UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1999
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 1-10239
PLUM CREEK TIMBER COMPANY, INC.
(Exact name of registrant as specified in its charter)
Delaware 91-1443693
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
999 Third Avenue, Seattle, Washington 98104-4096
Telephone: (206) 467-3600
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
The number of outstanding shares of the registrant's Common Stock as of
August 9, 1999 was 63,456,575.
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
--------------------
PLUM CREEK TIMBER COMPANY, L.P.
COMBINED STATEMENT OF INCOME
(UNAUDITED)
<TABLE>
Quarter Ended June 30,
----------------------
1999 1998
---- ----
(In Thousands, Except Per Unit)
<S> <C> <C>
Revenues.....................................$ 184,349 $ 171,799
---------- ----------
Costs and Expenses:
Cost of Goods Sold......................... 128,796 121,124
Selling, General and Administrative........ 11,104 17,824
---------- ----------
Total Costs and Expenses................. 139,900 138,948
---------- ----------
Operating Income............................. 44,449 32,851
Interest Expense............................. (18,524) (14,603)
Interest Income.............................. 221 229
Reorganization Costs......................... (2,402) (1,714)
Other Income - Net........................... (398) (512)
---------- ----------
Income before Income Taxes................... 23,346 16,251
Provision for Income Taxes................... 811 120
---------- ----------
Net Income...................................$ 22,535 $ 16,131
General Partner Interest..................... 8,628 8,500
---------- ----------
Net Income Allocable to Unitholders..........$ 13,907 $ 7,631
========== ==========
Net Income per Unit.......................... $ 0.30 $ 0.17
========== ==========
</TABLE>
See accompanying Notes to Combined Financial Statements
PLUM CREEK TIMBER COMPANY, L.P.
COMBINED STATEMENT OF INCOME
(UNAUDITED)
<TABLE>
Six Months Ended June 30,
-------------------------
1999 1998
---- ----
(In Thousands, Except Per Unit)
<S> <C> <C>
Revenues.....................................$ 362,570 $ 336,124
---------- ----------
Costs and Expenses:
Cost of Goods Sold......................... 257,907 239,768
Selling, General and Administrative........ 21,547 27,430
---------- ----------
Total Costs and Expenses................. 279,454 267,198
---------- ----------
Operating Income............................. 83,116 68,926
Interest Expense............................. (37,049) (29,576)
Interest Income.............................. 610 467
Reorganization Costs......................... (5,053) (1,748)
Other Income - Net........................... (242) (511)
---------- ----------
Income before Income Taxes................... 41,382 37,558
Provision for Income Taxes................... 985 147
---------- ----------
Net Income...................................$ 40,397 $ 37,411
General Partner Interest..................... 17,162 16,599
---------- ----------
Net Income Allocable to Unitholders..........$ 23,235 $ 20,812
========== ==========
Net Income per Unit..........................$ 0.50 $ 0.45
========== ==========
</TABLE>
See accompanying Notes to Combined Financial Statements
PLUM CREEK TIMBER COMPANY, L.P.
COMBINED BALANCE SHEET
(UNAUDITED)
<TABLE>
June 30, December 31,
1999 1998
---- ----
(In Thousands)
<S> <C> <C>
ASSETS
Current Assets:
Cash and Cash Equivalents..................$ 96,188 $ 113,793
Accounts Receivable........................ 43,267 32,007
Inventories................................ 46,095 55,963
Timber Contract Deposits................... 4,242 2,647
Other Current Assets....................... 5,873 6,053
---------- ----------
195,665 210,463
Timber and Timberlands - Net................ 1,015,007 1,030,484
Property, Plant and Equipment - Net........ 178,037 186,179
Other Assets................................. 11,216 11,117
---------- ----------
Total Assets...............................$ 1,399,925 $ 1,438,243
========== ==========
LIABILITIES
Current Liabilities:
Current Portion of Long-Term Debt..........$ 26,950 $ 18,400
Accounts Payable........................... 14,865 15,320
Interest Payable........................... 11,294 10,964
Wages Payable.............................. 13,143 14,795
Taxes Payable.............................. 4,304 4,081
Workers' Compensation Liabilities.......... 1,300 1,550
Other Current Liabilities.................. 8,456 15,766
---------- ----------
80,312 80,876
Long-Term Debt............................... 715,453 742,608
Line of Credit............................... 218,400 200,000
Workers' Compensation Liabilities............ 7,280 7,495
Other Liabilities............................ 3,524 1,849
---------- ----------
Total Liabilities.......................... 1,024,969 1,032,828
---------- ----------
Commitments and Contingencies
PARTNERS' CAPITAL
Limited Partners' Units...................... 377,284 406,857
General Partner.............................. (2,328) (1,442)
---------- ---------
Total Partners' Capital.................... 374,956 405,415
---------- ---------
Total Liabilities and Partners' Capital....$ 1,399,925 $ 1,438,243
========== ==========
</TABLE>
See accompanying Notes to Combined Financial Statements
PLUM CREEK TIMBER COMPANY, L.P.
COMBINED STATEMENT OF CASH FLOWS
(UNAUDITED)
<TABLE>
Six Months Ended June 30,
-------------------------
1999 1998
---- ----
(In Thousands)
<S> <C> <C>
Cash Flows From Operating Activities:
Net Income...................................$ 40,397 $ 37,411
Adjustments to Reconcile Net Income to
Net Cash Provided By Operating Activities:
Depreciation, Depletion and Amortization.. 34,988 31,876
(Gain) Loss on Asset Dispositions - Net... (120) 421
Working Capital Changes:
Accounts Receivable....................... (11,260) (5,900)
Inventories............................... 9,868 15,026
Timber Contract Deposits and Other
Current Assets.......................... (1,415) (3,834)
Accounts Payable.......................... (455) 3,153
Other Accrued Liabilities................. (8,659) 1,156
Other...................................... 1,553 3,940
---------- ----------
Net Cash Provided By Operating Activities....$ 64,897 $ 83,249
---------- ----------
Cash Flows From Investing Activities:
Additions to Properties....................$ (12,193) $ (35,955)
Proceeds from Asset Dispositions........... 812 310
---------- ----------
Net Cash Used In Investing Activities........$ (11,381) $ (35,645)
---------- ----------
Cash Flows From Financing Activities:
Cash Distributions.........................$ (70,916) $ (69,445)
Retirement of Long-Term Debt............... (18,605) (18,400)
Borrowings on Line of Credit............... 310,900 388,000
Repayments on Line of Credit............... (292,500) (349,000)
---------- ----------
Net Cash Used In Financing Activities........$ (71,121) $ (48,845)
---------- ----------
Increase (Decrease) In Cash and
Cash Equivalents........................... (17,605) (1,241)
Cash and Cash Equivalents:
Beginning of Period........................ 113,793 135,381
---------- ----------
End of Period..............................$ 96,188 $ 134,140
========== ==========
</TABLE>
PLUM CREEK TIMBER COMPANY, L.P.
NOTES TO COMBINED FINANCIAL STATEMENTS
(UNAUDITED)
1. ORGANIZATION AND BASIS OF PRESENTATION
The combined financial statements include all the accounts of Plum Creek
Timber Company, L.P. (the "Partnership"), Plum Creek Manufacturing, L.P.
("Manufacturing") and Plum Creek Marketing, Inc. ("Marketing"). Prior to
July 1, 1999, the Partnership owned 98 percent of Manufacturing and 96 percent
of Marketing, and Plum Creek Management Company, L.P., the general partner,
managed the businesses of the Partnership, Manufacturing and Marketing and
owned the remaining two percent general partner interest of Manufacturing and
four percent of Marketing. On July 1, 1999, the Partnership converted to a real
estate investment trust and became Plum Creek Timber Company, Inc. See
Note 2 to the Combined Financial Statements for discussion of the
conversion and reorganization of the Partnership. Therefore, the term
"Company," as used herein, refers to the combined entities of the Partnership,
Manufacturing, and Marketing for the period ending and including June 30, 1999,
and subsequent to June 30, 1999, refers to Plum Creek Timber Company, Inc., the
newly formed REIT. Presentation of the June 30, 1999 financial statements and
notes reflects the business of the Partnership. Any reference to transactions
or activities subsequent to June 30, 1999 relates to Plum Creek Timber Company,
Inc., the surviving entity. The structure and future accounting presentation
for Plum Creek Timber Company, Inc. are discussed in our Form 8-K filed on July
14, 1999.
The financial statements included in this quarterly report on Form 10-Q
are unaudited and do not contain all of the information required by generally
accepted accounting principles to be included in a full set of financial
statements. The financial statements in the Partnership's 1998 annual report
on Form 10-K include a summary of the Partnership's significant accounting
policies and should be read in conjunction with this Form 10-Q. In the opinion
of management, all material adjustments necessary to present fairly the results
of operations for such periods have been included. All such adjustments are
of a normal and recurring nature. The results of operations for any interim
period are not necessarily indicative of the results of operations for the
entire year. All significant intercompany transactions have been eliminated
in the combination. Reclassifications of certain prior period amounts have
been made in order to be consistent with current period presentation.
The taxable income, deductions, and credits of the Partnership and
Manufacturing were allocated monthly to the unitholders based on the number of
depositary units representing limited partner interests held. Distributions
of cash to a unitholder are considered a non-taxable return of capital to the
extent of the unitholder's basis in the units (as such basis is increased by
the allocable share of the Partnership's and Manufacturing's taxable income).
However, unitholders are required to include in their income tax filings their
allocable share of the Partnership's and Manufacturing's income, regardless of
whether cash distributions are made. In virtually all cases, a unitholder's
1999 cash distribution will significantly exceed the tax liability related to
the unitholder's allocated taxable income from the Partnership and
Manufacturing. For tax-exempt entities, such as IRAs, most of the
Partnership's and Manufacturing's taxable income is treated as Unrelated
Business Taxable Income ("UBTI"). To the extent a tax-exempt entity has more
than $1,000 of UBTI for a tax year, it may be required to pay federal income
taxes. Marketing, as a separate taxable corporation, provided for income taxes
on a separate company basis. Marketing provided for deferred taxes in order
to reflect the tax consequences in future years of the difference between the
financial statement and tax basis of assets and liabilities as of the balance
sheet date.
The Partnership's Net Income per unit was calculated using the weighted
average number of units outstanding, divided into the combined Partnership net
income, after adjusting for the general partner interest. The weighted average
number of units outstanding was 46,323,300 for each of the three and six month
periods ended June 30, 1999 and 1998.
2. REORGANIZATION
On June 8, 1998, we announced that the Partnership's general partner had
authorized our conversion from a master limited partnership to a real estate
investment trust ("REIT"). On April 19, 1999, at a special meeting of
unitholders, the Partnership's unitholders also approved the conversion
transaction. The conversion became effective on July 1, 1999. After the
conversion, there are 62,822,009 shares of common stock outstanding and 634,566
shares of special voting stock outstanding, which are convertible into common
stock. Plum Creek Timber Company, Inc., the new corporation, will elect to be
treated for Federal income tax purposes as a REIT. Plum Creek Timber
Company, L.P. ceased to exist. Reorganization costs have been expensed in
the period incurred and are reflected as a separate line item in the
financial statements.
On April 9, 1999, the Partnership announced that it and its general
partner had entered into an agreement settling previously disclosed unitholder
litigation relating to the conversion transaction. The settlement, which was
approved by the court on June 21, 1999, could obligate the Partnership's former
general partner to pay up to an aggregate of $30 million into a fund for
distribution to eligible unitholders if certain five-year financial targets of
the Company are not met. Payments by the general partner, if any, would
generally be made following the end of the five-year period, on or about April
15, 2004. Such payments, if any, may be accelerated upon the occurrence of
certain extraordinary transactions. Payments from the fund, less court-
approved attorney fees, would be made to unitholders who were beneficial owners
as of July 1, 1999.
3. INVENTORIES
Inventories consisted of the following:
June 30, December 31,
1999 1998
-------- ------------
(in thousands)
Raw materials (logs) $ 14,230 $ 25,129
Work-in-process 7,926 6,554
Finished goods 14,928 15,831
Export logs 96 53
------ ------
37,180 47,567
Supplies 8,915 8,396
------ ------
Total $ 46,095 $ 55,963
====== ======
Excluding supplies, which are valued at average cost, the cost of the LIFO
inventories valued at the lower of average cost or market (which approximates
current cost) at June 30, 1999 and December 31, 1998 was $37.7 million and
$46.9 million, respectively.
4. TIMBER AND TIMBERLANDS AND PROPERTY, PLANT AND EQUIPMENT
Timber and timberlands consisted of the following (in thousands):
June 30, December 31,
1999 1998
-------- ------------
Timber and logging roads - net $ 891,529 $ 907,830
Timberlands 123,478 122,654
--------- ---------
Timber and Timberlands - net $ 1,015,007 $ 1,030,484
========= =========
Property, plant and equipment consisted of the following (in thousands):
June 30, December 31,
1999 1998
-------- ------------
Land, buildings and improvements $ 66,815 $ 66,714
Machinery and equipment 281,331 275,149
------- -------
348,146 341,863
Accumulated depreciation (170,109) (155,684)
------- -------
Property, Plant and Equipment - net $ 178,037 $ 186,179
======= =======
5. FINANCING ACTIVITIES
As of June 30, 1999, we had $218.4 million of borrowings under our
revolving line of credit. Subject to customary covenants, the line of credit
allows us to borrow from time to time up to $225 million, including up to $20
million of standby letters of credit, through December 13, 2001. As of June 30,
1999, $6.6 million remained available for borrowing under the line of credit
and we had no outstanding standby letters of credit. As of July 15, 1999, we
repaid $111 million of borrowings on the line of credit.
We will distribute $0.57 per share on August 26, 1999 to shareholders of
record on August 13, 1999.
6. SEGMENT INFORMATION
The table below presents information about reported segments for the
quarters ended June 30 (in thousands):
Northern Southern Land
Resources Resources Lumber Panel Sales Other Total
--------- --------- ------ ----- ----- ----- -----
June 30,
1999
- --------
External
revenues $ 31,901 $ 13,611 $ 88,565 $ 44,357 $ 5,915 $ 0 $ 184,349
Intersegment
revenues 18,173 12,506 30,679
Operating
income 12,569 8,943 6,725 8,067 5,428 0 41,732
June 30,
1998
- --------
External
Revenues $ 28,436 $ 15,905 $ 70,317 $ 38,546 $ 7,089 $ 11,506 $ 171,799
Intersegment
revenues 13,915 15,367 29,282
Operating
income 9,635 15,642 1,173 2,753 5,952 (211) 34,944
A reconciliation of total operating income to combined income before
income taxes, for the quarters ended June 30, is as follows (in thousands):
1999 1998
---- ----
Total segment operating income $ 41,732 $ 34,944
Interest expense - net (18,303) (14,374)
Corporate and other unallocated expenses (83) (4,319)
------ ------
Combined income before income taxes $ 23,346 $ 16,251
====== ======
7. SUBSEQUENT EVENTS
On July 1, 1999, we converted to a Real Estate Investment Trust. See Note
2 of Notes to Combined Financial Statements.
On August 4, 1999, we filed a registration statement on Form S-3 to
register 7,000,000 shares of common stock, plus up to an additional
1,050,000 shares to cover the underwriters' over-allotment option.
The registration statement relating to the securities has been filed with
the Securities and Exchange Commission, but has not yet become effective.
The securities may not be sold nor may offers to buy be accepted prior to
the time that the registration statement becomes effective. We intend to use
the proceeds from the offering to reduce indebtedness under the line of
credit and for general business purposes.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
---------------------------------------------------------------
RESULTS OF OPERATIONS
---------------------
As used herein, "Company" refers to the combined entities of Plum Creek
Timber Company, L.P. (the "Partnership"), Plum Creek Manufacturing, L.P.
("Manufacturing") and Plum Creek Marketing, Inc. ("Marketing").
RESULTS OF OPERATIONS
Second Quarter 1999 Compared to Second Quarter 1998
The following table compares operating income by segment for the quarters
ended June 30:
Operating Income by Segment
(In Thousands)
1999 1998
---- ----
Northern Resources.................................. $ 12,569 $ 9,635
Southern Resources.................................. 8,943 15,642
Lumber.............................................. 6,725 1,173
Panel............................................... 8,067 2,753
Land Sales.......................................... 5,428 5,952
Other............................................... 0 (211)
------ ------
Total Segment Operating Income...................... 41,732 34,944
Other Costs & Eliminations.......................... 2,717 (2,093)
------ ------
Total............................................... $ 44,449 $ 32,851
====== ======
The accounting policies of the segments are substantially the same as
those described in Note 1 to Notes to Combined Financial Statements in the
Partnership's 1998 annual report on Form 10-K. For segment purposes, however,
inventories are stated at the lower of average cost or market on the first-in,
first-out ("FIFO") method. The difference in computing cost of goods sold
under the LIFO and FIFO methods is included in "Other Costs & Eliminations."
NORTHERN RESOURCES SEGMENT. Revenues increased by $7.7 million, or 18%,
to $50.1 million in the second quarter 1999, compared to $42.4 million in the
second quarter of 1998. This increase was primarily due to $6.5 million of
additional revenues as a result of our acquisition of 905,000 acres of
timberlands in Maine and a 15% increase in harvest levels in the Rocky Mountain
Region, offset in part by lower harvest levels in the Cascade Region. Harvest
levels in the Rocky Mountain Region increased over the prior year second
quarter primarily due to favorable weather conditions, which allowed us to
harvest some volume that was planned for later in the year. Harvest levels in
the Cascade Region declined primarily due to a reduction in volume as the
region continues to convert its forests to younger, more productive timber
stands.
Northern Resources Segment operating income was 25% and 23% as a
percentage of its revenues for the quarters ended June 30, 1999 and 1998,
respectively. Northern Resources Segment costs and expenses increased by
$4.8 million, or 15%, to $37.5 million in 1999, compared to $32.7 million in
1998. This increase was primarily due to $5.7 million of additional costs as
a result of our Maine timberland acquisition and increased harvest levels in
the Rocky Mountain Region, offset in part by lower harvest levels in the
Cascade Region.
SOUTHERN RESOURCES SEGMENT. Revenues decreased by $5.2 million, or 16%,
to $26.1 million in the second quarter of 1999, compared to $31.3 million in
the same quarter of 1998. This decrease was primarily due to a 21% decline in
sawlog prices. The price decline was primarily due to favorable harvesting
conditions in the second quarter of 1999 compared to harvesting conditions in
the second quarter of 1998, and a higher percentage of smaller logs. Weather
conditions during the second quarter of 1999 were unusually dry, which has
resulted in an abundant supply of logs throughout the region. Additionally, by
the end of 1998, we had nearly completed the conversion of mature second growth
pine timberlands into intensively managed pine plantations, and, as a result,
average log size had decreased.
Southern Resources Segment operating income was 34% and 50% as a
percentage of its revenues for the quarters ended June 30, 1999 and 1998,
respectively. This decline is primarily due to lower sawlog prices. Southern
Resources Segment costs and expenses increased by $1.6 million, or 10%, to
$17.2 million in 1999, compared to $15.6 million in 1998, due to a slight
increase in sawlog and pulpwood sales volumes and a slight increase in log and
haul costs.
LUMBER SEGMENT. Revenues increased by $18.3 million, or 26%, to $88.6
million in the second quarter of 1999, compared to $70.3 million in the prior
year second quarter. Excluding the incremental increase in revenues of $6.4
million related to the May 1998 acquisition of the Meridian, Idaho
remanufacturing facility, revenues increased by $11.9 million. This increase
was primarily due to a 17% increase in lumber sales volume and a 7% increase in
Northwest lumber prices. Lumber sales volume increased primarily due to a
greater than 50% increase in production volumes at our newly reconfigured
sawmill at Joyce, Louisiana. Northwest lumber prices increased primarily due
to improved foreign markets and the strong U.S. economy, which has resulted in
increased housing starts and low field inventories. Despite improving lumber
markets, our second quarter 1999 Southern lumber prices have decreased slightly
compared to second quarter 1998 prices. This decline is primarily due to a
lower percentage of higher-value, wide-dimension lumber in our sales mix, as a
result of fewer large diameter sawlogs from our timberlands, and because a
significant portion of our Southern lumber is used in the treated wood
business, which is impacted less by the strong home building sector.
Lumber Segment operating income was approximately 8% and 2% as a
percentage of its revenues for the quarters ended June 30, 1999 and 1998,
respectively. This increase is primarily due to higher Northwest lumber prices
and lower log costs. Lumber Segment costs and expenses increased by $12.7
million, or 18%, to $81.8 million in the second quarter of 1999, compared to
$69.1 million in same quarter of 1998. Excluding the incremental increase in
expense of $6.0 million related to the May 1998 acquisition of the Meridian,
Idaho remanufacturing facility, expenses increased by $6.7 million. This
increase is primarily due to an increase in lumber sales volume, offset in part
by lower log costs in our Southern Region.
PANEL SEGMENT. Revenues increased by $5.9 million to $44.4 million in the
second quarter of 1999, compared to $38.5 million in the second quarter of
1998. This increase was primarily due to a 15% increase in plywood prices.
Plywood prices rose steadily during the second quarter of 1999, with many
commodity plywood prices setting new record highs. The industry composite
indices for commodity plywood prices during the second quarter of 1999 were 30%
above the indices for the prior year's second quarter. This price improvement
was primarily due to strong building activity in the U.S., rising oriented
strand board prices and declining plywood production by other manufacturers.
Industrial and specialty grade plywood prices also were higher during the
second quarter of 1999 compared to the second quarter of 1998, primarily due to
rising commodity plywood prices and strong industrial sales activity, including
demand from boat and recreational vehicle manufacturers.
Panel Segment operating income was 18% and 7% as a percentage of its
revenues for the quarters ended June 30, 1999 and 1998, respectively. The
increase in operating income was primarily due to higher plywood prices. Panel
Segment costs and expenses increased by $0.5 million to $36.3 million in the
second quarter 1999, compared to $35.8 million in the second quarter of 1998.
