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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
Amendment No. 5
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UNISOURCE WORLDWIDE, INC.
(Name of Subject Company)
ATLANTA ACQUISITION CORP.
GEORGIA-PACIFIC CORPORATION
(Bidders)
Common Stock, Par Value $.001 Per Share
(Title of Class of Securities)
909208 10 0
(CUSIP Number of Class of Securities)
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James F. Kelley, Esq.
Senior Vice President Law and General Counsel
Georgia-Pacific Corporation
133 Peachtree, N.E.
Atlanta, GA 30303
(404) 652-4000
(Name, Address and Telephone Number of Persons Authorized to Receive Notices
and Communications on Behalf of Bidders)
With Copies to:
Creighton O'M. Condon, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
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This Amendment No. 5 amends and supplements the Tender Offer Statement on
Schedule 14D-1 filed with the Securities and Exchange Commission on May 28,
1999 (the "Schedule 14D-1") relating to an offer by Atlanta Acquisition Corp.,
a Delaware corporation ("Purchaser") and a wholly owned subsidiary of Georgia-
Pacific Corporation, a Georgia corporation ("Parent"), to purchase all
outstanding shares of common stock, par value $.001 per share (the "Shares"),
of Unisource Worldwide, Inc., a Delaware corporation (the "Company"), at a
price of $12.00 per Share, net to the seller in cash, upon the terms and
subject to the conditions set forth in the Purchaser's Offer to Purchase,
dated May 28, 1999 (the "Offer to Purchase"), and in the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer"), copies of which were attached as
exhibits to the Schedule 14D-1.
Item 4. Source and Amount of Funds and Other Consideration.
Item 4 is hereby amended by amending and restating in its entirety the
section "THE OFFER--Section 9. Financing the Offer and the Merger" in the
Offer to Purchase as follows:
The Offer is not conditioned upon any financing arrangements. Purchaser
estimates that the total amount of funds that it will require to consummate
the Offer and the Merger, repay certain outstanding indebtedness of the
Company which will become payable upon completion of the Merger and pay
related fees and expenses is approximately $1.3 billion. Purchaser will obtain
all such funds from Parent.
Parent has borrowed $470 million of the total amount required by Purchaser
by increasing its existing accounts receivable sale program with a consortium
of banks led by Canadian Imperial Bank of Commerce from approximately $280
million at March 31, 1999 to a total of $750 million. Parent pays for funds
advanced under this program at 35 basis points over the commercial paper
borrowing costs of the acquirors of such receivables, plus applicable fees.
This program, which is not otherwise collateralized, matures on June 15, 2000.
An additional $750 million of the total amount required will be obtained
from the public offering and sale by Parent of Premium Equity Participation
Security Units (the "PEPS Units") each consisting of a senior deferrable
interest-bearing note maturing on August 16, 2004 and a stock purchase
contract requiring the purchase of $50 worth of shares of Parent Common Stock
(as defined below) not later than August 16, 2002. The number of shares
purchased for $50 will depend on the average closing price of Parent Common
Stock over a twenty trading-day period ending August 13, 2002. The PEPS Units
will provide a total yield anticipated to be not more than 7.5% per annum. The
PEPS Units offering may, under certain circumstances, be increased to a total
of $862.5 million.
The remaining part of the required $1.3 billion will be obtained from short-
term borrowings supported by a $2.0 billion unsecured revolving credit
facility (the "Revolver"), being arranged for Parent by Banc of America
Securities LLC. This facility will be used to support money market and
commercial paper borrowings; in addition, borrowings may be made under this
facility at an annual interest cost of approximately 75 basis points over
LIBOR. Fifty percent of such facility will be repayable in one year and fifty
percent in five years. No decisions have been made with regard to the sources
of funds Parent will use to repay borrowings under this facility. Parent has
traditionally maintained this type of revolving credit facility on a permanent
basis.
If funds from the sale of the PEPS Units and from the Revolver are not
available in time to pay for the Shares and repay Company debt, Parent expects
to utilize a 364-day non-collateralized bridge loan of up to $1.0 billion
expected to be extended to Parent by Morgan Stanley Senior Funding, Inc. at an
interest rate expected to be 100 basis points over LIBOR. All such borrowings
will be repaid from proceeds from the sale of the PEPS Units and the Revolver.
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Item 11. Materials to be Filed as Exhibits.
Item 11 is hereby amended and supplemented by the addition of the following
exhibits thereto:
Exhibit (a)(13) Notice to Participants of Ikon Office Solutions, Inc.
Retirement Savings Plan dated June 11, 1999 from The Northern Trust Company.
Exhibit (a)(14) Form of Direction to Trustee Whether or Not to Tender Shares.
Exhibit (b)(2) Waiver and Amendment No. 12 to Receivables Purchase Agreements
dated June 15, 1999.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
June 25, 1999
ATLANTA ACQUISITION CORP.
