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Officemax - Installment Note
INSTALLMENT NOTE
ntbl $817,500,000
ntbl October 29, 2004
FOR VALUE RECEIVED, BOISE LAND & TIMBER II, L.L.C. , a Delaware limited liability company (" Maker "), promises to pay to the order of BOISE CASCADE CORPOATION
(" Initial Holder "), which along with any other subsequent holder of this promissory note, is sometimes referred to as the " Holder ", the principal
sum of Eight Hundred Seventeen Million Five Hundred Thousand and no/100ths Dollars ($817,500,000) (" Principal Sum ") together with interest at the rate set out in paragraph 1 below, in accordance
with the following:
1. Interest . Subject to the terms of paragraph 17 below, the unpaid Principal Sum shall bear interest from the date hereof until paid
in full at a fixed rate per annum equal to 5.112%. Such interest shall be payable on each Payment Date (defined below). All interest payable under the terms of this Note shall be calculated on the basis of twelve (12) 30-day months in a 360-day year.
2. Payments and Maturity . (a) Interest on the unpaid Principal Sum shall be due and payable semi-annually, on the 29 th
day of each April and October (each a " Payment Date "), commencing on April 29, 2005, and continuing on each Payment Date thereafter through and until the Maturity Date.
(b) The entire unpaid Principal Sum, together with all accrued and unpaid interest, shall mature and be due
and payable in full on January 29, 2020 (" Maturity Date ").
(c) If any payment under this Installment Note is due on a day which is not a Business Day (defined below), such payment shall be
due and payable on the next succeeding Business Day.
3. Application and Place of Payments . All payments made on account of this Installment Note shall be applied, first, to the payment of
any unpaid and accrued enforcement and collection costs incurred by Holder, if any, second, to the payment of accrued and unpaid interest, and the remainder, if any, shall be applied to the unpaid Principal Sum. All payments on account of this Installment
Note shall be paid in lawful money of the United States of America in immediately available funds during regular business hours of Holder at the address set out in paragraph 9 below, or at such other times and places as Holder may at any time designate
in writing by notice to Maker in accordance with the provisions of Paragraph 9 below.
4. No Prepayment . Maker may not voluntarily prepay the Principal Sum or any part of the Principal Sum at any time.
5. Purchase Agreement and Related Transactions . Maker, as purchaser, and Initial Holder, as seller, are parties to an Asset Purchase
Agreement dated as of July 26, 2004 (as
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such agreement may be subsequently amended, the " Purchase Agreement "), pursuant to which the sole member of Maker has purchased from Initial Holder certain
timberland assets (the " Assets "), which are more particularly described in such Purchase Agreement, and Maker is issuing this Installment Note in payment of the purchase price for such Assets.
Lehman Brothers Holdings, Inc. (" Guarantor ") has guaranteed the payment of certain obligations by Maker under this Installment Note pursuant to a Guaranty dated as of the date of this Installment
Note (the " Guaranty ") executed by Guarantor, as guarantor, for the benefit of Initial Holder, as beneficiary.
6. Events of Default . The occurrence of any one or more of the following events shall constitute an event of
default (individually, an " Event of Default " and collectively, the " Events of Default ") under the terms of this Installment Note:
(a) The failure of Maker to pay to Holder within three (3) Business days of the applicable due date any and all amounts payable by Maker to Holder under the terms
of this Installment Note.
(b) If by the order of a court of competent jurisdiction, a trustee, receiver or liquidator of Maker shall be appointed and such order shall not be discharged or
dismissed within 60 days after such appointment.
(c) Maker (i) applies for, or consents in writing to, the appointment of a receiver, trustee or liquidator of all or substantially all of Maker92s assets; (ii)
files a voluntary petition in bankruptcy; (iii) admits in writing Maker92s inability to pay Maker92s debts as they become due or makes a general assignment for the benefit of creditors; (iv) files a petition or an answer seeking a reorganization
(other than a reorganization not involving the liabilities of Maker) or an arrangement with creditors or takes advantage of any bankruptcy or insolvency law; or (v) files an answer admitting the material allegations of a petition filed against Maker in
any bankruptcy, reorganization or insolvency proceeding.