LAND SALES SEGMENT. Revenues decreased by $1.2 million, or 17%, to $5.9
million for the quarter ended June 30, 1999, compared to $7.1 million for the
quarter ended June 30, 1998. Land Sales Segment operating income was 92% and
85% as a percentage of its revenues for the quarters ended June 30, 1999 and
1998, respectively. Land Sales Segment costs and expenses decreased by $0.6
million to $0.5 million for the quarter ended June 30, 1999, compared to $1.1
million for the quarter ended June 30, 1998.
Other Costs and Eliminations (which consists of corporate overhead,
intercompany log profit elimination and the change in the LIFO reserve)
increased operating income by $2.7 million in the second quarter of 1999,
compared to a decrease of $2.1 million in the second quarter of 1998. The
change in Other Costs and Eliminations of $4.8 million is primarily due to
lower corporate overhead in the second quarter of 1999 compared to the
second quarter of 1998. Corporate overhead decreased by $6.8 million in the
second quarter of 1999 compared to the second quarter of 1998 primarily due to
a second quarter 1998 long-term incentive plan expense of $8.8 million.
Interest expense increased by $3.9 million, or 27%, to $18.5 million, for
the quarter ended June 30, 1999, compared to $14.6 million for the quarter
ended June 30, 1998. This increase was primarily due to the issuance of $177
million of senior notes in the fourth quarter of 1998 to finance our Maine
timberland acquisition.
Reorganization Costs of $2.4 million are costs associated with the
conversion of the Partnership to a REIT. See Note 2 of Notes to Combined
Financial Statements. Reorganization costs include fees for legal, investment
advisory, fairness opinion, tax and financial advisory, solicitation, printing,
consent fees for lender waivers, and other related costs. Reorganization costs
have been expensed as incurred.
The income allocated to the Partnership's general partner increased by
$0.1 million to $8.6 million for second quarter 1999, compared to $8.5 million
for the same period in 1998. Net income was allocated to the general partner
based on two percent of the partnership's net income (adjusted for the
incentive distribution), plus the incentive distribution. The general partner's
incentive distribution was based on the number of outstanding units times a
percentage of the per unit distribution paid to limited partners, which
totaled $0.57 per unit for the quarters ended June 30, 1999 and 1998.
Subsequent to June 30, 1999, the general partner's ownership converted to
16,498,709 shares of common Stock and 634,566 shares of special voting common
stock, upon which common stock dividends will be paid. See Note 2 of the
Notes to Combined Financial Statements.
Six months 1999 Compared to Six Months 1998
The following table compares operating income by segment for the six
months ended June 30:
Operating Income by Segment
(In Thousands)
1999 1998
---- ----
Northern Resources.................................. $ 40,213 $ 29,114
Southern Resources.................................. 15,017 27,775
Lumber.............................................. 10,280 4,351
Panel............................................... 13,018 5,202
Land Sales.......................................... 6,159 7,107
Other............................................... 0 195
------ ------
Total Segment Operating Income...................... 84,687 73,744
Other Costs & Eliminations.......................... (1,571) (4,818)
------ ------
Total............................................... $ 83,116 $ 68,926
====== ======
NORTHERN RESOURCES SEGMENT. Revenues increased by $28.0 million, or 28%,
to $128.2 million in the first six months of 1999, compared to $100.2 million
in 1998. This increase was primarily due to $20.5 million of additional
revenues as a result of our Maine timberland acquisition and a 16% increase in
harvest levels in the Rocky Mountain Region, offset in part by lower harvest
levels in the Cascade Region. Harvest levels in the Rocky Mountain Region
during the first six months of 1999 increased over harvest levels during the
first six months of 1998 primarily due to favorable weather conditions, which
allowed us to harvest some volume planned for later in the year.
Northern Resources Segment operating income was 31% and 29% as a
percentage of its revenues for the six months ended June 30, 1999 and 1998,
respectively. Northern Resources Segment costs and expenses increased by $16.9
million, or 24%, to $88.0 million in 1999, compared to $71.1 million in 1998.
This increase was primarily due to $15.7 million of additional costs as a
result of our Maine timberland acquisition and increased harvest levels in the
Rocky Mountain Region, offset in part by lower harvest levels in the Cascade
Region.
SOUTHERN RESOURCES SEGMENT. Revenues decreased by $11.6 million, or 20%,
to $46.5 million in the first six months of 1999, compared to $58.1 million in
the same period of 1998. This decrease was primarily due to a 20% decline in
sawlog prices, a 9% decline in pulpwood prices and a 7% decline in sawlog sales
volume. The sawlog and pulpwood price declines were primarily due to favorable
harvesting conditions and the harvesting of smaller logs. Weather conditions
during the first six months of 1999 were unusually dry compared to unusually
wet weather during the first six months of 1998. Additionally, by the end of
1998 we had nearly completed the conversion of mature second growth pine
timberlands into intensively managed pine plantations and, as a result, average
log size had decreased. The sawlog sales volume decline was primarily due to a
reduction in the internal usage of logs and an abundant supply of logs
throughout the region. Internal usage declined due to the July 1998 closure of
the Joyce, Louisiana plywood facility and the three-month delayed start-up of
the new Joyce, Louisiana sawmill.
Southern Resources Segment operating income was 32% and 48% as a
percentage of its revenues for the six months ended June 30, 1999 and 1998,
respectively. This decline is primarily due to lower sawlog and pulpwood
prices and higher log and haul costs. Southern Resources Segment costs and
expenses increased by $1.1 million, or 4%, to $31.5 million in 1999, compared
to $30.3 million in 1998, primarily due to a slight increase in log and haul
costs.
LUMBER SEGMENT. Revenues increased by $30.9 million, or 23%, to $168.0
million for the six months ended June 30, 1999, compared to $137.1 million for
the same period in the prior year. Excluding the incremental increase in
revenues of $14.7 million related to the May 1998 acquisition of the Meridian,
Idaho remanufacturing facility, revenues increased by $16.2 million. This
increase was primarily due to a 13% increase in lumber sales volume, offset in
part by a 7% decline in Southern lumber prices. Lumber sales volume increased
primarily due to the nearly 45% increase in production volumes at our Joyce,
Louisiana sawmill and the nearly 20% increase in production volumes at our
Pablo, Montana sawmill as a result of mill reconfiguration projects. Southern
lumber prices for the first six months of 1999 decreased compared to prices
for the first six months of 1998 primarily due to a lower percentage of higher-
value, wide-dimension lumber in our sales mix, as a result of the lower volume
of large diameter sawlogs harvested on our timberlands.
Lumber Segment operating income was approximately 6% and 3% as a
percentage of its revenues for the six months ended June 30, 1999 and 1998,
respectively. The increase was primarily due to slightly higher Northwest
lumber prices, higher lumber sales volume and lower log costs. Lumber Segment
costs and expenses increased by $25.0 million, or 19%, to $157.8 million in the
second quarter of 1999, compared to $132.8 million in same quarter of 1998.
Excluding the incremental increase in expense of $13.8 million related to the
May 1998 acquisition of the Meridian, Idaho remanufacturing facility, expenses
increased by $11.2 million. This increase of $11.2 million is primarily due to
an increase in lumber sales volume, offset in part by lower log costs in our
Southern Region.
PANEL SEGMENT. Revenues for the six months ended June 30, 1999 increased
by $6.4 million, or 8% to $84.6 million compared to $78.2 million for the same
period in 1998. This increase was primarily due to an 11% increase in plywood
prices. Plywood prices rose steadily during the first six months of 1999. The
industry composite indices for commodity plywood prices during the first six
months of 1999 were 17% above the indices for the first six months of 1998.
The price improvement was primarily due to the strong building activity in the
U.S., rising oriented strand board prices and declining plywood production by
other manufacturers. Industrial and specialty grade plywood prices also were
higher during the first six months of 1999 compared to the first six months of
1998, primarily due to rising commodity plywood prices and strong industrial
sales activity.
Panel Segment operating income was 15% and 7% as a percentage of its
revenues for the first six months of 1999 and 1998, respectively. The increase
in operating income was primarily due to higher plywood prices and slightly
lower medium density fiberboard and plywood raw material costs. Panel Segment
costs and expenses decreased by $1.3 million to $71.6 million in the second
quarter 1999, compared to $73.0 million in the second quarter of 1998. This
decrease was primarily due to a 10% decrease in medium density fiberboard raw
material costs and a 3% decrease in plywood raw material costs.
LAND SALES SEGMENT. Revenues decreased by $1.3 million, or 15%, to $7.1
million for the six months ended June 30, 1999, compared to $8.4 million for
the six months ended June 30, 1998. Land Sales Segment operating income was 87%
and 85% as a percentage of its revenues for the six months ended June 30, 1999
and 1998, respectively. Land Sales Segment costs and expenses decreased by $0.4
million, or 3% to $0.9 million for the six months ended June 30, 1999, compared
to $1.3 million for the six months ended June 30, 1998.
Other Costs and Eliminations (which consists of corporate overhead,
intercompany log profit elimination and the change in the LIFO reserve)
decreased operating income by $1.6 million in the first six months of 1999,
compared to $4.8 million in 1998. The change in Other Costs and Eliminations
of $3.2 million is primarily due to lower corporate overhead, offset in part
by a decline in the amount of intercompany log profit recognized. Corporate
overhead decreased by $8.5 million during the first six months of 1999 compared
to the first six months of 1998 primarily due to a second quarter 1998 long-
term incentive plan expense of $8.8 million. Deferred intercompany log profit
of $8.3 million was recognized during the first six months of 1999 compared to
$12.3 million during the first six months of 1998. This decrease of $4.0
million is primarily due to the build-up of log inventories in the Southern
Resources Segment in the fourth quarter of 1997 and the subsequent processing
of these logs in the first quarter of 1998. Similar log inventories were not
built-up during the fourth quarter of 1998. The profit on intercompany log
sales is deferred until the lumber and plywood manufacturing facilities convert
existing log inventories into finished products and sell them to third parties,
at which time intercompany profit is recognized.
Interest expense increased by $7.4 million, or 25%, to $37.0 million, for
the six months ended June 30, 1999,compared to $29.6 million for the six months
ended June 30, 1998. This increase was primarily due to the issuance of $177
million of senior notes in the fourth quarter of 1998 to finance our Maine
timberland acquisition.
Reorganization Costs for the six months ended June 30, 1999 were $5.1
million. See Note 2 of Notes to Combined Financial Statements.
The income allocated to the Partnership's general partner increased by
$0.6 million to $17.2 million for the six months ended June 30, 1999, compared
to $16.6 million for the same period 1998. The increase is due to the increase
in the distribution paid to limited partners, which totaled $1.14 per unit
during the first six months of 1999, compared to $1.12 per unit during the
first six months of 1998.
FINANCIAL CONDITION AND LIQUIDITY
During the first six months of 1999, net cash provided by operating
activities totaled $64.9 million, compared to $83.2 million for the same period
in 1998. The decrease of $18.3 million is primarily due to an unfavorable
working capital variance of $21.5 million, offset in part by higher net income
and higher depreciation, depletion and amortization. The unfavorable working
capital variance is primarily due to a $14.9 million Other Current Liability
variance, a $5.4 million Accounts Receivable variance and a $5.2 million
Inventory variance, offset in part by a favorable $5.3 million Wages Payable
variance. The Other Current Liability variance of $14.9 million is primarily
due to the second quarter 1998 long-term incentive plan expense of $8.8 million,
of which $2.4 million was funded in the third quarter of 1998 and the remainder
in the first quarter of 1999. The Accounts Receivable variance of $5.4 million
is primarily due to the timing of collections. The Inventory variance of $5.2
million is primarily due to the build-up of log inventories in our Southern
Region in the fourth quarter of 1997 and the subsequent processing of these
logs in the first quarter of 1998 during weather-related harvesting
curtailments. The Southern Region did not build similar log inventories in
the fourth quarter of 1998. The favorable Wages Payable variance of $5.3
million is primarily due to lower incentive compensation accruals during the
first six months of 1998 as a result of lower earnings levels.
We have an unsecured line of credit with a group of banks. Subject to
customary covenants, the line of credit allows for borrowings from time to time
of up to $225 million for general corporate purposes, including up to $20
million of standby letters of credit. The line of credit matures on December
13, 2001 and bears a floating rate of interest. As of June 30, 1999, $218
million was outstanding with $7 million remaining availability. As of July 15,
1999, $111 million of the borrowings on the line of credit were repaid.
Our borrowing agreements contain certain restrictive covenants, including
limitations on harvest levels, sales of assets, cash distributions and the
incurrence of indebtedness. In addition, the line of credit requires the
maintenance of an interest coverage ratio. We were in compliance with these
debt covenants as of June 30, 1999.
We will distribute $0.57 per share with respect to the second quarter of
1999, payable on August 26, 1999 to shareholders of record on August 13, 1999.
This distribution of $0.57 per share is equivalent to $2.28 on an annualized
basis. Future distributions will be determined by our board of directors,
in its sole discretion, based on our results of operations, cash flow and
capital requirements, economic conditions, tax considerations, debt covenant
restrictions and other factors, including harvest levels and future
acquisitions.
Cash required to meet our quarterly cash distributions, capital
expenditures and principal and interest payments will be significant. As a
result of the indebtedness incurred to finance our Maine timberland acquisition
and as a result of current and expected operating performance, we expect that
we may not be able to incur significant levels of additional indebtedness in
1999, under the terms of our agreements. Management believes that expected
borrowings under our line of credit, cash otherwise on hand and cash flows
from continuing operations will be sufficient to fund planned capital
expenditures, distributions, and interest and principal payments for the next
twelve months.
On August 4, 1999, we filed a registration statement on Form S-3 to
register 7,000,000 shares of common stock, plus up to an additional 1,050,000
shares to cover the underwriters' over-allotment option. The registration
statement relating to the securities has been filed with the Securities and
Exchange Commission, but has not yet become effective. The securities may not
be sold nor may offers to buy be accepted prior to the time that the
registration statement becomes effective. We intend to use the proceeds from
the offering to reduce indebtedness under the line of credit and for general
business purposes.
CAPITAL EXPENDITURES
Capital expenditures for the first six months of 1999 totaled $12.2
million, compared to $36.0 million for the same period in 1998. Total 1999
capital expenditures are expected to be approximately $26 million, compared to
$64.3 million expended in 1998. Planned capital expenditures include
approximately $5 million to complete the construction of the Joyce, Louisiana
sawmill, $6 million for replacement and upgrades of equipment and $15 million
for logging roads, reforestation and other expenditures related to our
timberlands.
IMPACT OF THE YEAR 2000 ISSUE
Many currently installed computer systems and software products are coded
to accept only two digit entries in the date code field. These date code
fields will need to accept four digit entries to distinguish 21st century dates
from 20th century dates. Any programs that have time-sensitive software may
recognize a date using "00" as the year 1900 rather than the year 2000. This
could result in the computer shutting down or performing incorrect
computations. As a result, before December 31, 1999, computer systems and
software used by many companies may need to be upgraded to comply with "Year
2000" requirements.
During the first quarter of 1997, we adopted a Year 2000 plan to identify
and address both internal and external Year 2000 issues. Our Year 2000 plan
addresses the following:
- information technology systems,
- process control systems, embedded chips used in our manufacturing
operations, and
- key business relationships.
Pursuant to our plan, we completed a company-wide assessment of our
information technology systems in 1997 to determine the impact of the Year 2000
issue. We completed most of the necessary revisions to our systems and
processes by year-end 1998. Testing and verification of our systems and
processes for Year 2000 compliance will be completed prior to January 1, 2000.
Our State of Readiness
Over the last five years, we have replaced many of our business computer
systems in order to realize cost savings and process improvements. A majority
of these replacements, all of which are Year 2000 compliant, were completed
prior to the company-wide Year 2000 issue assessment. The related costs have
been capitalized. In 1999, we completed the replacement of our payroll and
human resources systems. To replace these systems, we spent approximately
$300,000 in 1998 and approximately $110,000 in 1999. These costs have been
capitalized.
Our log accounting systems have required program modifications to achieve
Year 2000 readiness. The program modifications and testing were completed in
June 1999 at an approximate cost of $28,000 for 1998 and an approximate cost of
$7,000 for 1999. Our information systems personnel performed all remediation
efforts, and the related costs were expensed as incurred.
During 1998, we completed an inventory of the process control systems and
embedded chips used in our manufacturing operations and we identified the
systems that could be subject to Year 2000 problems. The systems used in the
lumber and plywood operations require minimal changes, while the medium density
fiberboard systems will require the replacement of some process control
software. The modifications and testing of the manufacturing control systems
will be completed in 1999, at an approximate cost of $33,000 for 1998 and an
approximate cost of $132,000 for 1999. These costs will be expensed as
incurred. Currently, the modifications and testing of the manufacturing
process control systems are 95% complete.
As part of our Year 2000 plan, service providers, vendors, suppliers and
customers that are critical to our operations have been notified and steps are
being undertaken to determine their Year 2000 readiness through questionnaires,
interviews, and other available means. We will continue our efforts to
determine the readiness of our key business partners and the potential impacts
on our operations if key business partners are not Year 2000 compliant by year-
end 1999.
Risks Associated with Year 2000 Issues
We rely on our key business partners for materials and services. If our
business partners fail to achieve Year 2000 compliance, our ability to operate
could be temporarily impacted. However, the impact would be limited to the
extent that sufficient alternate supplies of materials or services are
available.
We are also dependent upon our customers for sales and cash flow. Year
2000 interruptions in our customers' operations could result in reduced sales,
increased inventory or receivable levels, and cash flow reductions. While
these events are possible, our customer base is broad enough to minimize the
effects of individual occurrences.
Contingency Plans
We are evaluating the need for contingency plans to mitigate possible
business disruptions. Contingency plans may include increasing raw materials
inventories, securing alternate sources of supply, or modifying production
schedules. Additionally, if we determine that key business partners may fail
to achieve Year 2000 readiness, we will develop appropriate contingency plans.
Summary Conclusion
Based on our assessments, we do not expect Year 2000 issues relating to
our information technology systems, process control systems or embedded chips
used in our manufacturing operations to have a material impact on our financial
position, results of operations or liquidity. Furthermore, we will continue to
monitor the progress of our key business partners in achieving Year 2000
compliance, and, to the extent practicable, will develop contingency plans.
However, we can give no assurance that our key business partners will achieve
Year 2000 compliance on a timely basis, or the extent to which operations may
be impacted in the event that our key business partners fail to achieve Year
2000 compliance.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
----------------------------------------------------------
Approximately $742 million of our long-term debt bears interest at fixed
rates, and therefore the fair value of these instruments is affected by changes
in the market interest rates. The following table presents principal cash
flows (in thousands) based upon maturity dates of the debt obligations and the
related weighted-average interest rates by expected maturity dates for the
fixed rate debt. The interest rate on the variable rate debt as of June 30,
1999 was LIBOR plus 0.65% (5.77%), however, this rate could range from LIBOR
plus 0.35% to LIBOR plus 0.875% depending on our financial results.
June 30, 1999:
Long-term
debt,
including
current Fair
portion 1999 2000 2001 2002 2003 Thereafter Total Value
Fixed
Rate $ 207 $ 27,392 $ 27,423 $ 27,458 $ 27,494 $632,429 $742,403 $757,000
Avg.
Interest
Rate 9.0% 8.9% 8.8% 8.7% 8.6% 8.3%
Variable
Rate $218,400 $218,400 $218,400
As of July 15, 1999, $111 million of borrowings on the variable rate debt
has been repaid.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
-----------------
There is no pending or threatened litigation that we believe would have
a material adverse effect on our financial position, results of operations or
liquidity.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
-----------------------------------------
As previously disclosed, we completed the conversion from a master limited
partnership to a real estate investment trust on July 1, 1999.
The description of our common stock is incorporated by reference from the
description thereof set forth under the heading "Description of Capital Stock"
in the Prospectus contained in our registration statement on Form S-4, as
amended, filed with the Securities and Exchange Commission (Registration No.
33-71371) and dated January 28, 1999.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
---------------------------------------------------
On April 19, 1999 the Company held a special meeting of unitholders to
vote on the conversion transaction. Unitholders approved the conversion
transaction with the units voted as follows:
For 34,612,880
Against 2,734,029
Abstain 458,103
Withheld 1,654,417
Broker Non-votes 6,863,871
Items 3 and 5 of Part II are not applicable and have been omitted.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
--------------------------------
(a) List of Exhibits
Each exhibit set forth below in the Index to Exhibits is filed as a part
of this report. Exhibits not incorporated by reference to a prior filing are
designated by an asterisk ("*"); all exhibits not so designated are
incorporated herein by reference to a prior filing as indicated.
INDEX TO EXHIBITS
Exhibit
Designation Nature of Exhibit
- ----------- -----------------
2.6 Amended and Restated Agreement and Plan of Conversion, dated as
of July 17, 1998, by and among Plum Creek Timber Company, Inc.,
Plum Creek Timber Company, L.P. and Plum Creek Management
Company, L.P. (Form S-4, Regis. No. 333-71371, filed January 28,
1999).
2.7 Agreement and Plan of Merger, dated as of July 17, 1998, by and
among Plum Creek Timber Company, L.P., Plum Creek Acquisitions
Partners, L.P. and Plum Creek Timber Company, Inc. (Form S-4,
Regis. No. 333-71371, filed January 28, 1999).
2.8 Agreement and Plan of Merger, dated as of July 17, 1998, by and
among Plum Creek Timber Company, Inc. and Plum Creek Management
Company, L.P. (Form S-4, Regis. No. 333-71371, filed January 28,
1999).
3.1 Certificate of Incorporation of Plum Creek Timber Company, Inc.
(Form S-4, Regis. No. 333-71371, filed January 28, 1999).