BY: /s/ James F. Kelley
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Name: James F. Kelley
Title: Vice President and
Secretary
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
June 25, 1999
GEORGIA-PACIFIC CORPORATION
BY: /s/ James F. Kelley
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Name: James F. Kelley
Title: Senior Vice President Law
and General Counsel
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Exhibit (a)(13)
IKON OFFICE SOLUTIONS, INC. RETIREMENT SAVINGS PLAN
NOTICE TO PARTICIPANTS
IMMEDIATE ATTENTION REQUIRED
JUNE 11, 1999
Dear Participant in the IKON Office Solutions, Inc. Retirement Savings Plan:
The enclosed package contains very important information about the
proposed transaction (the "Transaction") between Unisource Worldwide, Inc.
("Unisource") and Atlanta Acquisition Corp., a wholly owned subsidiary of
Georgia-Pacific Corporation, a Georgia corporation (collectively referred to as
"Georgia-Pacific" ). The Transaction will directly affect your interest in the
portion of your account under the IKON Office Solutions, Inc. Retirement
Savings Plan (the "Plan") that is invested in Unisource Worldwide, Inc. common
stock ("Unisource Stock") through the Unisource Stock Fund.
Under the terms of the Plan, you are the named fiduciary of your
interest in the Unisource Stock Fund portion of your account under the Plan
("Account") and you have the power and responsibility for directing how The
Northern Trust Company (the "Trustee"), as the trustee of the Plan and the
shareholder of record, responds to tender offers with respect to such stock held
in your Account.
The enclosed materials include a Direction Form, as well as material
provided to Unisource shareholders in connection with the Transaction, including
the Offer to Purchase and related Letter of Transmittal, Agreement and Plan of
Merger and Solicitation/Recommendation Statement on schedule 14D-9. PLEASE READ
ALL OF THE ENCLOSED MATERIALS CAREFULLY.
As more fully described below and in the enclosed package, the
transaction is comprised of a Tender Offer - that is, an offer by Georgia-
Pacific to purchase any and all outstanding shares of Unisource Stock, including
the shares of Unisource Stock allocated to your Account and held by the Trustee,
at a price of $12.00 per share net to the shareholder in cash, without interest
thereon, upon the terms and conditions set forth in the enclosed Agreement and
Plan of Merger. As a participant in the Plan, you have the power and
responsibility to direct the Trustee whether or not to tender any or all shares
of Unisource Stock allocated to your Account.
After reading these materials, you should complete the enclosed yellow
Direction Form and return it in the postage-paid envelope that is provided. In
order to ensure that your directions to the Trustee remain confidential, all
Direction Forms will be returned directly to the Trustee. Your completed
Direction Form must be received before 5:00 p.m. Eastern Standard Time on June
23, 1999. DO NOT COMPLETE THE BLUE LETTER OF TRANSMITTAL INCLUDED WITH THE
ENCLOSED PACKAGE. IT IS PROVIDED TO YOU ONLY FOR YOUR INFORMATION.
Please note that a form that is postmarked before the June 23, 1999
deadline but actually received after the deadline will be too late and not
effective. Mail your form early enough for it to be RECEIVED BY THE TRUSTEE
before the deadline.
IF YOU WISH TO PARTICIPATE IN THE TENDER OFFER, YOUR DIRECTION FORM
MUST BE RECEIVED BY THE TRUSTEE BEFORE 5:00 P.M. EASTERN STANDARD TIME ON JUNE
23,1999 (THE "DIRECTION DEADLINE"). NOT RETURNING A PROPERLY COMPLETED FORM BY
THE DIRECTION DEADLINE WILL BE A DIRECTION TO THE TRUSTEE NOT TO TENDER AND THE
TRUSTEE WILL NOT TENDER ANY OF THE SHARES OF UNISOURCE STOCK ALLOCATED TO YOUR
ACCOUNT.
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Please note that YOUR INSTRUCTIONS TO THE TRUSTEE WILL BE KEPT
CONFIDENTIAL. No one at IKON Office Solutions, Inc. (the "Company"), Unisource,
or Georgia-Pacific will be informed of your decision on how to instruct the
Trustee.
