amended
and Restated Credit Agreement dated as of July 31, 1996, among the Maker,
various Banks and Co-Agents, and Bank of America National Trust and Savings
Association as Agent, as the same may be further amended, supplemented, or
modified from time to time. Unless otherwise defined herein or the context
otherwise requires, all capitalized terms used but not otherwise defined
herein, are used herein as defined in the Crown Credit Agreement; it being
understood that all defined terms incorporated from the Crown Credit
Agreement into this Note shall, to the extent such incorporated terms contain
terms specifically defined in this Note, be deemed to use such specifically
defined terms as defined herein.
For purposes of the provisions of this Note which incorporate provisions
of the Crown Credit Agreement, it is understood that (i) all capitalized
terms used in such provisions shall be incorporated into this Note, (ii) each
reference in such incorporated provisions to other sections of the Crown
Credit Agreement shall be deemed to incorporate such other sections into this
Note, (iii) any amendment, waiver, termination or other modification of the
Crown Credit Agreement which arises after
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the date hereof shall be disregarded for purposes of this Note unless
otherwise expressly consented to in writing by Xxxxxx.
2. INTEREST RATES
(a) Principal shall bear interest from the date hereof for the initial
one month Interest Period (the period commencing on the date hereof and
ending on the date one month thereafter) at the Offshore Rate (determined two
Business Days prior to the date hereof) plus the Applicable Margin (for
Offshore Rate Loans) for a one month Interest Period (as defined in the Crown
Credit Agreement) and subject to adjustment as set forth in Sections 2(b) and
(c) below. On the last day of the initial one month Interest Period and on
the last day of each one month Interest Period thereafter, the interest rate
shall automatically adjust to the Offshore Rate for a one-month Interest
Period (determined two Business Days prior to each such date) plus the
Applicable Margin (for Offshore Rate Loans). For purposes hereof, the
Applicable Margin shall be adjusted retroactively as set forth in Section 1.1
of the Crown Credit Agreement under the definition of "Applicable Margin."
(b) If the financial reports of Maker delivered pursuant to subsections
6.1(a) and (b) and the certificate delivered pursuant to subsection 6.2(b) of
the Crown Credit Agreement when delivered with respect to any fiscal quarter
indicate that the Applicable Margin for any such period should have been
higher than the Applicable Margin for such period pursuant to the definitions
of such terms, and the interest that would have been collected hereunder
based upon the actual Applicable Margin exceeds the interest actually
collected hereunder, then the Maker shall pay to Holder on or before the
third Business Day after delivery of such financial reports and certificate
an amount equal to such excess.
(c) If (1) the financial reports of Maker delivered pursuant to
subsections 6.1(a) and (b) and the certificate delivered pursuant to
subsection 6.2(b) of the Crown Credit Agreement when delivered with respect
to any fiscal quarter indicate that the Applicable Margin for any such period
should have been lower than the Applicable Margin assumed for such period
pursuant to the definitions of such terms, and (2) the interest actually
collected hereunder exceeds the interest that would have been collected
hereunder based upon the actual Applicable Margin, then the Holder shall
credit such excess to interest owing hereunder during the calendar quarter
when such financial reports and certificate were delivered and, if all such
excess is not credited by the end of such calendar quarter, upon request of
Maker, Holder, if no Default or Event of Default exists, shall refund to
Maker the amount of such excess.
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3. PAYMENT
Maker shall pay all outstanding principal plus all accrued unpaid
interest on the date that is 90 calendar days from the date of this Note;
provided, however, that on not less than 30 days prior written notice to
Holder, Maker may extend the maturity date to the date that is 120 calendar
days from the date of this Note. In addition, Maker will pay monthly
payments of accrued unpaid interest on the outstanding principal on the last
day of each one month Interest Period. Interest on this Note is computed on
a 360-day year. Unless otherwise agreed or required by applicable law,
payments will be applied first to accrued unpaid interest, then to principal,
and any remaining amount to any unpaid collection costs and late charges.