3.2 Amended and Restated By-laws of Plum Creek Timber Company, Inc.
(Form S-4, Regis. No. 333-71371, filed January 28, 1999).
4.3* Senior Note Agreement, dated May 31, 1989, 11 1/8 percent Senior
Notes due June 8, 2007, Plum Creek Timber Company, L. P. (Form
10-Q, No. 1-10239, for the quarter ended June 30, 1989).
Amendment No. 1, consent and waiver dated January 1, 1991 to
Senior Note Agreement, dated May 31, 1989, 11 1/8 percent Senior
Notes due June 8, 2007, Plum Creek Timber Company, L.P. (Form 8
Amendment No. 1, for the year ended December 31, 1990).
Amendment No. 2, consent and waiver dated September 1, 1993 to
the Senior Note Agreement (Form 10-K/A, Amendment No. 1, for the
year ended December 31, 1993). Amendment No. 3, Senior Note
Agreement Amendment dated May 20, 1994 (Form 10-K/A, Amendment
No. 1, for the year ended December 31, 1994). Senior Note
Agreement Amendment dated May 31, 1996 (Form 10-Q, No. 1-10239,
for the quarter ended June 30, 1996). Senior Note Agreement
Amendment dated April 15, 1997 (Form 10-Q, No. 1-10239, for the
quarter ended September 30, 1997). Senior Note Agreement
Amendment effective July 1, 1999.
4.4* Mortgage Note Agreement, dated May 31, 1989, 11 1/8 percent
First Mortgage Notes due June 8, 2007, Plum Creek Manufacturing,
Inc. (Form 10-Q, No. 1-10239, for the quarter ended June 30,
1989). Amendment No. 1, consent and waiver dated January 1,
1991 to Mortgage Note Agreement, dated May 31, 1989, 11 1/8
percent First Mortgage Notes due June 8, 2007, Plum Creek
Manufacturing, Inc., now Plum Creek Manufacturing, L.P. (Form 8
Amendment No. 1, for the year ended December 31, 1990).
Amendment No. 2, consent and waiver dated September 1, 1993 to
the Mortgage Note Agreement (Form 10-K/A, Amendment No. 1, for
the year ended December 31, 1993). Amendment No. 3, Mortgage
Note Agreement Amendment dated May 20, 1994 (Form 10-K/A,
Amendment No. 1, for the year ended December 31, 1994).
Amendment to Mortgage Note Agreement dated June 15, 1995 (Form
10-Q, No. 1-10239, for the quarter ended September 30, 1995).
Mortgage Note Agreement Amendment dated May 31, 1996 (Form 10-Q,
No. 1-10239, for the quarter ended June 30, 1996). Mortgage
Note Agreement Amendment dated April 15, 1997 (Form 10-Q, No.
1-10239, for the quarter ended September 30, 1997). Mortgage
Note Agreement Amendment effective July 1, 1999.
4.5* Senior Note Agreement, dated August 1, 1994, 8.73% Senior Notes
due August 1, 2009, Plum Creek Timber Company, L.P. (Form
10-K/A, Amendment No. 1, for the year ended December 31, 1994).
Senior Note Agreement Amendment dated as of October 15, 1995
(Form 10-K, No. 1-10239, for the year ended December 31, 1995).
Senior Note Agreement Amendment dated May 31, 1996 (Form 10-Q,
No. 1-10239, for the quarter ended June 30, 1996). Senior Note
Agreement Amendment dated April 15, 1997 (Form 10-Q, No.
1-10239, for the quarter ended September 30, 1997). Senior Note
Agreement Amendment effective July 1, 1999.
4.6* Senior Note Agreement, dated as of November 13, 1996, $75
million Series A due November 13, 2006, $25 million Series B due
November 13, 2008, $75 million Series C due November 13, 2011,
$25 million Series D due November 13, 2016 (Form 10-K, No. 1-
10239, for the year ended December 31, 1996). Senior Note
Agreement Amendment effective July 1, 1999.
4.7* Senior Note Agreement, dated as of November 12, 1998, Series E
due February 12, 2007, Series F due February 12, 2009, Series G
due February 12, 2011 (Form 8-K and 8 K/A, File No. 1-10239,
dated November 12, 1998). Senior Note Agreement Amendment
effective July 1, 1999.
10.1* Amended and Restated Revolving Credit Agreement dated as of
December 13, 1996 among Plum Creek Timber Company, L.P., Bank of
America National Trust and Savings Association, as Agent,
NationsBank of North Carolina, N.A., as senior co-agent and the
Other Financial Institutions Party Hereto (Form 10-K, No.
1-10239, for the year ended December 31, 1996). Amendment
effective July 1, 1999.
27* Financial Data Schedule for the quarter ended June 30, 1999.
See attached exhibit.
(b) Reports on Form 8-K
The Partnership filed a current report on Form 8-K dated April 9, 1999,
reporting that it had settled all litigation relating to the Conversion
Transaction.
The Partnership filed a current report on Form 8-K dated April 19, 1999,
reporting that the unitholders approved the Conversion Transaction.
The Partnership filed a current report on Form 8-K dated June 21, 1999,
reporting that the Delaware Court of Chancery had approved the settlement of
the litigation regarding the Conversion Transaction.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PLUM CREEK TIMBER COMPANY, INC.
(Registrant)
By: /s/ William R. Brown
----------------------------
WILLIAM R. BROWN
Executive Vice President and
Chief Financial Officer
(Duly Authorized Officer and
Principal Financial and Accounting
Officer)
Date: August 11, 1999
PLUM CREEK TIMBER COMPANY, L.P.
999 Third Avenue
Seattle, Washington 98104
As of January 15, 1999
To each of the Noteholders listed on Schedule I hereto
Re: Senior Note Agreements
Dear Noteholder:
Plum Creek Timber Company, L.P., a Delaware limited partnership (the
"Company"), has heretofore entered into Senior Note Agreements dated as of
May 13, 1989 (said Agreements as heretofore amended by the amendments dated
as of January 1, 1991, April 22, 1993, September 1, 1993, May 20, 1994,
June 15, 1995, May 31, 1996, April 15, 1997 and January 15, 1999 being
herein called the "Senior Note Agreements"), pursuant to which the Company
issued its 11-1/8% Senior Notes due June 8, 2007 in the aggregate principal
amount of $165,000,000, $122,000,000 of which remain outstanding and are
held by the institutions (individually a "Noteholder", and collectively the
"Noteholders") in the respective amounts shown on Schedule I (the "Notes").
Terms used herein which are not otherwise defined herein have the meanings
ascribed to them in the Senior Note Agreements, as amended by this
Agreement.
The Company proposes to convert its outstanding ownership interests into
shares of stock of Plum Creek Timber Company, Inc., a Delaware corporation
(the "Corporation"), through the merger (the "Merger") of the Company with
and into Plum Creek Acquisition Partners, L.P., a Delaware limited
partnership (the "Operating Partnership"). Prior to the Merger,
Manufacturing will form Plum Creek Manufacturing Holding Company, Inc.
("Holding") and will contribute a nominal amount to Holding in exchange for
96 percent of Holding's outstanding common stock (which will be non-voting
stock), and management of the Company will purchase (the "Management Stock
Purchase") the remaining 4 percent of such outstanding common stock (which
will be voting stock). Manufacturing and Holding will then form four new
Subsidiaries of Holding (the "New Subsidiaries"). Immediately prior to the
Merger, Manufacturing will contribute an undivided 75 percent interest in
substantially all of its assets (allocated in varying proportions) to the
New Subsidiaries in exchange for 75 percent (valued on a fair market value
basis at the time of transfer) of the outstanding capital stock of each of
the New Subsidiaries (which stock will be non-voting preferred stock) and
will contribute an undivided 25 percent interest in substantially all of
its assets to Holding. Immediately thereafter, Holding will contribute
such undivided 25 percent interest (allocated in the same proportion as
Manufacturing's contribution of its undivided interest) to each of the New
Subsidiaries in exchange for 25 percent (valued on a fair market value
basis at the time of transfer) of the outstanding capital stock of each of
the New Subsidiaries (which stock will be voting common stock). The
formation of Holding and the New Subsidiaries and the issuance of the
capital stock by such entities as described above is herein referred to as
the "Facilities Subsidiary Reorganization." The contribution of assets of
Manufacturing to Holding and the New Subsidiaries as described above is
herein referred to as the "Manufacturing Asset Transfer". Immediately
prior to the Merger, the Company will form Plum Creek Southern Timber,
L.L.C. as a Restricted Subsidiary ("Southern Timber, L.L.C."), into which
the Company will contribute all of its timberlands located in Louisiana and
Arkansas in exchange for Southern Timber, L.L.C. assuming (on a joint and
several basis) a portion of the indebtedness of the Company. The formation
of Southern Timber, L.L.C., transfer of Louisiana and Arkansas timberlands
to Southern Timber, L.L.C. and assumption of a portion of the current
indebtedness of the Company and future indebtedness of the Operating
Partnership by Southern Timber, L.L.C. are herein referred to as the
"Southern Timber Transaction." Immediately following the Merger, Marketing
will become a subsidiary of Manufacturing, with 75 percent of the
outstanding capital stock (which will be non-voting preferred stock) owned
by Manufacturing and 25 percent of the outstanding capital stock (which
will be voting common stock) owned by Holding (the "Marketing Stock
Transfer"). In addition, it is proposed that Marketing will be released as
an obligor on the First Mortgage Notes and Marketing and the New
Subsidiaries will each assume and become obligated in respect of varying
percentages of the Debt represented by the Company's 11-1/8% Senior Notes
due June 8, 2007 and the First Mortgage Notes (the "Subsidiary Note
Assumption"). Marketing will form a wholly-owned subsidiary (the "Land
Subsidiary") which will purchase from the Operating Partnership, on a
seller financed basis, certain real property (the "Better Use Property") of
the Operating Partnership that the Operating Partnership has determined has
a higher value as recreational, residential, grazing or agricultural
property than for timber production (the "HBU Transaction"). The foregoing
transactions (herein collectively called the "Conversion Transaction") are
to be effected (i) as provided in the Agreement and Plan of Conversion (the
"Conversion Agreement"), dated as of June 5, 1998, and amended on July 17,
1998, among the Company, the Corporation and Plum Creek Management Company,
L.P. (the sole general partner of the Company), (ii) as described in the
Proxy Statement/Prospectus dated December 9, 1998 (the "Proxy
Statement/Prospectus"), and (iii) as described above. After the
effectiveness of the Conversion Transaction, the Corporation will elect to
be treated as a real estate investment trust for Federal income tax
purposes.
In connection with the Conversion Transaction the Company is requesting
certain amendments to, and consents and waivers under and in respect of,
the Senior Note Agreements and, subject to the terms and provisions hereof,
the undersigned Noteholders are agreeable thereto. Accordingly, the
Company agrees with you as follows:
1. Amendments to Senior Note Agreements.
(a) Clause (vi) of paragraph 5A of the Senior Note Agreements is hereby
amended to read in its entirety as follows:
(vi) to the extent not delivered pursuant to clause (i), (ii),
(iii), (iv) or (v), promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as the Company
or the Corporation sends to its public security holders and copies of all
registration statements (without exhibits) and all reports which either the
Company or the Corporation files with the Securities and Exchange
Commission and any governmental body or agency succeeding to the functions
of the Securities and Exchange Commission;
(b) Paragraph 5A of the Senior Note Agreements is hereby further amended
by adding the following paragraph at the end thereof:
In preparing the financial statements, computations and reports
provided for herein the Facilities Subsidiary and its Subsidiaries shall be
considered as consolidated or combined subsidiary entities of the Company
(and not accounted for on the equity method of accounting or as an
investment) notwithstanding that the Voting Stock thereof shall not be
owned by the Company, either directly or indirectly, and without regard to
whether they would be considered as such subsidiary entities under
generally accepted accounting principles.
(c) Paragraph 6B(1)(ix) of the Senior Note Agreements is hereby amended
to read in its entirety as follows:
(ix) from and after the time the Facilities Subsidiary becomes a
Restricted Subsidiary, Liens on (x) the accounts, rights to payment for
goods sold or services rendered that are evidenced by chattel paper or
instruments (and rights against persons who guarantee payment or collection
of the foregoing) of Manufacturing and its Subsidiaries which are
Restricted Subsidiaries, (y) the inventory of Manufacturing and its
Subsidiaries which are Restricted Subsidiaries and (z) the proceeds (as
defined in the Uniform Commercial Code in any applicable jurisdiction)
thereof, in each case securing the obligations of Manufacturing and such
Restricted Subsidiaries under the Facility Subsidiary's Revolving Credit
Facility (and any extension, renewal, refunding or refinancing thereof)
permitted by paragraph 6B(2)(x),
(d) Paragraph 6B(2)(i) of the Senior Note Agreements is hereby amended to
read in its entirety as follows:
(i) Funded Debt represented by the Notes, the Other Senior Notes
and the Assumption Agreements;
(e) Paragraph 6B(2)(vii) of the Senior Note Agreements is hereby amended
to read in its entirety as follows:
(vii) the Company's guarantee of Funded Debt (and related obligations
not constituting Debt) incurred by Manufacturing to finance the making of
capital improvements, expansions and additions to the property, plant and
equipment of Manufacturing and its Subsidiaries which are Restricted
Subsidiaries pursuant to the Facilities Subsidiary's Facility, provided
that such guarantee shall be subordinated to the Notes by subordination
provisions substantially the same as those contained in paragraph 7I of the
Mortgage Note Agreements, and provided, further, that the aggregate
outstanding principal amount of such Funded Debt shall at no time exceed
$20,000,000,
(f) Paragraph 6B(2)(x) of the Senior Note Agreements is hereby amended to
read in its entirety as follows:
(x) from and after the time the Facilities Subsidiary becomes a
Restricted Subsidiary, Debt incurred by Manufacturing or any of its
Subsidiaries which is a Restricted Subsidiary pursuant to the Facilities
Subsidiary's Revolving Credit Facility (and any extension, renewal,
refunding or refinancing thereof, including any refunding or refinancing in
an amount in excess of the principal amount then outstanding under the
Facilities Subsidiary's Revolving Credit Facility) which is unsecured or is
secured by Liens permitted by paragraph 6B(1)(ix), not in excess of an
aggregate principal amount of $20,000,000 at any time outstanding, provided
that neither Manufacturing nor any such Restricted Subsidiary shall suffer
to exist any Debt permitted by this clause (x) on any day after the date of
the Merger unless there shall have been a period of at least 45 consecutive
days within the 12 months immediately preceding such day during which
Manufacturing and all of such Restricted Subsidiaries shall have been free
from all Debt permitted by this clause (x),
(g) That portion of the first sentence of paragraph 6B(6) of the Senior
Note Agreements ending with the words "years preceding such year of
determination;" in clause (b) thereof is hereby amended (effectively
immediately notwithstanding the provisions of paragraph 3 hereof) in its
entirety as follows:
In any calendar year, harvest Timber (the term "harvest" and
correlative terms shall include, without duplication, both the harvesting
activities to be conducted by the Company and sales of Timber to other
Persons for current harvesting activities being conducted by such Persons)
on the Timberlands then owned directly or indirectly by the Company in
excess of the amount set forth for such calendar year in the following
table:
Calendar Year Maximum Cunits to be Harvested
- ------------- ------------------------------
1998 through 2000 2330 MCCF
2001 and each calendar year thereafter 2270 MCCF
plus, in each year, the amount, if any, by which (a) the sum of (x) the
cumulative amount set forth in the table above for the years preceding such
year of determination and (y) 2,342 MCCF, exceeds (b) the cumulative amount
actually harvested in such years preceding such year of determination;
(h) Paragraph 6C of the Senior Note Agreements is amended in its entirety
to read as follows:
The Company covenants that it will not, and will not permit any
Subsidiary to, engage in any business other than Permitted Businesses. In
addition, the Company will not, and will not permit any Restricted
Subsidiary to, (i) sell, transfer or otherwise dispose of any of its
Timberlands or Timber (collectively, "Timber Properties") to Holding or any
Subsidiary of Holding (whether or not at the time they are Restricted
Subsidiaries, and herein collectively called the "Manufacturing Entities")
unless such transaction is a transaction permitted under clause (v) or
(vii) of paragraph 6B(5), or (ii) invest in or otherwise transfer to any of
the Manufacturing Entities the proceeds ("Timber Proceeds") of the sale or
disposition of any such Timber Properties (unless such proceeds are derived
from a transaction permitted under clause (v) or (vii) of paragraph 6B(5)).
Any Timber Proceeds being used to "purchase productive assets in the same
line of business" under the provisions of paragraph 6B(5)(viii) shall not
be used for any purpose except for the acquisition of Timber Properties to
be owned directly by the Company or a Restricted Subsidiary which is not
one of the Manufacturing Entities. Notwithstanding the foregoing, the
Company and its Restricted Subsidiaries may sell Timber to the
Manufacturing Entities in connection with, and in transactions which
constitute part of, harvesting activities conducted in accordance with the
requirements of paragraph 6B(6). All acquisitions of Timber Properties by
the Company and its Restricted Subsidiaries shall be made only by the
Company directly or indirectly through Restricted Subsidiaries which are
not Manufacturing Entities.
(i) Paragraph 7A (xiv) of the Senior Note Agreements is amended in its
entirety to read as follows:
(xiv) this Agreement, the Southern Timber Assumption Agreement or any
Future Southern Timber Assumption Agreement shall at any time, for any
reason, cease to be in full force and effect or shall be declared to be
null and void in whole or in any material part by the final judgment (which
is nonappealable or has not been stayed pending appeal or as to which all
rights to appeal have expired or been exhausted) of any court or other
governmental or regulatory authority having jurisdiction in respect
thereof, or the validity or the enforceability of this Agreement, the
Southern Timber Assumption Agreement or any Future Southern Timber
Assumption Agreement shall be contested by or on behalf of the Company, or
the Company shall renounce this Agreement, the Southern Timber Assumption
Agreement or any Future Southern Timber Assumption Agreement, or deny that
it is bound by the terms hereof or has any further liability hereunder; or
(j) The proviso following clause (b)(vii) of the definition of Available
Cash and the definitions of Designated Repurchases (and the references to
that term in paragraphs 6B(3) and 6B(9) of the Senior Note Agreements) and
Distribution Support Agreement in paragraph 10B of the Senior Note
Agreements are hereby deleted, clause (ii) of the definition of Capital
Transaction is hereby amended to read "(ii) sales of equity interests by
the Corporation the proceeds of which are contributed to the Company", and
the following definitions set forth in paragraph 10B of the Senior Note
Agreements are hereby amended in their entirety to read as follows:
"Facilities Subsidiary's Facility" shall mean any facility pursuant
to which Manufacturing may incur Debt for purposes of making capital
improvements, additions to, or expansions of, property, plant and equipment
of the Facilities Subsidiary or its Subsidiaries which are Restricted
Subsidiaries.
"Facilities Subsidiary" shall mean, collectively, Manufacturing,
Marketing, Holding, the New Subsidiaries and any other Subsidiary of
Manufacturing satisfying the requirements of clause (ii) of the definition
of Wholly-Owned Subsidiary contained herein.
"Facility's Subsidiary Revolving Credit Facility" shall mean any
facility pursuant to which Manufacturing or any of its Subsidiaries which
is a Restricted Subsidiary may obtain revolving credit, take-down credit,
the issuance of standby and payment letters of credit and back-up for the
issuance of commercial paper.
"General Partner" shall mean Plum Creek Timber I, L.L.C., a limited
liability company organized and existing under the laws of the State of
Delaware, and its successors and assigns as General Partner of the Company.
"Mortgage Note Agreements" shall mean the Note Agreements, dated as
of May 31, 1989 and amended as of January 1, 1991, April 22, 1993,
September 1, 1993, May 20, 1994, June 15, 1995, May 31, 1996, April 15,
1997 and January 15, 1999, providing for the issuance and sale of
$160,000,000 original aggregate principal amount of the 11-1/8% First
Mortgage Notes of the Facilities Subsidiary to the purchasers listed in the
schedule of purchasers attached thereto.
"Partnership Agreement" shall mean the Agreement of Limited
Partnership of the Company, as in effect at the time of and after giving
effect to the Merger, and as the same may, from time to time, be amended,
modified or supplemented in accordance with the terms thereof.
"Restricted Payment" shall mean (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
stock of or other ownership interests in the Company or any shares of
Voting Stock of a Facilities Operating Subsidiary not owned by the Company
(directly or indirectly), now or hereafter outstanding, except a dividend
payable solely in shares of stock of or ownership interests in the Company,
and (b) any redemption, retirement, purchase or other acquisition, direct
or indirect, of any shares of any class of stock of or other ownership
interests in the Company or any shares of Voting Stock of a Facilities
Operating Subsidiary not owned by the Company (directly or indirectly), now
or hereafter outstanding, or of any warrants, rights or options to acquire
any such shares or interests, except to the extent that the consideration
therefor consists of shares of stock of or other ownership interests in the
Company.
"Restricted Subsidiary" shall mean any Wholly-Owned Subsidiary other
than any Designated Immaterial Subsidiary.
"Wholly-Owned Subsidiary" shall mean any Subsidiary organized under
the laws of any state of the United States of America which conducts the
major portion of its business in the United States of America and (i) in
the case of any Subsidiary, all the stock and other ownership interests of
which are owned by the Company either directly or indirectly through
Wholly-Owned Subsidiaries (other than Manufacturing or one or any of its
Subsidiaries) and (ii) at such time as the Mortgage Notes shall have been
paid in full and retired, (x) Manufacturing provided that all the stock and
other ownership interests thereof are owned by the Company either directly
or indirectly through Wholly-Owned Subsidiaries (other than a Subsidiary of
Manufacturing), (y) Holding provided that (1) Holding shall engage in no
business except the ownership of its Subsidiaries, (2) all the outstanding
stock and ownership interests thereof (other than Voting Stock) shall be
owned by the Company either directly or indirectly through Manufacturing,
(3) at least 51% of the Voting Stock thereof (to the extent it is not so
owned by the Company or Manufacturing) shall be owned by the Management
Voting Group, (4) the Voting Stock of Holding shall not account for more
than 4% of the equity ownership of Holding (nor, through such ownership,
shall it account for more than 1% of the direct or indirect equity
ownership of any Subsidiary of Holding) and (5) no more than 35% of the
Voting Stock of Holding shall be owned by any one individual, and (z) any
other Subsidiary of Manufacturing, provided that all the outstanding stock
and ownership interests thereof (other than Voting Stock) shall be owned by
the Company (either directly or indirectly through Wholly-Owned
Subsidiaries of the type described in clause (i) above) and the Voting
Stock of which (to the extent it is not so owned by the Company) shall be
owned by Holding.