(d) An order, judgment or decree is entered by any court of competent jurisdiction on the application of a creditor adjudicating Maker as bankrupt or insolvent,
or appointing a receiver, trustee or liquidator of Maker, or for all or substantially all of Maker92s assets, and such order, judgment or decree continues unstayed and in effect for a period of 60 days from the date entered.
(e) If Maker shall dissolve, merge, consolidate, liquidate, reorganize, or terminate its existence without the prior written consent of Holder.
(f) The insolvency, receivership, conservatorship, reorganization, winding-up, liquidation or similar occurrence in respect of the Guarantor under any applicable
law.
7. Remedies . Except as provided in the final sentence of this Paragraph 7, during an Event of Default, at the option of Holder, exercisable
by notice in writing to Maker, all amounts payable by Maker to Holder under the terms of this Installment Note shall immediately become due and payable by Maker to Holder, and Holder shall have all of the rights, powers, and remedies available under the
terms of this Installment Note and all applicable laws. Maker and all endorsers, guarantors, and other parties who may now or in the future be primarily or
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secondarily liable for the payment of the indebtedness evidenced by this Installment Note hereby severally waive presentment, protest and demand, notice of protest, notice of demand and of dishonor and non-payment of
this Installment Note and expressly agree that this Installment Note or any payment under this Installment Note may be extended from time to time without in any way affective the liability of Maker, guarantors and endorsers.
Notwithstanding anything in this Installment Note to the contrary, so long as the Guaranty is in effect and Guarantor has not failed to honor, within the time permitted, any timely and proper demand for payment under the terms of the Guaranty, the Holder
shall not have the right to accelerate the maturity of the principal under this Installment Note or exercise any other rights and remedies under this Installment Note at law or in equity, other than (i) to make a demand for payment from the Guarantor
under the terms of the Guaranty for accrued and unpaid interest not paid by Maker within sixty (60) days of the applicable due date, or (ii) to make a demand for payment from the Guarantor under the terms of the Guaranty for the full outstanding and
unpaid principal balance under this Installment Note within 120 days after the Maturity Date.
8. Expenses . Maker promises to pay to Holder on demand by Holder all costs and expenses incurred by Holder in connection with the collection
and enforcement of this Installment Note, including, without limitation, all reasonable attorneys92 fees actually incurred and expenses and all court costs.
9. Notices . All notices, requests and other communications to any party under this Installment Note shall be in writing (including telecopier
or similar writing) and shall be given to such party at its address or telecopier number set forth below or such other address or telecopier number as such party may hereafter specify for the purpose by notice to each other party. Each such notice,
request or other communication shall be effective (i) if given by telecopier, when such telecopy is transmitted to the telecopier number specified in this Paragraph 9 and the confirmation is received, (ii) if given by mail, 72 hours after such communication
is deposited in the mails with first class postage prepaid, addressed as set out below or (iii) if given by any other means, when delivered at the address specified in this Section:
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ntbl Maker:
ntbl BOISE LAND & TIMBER II, L.L.C.
ntbl
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ntbl 1111 W. Jefferson Street
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ntbl P.O. Box 50
ntbl
ntbl
ntbl Boise, Idaho 83728
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ntbl Attn: Thomas E. Carlile
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ntbl Telephone: (208) 384-6161
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ntbl Facsimile: (208) 384-4920
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ntbl
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ntbl with a copy to:
ntbl LEHMAN BROTHERS HOLDINGS INC.
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ntbl 745 Seventh Avenue, 14th Floor
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ntbl New York, NY 10019
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ntbl Attn: Global Treasurer
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ntbl Telephone: (212) 526-7000
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ntbl Facsimile: (646) 758-3204
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ntbl and a copy to:
ntbl LEHMAN BROTHERS HOLDINGS INC.
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ntbl 745 Seventh Avenue, 5/F
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ntbl New York, NY 10019
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ntbl Attn: US Product Development
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ntbl Telephone: (212) 526-2378
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ntbl Facsimile: (212) 520-0076
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n...
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