4. PREPAYMENT
Maker may not prepay the whole or any part of any principal or accrued
interest without the prior written consent of Xxxxxx. Prepayments will not,
unless agreed by Xxxxxx in writing, relieve Maker of Maker's obligation to
continue to make payments of accrued unpaid interest.
5. DEFAULT RATE
Following the maturity date or acceleration of this Note by reason of
Maker's default, interest will be payable at a default rate equal to the Base
Rate (as defined in the Crown Credit Agreement) plus 2.75 percent per annum,
changing as the Base Rate changes.
6. TAXES, YIELD PROTECTION AND ILLEGALITY
Maker agrees with Holder that Maker will perform the obligations and
Holder is entitled to the benefits and protections of Article III of the
Crown Credit Agreement with the same effect as if those provisions were set
forth herein in full; provided, however, that (i) the references in such
Article to "Agent", "Banks", and "Required Banks" are deemed to be references
to Holder or the holder of this Note, (ii) the references in such Articles to
"Loan" and "Loans" are deemed to be references to the loan evidenced by this
Note, (iii) the references in such Articles to "Note" and "Notes" are deemed
to be references to this Note, (iv) the references in such Articles to the
"Company" are deemed to be references to "Maker", (v) the references in such
Articles to "Closing Date" are deemed to be references to the date of this
Note, and (vi) notwithstanding the foregoing, Maker shall not be obligated to
reimbuse Holder for any Washington Business and Occupation tax payable by
Xxxxxx on any amounts received by Holder hereunder. Maker's obligations
under this Section 6 shall continue
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notwithstanding payment in full of all obligations under the Crown Credit
Agreement and termination of the Crown Credit Agreement.
7. OUT-OF-POCKET COSTS REIMBURSEMENT
Maker will pay on demand all reasonable costs incurred by Holder in
enforcing the obligations evidenced by this Note, including reasonable
attorneys' fees, whether or not a civil action or similar proceeding
(including claims and adversary proceedings in the bankruptcy court) is
commenced or pursued to judgment or an appeal thereof is filed or pursued to
completion. Interest will accrue on the unpaid balance of such costs at the
default rate from the 10th day following the demand until such costs are paid.
8. MAKER'S WAIVERS
Maker waives notice of acceptance, notice, presentment, demand, protest,
dishonor, and notice of dishonor.
9. HOLDER'S PREROGATIVES
Holder may (a) extend the maturity date or renew this Note one or more
times on such terms as Holder may specify and to which Maker agrees and (b)
forbear from exercising its remedies hereunder without affecting the
liability of Maker or any other cosigner or guarantor. Holder's forbearance
or other failure to exercise any right or remedy upon Maker's default shall
not constitute a waiver or grounds for the claim of estoppel with respect to
the default or the term involved while such default continues or in
connection with any future default.
10. MAKER'S REPRESENTATIONS AND WARRANTIES
In order to induce Holder to make the loan evidenced by this Note, Maker
represents and warrants to Holder that the following statements are true,
correct, and complete:
(a) Maker has all corporate power and authority to enter into this Note
and carry out the transactions contemplated hereby;
(b) The representations and warranties contained in Article V of the
Crown Credit Agreement are and will be true, correct, and complete in all
material respects on and as of the date of this Note to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which they were
true, correct, and complete in all material respects on and as of such
earlier date; and
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(c) No Default or Event of Default under the Crown Credit Agreement has
occurred and is continuing on the date hereof.
11. MAKER'S COVENANTS
Maker agrees with Holder that, until this Note has been paid in full in
cash, Maker will perform the obligations set forth in Sections 6.1, 6.2, 6.3,
6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.12 and 7.1 through 7.16, inclusive, of
the Crown Credit Agreement with the same effect as if such obligations were
set forth herein in full; provided, however, that (i) the references in such
sections to "Agent", "Banks", and "Required Banks" are deemed to be
references to Holder or the holder of this Note, (ii) the references in such
sections to "Loan" and "Loans" are deemed to be references to the loan
evidenced by this Note, (iii) the references in such sections to "Note" and
"Notes" are deemed to be references to this Note, (iv) the references in such
sections to the "Company" are deemed to be references to "Maker", (v) the
references in such sections to "Closing Date" are deemed to be references to
the date of this Note. Maker's obligations under this Section 11 shall
continue notwithstanding payment in full of all obligations under the Crown
Credit Agreement and termination of the Crown Credit Agreement.