(k) The following new defined terms are hereby added to paragraph 10B of
the Senior Note Agreements in proper alphabetical order:
"Assumption Agreements" means those certain Assumption Agreements
executed as contemplated by (and in substantially the respective forms
designated as Exhibits A, B, C and D to) the Amendment to Senior Note
Agreements dated as of January 15, 1999, together with any assumption
agreements executed after January 15, 1999, and that are contemplated by
paragraph 2, clause (b)(ii) of the Southern Timber Assumption Agreement.
"Company" means Plum Creek Acquisition Partners, L.P., successor to
Plum Creek Timber Company, L.P. pursuant to the Merger, and its successors
and assigns as permitted by the provisions of paragraph 6B(5).
"Corporation" shall mean Plum Creek Timber Company, Inc., a Delaware
corporation, and its successors.
"Facilities Operating Subsidiaries" shall mean Marketing, Holding and
the New Subsidiaries and "Facilities Operating Subsidiary" shall mean any
one of them.
"Future Southern Timber Assumption Agreements" means assumption
agreements that are contemplated by paragraph 2, clause (b)(ii) of the
Southern Timber Assumption Agreement.
"Holding" shall mean Plum Creek Manufacturing Holding Company, Inc. a
Delaware corporation.
"Management Voting Group" shall mean, at any time, a group consisting
of four or more individuals who are then current officers of the Company
who legally and beneficially own in the aggregate not less than 51% of the
outstanding Voting Stock of Holding.
"Merger" shall mean the merger of Plum Creek Timber Company, L.P.
with and into Plum Creek Acquisition Partners, L.P. as provided in the
Agreement and Plan of Conversion, dated as of June 5, 1998, and amended on
July 17, 1998, among Plum Creek Timber Company, Inc., Plum Creek Timber
Company, L.P. and Plum Creek Management Company, L.P.
"New Subsidiaries" shall mean Plum Creek Northwest Lumber, Inc., a
Delaware corporation, Plum Creek Northwest Plywood, Inc., a Delaware
corporation, Plum Creek MDF, Inc., a Delaware corporation, and Plum Creek
Southern Lumber, Inc., a Delaware corporation, and "New Subsidiary" shall
mean any one of them.
"Other Senior Notes" means the following outstanding Senior Notes of
the Company (other than the "Notes" as defined herein):
(i) the 8.73% Senior Notes due August 1, 2009; (ii) the 11-1/8%
Senior Notes due June 8, 2007; (iii) the Senior Notes, Series A, B, C and
D, due November 13, 2006, 2008, 2011 and 2016, respectively; and (iv) the
Senior Notes, Series E, F and G, due February 12, 2007, 2009 and 2011,
respectively.
"Southern Timber Assumption Agreement" means that certain Assumption
Agreement executed as contemplated by (and in substantially the form of
Exhibit D to) the Amendment to Senior Note Agreements dated as of
January 15, 1999.
"Ton" shall mean 2,000 pounds of green saw logs and pulpwood. For
purposes of conversion of Timber in the Company's Maine timberlands, one
million Tons shall equal 355 MCCF.
2. Consent and Waiver.
The undersigned Noteholders hereby consent to the consummation of the
Manufacturing Asset Transfer, the Management Stock Purchase, the Marketing
Stock Transfer, the Facilities Subsidiary Reorganization, the HBU
Transaction, the Southern Timber Transaction (provided the assumption of
indebtedness portion of the Southern Timber Transaction is effected in the
manner specified in paragraph 3D hereof) and the Subsidiary Note Assumption
(provided the same is effected in the manner specified in paragraph 3D
hereof) and the formation of Holding and the New Subsidiaries and hereby
waive compliance by the Company with the provisions of paragraphs 6B(3)
(Loans, Advances, Investments and Contingent Liabilities), 6B(4) (Sale of
Stock and Debt of Subsidiaries), 6B(9) (Transactions with Affiliates), and
6D (Issuance of Stock by Subsidiaries) of the Senior Note Agreements solely
for purposes of effectuating (and only to the extent necessary to
effectuate) such transactions in the context of consummating the entire
Conversion Transaction as described in and as contemplated by the
Conversion Agreement and the Proxy Statement/Prospectus. The effectiveness
of this Agreement shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of any of the holders of the
Notes under this Agreement or the Senior Note Agreements, nor constitute a
waiver of any other provision of this Agreement or the Senior Note
Agreements.
3. Conditions to Effectiveness.
Except as provided in paragraph 1(g) hereof, the amendments, consents and
waivers set forth in paragraphs 1 and 2 hereof shall become effective at
the "Effective Time" (as defined in the Conversion Agreement), subject to
the fulfillment to your satisfaction (or your waiver) of the following
conditions:
A. Opinion of Company's Counsel. You shall have received favorable
opinions from (i) James A. Kraft, General Counsel of the Company, covering
such matters incident to the transactions described herein as you may
reasonably request, and (ii) Skadden, Arps, Slate, Meagher & Flom, special
tax counsel to the Company and the Corporation in connection with the
Conversion Transaction, substantially in the form referenced in Annex I
attached to the Proxy Statement/Prospectus and covering such other matters
incident to the transactions described herein as you may reasonably
request. Such opinions shall be addressed to you, shall be dated the date
of the Effective Time, and shall be otherwise satisfactory in substance and
form to you and to your special counsel.
B. Opinion of Noteholders' Counsel. You shall have received a favorable
opinion from Willkie Farr & Gallagher, special counsel for the Noteholders,
covering such matters incident to the transactions described herein as you
may reasonably request, addressed to you, dated the date of the Effective
Time and otherwise satisfactory in substance and form to you.
C. Merger. The Merger shall have become effective in the manner
provided for in the Conversion Agreement prior to July 31, 1999 and the
Operating Partnership shall have executed and delivered an Assumption
Agreement in substantially the form of Exhibit A hereto in conformity with
the provisions of clause (iv) of paragraph 6B(5) of the Senior Note
Agreements (together with an Officers' Certificate specifying compliance
with the matters referred to in said clause (iv)). No provision of the
Conversion Agreement shall have been amended, nor compliance with any
provision thereof, or satisfaction of any condition to the Conversion
Transaction set forth therein, shall have been waived without your consent.
D. Assumption of Certain Notes. Marketing and each New Subsidiary shall
have executed and delivered a Subsidiary Assumption Agreement (a
"Subsidiary Assumption Agreement") substantially in the respective forms of
Exhibits B and C hereto thereby becoming an obligor in respect of a portion
of the First Mortgage Notes and the 11-1/8% Senior Notes due June 8, 2007
(all as more particularly described in Exhibits B and C). Southern Timber,
L.L.C. shall have executed and delivered the Southern Timber Assumption
Agreement substantially in the form of Exhibit D hereto thereby becoming an
obligor in respect of a portion of the indebtedness of the Company (all as
more particularly described in Exhibit D).
E. First Mortgage Notes. The Mortgage Note Agreements shall have been
amended by an amendment agreement in substantially the form of agreement
heretofore delivered to you by the Company (the "First Mortgage Note
Amendment") and all amendments, waivers and consents provided for therein
shall have become and remain effective.
F. Other Senior Notes. The Note Agreements relating to the Other Senior
Notes (as defined in paragraph 1(j) above) shall have been amended by
amendment agreements substantially in the form of this Agreement (with such
changes therein as to form but not of substance, as may be appropriate in
the circumstances) and all amendments, waivers and consents provided for in
such amendment agreements shall have become and remain effective.
G. Rating of Notes. The Notes shall have received an investment grade
rating from one of the four "nationally recognized statistical rating
organizations" and you shall have received evidence that such rating
remains in effect at the Effective Time.
H. Amendment Fee. The Company shall have paid to each Noteholder an
amendment fee in an amount equal to 0.02% of the principal amount of Notes
held by such Noteholder as specified on Schedule I hereto. Such fee shall
be payable within ten days of the date that the Company receives executed
counterparts of this Agreement from the Required Holders, whether or not
the Conversion Transaction is consummated.
I. Representations and Warranties; No Default. The representations and
warranties contained in paragraph 4 hereof shall be true in all material
respects on and as of the date of the Effective Time; there shall exist on
the date of the Effective Time no Event of Default or Default; and the
Company shall have delivered to you an Officers' Certificate, dated the
date of the Effective Time, to both such effects.
J. Proceedings. All proceedings taken or to be taken in connection with
the transactions contemplated hereby and all documents incident thereto
shall be satisfactory in substance and form to you, and you shall have
received all such counterpart originals or certified or other copies of
such documents as you may reasonably request.
K. Noteholders Consent. The Company shall have received executed
counterparts of this Agreement from the Required Holders.
4. Representations and Warranties.
The Company (the term "Company" as used herein including both Plum Creek
Timber Company, L.P. and the Operating Partnership as its successor in the
Merger) represents and warrants as follows:
A. Organization. The Company is a limited partnership duly organized,
validly existing and in good standing under the Delaware Revised Uniform
Limited Partnership Act and has all requisite partnership power and
authority to own and operate its properties, to conduct its business as now
conducted and as proposed to be conducted and to enter into and perform its
obligations under this Agreement and (after giving effect to the Merger)
the Assumption Agreement, the Senior Note Agreements, the Notes and the
Subsidiary Assumption Agreement to which it is a party. As of the
Effective Time the Facilities Operating Subsidiaries will each be a duly
organized and validly existing corporation and in good standing under the
laws of its jurisdiction of incorporation with all requisite corporate
power and authority to own and operate its properties, to conduct its
business as proposed to be conducted and to enter into and perform its
obligations under the Subsidiary Assumption Agreement to which it is a
party.
B. Qualification. Each of the Company and its Subsidiaries is duly
qualified or registered for transaction of business and in good standing as
a foreign limited partnership or corporation in each jurisdiction in which
the failure so to qualify or be registered would have a material adverse
effect on the business, property or assets, condition (financial or other),
operations or prospects of the Company and its Subsidiaries taken as a
whole, or on the ability of the Company to perform its obligations under
this Agreement or the Conversion Agreement, or (after giving effect to the
Merger) the Assumption Agreement, the Senior Note Agreements or the Notes,
or in the ability of the parties to the Subsidiary Assumption Agreements
and the Southern Timber Assumption Agreement to perform their obligations
thereunder.
C. Financial Statements. The Company has delivered to you a complete
and correct copy of the Proxy Statement/Prospectus (which for the purposes
of this paragraph 4 shall include only those documents incorporated by
reference as of the date hereof). The unaudited pro forma condensed
consolidated financial statements of the Corporation contained in the Proxy
Statement/Prospectus (the "Pro Forma Statements") comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act of 1933, as amended, and the Securities Exchange Act of
1934, as amended, and the published rules and regulations thereunder and
the assumptions on which the pro forma adjustments reflected in the Pro
Forma Statements are based provide a reasonable basis for presenting the
significant effects of the transactions contemplated by the Pro Forma
Statements and such pro forma adjustments give appropriate effect to such
assumptions and are properly applied in the Pro Forma Statements. Inasmuch
as the Corporation at the Effective Time will be entirely a holding company
owning the Operating Partnership, with no substantial assets or liabilities
apart from the Operating Partnership, the Pro Forma Statements
substantially reflect the pro forma position of the Operating Partnership
and its Subsidiaries after giving effect to the Merger.
D. Subsidiaries. As of the Effective Time the Company will own,
directly or indirectly, all of the issued and outstanding equity interests
of all of its Subsidiaries except, in the case of Holding and its
Subsidiaries, the Voting Stock of Holdings owned by the Management Voting
Group, which interests will have been duly authorized and validly issued,
fully paid and non-assessable and be owned free and clear of any Liens
(except for Liens on the shares of Voting Stock of Holdings owned by the
Management Voting Group in favor of the Company as security for the unpaid
subscription price for such shares of Voting Stock). As of the Effective
Time there will be outstanding no warrants or options to acquire, or
instruments convertible into or exchangeable for, any equity interest in
any such Subsidiary.
E. Changes, etc. Since the date of the Proxy Statement/Prospectus (a)
the Company and its Subsidiaries have not incurred any material liabilities
or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business except for those
transactions described in the Proxy Statement/Prospectus as constituting a
part of the Conversion Transaction, and (b) there has not been (i) any
material adverse change in the business, property or assets, condition
(financial or other), operations or prospects of the Company and its
Subsidiaries taken as a whole, or (ii) any Restricted Payment of any kind
declared, paid or made by the Company other than regular quarterly
declarations and payments of distributions to unit holders of the Company
in accordance with paragraph 6A of the Senior Note Agreements.
F. Actions Pending. There is no action, suit, investigation or
proceeding pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries, or any properties or rights of the
Company or any of its Subsidiaries, by or before any court, arbitrator or
administrative or governmental body which questions the validity of this
Agreement, the Conversion Agreement, the Assumption Agreement, the Southern
Timber Assumption Agreement or the Subsidiary Assumption Agreements or any
action taken or to be taken pursuant to any thereof, which would be
reasonably likely to result in any material adverse change in the business,
properties or assets, condition (financial or other), operations or
prospects of the Company and its Subsidiaries taken as a whole, or in the
ability of the Company to perform its obligations under this Agreement, the
Conversion Agreement or (after giving effect to the Merger) the Assumption
Agreement, the Senior Note Agreements or the Notes, or in the ability of
the parties to the Subsidiary Assumption Agreements or the Southern Timber
Assumption Agreement to perform their obligations thereunder.
G. Compliance with other Instruments, etc. Neither the Company nor any
Subsidiary of the Company is in violation of any term of the Partnership
Agreement or of any term of any agreement or instrument to which it is a
party or by which it or its properties is bound or any term of any
applicable law, ordinance, rule or regulation of any governmental authority
or any term of any applicable order, judgment or decree of any court,
arbitrator or governmental authority, the consequences of which violation
would be reasonably likely to have a material adverse effect on the
business, properties or assets, condition( financial or other), operations
or prospects of the Company and its Subsidiaries taken as a whole or on the
ability of the Company to perform its obligations under this Agreement, or
(after giving effect to the Merger) the Assumption Agreement, the Senior
Note Agreements or the Notes, or on the ability of the parties to the
Subsidiary Assumption Agreements or the Southern Timber Assumption
Agreement to perform their obligations thereunder. The execution, delivery
and performance by the Company of this Agreement and (after giving effect
to the Merger) the Assumption Agreement, the Senior Note Agreements and the
Notes, and the execution of the Subsidiary Assumption Agreements and the
Southern Timber Assumption Agreement by the parties thereto, will not in
any case result in any violation of or be in conflict with or constitute a
default under any such term or result in the creation of (or impose any
obligation on the Company or any such party to create) any Lien upon any of
the properties or assets of the Company or any of its Subsidiaries,
pursuant to any such term.
H. Governmental Consent. No consent, approval or authorization of, or
declaration or filing with, any governmental authority is required for the
valid execution, delivery and performance by the Company of this Agreement,
or, after giving effect to the Merger, the Assumption Agreement, the Senior
Note Agreements or the Notes, or by any party thereto of the Subsidiary
Assumption Agreements or the Southern Timber Assumption Agreement.
I. Franchises, Licenses, Agreements, etc. At the Effective Time the
Company and its Subsidiaries will each be in possession of and operating in
substantial compliance with all franchises, grants, authorizations,
approvals, licenses, permits, easements, consents, certificates and orders
required to own or lease its respective properties and to permit the
conduct of its business, except for those franchises, grants,
authorizations, approvals, licenses, permits, easements, consents,
certificates and orders (collectively, "Permitted Exceptions") (i) which
are routine in nature and are expected to be obtained or given in the
ordinary course of business after the Effective Time, (ii) which are
administrative in nature and which are expected to be obtained or given in
the ordinary course of business after the Effective Time, or (iii) the
failure of which to be obtained or given would not individually or in the
aggregate materially and adversely affect the business, property or assets,
condition (financial or other), operations or prospects of the Company and
its Subsidiaries taken as a whole, or impair the ability of the Company to
perform its obligations under this Agreement, the Conversion Agreement, the
Assumption Agreement, the Senior Note Agreements or the Notes, or in the
ability of the parties to the Subsidiary Assumption Agreements or the
Southern Timber Assumption Agreement to perform their respective
obligations thereunder.
J. Title to Properties. At the Effective Time the Company and its
Subsidiaries will have good title to their real properties (other than
properties which are leased) and good title to all of their other
properties and assets, subject to no Lien of any kind except Liens
permitted by paragraph 6B(1) of the Senior Note Agreements. All leases
necessary in any material respect for the conduct of the businesses of the
Company and its Subsidiaries, are valid and subsisting and are in full
force and effect.
K. Environmental Matters.
(a) At the Effective Time the Company and its Subsidiaries will have all
environmental permits or licenses necessary for the conduct of its business
as to be conducted as of the Effective Time and, as to any such permit or
license that has expired or is about to expire, or is needed for the
proposed conduct of its business, the Company or such Subsidiary has or
will have timely and properly applied for renewal or receipt of the same.
The Company and its Subsidiaries are currently operating in material
compliance with the limits set forth in such environmental permits or
licenses and any noncompliance with such permits or licenses will not
result in any material liability or penalty to the Company or any of its
Subsidiaries and neither the Company nor any Subsidiary has any knowledge
of any threatened or pending proceeding for the revocation, loss or
termination of any such environmental permits or licenses.
(b) All facilities located on the real property owned by the Company and
its Subsidiaries at the Effective Time after giving effect to the
Conversion Transaction which are subject to regulation by the Federal
Resource Conservation and Recovery Act, as in effect on the date hereof,
are and have been operated by the Company and its Subsidiaries in material
compliance with such Act and neither the Company nor any of its
Subsidiaries, has received or, to the knowledge of the Company, been
threatened with, a notice of violation regarding such facilities which
reasonably can be expected to have a material adverse effect on the
business, properties or assets, condition (financial or other), operations
or prospects of the Company and its Subsidiaries taken as a whole.
(c) With respect to the real property to be owned by the Company and its
Subsidiaries as of the Effective Time, there has not occurred to the best
knowledge of the Company (i) any Release of any Hazardous Substance in a
Reportable Quantity, (ii) any discharge of any substance into ground,
surface, or navigable waters for which a notice of violation has been
received or threatened under any federal, state or local laws, rules or
regulations concerning water pollution, or (iii) any assertion of any Lien
pursuant to federal, state or local environmental law resulting from any
use, spill, discharge or clean-up of any hazardous or toxic substance or
waste, which occurrence can reasonably be expected to have a material
adverse effect on the business, properties or assets, condition (financial
or other), operations or prospects of the Company and its Subsidiaries
taken as a whole. As used in this paragraph, the terms "Release",
"Hazardous Substance", and "Reportable Quantity" shall have the meanings
assigned such terms under the Comprehensive Environmental Response
Compensation and Liability Act, as amended (CERCLA).
L. Status under Certain Statutes. Neither the Company nor any of its
Subsidiaries is subject to regulation under the Investment Company Act of
1940, the Public Utility Holding Company Act of 1935, the Transportation
Acts or the Federal Power Act, in each case as amended.
M. Year 2000. With respect to the Company and its Subsidiaries (after
giving effect to the Conversion Transaction), (a) a review and assessment
has been initiated of all areas within the Company's and its Subsidiaries'
business and operations (including those affected by suppliers, vendors and
customers) that could be adversely affected by the "Year 2000 Problem"
(that is, the risk that computer applications used by the Company or any of
its Subsidiaries (or suppliers, vendors and customers) may be unable to
recognize and properly perform date-sensitive functions involving certain
dates prior to and any date after December 31, 1999), (b) a plan and
timetable has been developed for addressing the Year 2000 Problem on a
timely basis, and (c) to date, that plan has been implemented in accordance
with that timetable. Any reprogramming required to avoid a Year 2000
Problem will be completed by June 30, 1999, except where failure to do so,
individually or in the aggregate, could not reasonably be expected to
result in a material adverse effect on the business, properties or assets,
condition (financial or other), operations or prospects of the Company and
its Subsidiaries taken as a whole. The cost to the Company and its
Subsidiaries of such reprogramming and testing and of the reasonably
foreseeable consequences of the Year 2000 Problem to the Company and its
Subsidiaries (including reprogramming errors and the failure of others'
systems or equipment) will not result in a Default or a material adverse
effect on the business, properties or assets, condition (financial or
other), operations or prospects of the Company and its Subsidiaries taken
as a whole. Except for such reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information
systems of the Company and its Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue through the final maturity date of
the Notes to be sufficient to permit the Company and its Subsidiaries to
conduct their respective businesses without a reasonable likelihood of
resulting in a material adverse effect on the business, property or assets,
condition (financial or other) or results of operations or prospects of the
Company and its Subsidiaries taken as a whole.
N. Incorporated Representations and Warranties. All of the
representations and warranties made in paragraph 4 of the First Mortgage
Note Amendment (as defined in paragraph 3E above) are true and correct and
are incorporated herein by reference with the same effect as if set forth
at length herein.