SUMMARY OF PROPOSED TRANSACTION
The proposed acquisition of Unisource by Georgia-Pacific will take
place as described in the enclosed materials:
Georgia-Pacific has made a TENDER OFFER to buy any and all of the
outstanding shares of Unisource Stock for $12.00 per share for each share
tendered (the "Per Share Amount"), subject to the conditions described in the
enclosed package (the "Tender Offer"), net to the shareholder in cash, subject
to any applicable withholding of taxes. The Trustee is the shareholder of
record for Unisource Stock allocated to your Account and thus the Trustee will
receive any cash proceeds resulting from the Tender Offer. The cash proceeds
will be invested in the Plan, as described on page three of this Notice in the
section entitled "Investment of Tender Offer Proceeds". The Tender Offer may be
extended or terminated under specified circumstances, as described in the
enclosed package. If all the requisite conditions, as described in the enclosed
package, are satisfied or waived at the expiration of the Tender Offer, Atlanta
Acquisition Corp. will be merged with and into Unisource (thereby creating the
"Surviving Corporation"). Furthermore, with certain exceptions, each share of
Unisource Stock that was not tendered pursuant to the Tender Offer will be
converted into the right to receive from the Surviving Corporation an amount
equal to the Per Share Amount in cash (the "Merger Consideration") payable,
without interest, to the holder of such share of Unisource Stock. As with the
cash proceeds of tendered shares, the cash proceeds resulting from the purchase
of un-tendered shares will be invested in the Plan, as described on page three
of this Notice in the section entitled "Investment of Tender Offer Proceeds".
At this time, you have the opportunity to determine how to respond to
the Tender Offer. By completing the attached Direction Form in accordance with
the instructions set forth below, you may direct the Trustee of the Plan whether
to tender all, some, or none of the shares of Unisource Stock allocated to your
Account.
HOW THE TENDER OFFER WORKS
Everyone who owns shares of Unisource Stock, including trustees of
employee benefit plans such as the Plan, may tender their shares of Unisource
Stock - meaning offer to sell the shares to Georgia-Pacific. The Tender Offer
is currently scheduled to expire at 12:00 midnight, Eastern Standard Time, on
June 25, 1999, but the Tender Offer may be extended. THE DEADLINE FOR
SUBMITTING YOUR DIRECTION TO THE TRUSTEE IS 5:00 P.M. EASTERN STANDARD TIME ON
JUNE 23,1999. THE TENDER OFFER MAY BE EXTENDED. IF THE TENDER OFFER IS
EXTENDED, YOUR DIRECTION DEADLINE MAY ALSO BE EXTENDED.
PLEASE NOTE THAT YOU CANNOT TENDER THE SHARES OF UNISOURCE STOCK
ALLOCATED TO YOUR ACCOUNT DIRECTLY TO GEORGIA-PACIFIC. INSTEAD, IF YOU WANT
THOSE SHARES OF UNISOURCE STOCK TO BE TENDERED, YOU MUST USE THE ENCLOSED YELLOW
DIRECTION FORM TO DIRECT THE TRUSTEE.
As explained in the enclosed package, there are a number of conditions
that must be met for Georgia-Pacific to be obligated to buy Unisource Stock.
Most importantly, notwithstanding any other provision of the Tender Offer but
subject to compliance with the other provisions of the Agreement and Plan of
Merger, Georgia-Pacific is not required to accept for payment or pay for any
shares of Unisource Stock tendered pursuant to the Tender Offer, and may
terminate or amend the Tender Offer in accordance with the Agreement and Plan of
Merger and may extend the acceptance for payment of and payment for shares of
Unisource Stock tendered, if, among other conditions, at least the number of
shares of Unisource Stock that, when added to the shares of Unisource Stock
already owned by Georgia-Pacific, constitute a majority of the then outstanding
shares of Unisource Stock on a fully diluted basis (including, without
limitation, all shares of Unisource Stock issuable upon the conversion of
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any convertible securities or upon the exercise of any options, warrants or
rights) has not been validly tendered (and not withdrawn) prior to the
expiration of the Tender Offer (the "Minimum Condition").
THUS, THERE IS NO ASSURANCE THAT ANY OR ALL OF THE SHARES OF UNISOURCE
STOCK ALLOCATED TO YOUR ACCOUNT WILL BE PURCHASED BY GEORGIA-PACIFIC PURSUANT TO
THE TENDER OFFER, EVEN IF YOU DIRECT THE TRUSTEE TO TENDER ALL OF THE SHARES OF
UNISOURCE STOCK ALLOCATED TO YOUR ACCOUNT. IN ADDITION, IF CERTAIN CONDITIONS
ARE NOT MET, THERE IS NO ASSURANCE THAT ANY SHARES OF UNISOURCE STOCK WILL BE
PURCHASED.
PLEASE NOTE THAT FOR ADMINISTRATIVE REASONS, REGARDLESS OF WHETHER OR
NOT YOU DIRECT THE TRUSTEE TO TENDER, NO TRANSACTIONS WILL BE ALLOWED WITH
RESPECT TO THE UNISOURCE STOCK FUND FROM THE DIRECTION DEADLINE (OR IF DIRECTION
DEADLINE IS EXTENDED, FROM THE EXTENDED DIRECTION DEADLINE) TO THE END OF THE
TENDER OFFER OR SUCH LATER DATE AS MAY BE NECESSARY.