12. EVENTS OF DEFAULT
The occurrence of any of the following events shall constitute an "Event
of Default":
(a) Failure of Maker to pay (i) any principal under this Note when due,
or (ii) any interest or other amount due under this Note, within five days
after the date due; or
(b) Failure of Maker to pay, or the default in the payment of, any
amount due under or in respect of any note, instrument, credit agreement,
indenture or other agreement or instrument relating to any indebtedness owing
to Holder or any other party by Maker in excess of $5,000,000 (including
undrawn committed or available amounts and including amounts owing to all
creditors under any combined or syndicated facility), to which Maker is a
party or by which Maker or any of its property or assets is bound beyond any
grace or cure period provided by the terms of such agreement or instrument;
or the occurrence of any other event or circumstance which, with notice or
lapse of time or both, would permit acceleration of such indebtedness; or
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(c) Any representation or warranty made or deemed made by Maker to
Holder hereunder is incorrect in any material respect on or as the date made
or deemed made; or
(d) An "Event of Default" shall exist as defined in the Crown Credit
Agreement determined on the basis of the covenants and other provisions of
the Crown Credit Agreement in effect on the date of this Note; or an "Event
of Default" shall exist thereunder on the basis of covenants or other
provisions thereof which have been amended or otherwise modified since the
date of this Note and the Lenders under the Crown Credit Agreement have not
waived such Event of Default or elected to forbear their remedies therefor; or
(e) Failure of Maker to perform or observe any term, covenant, or
agreement on its part to be performed or observed pursuant to Section 6.3 or
6.9 or in Article VII of the Crown Credit Agreement as incorporated herein by
Section 11 of this Note; or
(f) Failure of Maker to perform or observe any other term, covenant or
agreement on its part to be performed or observed pursuant to this Note and
such failure shall continue unremedied for a period of 20 days after the
earlier of (i) the date upon which a Responsible Officer knew or reasonably
should have known of such failure or (ii) the date upon which written notice
thereof is given to Maker by Holder; or
(g) A court having proper jurisdiction shall enter a decree or order for
relief in respect of Maker or in an involuntary case under Title 11 of the
United States Code entitled "Bankruptcy" (as now and hereinafter in effect,
or any successor thereto, the "Bankruptcy Code") or any applicable
bankruptcy, insolvency, or other similar law now or hereafter in effect,
which decree or order is not stayed; or any other similar relief shall be
granted under any applicable federal or state law; or
(h) An involuntary case shall be commenced against Maker under any
applicable bankruptcy, insolvency, or other similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian, or other officer having similar powers over Maker or all or a
substantial part of its property shall have been entered; or the involuntary
appointment of an interim receiver, trustee, or other custodian of Maker for
all or a substantial part of its property shall have occurred; or a warrant
of attachment, execution, or similar process shall have been issued against
any substantial part of the property of Maker and any such proceeding,
decree, order, petition, or appointment shall not be dismissed, or such
warrant of attachment,
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execution, or similar process shall be released, vacated or fully bonded
within 60 days after commencement, filing or levy; or
(i) An order for relief shall be entered with respect to Maker, or Maker
shall commence a voluntary case under the Bankruptcy Code or any applicable
bankruptcy, insolvency, or other similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case, or
to the conversion of an involuntary case to a voluntary case, under any such
law, or shall consent to the appointment of or taking possession by a
receiver, trustee, or other custodian for all or a substantial part of its
property; or Maker shall make an assignment for the benefit of creditors; or
Maker shall be unable or fail, or shall admit in writing its inability, to
pay its debts as such debts become due; or any partner of Maker shall
authorize action to approve any of the foregoing; or
(j) Maker shall challenge, or institute any proceedings to challenge,
the validity, binding effect, or enforceability of this Note or any
endorsement or assignment of this Note.