O. Disclosure. The Proxy Statement/Prospectus fairly describes, in all
material respects, the general nature of the business and principal
properties of the Company and its Subsidiaries after giving effect to the
Conversion Transaction. Neither this Agreement, the Proxy
Statement/Prospectus nor any other document, certificate or statement
furnished to you by or on behalf of the Company or any Subsidiary in
connection herewith contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading. There is no fact peculiar to
the Company which materially adversely affects or in the future may (so far
as the Company can now reasonably foresee) materially adversely affect the
businesses, property or assets, condition (financial or other) or results
of operations or prospects of the Company and its Subsidiaries and which
has not been set forth in this Agreement, or in the Proxy
Statement/Prospectus.
5. Expenses; Indemnification.
The Company shall, whether or not the transactions contemplated hereby are
consummated, save each holder of Notes harmless for all out-of-pocket
expenses arising in connection with the execution and delivery or
performance of this Agreement, the Assumption Agreement, the Southern
Timber Assumption Agreement or the Subsidiary Assumption Agreements,
including the reasonable fees and expenses of special counsel for the
Noteholders. The Company shall also indemnify and save each holder of
Notes harmless from and against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever (including, without limitation, any
taxes, and any additional taxes imposed on any amounts payable pursuant to
this paragraph 5) which may at any time be imposed on, incurred by or
asserted against any holder of Notes in any way arising out of, relating to
or resulting from this Agreement or the transactions contemplated hereby.
The obligations of the Company under this paragraph 5 shall survive the
transfer of any Note or portion thereof or interest therein by a holder of
Notes or any transferee and the payment of any Note.
6. Miscellaneous.
A. Continuity and Integration of Agreements. The Senior Note
Agreements, as supplemented and amended by this Agreement, shall remain in
full force and effect and are hereby ratified and confirmed, and the Senior
Note Agreements and this Agreement shall be deemed to be and construed as a
single agreement. Without limitation of the foregoing, or any provision of
the Senior Note Agreements, all representations and warranties made herein
or in any certificate or document delivered in connection herewith shall
for all purposes be deemed made by the Company in, and delivered by the
Company pursuant to and in connection with, the Senior Note Agreements.
B. Survival of Representations and Warranties. All representations and
warranties contained herein shall survive the execution and delivery of
this Agreement, and the transfer of any Note by a holder thereof. Such
representations and warranties may be relied upon by any transferee of a
Note from a holder thereof.
C. Successors and Assigns. All covenants and agreements in this
Agreement contained by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
D. Descriptive Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
E. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
F. Operating Partnership a Party. The Operating Partnership is a party
to this Agreement for purposes of making the representations and warranties
in paragraph 4 hereof and to acknowledge its obligations under paragraph 5
hereof after the Merger.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK.
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this letter and return the same
to the Company whereupon this letter shall become a binding agreement among
us.
Very truly yours,
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its General Partner
By:____________________________
Name: Diane M. Irvine
Title: Vice President and
Chief Financial Officer
PLUM CREEK ACQUISITION PARTNERS, L.P.
By: Plum Creek Timber I, L.L.C.,
its General Partner
By: Plum Creek Timber Company, Inc.,
its Managing Member
By:____________________________
Name: Diane M. Irvine
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is accepted as of the date first above written:
ALLSTATE LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY OF
NEW YORK
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
AMERUS LIFE HOLDINGS, INC.
(formerly Central Life Assurance Company)
By:________________________________
Name:
Title:
FARM BUREAU LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
FIRST COLONY LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
MELLON BANK, N.A., solely in its capacity as Trustee for the AT&T MASTER
PENSION TRUST (as directed by John Hancock Mutual Life Insurance Company),
and not in its individual capacity
By:________________________________
Name:
Title:
MELLON BANK, N.A., solely in its capacity as Trustee for the NYNEX MASTER
PENSION TRUST (as directed by John Hancock Mutual Life Insurance Company),
and not in its individual capacity
By:________________________________
Name:
Title:
MODERN WOODMEN OF AMERICA
By:________________________________
Name:
Title:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By:________________________________
Name:
Title:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By:________________________________
Name:
Title:
WOODMEN ACCIDENT AND LIFE COMPANY
By:________________________________
Name:
Title:
SCHEDULE I
11 1/8% Senior Notes due 2007
(Issued 5/31/89)
Name of Noteholder Principal Amount
- ------------------ of Notes
----------------
Allstate Life Insurance Company $ 7,393,939.40
Allstate Life Insurance Company of New York 1,478,787.88
AmerUs Life Holdings, Inc. 2,218,181.82
Farm Bureau Life Insurance Company 3,696,969.70
First Colony Life Insurance Company 3,696,969.70
John Hancock Mutual Life Insurance Company 23,290,909.10
John Hancock Variable Life Insurance Company 1,109,090.90
Massachusetts Mutual Life Insurance Company 7,393,939.40
Mellon Bank, N.A., as Trustee for AT&T Master
Pension Trust 739,393.94
Mellon Bank, N.A., as Trustee for NYNEX Master
Pension Trust 739,393.94
Modern Woodmen of America 1,848,484.84
The Prudential Insurance Company of America 58,412,121.20
Teachers Insurance and Annuity Association of America 9,242,424.24
Woodmen Accident and Life Company 739,393.94
---------------
$ 122,000,000.00
PLUM CREEK MANUFACTURING, L.P.
999 Third Avenue
Seattle, Washington 98104
As of January 15, 1999
To each of the Noteholders listed on Schedule I hereto
Re: First Mortgage Note Agreements
Dear Noteholder:
Plum Creek Manufacturing, L.P., a Delaware limited partnership (the
"Company"), (as successor in interest to Plum Creek Manufacturing, Inc.)
and Plum Creek Timber Company, L.P., a Delaware limited partnership (the
"Partnership") are parties to Mortgage Note Agreements dated as of May 31,
1989 (said Agreements as heretofore amended as of January 1, 1991, April
22, 1993, September 1, 1993, May 20, 1994, June 15, 1995, May 31, 1996 and
April 15, 1997 being herein called the "Mortgage Note Agreements"),
pursuant to which the Company issued (and the Partnership guaranteed) the
Company's 11-1/8% First Mortgage Notes due June 8, 2007 in the aggregate
principal amount of $160,000,000 of which $112,000,000 aggregate principal
amount remains outstanding and which are held by the institutions
(individually a "Noteholder", and collectively the "Noteholders") in the
respective amounts shown on Schedule I (the "Notes"). Terms used herein
which are not otherwise defined herein have the meanings ascribed to them
in the Mortgage Note Agreements, as amended by this Agreement.
The Partnership proposes to convert its outstanding ownership interests
into shares of stock of Plum Creek Timber Company, Inc., a Delaware
corporation (the "Corporation"), through the merger (the "Merger") of the
Partnership with and into Plum Creek Acquisition Partners, L.P., a Delaware
limited partnership (the "Operating Partnership"). Prior to the Merger,
the Company will form Plum Creek Manufacturing Holding Company, Inc.
("Holding") and will contribute a nominal amount to Holding in exchange for
96 percent of Holding's outstanding common stock (which will be non-voting
stock), and management of the Partnership will purchase (the "Management
Stock Purchase") the remaining 4 percent of such outstanding common stock
(which will be voting stock). The Company and Holding will then form four
new Subsidiaries of Holding (the "New Subsidiaries"). Immediately prior to
the Merger, the Company will contribute an undivided 75 percent interest in
substantially all of its assets (allocated in varying proportions) to the
New Subsidiaries in exchange for 75 percent (valued on a fair market value
basis at the time of transfer) of the outstanding capital stock of each of
the New Subsidiaries (which stock will be non-voting preferred stock) and
will contribute an undivided 25 percent interest in substantially all of
its assets to Holding. Immediately thereafter, Holding will contribute
such undivided 25 percent interest (allocated in the same proportion as the
Company's contribution of its undivided interest) to each of the New
Subsidiaries in exchange for 25 percent (valued on a fair market value
basis at the time of transfer) of the outstanding capital stock of each of
the New Subsidiaries (which stock will be voting common stock). The
formation of Holding and the New Subsidiaries and the issuance of the
capital stock by such entities as described above is herein referred to as
the "Facilities Subsidiary Reorganization." The contribution of assets of
the Company to Holding and the New Subsidiaries as described above is
herein referred to as the "Manufacturing Asset Transfer". Immediately
prior to the Merger, the Partnership will form Plum Creek Southern Timber,
L.L.C. as a Restricted Subsidiary of the Partnership ("Southern Timber,
L.L.C."), into which the Partnership will contribute all of its timberlands
located in Louisiana and Arkansas in exchange for Southern Timber, L.L.C.
assuming (on a joint and several basis) a portion of the indebtedness of
the Partnership. The formation of Southern Timber, L.L.C., transfer of
Louisiana and Arkansas timberlands to Southern Timber, L.L.C. and
assumption of a portion of the current indebtedness of the Partnership and
future indebtedness of the Operating Partnership by Southern Timber, L.L.C.
are herein referred to as the "Southern Timber Transaction." Immediately
following the Merger, Marketing will become a subsidiary of the Company,
with 75 percent of the outstanding capital stock (which will be non-voting
preferred stock) owned by the Company and 25 percent of the outstanding
capital stock (which will be voting common stock) owned by Holding (the
"Marketing Stock Transfer"). In addition, it is proposed that Marketing
will be released as an obligor on the Notes and Marketing and the New
Subsidiaries will each assume and become obligated in respect of varying
percentages of the Debt represented by the Partnership's 11 1/8% Senior
Notes due June 8, 2007 and the Notes (the "Subsidiary Note Assumption").
Marketing will form a wholly-owned subsidiary (the "Land Subsidiary") which
will purchase from the Operating Partnership, on a seller financed basis,
certain real property (the "Better Use Property") of the Operating
Partnership that the Operating Partnership has determined has a higher
value as recreational, residential, grazing or agricultural property than
for timber production (the "HBU Transaction"). The foregoing transactions
(herein collectively called the "Conversion Transaction") are to be
effected (i) as provided in the Agreement and Plan of Conversion (the
"Conversion Agreement"), dated as of June 5, 1998, and amended on July 17,
1998, among the Partnership, the Corporation and Plum Creek Management
Company, L.P. (the sole general partner of the Partnership), (ii) as
described in the Proxy Statement/Prospectus dated December 9, 1998 (the
"Proxy Statement/Prospectus"), and (iii) as described above. After the
effectiveness of the Conversion Transaction, the Corporation will elect to
be treated as a real estate investment trust for Federal income tax
purposes.
In connection with the Conversion Transaction the Partnership, Marketing
and the Company are requesting certain amendments to, and consents and
waivers under and in respect of, the Mortgage Note Agreements and, subject
to the terms and provisions hereof, the undersigned Noteholders are
agreeable thereto. Accordingly, the Company, Marketing and the Partnership
agree with you as follows:
1. Amendments to Mortgage Note Agreements.
(a) Clause (iv) of paragraph 5A of the Mortgage Note Agreements is hereby
amended to read in its entirety as follows:
(iv) to the extent not delivered pursuant to clause (i), (ii) or
(iii), promptly upon transmission thereof, copies of all such financial
statements, proxy statements, notices and reports as the Company, the
Partnership or the Corporation sends to its public security holders and
copies of all registration statements (without exhibits) and all reports
which the Company, the Partnership or the Corporation files with the
Securities and Exchange Commission and any governmental body or agency
succeeding to the functions of the Securities and Exchange Commission;
(b) Paragraph 5A of the Mortgage Note Agreements is hereby further
amended by adding the following paragraph at the end thereof.
In preparing the financial statements, computations and reports
provided for herein the Facilities Operating Subsidiaries and their
Subsidiaries shall be considered as consolidated or combined subsidiary
entities of the Company and the Partnership (and not accounted for on the
equity method of accounting or as an investment) notwithstanding that the
Voting Stock thereof shall not be owned by the Company or the Partnership,
either directly or indirectly, and without regard to whether they would be
considered as such subsidiary entities under generally accepted accounting
principles.
(c) The references to the "Company" in paragraph 5E(2) and paragraph
5E(3) of the Mortgage Note Agreements shall be taken as references also to
each of the Company's Restricted Subsidiaries.
(d) The references to "Notes" in paragraph 6A of the Mortgage Note
Agreements shall be changed to read "Notes and Senior Notes (to the extent
the Senior Notes have been assumed by the Company and/or one or more of its
Restricted Subsidiaries),".
(e) Clause (z) of the proviso to paragraph 6B(1)(ix) is hereby amended to
read in its entirety as follows:
(z) the aggregate principal amount (without duplication) of the Debt
secured by any such Lien at no time exceeds 80% (or 95% in the case of the
Debt of Marketing described in paragraph 6B(2)(ii)) of the cost to the
Company and its Restricted Subsidiaries of the property subject to such
Lien,
(f) Paragraph 6B(1)(x) of the Mortgage Note Agreements is hereby amended
to read in its entirety as follows:
(x) Liens on the accounts, rights to payment for goods sold or
services rendered that are evidenced by chattel paper or instruments, and
rights against persons who guarantee payment or collection of the
foregoing, and on the inventory of the Company and its Restricted
Subsidiaries and on the proceeds (as defined in the Uniform Commercial Code
in any applicable jurisdiction) thereof securing the obligations of the
Company and its Restricted Subsidiaries under the Revolving Credit Facility
(and any extension, renewal, refunding or refinancing thereof) permitted by
paragraph 6B(2)(iv), and
(g) Paragraph 6B(2)(i) of the Mortgage Note Agreements is hereby amended
to read in its entirety as follows:
(i) Debt of the Company and (to the extent provided in the
Subsidiary Assumption Agreements) the Facilities Operating Subsidiaries
represented by the Notes and (to the extent provided in the Subsidiary
Assumption Agreements) Debt of the Facilities Operating Subsidiaries
represented by the Senior Notes;
(h) Paragraph 6B(2)(ii) of the Mortgage Note Agreements is hereby amended
to read in its entirety as follows:
(ii) Funded Debt of the Company (not exceeding $20,000,000 aggregate
principal amount at any time outstanding) incurred to finance the making of
capital improvements, expansions and additions to the property, plant and
equipment of the Company and its Subsidiaries which are Restricted
Subsidiaries pursuant to the Facility, and Debt of the Land Subsidiary
owing to the Partnership (not exceeding $80,000,000 aggregate principal
amount at any time outstanding) incurred to finance the acquisition from
the Partnership of Better Use Property;
(i) Paragraph 6B(2)(iv) of the Mortgage Note Agreements is hereby amended
to read in its entirety as follows:
(iv) Debt incurred by the Company or any Restricted Subsidiary
pursuant to the Revolving Credit Facility (and any extension, renewal,
refunding or refinancing thereof, including any refunding or refinancing in
an amount in excess of the principal amount then outstanding under the
Revolving Credit Facility) which is unsecured or is secured by Liens
permitted by paragraph 6B(1)(x), not in excess of an aggregate principal
amount of $20,000,000 at any time outstanding, provided that neither the
Company nor any Restricted Subsidiary shall suffer to exist any Debt
permitted by this clause (iv) on any day after the date of the Merger
unless there shall have been a period of at least 45 consecutive days
within the 12 months immediately preceding such day during which the
Company and its Restricted Subsidiaries shall have been free from all Debt
permitted by this clause (iv),
(j) Clause (vi) of paragraph 6B(2) of the Mortgage Note Agreements is
hereby amended in its entirety to read as follows:
(vi) Funded Debt of the Company or the Facilities Operating Subsidiaries
(other than Funded Debt of the Company owing to a Restricted Subsidiary) in
addition to that otherwise permitted by the foregoing clauses of this
paragraph 6B(2), including guarantees by the Company of Debt to the extent
permitted by paragraph 6B(3) and not otherwise permitted by the foregoing
clauses of this paragraph 6B(2), provided that on the date the Company or
the Facilities Operating Subsidiaries become liable with respect to any
such Funded Debt and immediately after giving effect thereto and to the
concurrent retirement of any other Funded Debt, (a) the ratio of Company's
Pro Forma Free Cash Flow to Company's Maximum Pro Forma Annual Interest
Charges is not less than 2.0 to 1.0, and (b) the ratio of (x) the sum of
(A) Partnership Pro Forma Free Cash Flow minus Partnership Maximum Pro
Forma Annual Interest Charges during the period of four consecutive fiscal
quarters for which Company's Maximum Pro Forma Annual Interest Charges is
calculated under (y) below plus (B) Company's Pro Forma Free Cash Flow, to
(y) Company's Maximum Pro Forma Annual Interest Charges is not less than
2.5 to 1.0, and provided, further, that any Funded Debt so incurred by the
Facilities Operating Subsidiaries shall be incurred on a several (and not
joint) basis (and whether or not the Company is liable in respect thereof)
so that each Facilities Operating Subsidiary shall be liable, directly or
indirectly, only in respect of the same (or lesser) percentage of such
Funded Debt as it is on the Notes as provided in the Subsidiary Assumption
Agreements,
(k) Paragraph 6B(5) of the Mortgage Note Agreements is hereby amended by
adding a new clause (vii) at the end thereof to read as follows:
(vii) Marketing may sell Better Use Properties (as defined in
paragraph 6B(2)(ii))for not less than the fair value thereof as determined
in good faith by the Responsible Representatives;
(l) The first part of paragraph 7J of the Mortgage Note Agreements
through the definition of "Incorporated Provisions" is hereby amended to
read as follows:
7J. Incorporated Covenants. The provisions of paragraphs 5 and 6
of the Senior Note Agreements as in effect on the date of the Merger and
the definitions set forth or specified by reference in the Senior Note
Agreements as in effect on the date of the Merger of terms used in such
paragraphs 5 and 6 or in such definitions (herein, collectively, the
"Incorporated Provisions"),
(m) The last sentence of paragraph 7J of the Mortgage Note Agreements is
hereby amended in its entirety to read as follows:
The Incorporated Provisions shall not be affected by any amendment,
modification, waiver or termination of the Senior Note Agreements after the
date of the Merger (or the payment of the Senior Notes), and may be
amended, modified, waived or terminated only pursuant to paragraph 12C of
this Agreement.
(n) The proviso following clause (b)(vii) of the definition of Available
Cash in paragraph 11B of the Mortgage Note Agreement is hereby deleted,
clause (ii) of the definition of Capital Transaction is hereby amended to
read "(ii) sales of equity interests by the Corporation, the proceeds of
which are contributed to the Partnership," and the following definitions
set forth in paragraph 11B of the Mortgage Note Agreements are hereby
amended in their entirety to read as follows:
"Facility" shall mean any facility pursuant to which the Company and
its Restricted Subsidiaries may incur Debt for purposes of making capital
improvements or additions to, or expansions of, property, plant and
equipment of the Company and its Restricted Subsidiaries.
"Mortgage Documents" shall mean the mortgages and trust deeds
providing real property security for the Notes executed and delivered as
provided in paragraph 3H of the 1999 Amendment Agreement.
"Partnership Agreement" shall mean the Agreement of Limited
Partnership of the Partnership as in effect at the time of and after giving
effect to the Merger, and as the same may, from time to time, be amended,
modified or supplemented in accordance with the terms thereof.
"Restricted Payment" shall mean (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
stock of or other ownership interests in the Company or any shares of
Voting Stock of a Facilities Operating Subsidiary held by a member of the
Management Voting Group, now or hereafter outstanding, except a dividend
payable solely in shares of stock of or ownership interests in the Company,
and (b) any redemption, retirement, purchase or other acquisition, direct
or indirect, of any shares of any class of stock of or other ownership
interests in the Company or any shares of Voting Stock of a Facilities
Operating Subsidiary not owned by the Company (directly or indirectly), now
or hereafter outstanding, or of any warrants, rights or options to acquire
any such shares or interests, except to the extent that the consideration
therefor consists of shares of stock of or other ownership interests in the
Company.
"Revolving Credit Facility" shall mean any facility pursuant to which
the Company or any Restricted Subsidiary may obtain revolving credit, take-
down credit, the issuance of standby and payment letters of credit and
back-up for the issuance of commercial paper.
"Security Agreements" means the security agreements providing
collateral security for the Notes executed and delivered as provided in the
1999 Amendment Agreement.
"Security Documents" means the Mortgage Documents and the Security
Agreements.
"Senior Note Agreements" shall mean the Note Agreements, dated as of
May 31, 1989 and amended as of January 1, 1991, April 22, 1993, September
1, 1993, May 20, 1994, June 15, 1995, May 31, 1996, April 15, 1997 and
January 15, 1999, providing for the issuance and sale of the 11-1/8% Senior
Notes of the Partnership to the purchasers listed in the schedule of
purchasers attached thereto.
"Trustee" means The Bank of New York, as trustee under the Trust
Agreement, or any successor as trustee thereunder.
"Wholly-Owned Subsidiary" shall mean (i) Holding and (ii) any other
Subsidiary organized under the laws of any state of the United States of
America which conducts the major portion of its business in the United
States of America and all the outstanding stock and ownership interests of
which are owned by the Company either directly or through Wholly-Owned
Subsidiaries provided that (x) in the case of Holding, (1) it shall engage
in no business except the ownership of its Subsidiaries, (2) all the
outstanding stock and ownership interests thereof (other than Voting Stock)
shall be owned by the Company either directly or indirectly through a
Subsidiary which is not also a Subsidiary of Holding (a "Direct
Subsidiary"), (3) at least 51% of the Voting Stock thereof (to the extent
it is not so owned by the Company or any such Direct Subsidiary) shall be
owned by the Management Voting Group, (4) the Voting Stock of Holding shall
not account for more than 4% of the equity ownership of Holding (nor,
through such ownership, shall it account for more than 1% of the indirect
equity ownership of any Subsidiary of Holding) and (5) no more than 35% of
the Voting Stock of Holding shall be owned by any one individual and (y) in
the case of any Subsidiary other than Holding, all the Voting Stock thereof
(to the extent it is not directly owned by the Company or a Direct
Subsidiary) shall be owned by Holding.