INVESTMENT OF TENDER OFFER PROCEEDS
INDIVIDUAL PARTICIPANTS IN THE PLAN WILL NOT RECEIVE ANY PORTION OF
THE TENDER PROCEEDS DIRECTLY. ALL SUCH PROCEEDS WILL REMAIN IN THE PLAN AND MAY
BE WITHDRAWN ONLY IN ACCORDANCE WITH THE TERMS OF THE PLAN.
Georgia-Pacific will pay cash to the Trustee for all shares of
Unisource Stock allocated to your Account that are actually purchased pursuant
to the Tender Offer. The cash proceeds will be invested in the Stable Value
Fund established under the Plan.
PROCEDURE FOR DIRECTING TRUSTEE
A yellow Direction Form for you to use to direct the Trustee is
enclosed. In order to be effective, the Direction Form must be properly
completed and returned in the enclosed envelope in time to be received by the
Trustee before 5:00 p.m. Eastern Standard Time on June 23, 1999. A form that is
postmarked before this deadline but actually received after the deadline will be
too late and will not be effective.
Neither IKON Office Solutions, Inc. nor the Trustee makes any
recommendations as to whether or not you should direct the tender of shares of
Unisource Stock allocated to your Account. You must make your own decision on
this matter. As the named fiduciary with respect to your Account, you are
solely responsible for the consequences of your decision regarding the Tender
Offer.
Please note that the address label on the reverse side of the yellow Direction
Form indicates the number of actual shares of Unisource Stock allocated to your
Account as of May 25, 1999. The Direction Form provides that you may instruct
the Trustee to tender all of the shares of Unisource Stock, a percentage of the
shares of Unisource Stock, or none of the shares of Unisource Stock allocated to
your Account.
To properly complete your yellow Direction Form, you must do the
following:
1) On the reverse side of the form, check Box 1, Box 2, or Box
3. CHECK ONLY ONE BOX.
. CHECK BOX 1 if you want to tender all of the shares of Unisource
Stock allocated to your Account.
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. CHECK BOX 2 if you want some whole percentage of the shares of
Unisource Stock allocated to your Account to be tendered, AND
fill in that whole percentage.
. CHECK BOX 3 if you do not want any of the shares of Unisource
Stock allocated to your Account to be tendered.
2) Sign and date the Direction Form in the space provided.
3) Keep a copy of your Direction Form for your records.
4) Mail the Direction Form promptly in the postage-paid envelope
that is provided. FAXED DIRECTION FORMS ARE NOT ACCEPTABLE.
If you do not want to tender any shares of Unisource Stock
allocated to your Account, you need not return the Direction
Form, since a failure to direct the Trustee is a direction
not to tender shares.
REMEMBER, IF YOU WANT TO TENDER, THE TRUSTEE MUST RECEIVE YOUR
DIRECTION FORM BEFORE 5:00 P.M. EASTERN STANDARD TIME ON JUNE 23,1999.
If you sign, date and return the enclosed yellow Direction Form but do
not check any box on the Direction Form, the Trustee will treat your Direction
Form as not providing any direction to the Trustee regarding the Tender Offer.
Your Direction Form will be deemed irrevocable unless you send a new, later-
dated Direction Form that is received by the Trustee before 5:00 p.m. Eastern
Standard Time on June 23, 1999 (or, if the Direction Deadline is extended,
before the extended Direction Deadline) at the following address:
The Northern Trust Company, Trustee
P.O. Box 1997
New York, New York 10117-0024
In order to be effective, your later-dated Direction Form must be
properly completed, must include your name, address, Social Security number and
be received by the Trustee before 5:00 p.m. Eastern Standard Time on June 23,
1999. Otherwise, your earlier Direction Form will still be in effect.
Additional Direction Forms and mailing envelopes can be obtained by calling 1-
800-488-8095.
You are the named fiduciary with respect to your Account.
Accordingly, neither IKON Office Solutions, Inc. nor the Trustee can make
recommendations to you regarding what decisions to make. If you have questions
about the terms and conditions of the Tender Offer, please contact the
Information Agent for the Tender Offer, D.F. King & Co., Inc. at 1-800-488-8095.
THE NORTHERN TRUST COMPANY
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Exhibit (a)(14)
IKON OFFICE SOLUTIONS, INC. RETIREMENT SAVINGS PLAN
DIRECTION TO TRUSTEE
WHETHER OR NOT TO TENDER SHARES
YOUR EQUIVALENT SHARES:
The undersigned participant in the IKON Office Solutions, Inc.
Retirement Savings Plan ("Plan") hereby instructs The Northern Trust Company, as
Trustee under the Plan, to tender or not to tender, pursuant to the Tender
Offer, the shares of common stock, par value $0.001 per share, of Unisource
Worldwide, Inc. allocated to his Account (as defined in the accompanying Notice
to Participants) in accordance with the direction on the reverse side of this
form.
TO TENDER SHARES, THIS DIRECTION FORM MUST BE PROPERLY COMPLETED,
SIGNED, DATED AND RECEIVED BY THE NORTHERN TRUST COMPANY NO LATER THAN 5:00 P.M.