13. REMEDIES
After the occurrence and during the continuation of an Event of Default,
Holder may, but shall not be obligated to, immediately demand payment of this
Note and may immediately proceed to exercise all rights and remedies that
Holder may have against Maker; provided, that upon the occurrence of any
event specified in subsection (g) or (i) of Section 12 or upon expiration of
the 60-day period specified in subsection (h) of Section 12, this Note and
all amounts owing hereunder shall automatically become due and payable
without further act of Holder. All rights and remedies of Holder are
cumulative and not exclusive and the commencement or partial exercise of any
such right or remedy shall not preclude Holder from the exercise of any other
right or remedy until the debts evidenced by this Note are paid in full.
Xxxxxx's rights specifically include the right of setoff against any
obligations owed by Holder to Maker against Maker's obligations to Holder as
evidenced by this Note.
14. PARTICIPATIONS; NO MAKER ASSIGNMENT; SUCCESSORS AND ASSIGNS
Holder shall have the unconditional right to assign, pledge, and sell
participation interests in this Note. Maker shall not have the right to
assign its rights or obligations under this Note and any attempted assignment
also shall be a default by Maker under this Note. Subject to the foregoing
restrictions on Maker assignment, this Note shall bind and inure to the
benefit of the respective successors and assigns of Maker and Xxxxxx.
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15. INTEGRATION; SUPPLEMENTING DOCUMENTS
This Note is the final and complete expression of the agreement of the
parties and are intended to supersede any prior or contemporaneous oral or
written understandings and agreements relating to this Note.
16. CHOICE OF LAW
Maker and Xxxxxx have selected Washington law, except for any of its
choice of law provisions that would make the law of another jurisdiction
applicable to this Note, to govern the construction and enforcement of this
Note.
17. JURISDICTIONAL CONSENT
Maker hereby submits to the jurisdiction of any state or federal court
sitting in Seattle, Washington, in any action or proceeding relating to this
Note and hereby waives any claim that such a forum is inconvenient or that
there is a more convenient forum.
18. SAVINGS CLAUSE
If any term of this Note is hereafter determined to be illegal or
unenforceable, that term will be deemed deleted without invalidating the
remaining terms and, to the fullest extent permitted by law, Maker hereby
waives any provision of law which renders any term illegal or unenforceable.
In the event that (a) the amount of interest and fees payable by Maker under
this Note is later determined to be usurious and (b) Maker is not prohibited
from pleading the defense of usury or maintaining any action thereon or
therefor, any such interest in excess of the maximum allowable rate
automatically shall be deemed to have been applied to principal.
19. POSSIBLE CONVERSION OF NOTE
Holder shall have the right at Holder's option, exercisable in writing
prior to December 31, 1997, to request that the outstanding principal this
Note, or any portion thereof, be converted into one or more notes in amounts
totaling the principal amount of this Note that the Holder has elected to
convert (the "Converted Notes") with a term not exceeding the term of a
private placement note issued by Holder and an interest rate not exceeding
125 percent of the interest rate on the private placement note issued by
Xxxxxx. If Holder so elects by notifying Maker in writing by December 31,
1997, then Maker and Xxxxxx shall work together in good faith using
commercial best efforts to agree on the final form of the Converted Notes
and, if they are able to reach such agreement, shall thereafter proceed to
execute and substitute such notes for this Note on or before the maturity
date of this Note. Maker
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acknowledges and agrees that Xxxxxx has no obligation and has not made, and
does not hereby make, any commitment orally or in writing to convert this
Note as set forth above and that nothing contained herein shall be construed
to give to Maker any right to extend the maturity date of this Note, except
as expressly provided in Section 3 herein.
20. STATUTORY DISCLAIMER
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, TO EXTEND CREDIT, OR
TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
CROWN PACIFIC LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Crown Pacific Management Limited
Partnership, a Delaware limited
partnership, its general partner
By
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Title
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