(o) The following new defined terms are hereby added to paragraph 11B of
the Mortgage Note Agreements in proper alphabetical order:
"Assumption Agreements" means those certain Assumption Agreements
executed as contemplated by (and in substantially the respective forms
designated as Exhibits A, B, C and D to) the Amendment to Mortgage Note
Agreements dated as of January 15, 1999, together with all Future Southern
Timber Assumption Agreements.
"Better Use Property" means the certain real property of the
Partnership that the Partnership has determined has a higher value as
recreational, residential, grazing or agricultural property than for timber
production and that will be sold to the Land Subsidiary soon before or
following the Merger.
"Corporation" shall mean Plum Creek Timber Company, Inc., a Delaware
corporation, and its successors.
"Facilities Operating Subsidiaries" shall mean Marketing, Holding and
the New Subsidiaries and "Facilities Operating Subsidiary" shall mean any
one of them.
"Future Southern Timber Assumption Agreements" means assumption
agreements that are contemplated by paragraph 2, clause (b)(ii) of the
Southern Timber Assumption Agreement.
"Holding" shall mean Plum Creek Manufacturing Holding Company, Inc. a
Delaware corporation.
"Land Subsidiary" means a wholly-owned subsidiary of Marketing formed
to purchase the Better Use Property.
"Management Voting Group" shall mean, at any time, a group consisting
of five or more individuals who are then current officers of the
Partnership who legally and beneficially own in the aggregate not less than
51% of the outstanding Voting Stock of Holding.
"Merger" shall mean the merger of Plum Creek Timber Company, L.P.
with and into Plum Creek Acquisition Partners, L.P. as provided in the
Agreement and Plan of Conversion, dated as of June 5, 1998, amended on July
17, 1998, among Plum Creek Timber Company, Inc., Plum Creek Management
Company, L.P. and Plum Creek Timber Company ,L.P.
"New Subsidiaries" shall mean Plum Creek Northwest Lumber, Inc., a
Delaware corporation, Plum Creek Northwest Plywood, Inc., a Delaware
corporation, Plum Creek MDF, Inc., a Delaware corporation, and Plum Creek
Southeast Lumber, Inc., a Delaware corporation, and "New Subsidiary" shall
mean any one of them.
"1999 Amendment Agreement" shall mean the letter agreement, dated as
of January 15, 1999, amending this Agreement.
"Southern Timber Assumption Agreement" means that certain Assumption
Agreement executed as contemplated by (and in substantially the form of
Exhibit D to) the Amendment to Mortgage Note Agreements dated as of
January 15, 1999.
"Subsidiary Assumption Agreements" shall mean the Subsidiary
Assumption Agreements, dated the date of the Merger, pursuant to which the
Company and the Facilities Operating Subsidiaries each assumed a portion of
the Debt represented by the Senior Notes and the Facilities Operating
Subsidiaries each assumed a portion of the Debt represented by the Notes.
(p) Clauses (xvi) and (xvii) of paragraph 8A of the Mortgage Note
Agreements are hereby deleted and Clause (xiv) of paragraph 8A of the
Mortgage Note Agreements is hereby amended in its entirety to read as
follows:
(xiv) this Agreement, any Assumption Agreement or any of the Security
Documents shall at any time, for any reason, cease to be in full force and
effect or shall be declared to be null and void in whole or in any material
part by the final judgment (which is non-appealable or has not been stayed
pending appeal or as to which all rights of appeal have expired or been
exhausted) of any court or other governmental or regulatory authority
having jurisdiction in respect thereof, or the validity or enforceability
of this Agreement, any Assumption Agreement or any of the Security
Documents shall be contested by or on behalf of the Company or the
Partnership or any Subsidiary, or the Company or the Partnership or any
Subsidiary shall renounce this Agreement, any Assumption Agreement or any
of the Security Documents, or deny that it is bound by any term hereof or
thereof or has any further liability hereunder or thereunder; or the
Company, the Partnership or any Subsidiary fails to perform or observe any
other agreement, term or condition contained in any Assumption Agreement or
any of the Security Documents to the extent each is a party thereto and
such failure shall not be remedied within 30 days after written notice
thereof shall have been received from any holder of any Note;
2. Consent and Waiver.
The undersigned Noteholders hereby consent to the consummation of the
Manufacturing Asset Transfer, the Management Stock Purchase, the Marketing
Stock Transfer, the Facilities Subsidiary Reorganization, the HBU
Transaction, the Southern Timber Transaction (provided the assumption of
indebtedness portion of the Southern Timber Transaction is effected in the
manner specified in paragraph 3D hereof) and the Subsidiary Note Assumption
(provided the same is effected in the manner specified in paragraph 3D
hereof) and the formation of Holding and the New Subsidiaries and hereby
waive compliance by the Company with the provisions of (i) paragraphs 6B(3)
(Loans, Advances, Investments and Contingent Liabilities), 6B(4) (Sale of
Stock and Debt of Subsidiaries), 6B(5) (Merger and Sale of Assets), 6B(8)
(Transactions with Affiliates) and 6D (Issuance of Stock by Subsidiaries)
of the Mortgage Note Agreements and (ii) the same referenced paragraphs in
the Incorporated Provisions incorporated into the Mortgage Note Agreements
by the provisions of paragraph 7J (Incorporated Covenants) thereof, in each
case solely for purposes of effectuating (and only to the extent necessary
to effectuate) such transactions in the context of consummating the entire
Conversion Transaction as described in and as contemplated by the
Conversion Agreement and the Proxy Statement/Prospectus. The undersigned
Noteholders hereby consent to the release of Marketing as an obligor on the
Notes and upon the effectiveness of such release (as specified in paragraph
3 hereof) Marketing shall no longer be a party to the Mortgage Note
Agreements. The effectiveness of this Agreement shall not, except as
expressly provided herein, operate as a waiver of any right, power or
remedy of any of the holders of the Notes under this Agreement or the
Mortgage Note Agreements, nor constitute a waiver of any other provision of
this Agreement or the Mortgage Note Agreements.
3. Conditions to Effectiveness.
The amendments, consents and waivers set forth in paragraphs 1 and 2 hereof
shall become effective at the "Effective Time" (as defined in the
Conversion Agreement), subject to the fulfillment to your satisfaction (or
your waiver) of the following conditions:
A. Opinion of Company's Counsel. You shall have received
favorable opinions from (i) James A. Kraft, General Counsel of the Company
and the Partnership, covering such matters incident to the transactions
described herein as you may reasonably request, (ii) Skadden, Arps, Slate,
Meagher & Flom, special tax counsel to the Partnership and the Corporation
in connection with the Conversion Transaction, substantially in the form
referenced in Annex I attached to the Proxy Statement/Prospectus, and (iii)
from such other counsel as you and your special counsel may request with
respect to matters relating to the Security Documents. Such opinions shall
be addressed to you, shall be dated the date of the Effective Time, and
shall be otherwise satisfactory in substance and form to you and to your
special counsel.
B. Opinion of Noteholders' Counsel. You shall have received a
favorable opinion from Willkie Farr & Gallagher, special counsel for the
Noteholders, and covering such other matters incident to the transactions
described herein as you may reasonably request, addressed to you, dated the
date of the Effective Time and otherwise satisfactory in substance and form
to you.
C. Merger. The Merger shall have become effective in the manner
provided for in the Conversion Agreement prior to July 31, 1999 and the
Operating Partnership shall have executed and delivered an Assumption
Agreement in substantially the form of Exhibit A hereto (the "Assumption
Agreement") in conformity with the provisions of clause (iv) of paragraph
6B(5) of the Senior Note Agreements (together with an Officers' Certificate
specifying compliance with the matters referred to in said clause (iv)) as
incorporated into the Mortgage Note Agreements by the provisions of
paragraph 7J thereof. No provision of the Conversion Agreement shall have
been amended, nor compliance with any provision thereof, or satisfaction of
any condition to the Conversion Transaction set forth therein, shall have
been waived without your consent.
D. Assumption of Certain Notes. Marketing and each New Subsidiary
shall have executed and delivered Subsidiary Assumption Agreements
substantially in the respective forms of Exhibits B and C hereto (the
"Subsidiary Assumption Agreements") thereby becoming an obligor in respect
of a portion of the Notes and the 11-1/8% Senior Notes due June 8, 2007 of
the Partnership (all as more particularly described in Exhibits B and C).
Southern Timber, L.L.C. shall have executed and delivered the Southern
Timber Assumption Agreement substantially in the form of Exhibit D hereto
thereby becoming an obligor in respect of a portion of the indebtedness of
the Operating Partnership (all as more particularly described in Exhibit
D).
E. Senior Notes. The Senior Note Agreements shall have been
amended by an amendment agreement in substantially the form of agreement
heretofore delivered to you by the Partnership and all amendments, waivers
and consents provided for therein shall have become effective.
F. Rating of Notes. The Notes shall have received an investment
grade rating from one of the four "nationally recognized statistical rating
organizations" and you shall have received evidence that such rating
remains in effect at the Effective Time.
G. Amendment Fee. The Company shall have paid to each Noteholder
an amendment fee in an amount equal to 0.02% of the principal amount of
Notes held by such Noteholder as specified on Schedule I hereto. Such fee
shall be payable within ten days of the date that the Company receives
executed counterparts of this Agreement from the Required Holders, whether
or not the Conversion Transaction is consummated.
H. Property Transfers; Security Documents. The Company shall have
transferred substantially all of its assets to the Facilities Operating
Subsidiaries pursuant to documentation (collectively, the "Transfer
Documents") and in such proportions as shall be satisfactory to you and
your special counsel (the "Transferred Assets"), and the Company and the
Facilities Operating Subsidiaries shall have executed and delivered the
mortgages, trust deeds, trust agreements and such other security agreements
and instruments (the respective forms of which shall be substantially in
the forms of the security documents currently securing the Notes, with such
changes mutatis mutandis, as necessary to reflect the properties and
mortgagor or debtor involved), together with such other and further
documents as you or your special counsel may have requested in order to
perfect Liens on that portion of the Transferred Assets which currently
constitutes the collateral securing the Notes (such property being herein
called the "Mortgaged Properties" and such mortgages, deeds, agreements and
instruments being herein collectively called the "Security Documents").
I. Recordation; Taxes, etc. The Transfer Documents and the
Security Documents, or proper notices, statements or other instruments in
respect thereof, shall have been duly recorded, published, registered and
filed, and all other actions deemed necessary by your special counsel shall
have been duly performed or taken, in such manner and in such places as is
required by law to establish, perfect, preserve and protect the rights and
first priority security interest of the parties thereto and their
respective successors and assigns in the Mortgaged Properties, subject to
Liens permitted by paragraph 6B(1) of the Mortgage Note Agreements, and all
taxes, fees and other charges then due in connection with the execution,
delivery, recording, publishing, registration and filing of such documents
or instruments in such counties and the assumption of the Notes under the
Subsidiary Assumption Agreements shall have been paid in full. You hereby
instruct The Bank of New York (successor trustee under that certain Trust
Agreement dated June 1989) to execute and deliver to your special counsel
all documents necessary to release all existing mortgages and financing
statements which shall recorded or filed (as the case may be) based upon
instructions of your special counsel.
J. Property Insurance. Insurance complying with the provisions of
the Security Documents shall be in full force and effect and you and the
Trustee shall have received a certificate from Marsh & McLennan,
Incorporated, Alexander & Alexander, Inc. or other independent insurance
brokers or consultants as shall be reasonably satisfactory to you, dated
the date of the Effective Time, which certificate shall satisfy the
requirements set forth in each such Security Document. The Company shall
have delivered to you an Officers' Certificate, dated the date of the
Effective Time, certifying that insurance complying with such provisions is
in full force and effect.
K. Title Insurance. The Trustee shall have received a mortgagee's
policy of title insurance, including mechanic's lien coverage, issued by a
title insurance company or companies authorized to issue title insurance in
the States of Montana and Arkansas and satisfactory in form and substance
to you with provisions for coinsurance or reinsurance satisfactory to you,
with respect to the Mortgaged Properties, dated the date of the Effective
Time and satisfactory in substance and form to you and your special
counsel, insuring the interest of the Trustee under the Security Documents,
subject only to Permitted Encumbrances (as defined in the Security
Documents), such policies to be in amounts of not less than 110% of the
book value of the particular Mortgaged Property being insured.
L. Representations and Warranties; No Default. The
representations and warranties contained in paragraph 4 hereof shall be
true in all material respects on and as of the date of the Effective Time;
there shall exist on the date of the Effective Time no Event of Default or
Default; and the Company shall have delivered to you an Officers'
Certificate, dated the date of the Effective Time, to both such effects.
M. Proceedings. All proceedings taken or to be taken in
connection with the transactions contemplated hereby and all documents
incident thereto shall be satisfactory in substance and form to you, and
you shall have received all such counterpart originals or certified or
other copies of such documents as you may reasonably request.
N. Noteholders Consent. The Company shall have received executed
counterparts of this Agreement from the Required Holders.
4. Representations and Warranties.
The Company and the Partnership (the term "Partnership" as used herein
including both Plum Creek Timber Company, L.P. and the Operating
Partnership as its successor in the Merger) each represents and warrants as
follows:
A. Organization. The Company is a limited partnership duly
organized, validly existing and in good standing under the Delaware Revised
Uniform Limited Partnership Act and has all requisite partnership power and
authority to own and operate its properties, to conduct its business as now
conducted and as proposed to be conducted and to enter into and perform its
obligations under this Agreement, the Transfer Documents, the Mortgage Note
Agreements, the Notes and the Subsidiary Assumption Agreement and Security
Documents to which it is to be a party. The Partnership is a limited
partnership duly organized, validly existing and in good standing under the
Delaware Revised Uniform Limited Partnership Act and has all requisite
partnership power and authority to own and operate its properties, to
conduct its business as now conducted and as proposed to be conducted and
to enter into and perform its obligations under this Agreement, the
Conversion Agreement and (after giving effect to the Merger) the Assumption
Agreement, the Mortgage Note Agreements, and the Notes. As of the
Effective Time each Facilities Operating Subsidiary will be a duly
organized and validly existing corporation and in good standing under the
laws of its jurisdiction of incorporation with all requisite corporate
power and authority to own and operate its properties, to conduct its
business as proposed to be conducted and to enter into and perform its
obligations under this Agreement (in the case of Marketing), the Transfer
Documents, and the Subsidiary Assumption Agreement and Security Documents
to which it is to be a party.
B. Qualification. Each of the Company and its Subsidiaries is
duly qualified or registered for transaction of business and in good
standing as a foreign limited partnership or corporation in each
jurisdiction in which the failure so to qualify or be registered would have
a material adverse effect on the business, property or assets, condition
(financial or other), operations or prospects of the Company and its
Subsidiaries taken as a whole, or on the ability of the Company and
Marketing to perform their respective obligations under this Agreement, or
on the ability of the Company to perform its obligations under the Transfer
Documents, the Mortgage Note Agreements or the Notes, or in the ability of
the parties to the Subsidiary Assumption Agreements and the Security
Documents to perform their respective obligations thereunder. Each of the
Partnership and its Subsidiaries is duly qualified or registered for
transaction of business and in good standing as a foreign limited
partnership or corporation in each jurisdiction in which the failure so to
qualify or be registered would have a material adverse effect on the
business, property or assets, condition (financial or other), operations or
prospects of the Partnership and its Subsidiaries taken as a whole, or on
the ability of the Partnership to perform its obligations under this
Agreement or the Conversion Agreement, or (after giving effect to the
Merger) the Assumption Agreement, the Southern Timber Assumption Agreement,
the Senior Note Agreements or the Notes, or in the ability of the parties
to the Subsidiary Assumption Agreements and the Security Documents to
perform their respective obligations thereunder.
C. Financial Statements. The Partnership has delivered to you a
complete and correct copy of the Proxy Statement/Prospectus (which for the
purposes of this paragraph 4 shall include only those documents
incorporated by reference as of the date hereof). The unaudited pro forma
condensed consolidated financial statements of the Corporation contained in
the Proxy Statement/Prospectus (the "Pro Forma Statements") comply as to
form in all material respects with the applicable accounting requirements
of the Securities Act of 1933, as amended, and the Securities Exchange Act
of 1934, as amended, and the published rules and regulations thereunder and
the assumptions on which the pro forma adjustments reflected in the Pro
Forma Statements are based provide a reasonable basis for presenting the
significant effects of the transactions contemplated by the Pro Forma
Statements and such pro forma adjustments give appropriate effect to such
assumptions and are properly applied in the Pro Forma Statements. Inasmuch
as the Corporation at the Effective Time will be entirely a holding company
owning the Operating Partnership, with no substantial assets or liabilities
apart from the Operating Partnership, the Pro Forma Statements
substantially reflect the pro forma position of the Operating Partnership
and its Subsidiaries after giving effect to the Merger.
D. Subsidiaries. As of the Effective Time each of the Partnership
and the Company will own, directly or indirectly, all of the issued and
outstanding equity interests of all of its Subsidiaries except, in the case
of Holding and its Subsidiaries, the Voting Stock of Holding owned by the
Management Voting Group, which interests will have been duly authorized and
validly issued, fully paid and non-assessable and be owned free and clear
of any Liens (except for Liens on the shares of Voting Stock of Holding
owned by the Management Voting Group in favor of the Partnership as
security for the unpaid subscription price for such shares of Voting
Stock). As of the Effective Time there will be outstanding no warrants or
options to acquire, or instruments convertible into or exchangeable for,
any equity interest in any such Subsidiary.
E. Changes, etc. Since the date of the Proxy Statement/Prospectus
(a) the Partnership and its Subsidiaries have not incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transactions not in the ordinary course of business except for
those transactions described in the Proxy Statement/Prospectus as
constituting a part of the Conversion Transaction, and (b) there has not
been (i) any material adverse change in the business, property or assets,
condition (financial or other), operations or prospects of the Partnership
and its Subsidiaries taken as a whole or of the Company and its
Subsidiaries taken as a whole, or (ii) any Restricted Payment of any kind
declared, paid or made by the Partnership or the Company (the term
Restricted Payment being as defined in the Senior Note Agreements and the
Mortgage Note Agreements, respectively) other than regular quarterly
declarations and payments of distributions to unit holders of the
Partnership in accordance with paragraph 6A of the Senior Note Agreements.
F. Actions Pending. There is no action, suit, investigation or
proceeding pending or, to the knowledge of the Partnership or the Company,
threatened against the Partnership or any of its Subsidiaries, or any
properties or rights of the Partnership or any of its Subsidiaries, by or
before any court, arbitrator or administrative or governmental body which
questions the validity of this Agreement, the Mortgage Note Agreements, the
Notes, the Conversion Agreement, the Transfer Documents, the Assumption
Agreement, the Subsidiary Assumption Agreements, the Southern Timber
Assumption Agreement or the Security Documents or any action taken or to be
taken pursuant to any thereof, which would be reasonably likely to result
in any material adverse change in the business, properties or assets,
condition (financial or other), operations or prospects of the Partnership
and its Subsidiaries taken as a whole or of the Company and its
Subsidiaries taken as a whole, or in the ability of the Partnership and the
Company to perform their respective obligations under this Agreement, the
Conversion Agreement, the Assumption Agreement, the Transfer Documents, the
Mortgage Note Agreements or the Notes, or in the ability of the parties to
the Subsidiary Assumption Agreements, the Security Documents or the
Southern Timber Assumption Agreement to perform their respective
obligations thereunder.
G. Compliance with other Instruments, etc. Neither the
Partnership nor any Subsidiary of the Partnership is in violation of any
provision of its partnership agreement or corporate charter, as applicable,
or of any term of any agreement or instrument to which it is a party or by
which it or its properties is bound or any term of any applicable law,
ordinance, rule or regulation of any governmental authority or any term of
any applicable order, judgment or decree of any court, arbitrator or
governmental authority, the consequences of which violation would be
reasonably likely to have a material adverse effect on its business,
properties or assets, condition( financial or other), operations or
prospects of the Partnership and its Subsidiaries taken as a whole or of
the Company and its Subsidiaries taken as a whole or on the ability of the
Partnership and the Company to perform their respective obligations under
this Agreement, the Conversion Agreement, the Assumption Agreement, the
Transfer Documents, the Mortgage Note Agreements or the Notes, or on the
ability of the parties to the Subsidiary Assumption Agreements, the
Security Documents or the Southern Timber Assumption Agreement to perform
their respective obligations thereunder. The execution, delivery and
performance by the Partnership, Marketing and the Company of this
Agreement, by the Company of the Transfer Documents and by the Partnership
of the Assumption Agreement, and the execution of the Subsidiary Assumption
Agreements, the Security Documents and the Southern Timber Assumption
Agreement by the parties thereto, will not in any case result in any
violation of or be in conflict with or constitute a default under any such
term or result in the creation of (or impose any obligation on the
Partnership or the Company or any such party to create) any Lien upon any
of the properties or assets of the Partnership or any of its Subsidiaries,
pursuant to any such term.
H. Governmental Consent. No consent, approval or authorization
of, or (except for the actions specified with respect to the Security
Documents in paragraphs 3H and 3I above) declaration or filing with, any
governmental authority is required for the valid execution, delivery and
performance by the Partnership, Marketing or the Company of this Agreement,
by the Company of the Transfer Documents, by the Partnership of the
Assumption Agreement, or by any party thereto of the Subsidiary Assumption
Agreements, the Security Documents or the Southern Timber Assumption
Agreement or for the performance by the Partnership and the Company of the
Mortgage Note Agreements or the Notes.