EASTERN STANDARD TIME ON JUNE 23, 1999.
THE TENDER OFFER MAY BE EXTENDED. IF THE TENDER OFFER IS EXTENDED,
THE DIRECTION DEADLINE MAY ALSO BE EXTENDED.
BEFORE COMPLETING THIS DIRECTION FORM, CAREFULLY READ THE NOTICE TO
PARTICIPANTS AND ALL THE OTHER MATERIALS IN THE ENCLOSED PACKAGE.
TO BE COMPLETED, SIGNED AND DATED ON THE REVERSE SIDE.
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[X] Please mark your choice like this and sign and date below.
NEITHER IKON OFFICE SOLUTIONS, INC. NOR THE TRUSTEE MAKES ANY RECOMMENDATIONS
AS TO YOUR DECISION TO TENDER OR NOT TO TENDER SHARES OF UNISOURCE STOCK
ALLOCATED TO YOUR ACCOUNT PURSUANT TO THE TENDER OFFER. YOU ARE THE NAMED
FIDUCIARY WITH RESPECT TO YOUR ACCOUNT.
1. [_] Tender ALL of the shares of Unisource Stock allocated to my Account.
2. [_] Tender the whole percentage of shares of Unisource Stock allocated to
my Account as of May 25, 1999, as indicated below:
Percentage of shares to be tendered (in whole numbers):
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3. [_] Do not tender any shares of Unisource Stock allocated to my Account.
As a participant in the Plan, I acknowledge receipt of the Offer to
Purchase, the Letter of Transmittal, the Notice to Participants dated June
11, 1999, and the Solicitation/Recommendation Statement on schedule 14D-9
and I hereby direct the Trustee of the Plan to tender or not to tender the
shares of common stock, par value $0.001 per share, of Unisource Worldwide,
Inc. allocated to my Account as indicated above.
I understand that if I do not return this Direction Form, I will be
directing the Trustee not to tender.
I understand that if I sign, date and properly return this Direction
Form but do not provide the Trustee with specific instructions, the Trustee
will treat this Direction Form as not providing any direction to the
Trustee regarding the Tender Offer. In accordance with the terms of the
trust which is the funding vehicle for the Plan, the Trustee will not sell
any shares of Unisource Stock held by the Plan for which no participant
directions are timely received.
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Signature Date
PLEASE SIGN, DATE AND MAIL THIS DIRECTION FORM PROMPTLY
IN THE POSTAGE PREPAID ENVELOPE PROVIDED
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EXHIBIT (b)(2)
WAIVER AND AMENDMENT NO. 12
to
RECEIVABLES PURCHASE AGREEMENTS
This WAIVER AND AMENDMENT NO. 12 to RECEIVABLES PURCHASE AGREEMENTS,
dated as of June 15, 1999 (this "Amendment"), is entered into by and among
Georgia-Pacific Corporation (the "Seller"), Asset Securitization Cooperative
Corporation ("ASCC"), Corporate Asset Funding Company, Inc. ("CAFCO") and Falcon
Asset Securitization Corporation ("Falcon") (each of ASCC, CAFCO and Falcon,
individually, a "Purchaser," and, collectively, the "Purchasers"), Canadian
Imperial Bank of Commerce ("CIBC"), Citibank, N.A. ("Citibank") and The First
National Bank of Chicago ("First Chicago") (each of CIBC, Citibank and First
Chicago, individually, a "Secondary Purchaser," and, collectively, the
"Secondary Purchasers"), and CIBC, as administrative agent for the Purchasers
and the Secondary Purchasers (the "Administrative Agent").
WHEREAS, the Seller, the Purchasers and the Administrative Agent are
parties to that certain Receivables Purchase Agreement dated as of June 1, 1990,
as amended (the "Primary Agreement"; the terms defined therein being used herein
as therein defined unless otherwise defined herein), providing for the sale by
the Seller of certain Receivable Interests to the Purchasers; and
WHEREAS, the Seller, the Secondary Purchasers and the Administrative
Agent are parties to that certain Receivables Purchase Agreement dated as of
June 1, 1990, as amended (the "Secondary Agreement," and, together with the
Primary Agreement, the "Agreements"), providing for the sale by the Seller of
certain Receivable Interests to the Secondary Purchasers; and
WHEREAS, the parties hereto desire to (i) increase the Purchase Limit
to $750,000,000 under the Primary Agreement, (ii) effect a reallocation of the
Pro Rata Shares, (iii) waive certain provisions of Section 2.01(d) of the
Primary Agreement in connection with such reallocation, and (iv) add one Seller
Subsidiary and one Seller Division to the facility provided to the Seller by the
Purchasers.
NOW, THEREFORE, in consideration of the mutual benefits to the parties
hereto resulting from the reallocation and amendment to the Agreements, the
parties hereto agree as follows:
1. Increase in Purchase Limit and Commitment.
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(a) The Primary Purchasers hereby agree that the aggregate Purchase
Limit under the Primary Agreement shall be increased to $750,000,000.
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2
(b) The Secondary Purchasers hereby agree that the aggregate
Commitment under the Secondary Agreement shall be increased to $750,000,000.
2. Reallocation of Pro Rata Shares.
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(a) Notwithstanding the provisions of the first sentence of
Section 2.01(d) of the Primary Agreement, after giving effect to the increase in
the Purchase Limit as described in Section 1 above, the Pro Rata Shares of the
Purchasers under the Primary Agreement shall be reallocated as follows:
ASCC..........33.33333334%
CAFCO.........33.33333333%
Falcon........33.33333333%
(b) Each Purchaser and Secondary Purchaser expressly consents to the
reallocations set forth above and waives compliance with the notice requirement
set forth in the first sentence of Section 2.1(d) of the Primary Agreement.
The parties further agree that any noncompliance with the provisions of the
Agreements by virtue of the reallocation set forth above shall be deemed not to
constitute a breach or default by the Seller under the Agreements, and that such
reallocation shall be deemed to be permissible and effective in all respects and
for all purposes under the Agreements.
3. Increase in Commitment of Secondary Purchasers. Each Secondary
----------------------------------------------
Purchaser hereby agrees that, effective immediately upon the reallocation of the
Pro Rata Shares as described in Section 1 above, the Commitment of such
Secondary Purchaser shall be adjusted as required by the Secondary Agreement.
4. Addition of Seller Division.
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(a) Notwithstanding the provisions of the first sentence of Section
2.01(h) of the Primary Agreement, the Seller shall commence including all
Receivables generated by the Distribution Division of the Seller (the "New
Seller Division") in Receivables Pools.
(b) Each Purchaser and Secondary Purchaser expressly consents to the
inclusion of all Receivables generated by the New Seller Division in Receivables
Pools and waives compliance with the notice requirement set forth in the first
sentence of Section 2.01(h) of the Primary Agreement. The parties further agree
that any noncompliance with the provisions of the Agreements by virtue of the
foregoing shall be deemed not to constitute a breach or default by the Seller
under the Agreements, and that the inclusion of such Receivables in Receivables
Pools shall be deemed to be permissible and effective in all respects and for
all purposes under the Agreements.
5. Amendment of the Primary Agreement.
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(a) Article I of the Primary Agreement is hereby amended by adding the
following definitions in their proper alphabetical sequence:
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"Dilution Ratio" means, as of any date of determination, a fraction,
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expressed as a percentage, the numerator of which is the aggregate dollar
amount of reductions of the Outstanding Balance of all Pool Receivables
given to Obligors in accordance with the Credit and Collection Policy
(other than as a result of Collections or writeoffs) during the last full
calendar month immediately preceding such date and the denominator of which
is the aggregate amount of the Outstanding Balance of all Pool Receivables
as of the end of such full calendar month.
"Dilution Reserve" means, as of any date of determination, an amount
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equal to 3 times the Dilution Ratio.
(b) The definition of "Investors Rate" in Article I of the Primary
Agreement is hereby amended by (i) deleting paragraph (a) in its entirety and
substituting in replacement thereof the following:
(a) the sum of (x) the rate (or if more than one rate, the weighted
average of the rates) (by means of interest rate hedges or otherwise) at
which (i) in the case of ASCC, all of the Notes of ASCC outstanding during
such Settlement Period have been sold by any placement agent or commercial
paper dealer selected by ASCC, as determined by ASCC and reported by ASCC
to the Seller and the Collection Agent, and (ii) in the case of a Purchaser
other than ASCC, Notes of such Purchaser that are allocated, in whole or in
part, by such Purchaser to fund or maintain such Purchaser's Receivable
Interest during such Settlement period may have been sold by any placement
agent or commercial paper dealer selected by such Purchaser, as determined
by such Purchaser and reported to the Seller and the Collection Agent;
provided that, if the rate or rates, as agreed between any such agent or
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dealer and such Purchaser with regard to any Settlement Period for any
Receivable Interest, is a discount rate (or rates), the "Investor Rate" for
such Settlement Period shall be the rate (or if more than one rate, the
weighted average of the rates) resulting from converting such discount rate
(or rates) to an interest-bearing equivalent rate per annum, and (y) .05%
per annum;
and (ii) deleting the percentage "1%" contained in paragraph (b) thereof and
substituting in replacement thereof the percentage "1.25%".