I. Franchises, Licenses, Agreements, etc. At the Effective Time
the Partnership and its Subsidiaries will each be in possession of and
operating in substantial compliance with all franchises, grants,
authorizations, approvals, licenses, permits, easements, consents,
certificates and orders required to own or lease its respective properties
and to permit the conduct of its business, except for those franchises,
grants, authorizations, approvals, licenses, permits, easements, consents,
certificates and orders (collectively, "Permitted Exceptions") (i) which
are routine in nature and are expected to be obtained or given in the
ordinary course of business after the date of the Effective Time, (ii)
which are administrative in nature and which are expected to be obtained or
given in the ordinary course of business after the date of the Effective
Time, or (iii) the failure of which to be obtained or given would not
individually or in the aggregate materially and adversely affect the
business, property or assets, condition (financial or other), operations or
prospects of the Partnership and its Subsidiaries taken as a whole or the
Company and its Subsidiaries taken as a whole, or impair the ability of the
Partnership, Marketing and the Company to perform their respective
obligations under this Agreement, the Conversion Agreement, the Assumption
Agreement, the Transfer Documents, the Mortgage Note Agreements or the
Notes, or in the ability of the parties to the Subsidiary Assumption
Agreements, the Security Documents and the Southern Timber Assumption
Agreement to perform their respective obligations thereunder.
J. Title to Properties. At the Effective Time the Partnership and
its Subsidiaries will have good title to their real properties (other than
properties which are leased) and good title to all of their other
properties and assets, subject to no Lien of any kind except Liens
permitted by paragraph 6B(1) of the Mortgage Note Agreements and paragraph
6B(1) of the Senior Note Agreements as incorporated by the provisions of
paragraph 7J of the Mortgage Note Agreements. All leases necessary in any
material respect for the conduct of the businesses of the Partnership and
its Subsidiaries, are valid and subsisting and are in full force and
effect.
K. Environmental Matters.
(a) At the Effective Time the Partnership and its Subsidiaries will
have all environmental permits or licenses necessary for the conduct of its
business as to be conducted as of the Effective Time and, as to any such
permit or license that has expired or is about to expire, or is needed for
the proposed conduct of its business, the Partnership or such Subsidiary
has or will have timely and properly applied for renewal or receipt of the
same. The Partnership and its Subsidiaries are currently operating in
material compliance with the limits set forth in such environmental permits
or licenses and any noncompliance with such permits or licenses will not
result in any material liability or penalty to the Partnership or any of
its Subsidiaries and neither the Company nor the Partnership has any
knowledge of any threatened or pending proceeding for the revocation, loss
or termination of any such environmental permits or licenses.
(b) All facilities located on the real property owned by the
Partnership and its Subsidiaries at the Effective Time after giving effect
to the Conversion Transaction which are subject to regulation by the
Federal Resource Conservation and Recovery Act, as in effect on the date
hereof, are and have been operated by the Partnership and its Subsidiaries
in material compliance with such Act and to the knowledge of the
Partnership and the Company, as the case may be, neither the Partnership
nor the Company has received or, to the knowledge of the Partnership or the
Company, been threatened with, a notice of violation regarding such
facilities which reasonably can be expected to have a material adverse
effect on the business, properties or assets, condition (financial or
other), operations or prospects of the Partnership and its Subsidiaries
taken as a whole or of the Company and its Subsidiaries taken as a whole.
(c) With respect to the real property to be owned by the
Partnership and its Subsidiaries as of the Effective Time, there has not
occurred to the best knowledge of the Partnership and the Company (i) any
Release of any Hazardous Substance in a Reportable Quantity, (ii) any
discharge of any substance into ground, surface, or navigable waters for
which a notice of violation has been received or threatened under any
federal, state or local laws, rules or regulations concerning water
pollution, or (iii) any assertion of any Lien pursuant to federal, state or
local environmental law resulting from any use, spill, discharge or clean-
up of any hazardous or toxic substance or waste, which occurrence can
reasonably be expected to have a material adverse effect on the business,
properties or assets, condition (financial or other), operations or
prospects of the Partnership and its Subsidiaries taken as a whole or of
the Company and its Subsidiaries taken as a whole. As used in this
paragraph, the terms "Release", "Hazardous Substance", and "Reportable
Quantity" shall have the meanings assigned such terms under the
Comprehensive Environmental Response Compensation and Liability Act, as
amended (CERCLA).
L. Status under Certain Statutes. Neither the Partnership nor any
of its Subsidiaries is subject to regulation under the Investment Company
Act of 1940, the Public Utility Holding Company Act of 1935, the
Transportation Acts or the Federal Power Act, in each case as amended.
M. Year 2000. With respect to the Partnership and its Subsidiaries
(after giving effect to the Conversion Transaction), (a) a review and
assessment has been initiated of all areas within the Partnership's and its
Subsidiaries' business and operations (including those affected by
suppliers, vendors and customers) that could be adversely affected by the
"Year 2000 Problem" (that is, the risk that computer applications used by
the Partnership or any of its Subsidiaries (or suppliers, vendors and
customers) may be unable to recognize and properly perform date-sensitive
functions involving certain dates prior to and any date after December 31,
1999), (b) a plan and timetable has been developed for addressing the Year
2000 Problem on a timely basis, and (c) to date, that plan has been
implemented in accordance with that timetable. Any reprogramming required
to avoid a Year 2000 Problem will be completed by June 30, 1999, except
where failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a material adverse effect on the
business, properties or assets, condition (financial or other), operations
or prospects of the Partnership and its Subsidiaries taken as a whole or of
the Company and its Subsidiaries taken as a whole. The cost to the
Partnership and its Subsidiaries of such reprogramming and testing and of
the reasonably foreseeable consequences of the Year 2000 Problem to the
Partnership and its Subsidiaries (including reprogramming errors and the
failure of others' systems or equipment) will not result in a Default or a
material adverse effect on the business, properties or assets, condition
(financial or other), operations or prospects of the Partnership and its
Subsidiaries taken as a whole or of the Company and its Subsidiaries taken
as a whole. Except for such reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information
systems of the Partnership and its Subsidiaries are and, with ordinary
course upgrading and maintenance, will continue through the final maturity
date of the Notes to be sufficient to permit the Partnership and its
Subsidiaries to conduct their respective businesses without a reasonable
likelihood of resulting in a material adverse effect on the business,
property or assets, condition (financial or other) or results of operations
or prospects of the Partnership and its Subsidiaries taken as a whole or of
the Company and its Subsidiaries taken as a whole.
N. Disclosure. The Proxy Statement/Prospectus fairly describes,
in all material respects, the general nature of the business and principal
properties of the Partnership and its Subsidiaries and the Company and its
Subsidiaries after giving effect to the Conversion Transaction. Neither
this Agreement, the Proxy Statement/Prospectus nor any other document,
certificate or statement furnished to you by or on behalf of the
Partnership or the Company in connection herewith contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein and therein not misleading.
There is no fact peculiar to the Partnership or the Company which
materially adversely affects or in the future may (so far as the
Partnership or the Company can now reasonably foresee) materially adversely
affect the businesses, property or assets, condition (financial or other)
or results of operations or prospects of the Partnership and its
Subsidiaries and of the Company and its Subsidiaries and which has not been
set forth in this Agreement, or in the Proxy Statement/Prospectus.
5. Expenses; Indemnification.
The Partnership and the Company shall, whether or not the transactions
contemplated hereby are consummated, jointly and severally save each holder
of Notes harmless for all out-of-pocket expenses arising in connection with
the execution and delivery or performance of this Agreement, the Assumption
Agreement, the Subsidiary Assumption Agreements, the Southern Timber
Assumption Agreement, the Transfer Documents and the Security Documents,
including the reasonable fees and expenses of special counsel for the
Noteholders. The Partnership and the Company shall also jointly and
severally indemnify and save each holder of Notes harmless from and against
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever
(including, without limitation, any taxes, and any additional taxes imposed
on any amounts payable pursuant to this Paragraph 5) which may at any time
be imposed on, incurred by or asserted against any holder of Notes in any
way arising out of, relating to or resulting from this Agreement or the
transactions contemplated hereby. The obligations of the Partnership under
this paragraph 5 shall survive the transfer of any Note or portion thereof
or interest therein by a holder of Notes or any transferee and the payment
of any Note.
6. Affirmation of Guarantee.
The Partnership hereby agrees that its Guarantee in respect of the Notes,
as set forth in paragraph 7 of the Mortgage Note Agreements, as amended
hereby, shall continue in full force and effect after the effectiveness of
this Agreement.
7. Miscellaneous.
A. Continuity and Integration of Agreements. The Mortgage Note
Agreements, as supplemented and amended by this Agreement, shall remain in
full force and effect and are hereby ratified and confirmed, and the
Mortgage Note Agreements and this Agreement shall be deemed to be and
construed as a single agreement. Without limitation of the foregoing, or
any provision of the Mortgage Note Agreements, all representations and
warranties made herein or in any certificate or document delivered in
connection herewith shall for all purposes be deemed made by the Company
and/or the Partnership, as applicable, in, and delivered by the Company
and/or the Partnership, as applicable, pursuant to and in connection with,
the Mortgage Note Agreements. For the purposes of paragraph 12B
(Expenses), paragraph 12C (Amendments), and paragraph 12D (Solicitation of
Holders of the Notes) of the Mortgage Note Agreements, all references
therein to "this Agreement" shall also be deemed to be and to include a
reference to the Subsidiary Assumption Agreements.
B. Survival of Representations and Warranties. All representations and
warranties contained herein shall survive the execution and delivery of
this Agreement, and the transfer of any Note by a holder thereof. Such
representations and warranties may be relied upon by any transferee of a
Note from a holder thereof.
C. Successors and Assigns. All covenants and agreements in this
Agreement contained by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
D. Descriptive Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
E. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
F. Operating Partnership a Party. The Operating Partnership is a party
to this Agreement for purposes of making the representations and warranties
in paragraph 4 hereof and to acknowledge its obligations under paragraph 5
hereof after the Merger.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK.
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this letter and return the same
to the Company whereupon this letter shall become a binding agreement
between us.
Very truly yours,
PLUM CREEK MANUFACTURING, L.P.
By: Plum Creek Management Company, L.P.,
its General Partner
By: Name: Diane M. Irvine
Title: Vice President and
Chief Financial Officer
PLUM CREEK MARKETING, INC.
By:
Name: Diane M. Irvine
Title: Vice President and
Chief Financial Officer
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its General Partner
By:
Name: Diane M. Irvine
Title: Vice President and
Chief Financial Officer
PLUM CREEK ACQUISITION PARTNERS, L.P.
By: Plum Creek Timber I, L.L.C.,
its General Partner
By: Plum Creek Timber Company, Inc.,
its Managing Member
By:
Name: Diane M. Irvine
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is accepted as of the date first above written:
ALLSTATE LIFE INSURANCE COMPANY
By
Name:
Title:
By
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
By
Name:
Title:
By
Name:
Title:
AMERUS LIFE HOLDINGS, INC.
(formerly Central Life Assurance Company)
By
Name:
Title:
CUNA MUTUAL LIFE INSURANCE COMPANY
By: CIMCO, INC.
By
Name:
Title:
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
By
Name:
Title:
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By
Name:
Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By
Name:
Title:
MELLON BANK, N.A., solely in its capacity as Trustee for the AT&T MASTER
PENSION TRUST, as directed by JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
and not in its individual capacity
By
Name:
Title:
MELLON BANK, N.A., solely in its capacity as Trustee for the NYNEX MASTER
PENSION TRUST, as directed by JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
and not in its individual capacity
By
Name:
Title:
MODERN WOODMEN OF AMERICA
By
Name:
Title:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By
Name:
Title:
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By
Name:
Title:
SCHEDULE I
11 1/8% First Mortgage Notes due 2007
(Issued 5/31/89)
Name of Noteholder Principal Amount
- ------------------ of Notes
----------------
Allstate Life Insurance Company $ 7,000,000
Allstate Life Insurance Company of New York 1,400,000
AmerUs Life Holdings, Inc. 2,100,000
CUNA Mutual Life Insurance Company 2,100,000
John Hancock Mutual Life Insurance Company 24,850,000
John Hancock Variable Life Insurance Company 1,050,000
Massachusetts Mutual Life Insurance Company 7,000,000
Mellon Bank, N.A., as Trustee for AT&T Master
Pension Trust 700,000
Mellon Bank, N.A., as Trustee for NYNEX Master
Pension Trust 2,100,000
Modern Woodmen of America 1,750,000
The Prudential Insurance Company of America 53,200,000
Teachers Insurance and Annuity Association of America 8,750,000
---------------
$ 112,000,000
PLUM CREEK TIMBER COMPANY, L.P.
999 Third Avenue
Seattle, Washington 98104
As of January 15, 1999
To each of the Noteholders listed on Schedule I hereto
Re: Senior Note Agreements
Dear Noteholder:
Plum Creek Timber Company, L.P., a Delaware limited partnership (the
"Company"), has heretofore entered into Senior Note Agreements dated as of
August 1, 1994 (said Agreements as heretofore amended by the amendments
dated as of June 15, 1995, May 31, 1996, April 15, 1997 and January 15,
1999 being herein called the "Senior Note Agreements"), pursuant to which
the Company issued its 8.73% Senior Notes due August 1, 2009 in the
aggregate principal amount of $150,000,000, $150,000,000 of which remain
outstanding and are held by the institutions (individually a "Noteholder",
and collectively the "Noteholders") in the respective amounts shown on
Schedule I (the "Notes"). Terms used herein which are not otherwise
defined herein have the meanings ascribed to them in the Senior Note
Agreements, as amended by this Agreement.
The Company proposes to convert its outstanding ownership interests into
shares of stock of Plum Creek Timber Company, Inc., a Delaware corporation
(the "Corporation"), through the merger (the "Merger") of the Company with
and into Plum Creek Acquisition Partners, L.P., a Delaware limited
partnership (the "Operating Partnership"). Prior to the Merger,
Manufacturing will form Plum Creek Manufacturing Holding Company, Inc.
("Holding") and will contribute a nominal amount to Holding in exchange for
96 percent of Holding's outstanding common stock (which will be non-voting
stock), and management of the Company will purchase (the "Management Stock
Purchase") the remaining 4 percent of such outstanding common stock (which
will be voting stock). Manufacturing and Holding will then form four new
Subsidiaries of Holding (the "New Subsidiaries"). Immediately prior to the
Merger, Manufacturing will contribute an undivided 75 percent interest in
substantially all of its assets (allocated in varying proportions) to the
New Subsidiaries in exchange for 75 percent (valued on a fair market value
basis at the time of transfer) of the outstanding capital stock of each of
the New Subsidiaries (which stock will be non-voting preferred stock) and
will contribute an undivided 25 percent interest in substantially all of
its assets to Holding. Immediately thereafter, Holding will contribute
such undivided 25 percent interest (allocated in the same proportion as
Manufacturing's contribution of its undivided interest) to each of the New
Subsidiaries in exchange for 25 percent (valued on a fair market value
basis at the time of transfer) of the outstanding capital stock of each of
the New Subsidiaries (which stock will be voting common stock). The
formation of Holding and the New Subsidiaries and the issuance of the
capital stock by such entities as described above is herein referred to as
the "Facilities Subsidiary Reorganization." The contribution of assets of
Manufacturing to Holding and the New Subsidiaries as described above is
herein referred to as the "Manufacturing Asset Transfer". Immediately
prior to the Merger, the Company will form Plum Creek Southern Timber,
L.L.C. as a Restricted Subsidiary ("Southern Timber, L.L.C."), into which
the Company will contribute all of its timberlands located in Louisiana and
Arkansas in exchange for Southern Timber, L.L.C. assuming (on a joint and
several basis) a portion of the indebtedness of the Company. The formation
of Southern Timber, L.L.C., transfer of Louisiana and Arkansas timberlands
to Southern Timber, L.L.C. and assumption of a portion of the current
indebtedness of the Company and future indebtedness of the Operating
Partnership by Southern Timber, L.L.C. are herein referred to as the
"Southern Timber Transaction." Immediately following the Merger, Marketing
will become a subsidiary of Manufacturing, with 75 percent of the
outstanding capital stock (which will be non-voting preferred stock) owned
by Manufacturing and 25 percent of the outstanding capital stock (which
will be voting common stock) owned by Holding (the "Marketing Stock
Transfer"). In addition, it is proposed that Marketing will be released as
an obligor on the First Mortgage Notes and Marketing and the New
Subsidiaries will each assume and become obligated in respect of varying
percentages of the Debt represented by the Company's 11-1/8% Senior Notes
due June 8, 2007 and the First Mortgage Notes (the "Subsidiary Note
Assumption"). Marketing will form a wholly-owned subsidiary (the "Land
Subsidiary") which will purchase from the Operating Partnership, on a
seller financed basis, certain real property (the "Better Use Property") of
the Operating Partnership that the Operating Partnership has determined has
a higher value as recreational, residential, grazing or agricultural
property than for timber production (the "HBU Transaction"). The foregoing
transactions (herein collectively called the "Conversion Transaction") are
to be effected (i) as provided in the Agreement and Plan of Conversion (the
"Conversion Agreement"), dated as of June 5, 1998, and amended on July 17,
1998, among the Company, the Corporation and Plum Creek Management Company,
L.P. (the sole general partner of the Company), (ii) as described in the
Proxy Statement/Prospectus dated December 9, 1998 (the "Proxy
Statement/Prospectus"), and (iii) as described above. After the
effectiveness of the Conversion Transaction, the Corporation will elect to
be treated as a real estate investment trust for Federal income tax
purposes.
In connection with the Conversion Transaction the Company is requesting
certain amendments to, and consents and waivers under and in respect of,
the Senior Note Agreements and, subject to the terms and provisions hereof,
the undersigned Noteholders are agreeable thereto. Accordingly, the
Company agrees with you as follows:
1. Amendments to Senior Note Agreements.
(a) Clause (vi) of paragraph 5A of the Senior Note Agreements is hereby
amended to read in its entirety as follows:
(vi) to the extent not delivered pursuant to clause (i), (ii),
(iii), (iv) or (v), promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as the Company
or the Corporation sends to its public security holders and copies of all
registration statements (without exhibits) and all reports which either the
Company or the Corporation files with the Securities and Exchange
Commission and any governmental body or agency succeeding to the functions
of the Securities and Exchange Commission;
(b) Paragraph 5A of the Senior Note Agreements is hereby further amended
by adding the following paragraph at the end thereof:
In preparing the financial statements, computations and reports
provided for herein the Facilities Subsidiary and its Subsidiaries shall be
considered as consolidated or combined subsidiary entities of the Company
(and not accounted for on the equity method of accounting or as an
investment) notwithstanding that the Voting Stock thereof shall not be
owned by the Company, either directly or indirectly, and without regard to
whether they would be considered as such subsidiary entities under
generally accepted accounting principles.
(c) Paragraph 6B(1)(ix) of the Senior Note Agreements is hereby amended
to read in its entirety as follows:
(ix) from and after the time the Facilities Subsidiary becomes a
Restricted Subsidiary, Liens on (x) the accounts, rights to payment for
goods sold or services rendered that are evidenced by chattel paper or
instruments (and rights against persons who guarantee payment or collection
of the foregoing) of Manufacturing and its Subsidiaries which are
Restricted Subsidiaries, (y) the inventory of Manufacturing and its
Subsidiaries which are Restricted Subsidiaries and (z) the proceeds (as
defined in the Uniform Commercial Code in any applicable jurisdiction)
thereof, in each case securing the obligations of Manufacturing and such
Restricted Subsidiaries under the Facility Subsidiary's Revolving Credit
Facility (and any extension, renewal, refunding or refinancing thereof)
permitted by paragraph 6B(2)(x),
(d) Paragraph 6B(2)(i) of the Senior Note Agreements is hereby amended to
read in its entirety as follows:
(i) Funded Debt represented by the Notes, the Other Senior Notes
and the Assumption Agreements;
(e) Paragraph 6B(2)(vii) of the Senior Note Agreements is hereby amended
to read in its entirety as follows:
(vii) the Company's guarantee of Funded Debt (and related obligations
not constituting Debt) incurred by Manufacturing to finance the making of
capital improvements, expansions and additions to the property, plant and
equipment of Manufacturing and its Subsidiaries which are Restricted
Subsidiaries pursuant to the Facilities Subsidiary's Facility, provided
that such guarantee shall be subordinated to the Notes by subordination
provisions substantially the same as those contained in paragraph 7I of the
Mortgage Note Agreements, and provided, further, that the aggregate
outstanding principal amount of such Funded Debt shall at no time exceed
$20,000,000,
(f) Paragraph 6B(2)(x) of the Senior Note Agreements is hereby amended to
read in its entirety as follows:
(x) from and after the time the Facilities Subsidiary becomes a
Restricted Subsidiary, Debt incurred by Manufacturing or any of its
Subsidiaries which is a Restricted Subsidiary pursuant to the Facilities
Subsidiary's Revolving Credit Facility (and any extension, renewal,
refunding or refinancing thereof, including any refunding or refinancing in
an amount in excess of the principal amount then outstanding under the
Facilities Subsidiary's Revolving Credit Facility) which is unsecured or is
secured by Liens permitted by paragraph 6B(1)(ix), not in excess of an
aggregate principal amount of $20,000,000 at any time outstanding, provided
that neither Manufacturing nor any such Restricted Subsidiary shall suffer
to exist any Debt permitted by this clause (x) on any day after the date of
the Merger unless there shall have been a period of at least 45 consecutive
days within the 12 months immediately preceding such day during which
Manufacturing and all of such Restricted Subsidiaries shall have been free
from all Debt permitted by this clause (x),
(g) That portion of the first sentence of paragraph 6B(6) of the Senior
Note Agreements ending with the words "years preceding such year of
determination;" in clause (b) thereof is hereby amended (effectively
immediately notwithstanding the provisions of paragraph 3 hereof) in its
entirety as follows:
In any calendar year, harvest Timber (the term "harvest" and
correlative terms shall include, without duplication, both the harvesting
activities to be conducted by the Company and sales of Timber to other
Persons for current harvesting activities being conducted by such Persons)
on the Timberlands then owned directly or indirectly by the Company in
excess of the amount set forth for such calendar year in the following
table:
Calendar Year Maximum Cunits to be Harvested
- ------------- ------------------------------
1998 through 2000 2330 MCCF
2001 and each calendar year thereafter 2270 MCCF
plus, in each year, the amount, if any, by which (a) the sum of (x) the
cumulative amount set forth in the table above for the years preceding such
year of determination and (y) 2,342 MCCF, exceeds (b) the cumulative amount
actually harvested in such years preceding such year of determination;
(h) Paragraph 6C of the Senior Note Agreements is amended in its entirety
to read as follows:
The Company covenants that it will not, and will not permit any
Subsidiary to, engage in any business other than Permitted Businesses. In
addition, the Company will not, and will not permit any Restricted
Subsidiary to, (i) sell, transfer or otherwise dispose of any of its
Timberlands or Timber (collectively, "Timber Properties") to Holding or any
Subsidiary of Holding (whether or not at the time they are Restricted
Subsidiaries, and herein collectively called the "Manufacturing Entities")
unless such transaction is a transaction permitted under clause (v) or
(vii) of paragraph 6B(5), or (ii) invest in or otherwise transfer to any of
the Manufacturing Entities the proceeds ("Timber Proceeds") of the sale or
disposition of any such Timber Properties (unless such proceeds are derived
from a transaction permitted under clause (v) or (vii) of paragraph 6B(5)).