(c) The definition of "Reserve" in Article I of the Primary Agreement
is hereby amended in its entirety as follows:
"Reserve" means, on any date, the greater of (i) 17.75% of Combined
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Capital and (ii) the sum of (a) the product of (1) the Loss Reserve and
(2) the aggregate Outstanding Balance of all Pool Receivables on such
date, (b) the aggregate Yield Reserve for all Receivable Interests owned
by the Purchasers and the aggregate "Yield Reserve" for all
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4
"Receivable Interests" owned by the Secondary Purchasers under the
Secondary Purchaser Agreement, (c) the aggregate Collection Agent Fee
Reserve, if any, for all Receivable Interests owned by the Purchasers and
the aggregate "Collection Agent Fee Reserve", if any, of all "Receivable
Interests" owned by the Secondary Purchasers under the Secondary Purchaser
Agreement, and (d) the product of (1) the Dilution Reserve and (2) the
aggregate Outstanding Balance of all Receivables on such date.
(d) Section 2.05(a) of the Primary Agreement is hereby amended by
deleting paragraphs (i), (ii) and (iii) thereof in their entirety and
substituting in replacement thereof the following:
(i) to each Purchaser, an annual fee (the "Program Fee") equal to the
product of (i) the average daily outstanding Aggregate Capital of such
Purchaser and (ii) .28% per annum;
(ii) to each Purchaser, a fee (the "Investor Fee") computed at the per
annum rate of 15/1000 of 1% on the average daily amount of Aggregate
Capital of such Purchaser; and
(iii) to each Purchaser, a fee (the "Commitment Fee") at the per
annum rate of .18% on the average daily amount of such Purchaser's unused
Purchase Limit.
(e) Schedule V of the Primary Agreement is hereby amended in its
entirety as set forth in Exhibit A hereto.
6. Amendment of the Secondary Agreement. (a) The definition of
------------------------------------
"Investor Rate" in Article I of the Secondary Agreement is hereby amended by
deleting the percentage "1%" contained in paragraph (a) thereof and substituting
in replacement thereof the percentage "1.25%."
7. Conditions Precedent. The effectiveness of this Amendment is
--------------------
subject to the conditions precedent that the Purchasers and the Administrative
Agent shall have received the following, each in form and substance satisfactory
to the Purchasers and the Administrative Agent:
(a) This Amendment, executed by each of the parties hereto.
(b) A certificate from a Responsible Officer of the Seller certifying
that (i) the representations and warranties contained in Article IV of the
Agreements as amended hereby are true and correct on and as of the date
hereof as though made on and as of such date, and (ii) no event has
occurred and is continuing, or would result from the execution,
<PAGE>
5
delivery or performance of this Amendment or from the consummation of the
transactions contemplated hereby, that constitutes an Event of Termination
or a Potential Termination Event.
(c) The payment of all fees due and payable on or prior to such date,
including, without limitation, (i) a fee payable to the Administrative
Agent as separately agreed between the Seller and the Administrative Agent,
and (ii) a structuring fee payable to each Primary Purchaser in the amount
of .05% of the amount of such Primary Purchaser's Purchase Limit after
giving effect to the transactions contemplated by this Amendment (whether
used or unused).
8. Conditions Subsequent. The Seller shall, within 15 days of the
---------------------
date of this Amendment, deliver to the Purchasers and the Administrative Agent
the following, each in form and substance satisfactory to the Purchasers and the
Administrative Agent:
(a) Certificates of the Secretary or Assistant Secretary of the Seller
and G-P Gypsum Corporation, a Delaware corporation (the "New Seller
Subsidiary"), certifying (i) the names and true signatures of their respective
officers authorized to sign this Amendment, the Transfer Agreement and the other
documents to be delivered by them hereunder or in connection herewith, (ii)
evidence of corporate authorization with respect to the transactions
contemplated by this Amendment, (iii) the articles of incorporation (attached
and appropriately certified by the Secretary of State of the Seller's and the
New Seller Subsidiary's jurisdiction of incorporation) and (iv) the by-laws and
all amendments thereto of the Seller and the New Seller Subsidiary.
(b) An executed Transfer Agreement executed by the Seller and the New
Seller Subsidiary, and a Consent and Acknowledgment from the New Seller
Subsidiary.
(c) A certificate from a Responsible Officer of the New Seller
Subsidiary certifying that (i) the representations and warranties contained in
the Transfer Agreement are true and correct on and as of the date hereof as
though made on and as of such date, and (ii) no event has occurred and is
continuing, or would result from the execution, delivery or performance of this
Amendment or from the consummation of the transactions contemplated hereby, that
constitutes an Event of Termination or a Potential Termination Event.
(d) Acknowledgment copies of proper financing statements, duly filed
under the UCC of all jurisdictions that any Purchaser or the Administrative
Agent may deem necessary or desirable in order to perfect the ownership
interests of the Seller in the Receivables, Contracts or Related Security
purchased by the Seller from the New Seller Subsidiary pursuant to the Transfer
Agreement.
<PAGE>
6
(e) Acknowledgment copies of proper UCC termination statements, if
any, necessary to release all security interests and other rights of any Person
in the Receivables, Contracts or Related Security previously granted by the New
Seller Subsidiary.
(f) Executed Lock-Box Agreements and undated executed copies of Lock-
Box Notices to the Lock-Box Banks for each Lock-Box Account maintained by the
New Seller Subsidiary.
(g) Undated executed Depositary Notices to each Depositary Bank for
each Depositary Account and undated executed Concentration Notices to each
Concentration Bank for each Concentration Account, in each case, maintained by
the New Seller Subsidiary.
(h) A favorable opinion of counsel for the Seller and for the New
Seller Subsidiary as to such matters as the Purchasers or the Administrative
Agent may reasonably request.
The failure of the Seller to comply with the provisions of this
Section 8 shall constitute an Event of Termination under the Agreements with the
same force and effect as if such provisions were set forth therein, and shall
entitle the Purchasers and the Administrative Agent to exercise any and all
remedies described in the Agreements.
9. Covenants.
---------
(a) The Seller shall, within 90 days of the date hereof, organize a
bankruptcy remote special purpose entity (the "SPE") and shall cause such SPE to
enter into (i) an agreement with the Seller and the Seller Subsidiaries
(including the New Seller Subsidiary) pursuant to which such SPE shall purchase
from time to time from the Seller and the Seller Subsidiaries Receivables,
Contracts and Related Security and (ii) agreements with the Purchasers and the
Administrative Agents pursuant to which such SPE shall sell from time to time to
the Purchasers undivided percentage ownership interests in such Receivables,
Contracts and Related Security, to the Purchasers. The form of such SPE and the
substance of the organizational documents, and the form and substance of the
foregoing agreements shall contain, among other things, the provisions set forth
in Exhibit B hereto and shall, in all respects, be reasonably satisfactory to
the Purchasers and the Administrative Agent.
(b) Without limiting any other rights that the Administrative Agent or
the Purchasers or any Affiliate thereof and their respective officers,
directors, employees and agents (each, an "Indemnified Party") may have
hereunder or under applicable law, from the date hereof until the date on which
the provisions of Section 9(a) above have been complied with, the Seller hereby
agrees to indemnify each Indemnified Party from and against any and all claims,
losses
<PAGE>
7
and liabilities (including reasonable attorneys fees and expenses) arising out
of or resulting from (i) the failure of the Purchasers and the Administrative
Agent, (ii) the credit quality of the Seller, and (iii) the failure of the
Purchasers to adequately reserve for the dilution of Receivables due to the
failure or inability of the Seller to provide sufficient historical dilution
data, as determined in the reasonable discretion of the Purchasers and the
Administrative Agent, with respect to the Receivables to the Purchasers and the
Administrative Agent to have received on the date hereof the documents and
opinions set forth in Section 8 above; provided, however, that the Seller
-------- -------
shall not be liable to any Indemnified Party with respect to any claims, losses
or liabilities under clauses (i) or (ii) above to the extent that such claims,
losses and liabilities would have arisen or resulted if the facilities provided
by the Purchasers were structured as contemplated by Section 9(a) above.
(c) The failure of the Seller to comply with the provisions of this
Section 9 shall constitute an Event of Termination under the Agreements with the
same force and effect as if such provisions were set forth therein, and shall
entitle the Purchasers and the Administrative Agent to exercise any and all
remedies described in the Agreements.
10. Agreements to Remain in Effect. Upon and after the effective
------------------------------
date of this Amendment, all references to the Agreements in the Agreements, or
in any related document, shall mean the Agreements as amended hereby. Except as
specifically amended by this Amendment, the Agreements shall remain in full
force and effect.
11. Governing Law; Execution in Counterparts.
----------------------------------------
(a) This Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York.
(b) This Amendment may be executed 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 when taken together
shall constitute one and the same instrument.
<PAGE>
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
GEORGIA-PACIFIC CORPORATION
/s/ Danny W. Huff
By: _____________________________
Name: Danny W. Huff
Title: Vice President and Treasurer
ASSET SECURITIZATION COOPERATIVE
CORPORATION
/s/ Grace Fraser
By: _____________________________
Name: Grace Fraser
Title: CFO
CORPORATE ASSET FUNDING COMPANY,
INC.
By: CITICORP NORTH AMERICA, INC., AS
ATTORNEY-IN-FACT
/s/ Nancy Free
By: _____________________________
Name: Nancy Free
Title: Vice President
FALCON ASSET SECURITIZATION
CORPORATION
/s/ Karen E. Staib
By: _____________________________
Name: Karen E. Staib
Title: Managing Director
(Signatures continued on following page.)
<PAGE>
9
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Thomas H. Allen
_____________________________
Name: Thomas H. Allen
Title: Authorized Signatory
CITIBANK, N.A.
By: /s/ Nancy Free
_____________________________
Name: Nancy Free
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Karen E. Staib
_____________________________
Name: Karen E. Staib
Title: Vice President