Any Timber Proceeds being used to "purchase productive assets in the same
line of business" under the provisions of paragraph 6B(5)(viii) shall not
be used for any purpose except for the acquisition of Timber Properties to
be owned directly by the Company or a Restricted Subsidiary which is not
one of the Manufacturing Entities. Notwithstanding the foregoing, the
Company and its Restricted Subsidiaries may sell Timber to the
Manufacturing Entities in connection with, and in transactions which
constitute part of, harvesting activities conducted in accordance with the
requirements of paragraph 6B(6). All acquisitions of Timber Properties by
the Company and its Restricted Subsidiaries shall be made only by the
Company directly or indirectly through Restricted Subsidiaries which are
not Manufacturing Entities.
(i) Paragraph 7A (xiv) of the Senior Note Agreements is amended in its
entirety to read as follows:
(xiv) this Agreement, the Southern Timber Assumption Agreement or any
Future Southern Timber Assumption Agreement shall at any time, for any
reason, cease to be in full force and effect or shall be declared to be
null and void in whole or in any material part by the final judgment (which
is nonappealable or has not been stayed pending appeal or as to which all
rights to appeal have expired or been exhausted) of any court or other
governmental or regulatory authority having jurisdiction in respect
thereof, or the validity or the enforceability of this Agreement, the
Southern Timber Assumption Agreement or any Future Southern Timber
Assumption Agreement shall be contested by or on behalf of the Company, or
the Company shall renounce this Agreement, the Southern Timber Assumption
Agreement or any Future Southern Timber Assumption Agreement, or deny that
it is bound by the terms hereof or has any further liability hereunder; or
(j) The proviso following clause (b)(vii) of the definition of Available
Cash and the definitions of Designated Repurchases (and the references to
that term in paragraphs 6B(3) and 6B(9) of the Senior Note Agreements) and
Distribution Support Agreement in paragraph 10B of the Senior Note
Agreements are hereby deleted, clause (ii) of the definition of Capital
Transaction is hereby amended to read "(ii) sales of equity interests by
the Corporation the proceeds of which are contributed to the Company", and
the following definitions set forth in paragraph 10B of the Senior Note
Agreements are hereby amended in their entirety to read as follows:
"Facilities Subsidiary's Facility" shall mean any facility pursuant
to which Manufacturing may incur Debt for purposes of making capital
improvements, additions to, or expansions of, property, plant and equipment
of the Facilities Subsidiary or its Subsidiaries which are Restricted
Subsidiaries.
"Facilities Subsidiary" shall mean, collectively, Manufacturing,
Marketing, Holding, the New Subsidiaries and any other Subsidiary of
Manufacturing satisfying the requirements of clause (ii) of the definition
of Wholly-Owned Subsidiary contained herein.
"Facility's Subsidiary Revolving Credit Facility" shall mean any
facility pursuant to which Manufacturing or any of its Subsidiaries which
is a Restricted Subsidiary may obtain revolving credit, take-down credit,
the issuance of standby and payment letters of credit and back-up for the
issuance of commercial paper.
"General Partner" shall mean Plum Creek Timber I, L.L.C., a limited
liability company organized and existing under the laws of the State of
Delaware, and its successors and assigns as General Partner of the Company.
"Mortgage Note Agreements" shall mean the Note Agreements, dated as
of May 31, 1989 and amended as of January 1, 1991, April 22, 1993,
September 1, 1993, May 20, 1994, June 15, 1995, May 31, 1996, April 15,
1997 and January 15, 1999, providing for the issuance and sale of
$160,000,000 original aggregate principal amount of the 11-1/8% First
Mortgage Notes of the Facilities Subsidiary to the purchasers listed in the
schedule of purchasers attached thereto.
"Partnership Agreement" shall mean the Agreement of Limited
Partnership of the Company, as in effect at the time of and after giving
effect to the Merger, and as the same may, from time to time, be amended,
modified or supplemented in accordance with the terms thereof.
"Restricted Payment" shall mean (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
stock of or other ownership interests in the Company or any shares of
Voting Stock of a Facilities Operating Subsidiary not owned by the Company
(directly or indirectly), now or hereafter outstanding, except a dividend
payable solely in shares of stock of or ownership interests in the Company,
and (b) any redemption, retirement, purchase or other acquisition, direct
or indirect, of any shares of any class of stock of or other ownership
interests in the Company or any shares of Voting Stock of a Facilities
Operating Subsidiary not owned by the Company (directly or indirectly), now
or hereafter outstanding, or of any warrants, rights or options to acquire
any such shares or interests, except to the extent that the consideration
therefor consists of shares of stock of or other ownership interests in the
Company.
"Restricted Subsidiary" shall mean any Wholly-Owned Subsidiary other
than any Designated Immaterial Subsidiary.
"Wholly-Owned Subsidiary" shall mean any Subsidiary organized under
the laws of any state of the United States of America which conducts the
major portion of its business in the United States of America and (i) in
the case of any Subsidiary, all the stock and other ownership interests of
which are owned by the Company either directly or indirectly through
Wholly-Owned Subsidiaries (other than Manufacturing or one or any of its
Subsidiaries) and (ii) at such time as the Mortgage Notes shall have been
paid in full and retired, (x) Manufacturing provided that all the stock and
other ownership interests thereof are owned by the Company either directly
or indirectly through Wholly-Owned Subsidiaries (other than a Subsidiary of
Manufacturing), (y) Holding provided that (1) Holding shall engage in no
business except the ownership of its Subsidiaries, (2) all the outstanding
stock and ownership interests thereof (other than Voting Stock) shall be
owned by the Company either directly or indirectly through Manufacturing,
(3) at least 51% of the Voting Stock thereof (to the extent it is not so
owned by the Company or Manufacturing) shall be owned by the Management
Voting Group, (4) the Voting Stock of Holding shall not account for more
than 4% of the equity ownership of Holding (nor, through such ownership,
shall it account for more than 1% of the direct or indirect equity
ownership of any Subsidiary of Holding) and (5) no more than 35% of the
Voting Stock of Holding shall be owned by any one individual, and (z) any
other Subsidiary of Manufacturing, provided that all the outstanding stock
and ownership interests thereof (other than Voting Stock) shall be owned by
the Company (either directly or indirectly through Wholly-Owned
Subsidiaries of the type described in clause (i) above) and the Voting
Stock of which (to the extent it is not so owned by the Company) shall be
owned by Holding.
(k) The following new defined terms are hereby added to paragraph 10B of
the Senior Note Agreements in proper alphabetical order:
"Assumption Agreements" means those certain Assumption Agreements
executed as contemplated by (and in substantially the respective forms
designated as Exhibits A, B, C and D to) the Amendment to Senior Note
Agreements dated as of January 15, 1999, together with any assumption
agreements executed after January 15, 1999, and that are contemplated by
paragraph 2, clause (b)(ii) of the Southern Timber Assumption Agreement.
"Company" means Plum Creek Acquisition Partners, L.P., successor to
Plum Creek Timber Company, L.P. pursuant to the Merger, and its successors
and assigns as permitted by the provisions of paragraph 6B(5).
"Corporation" shall mean Plum Creek Timber Company, Inc., a Delaware
corporation, and its successors.
"Facilities Operating Subsidiaries" shall mean Marketing, Holding and
the New Subsidiaries and "Facilities Operating Subsidiary" shall mean any
one of them.
"Future Southern Timber Assumption Agreements" means assumption
agreements that are contemplated by paragraph 2, clause (b)(ii) of the
Southern Timber Assumption Agreement.
"Holding" shall mean Plum Creek Manufacturing Holding Company, Inc. a
Delaware corporation.
"Management Voting Group" shall mean, at any time, a group consisting
of four or more individuals who are then current officers of the Company
who legally and beneficially own in the aggregate not less than 51% of the
outstanding Voting Stock of Holding.
"Merger" shall mean the merger of Plum Creek Timber Company, L.P.
with and into Plum Creek Acquisition Partners, L.P. as provided in the
Agreement and Plan of Conversion, dated as of June 5, 1998, and amended on
July 17, 1998, among Plum Creek Timber Company, Inc., Plum Creek Timber
Company, L.P. and Plum Creek Management Company, L.P.
"New Subsidiaries" shall mean Plum Creek Northwest Lumber, Inc., a
Delaware corporation, Plum Creek Northwest Plywood, Inc., a Delaware
corporation, Plum Creek MDF, Inc., a Delaware corporation, and Plum Creek
Southern Lumber, Inc., a Delaware corporation, and "New Subsidiary" shall
mean any one of them.
"Other Senior Notes" means the following outstanding Senior Notes of
the Company (other than the "Notes" as defined herein):
(i) the 8.73% Senior Notes due August 1, 2009; (ii) the 11-1/8%
Senior Notes due June 8, 2007; (iii) the Senior Notes, Series A, B, C and
D, due November 13, 2006, 2008, 2011 and 2016, respectively; and (iv) the
Senior Notes, Series E, F and G, due February 12, 2007, 2009 and 2011,
respectively.
"Southern Timber Assumption Agreement" means that certain Assumption
Agreement executed as contemplated by (and in substantially the form of
Exhibit D to) the Amendment to Senior Note Agreements dated as of
January 15, 1999.
"Ton" shall mean 2,000 pounds of green saw logs and pulpwood. For
purposes of conversion of Timber in the Company's Maine timberlands, one
million Tons shall equal 355 MCCF.
2. Consent and Waiver.
The undersigned Noteholders hereby consent to the consummation of the
Manufacturing Asset Transfer, the Management Stock Purchase, the Marketing
Stock Transfer, the Facilities Subsidiary Reorganization, the HBU
Transaction, the Southern Timber Transaction (provided the assumption of
indebtedness portion of the Southern Timber Transaction is effected in the
manner specified in paragraph 3D hereof) and the Subsidiary Note Assumption
(provided the same is effected in the manner specified in paragraph 3D
hereof) and the formation of Holding and the New Subsidiaries and hereby
waive compliance by the Company with the provisions of paragraphs 6B(3)
(Loans, Advances, Investments and Contingent Liabilities), 6B(4) (Sale of
Stock and Debt of Subsidiaries), 6B(9) (Transactions with Affiliates), and
6D (Issuance of Stock by Subsidiaries) of the Senior Note Agreements solely
for purposes of effectuating (and only to the extent necessary to
effectuate) such transactions in the context of consummating the entire
Conversion Transaction as described in and as contemplated by the
Conversion Agreement and the Proxy Statement/Prospectus. The effectiveness
of this Agreement shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of any of the holders of the
Notes under this Agreement or the Senior Note Agreements, nor constitute a
waiver of any other provision of this Agreement or the Senior Note
Agreements.
3. Conditions to Effectiveness.
Except as provided in paragraph 1(g) hereof, the amendments, consents and
waivers set forth in paragraphs 1 and 2 hereof shall become effective at
the "Effective Time" (as defined in the Conversion Agreement), subject to
the fulfillment to your satisfaction (or your waiver) of the following
conditions:
A. Opinion of Company's Counsel. You shall have received favorable
opinions from (i) James A. Kraft, General Counsel of the Company, covering
such matters incident to the transactions described herein as you may
reasonably request, and (ii) Skadden, Arps, Slate, Meagher & Flom, special
tax counsel to the Company and the Corporation in connection with the
Conversion Transaction, substantially in the form referenced in Annex I
attached to the Proxy Statement/Prospectus and covering such other matters
incident to the transactions described herein as you may reasonably
request. Such opinions shall be addressed to you, shall be dated the date
of the Effective Time, and shall be otherwise satisfactory in substance and
form to you and to your special counsel.
B. Opinion of Noteholders' Counsel. You shall have received a favorable
opinion from Willkie Farr & Gallagher, special counsel for the Noteholders,
covering such matters incident to the transactions described herein as you
may reasonably request, addressed to you, dated the date of the Effective
Time and otherwise satisfactory in substance and form to you.
C. Merger. The Merger shall have become effective in the manner
provided for in the Conversion Agreement prior to July 31, 1999 and the
Operating Partnership shall have executed and delivered an Assumption
Agreement in substantially the form of Exhibit A hereto in conformity with
the provisions of clause (iv) of paragraph 6B(5) of the Senior Note
Agreements (together with an Officers' Certificate specifying compliance
with the matters referred to in said clause (iv)). No provision of the
Conversion Agreement shall have been amended, nor compliance with any
provision thereof, or satisfaction of any condition to the Conversion
Transaction set forth therein, shall have been waived without your consent.
D. Assumption of Certain Notes. Marketing and each New Subsidiary shall
have executed and delivered a Subsidiary Assumption Agreement (a
"Subsidiary Assumption Agreement") substantially in the respective forms of
Exhibits B and C hereto thereby becoming an obligor in respect of a portion
of the First Mortgage Notes and the 11-1/8% Senior Notes due June 8, 2007
(all as more particularly described in Exhibits B and C). Southern Timber,
L.L.C. shall have executed and delivered the Southern Timber Assumption
Agreement substantially in the form of Exhibit D hereto thereby becoming an
obligor in respect of a portion of the indebtedness of the Company (all as
more particularly described in Exhibit D).
E. First Mortgage Notes. The Mortgage Note Agreements shall have been
amended by an amendment agreement in substantially the form of agreement
heretofore delivered to you by the Company (the "First Mortgage Note
Amendment") and all amendments, waivers and consents provided for therein
shall have become and remain effective.
F. Other Senior Notes. The Note Agreements relating to the Other Senior
Notes (as defined in paragraph 1(j) above) shall have been amended by
amendment agreements substantially in the form of this Agreement (with such
changes therein as to form but not of substance, as may be appropriate in
the circumstances) and all amendments, waivers and consents provided for in
such amendment agreements shall have become and remain effective.
G. Rating of Notes. The Notes shall have received an investment grade
rating from one of the four "nationally recognized statistical rating
organizations" and you shall have received evidence that such rating
remains in effect at the Effective Time.
H. Amendment Fee. The Company shall have paid to each Noteholder an
amendment fee in an amount equal to 0.02% of the principal amount of Notes
held by such Noteholder as specified on Schedule I hereto. Such fee shall
be payable within ten days of the date that the Company receives executed
counterparts of this Agreement from the Required Holders, whether or not
the Conversion Transaction is consummated.
I. Representations and Warranties; No Default. The representations and
warranties contained in paragraph 4 hereof shall be true in all material
respects on and as of the date of the Effective Time; there shall exist on
the date of the Effective Time no Event of Default or Default; and the
Company shall have delivered to you an Officers' Certificate, dated the
date of the Effective Time, to both such effects.
J. Proceedings. All proceedings taken or to be taken in connection with
the transactions contemplated hereby and all documents incident thereto
shall be satisfactory in substance and form to you, and you shall have
received all such counterpart originals or certified or other copies of
such documents as you may reasonably request.
K. Noteholders Consent. The Company shall have received executed
counterparts of this Agreement from the Required Holders.
4. Representations and Warranties.
The Company (the term "Company" as used herein including both Plum Creek
Timber Company, L.P. and the Operating Partnership as its successor in the
Merger) represents and warrants as follows:
A. Organization. The Company is a limited partnership duly organized,
validly existing and in good standing under the Delaware Revised Uniform
Limited Partnership Act and has all requisite partnership power and
authority to own and operate its properties, to conduct its business as now
conducted and as proposed to be conducted and to enter into and perform its
obligations under this Agreement and (after giving effect to the Merger)
the Assumption Agreement, the Senior Note Agreements, the Notes and the
Subsidiary Assumption Agreement to which it is a party. As of the
Effective Time the Facilities Operating Subsidiaries will each be a duly
organized and validly existing corporation and in good standing under the
laws of its jurisdiction of incorporation with all requisite corporate
power and authority to own and operate its properties, to conduct its
business as proposed to be conducted and to enter into and perform its
obligations under the Subsidiary Assumption Agreement to which it is a
party.
B. Qualification. Each of the Company and its Subsidiaries is duly
qualified or registered for transaction of business and in good standing as
a foreign limited partnership or corporation in each jurisdiction in which
the failure so to qualify or be registered would have a material adverse
effect on the business, property or assets, condition (financial or other),
operations or prospects of the Company and its Subsidiaries taken as a
whole, or on the ability of the Company to perform its obligations under
this Agreement or the Conversion Agreement, or (after giving effect to the
Merger) the Assumption Agreement, the Senior Note Agreements or the Notes,
or in the ability of the parties to the Subsidiary Assumption Agreements
and the Southern Timber Assumption Agreement to perform their obligations
thereunder.
C. Financial Statements. The Company has delivered to you a complete
and correct copy of the Proxy Statement/Prospectus (which for the purposes
of this paragraph 4 shall include only those documents incorporated by
reference as of the date hereof). The unaudited pro forma condensed
consolidated financial statements of the Corporation contained in the Proxy
Statement/Prospectus (the "Pro Forma Statements") comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act of 1933, as amended, and the Securities Exchange Act of
1934, as amended, and the published rules and regulations thereunder and
the assumptions on which the pro forma adjustments reflected in the Pro
Forma Statements are based provide a reasonable basis for presenting the
significant effects of the transactions contemplated by the Pro Forma
Statements and such pro forma adjustments give appropriate effect to such
assumptions and are properly applied in the Pro Forma Statements. Inasmuch
as the Corporation at the Effective Time will be entirely a holding company
owning the Operating Partnership, with no substantial assets or liabilities
apart from the Operating Partnership, the Pro Forma Statements
substantially reflect the pro forma position of the Operating Partnership
and its Subsidiaries after giving effect to the Merger.
D. Subsidiaries. As of the Effective Time the Company will own,
directly or indirectly, all of the issued and outstanding equity interests
of all of its Subsidiaries except, in the case of Holding and its
Subsidiaries, the Voting Stock of Holdings owned by the Management Voting
Group, which interests will have been duly authorized and validly issued,
fully paid and non-assessable and be owned free and clear of any Liens
(except for Liens on the shares of Voting Stock of Holdings owned by the
Management Voting Group in favor of the Company as security for the unpaid
subscription price for such shares of Voting Stock). As of the Effective
Time there will be outstanding no warrants or options to acquire, or
instruments convertible into or exchangeable for, any equity interest in
any such Subsidiary.
E. Changes, etc. Since the date of the Proxy Statement/Prospectus (a)
the Company and its Subsidiaries have not incurred any material liabilities
or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business except for those
transactions described in the Proxy Statement/Prospectus as constituting a
part of the Conversion Transaction, and (b) there has not been (i) any
material adverse change in the business, property or assets, condition
(financial or other), operations or prospects of the Company and its
Subsidiaries taken as a whole, or (ii) any Restricted Payment of any kind
declared, paid or made by the Company other than regular quarterly
declarations and payments of distributions to unit holders of the Company
in accordance with paragraph 6A of the Senior Note Agreements.
F. Actions Pending. There is no action, suit, investigation or
proceeding pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries, or any properties or rights of the
Company or any of its Subsidiaries, by or before any court, arbitrator or
administrative or governmental body which questions the validity of this
Agreement, the Conversion Agreement, the Assumption Agreement, the Southern
Timber Assumption Agreement or the Subsidiary Assumption Agreements or any
action taken or to be taken pursuant to any thereof, which would be
reasonably likely to result in any material adverse change in the business,
properties or assets, condition (financial or other), operations or
prospects of the Company and its Subsidiaries taken as a whole, or in the
ability of the Company to perform its obligations under this Agreement, the
Conversion Agreement or (after giving effect to the Merger) the Assumption
Agreement, the Senior Note Agreements or the Notes, or in the ability of
the parties to the Subsidiary Assumption Agreements or the Southern Timber
Assumption Agreement to perform their obligations thereunder.
G. Compliance with other Instruments, etc. Neither the Company nor any
Subsidiary of the Company is in violation of any term of the Partnership
Agreement or of any term of any agreement or instrument to which it is a
party or by which it or its properties is bound or any term of any
applicable law, ordinance, rule or regulation of any governmental authority
or any term of any applicable order, judgment or decree of any court,
arbitrator or governmental authority, the consequences of which violation
would be reasonably likely to have a material adverse effect on the
business, properties or assets, condition( financial or other), operations
or prospects of the Company and its Subsidiaries taken as a whole or on the
ability of the Company to perform its obligations under this Agreement, or
(after giving effect to the Merger) the Assumption Agreement, the Senior
Note Agreements or the Notes, or on the ability of the parties to the
Subsidiary Assumption Agreements or the Southern Timber Assumption
Agreement to perform their obligations thereunder. The execution, delivery
and performance by the Company of this Agreement and (after giving effect
to the Merger) the Assumption Agreement, the Senior Note Agreements and the
Notes, and the execution of the Subsidiary Assumption Agreements and the
Southern Timber Assumption Agreement by the parties thereto, will not in
any case result in any violation of or be in conflict with or constitute a
default under any such term or result in the creation of (or impose any
obligation on the Company or any such party to create) any Lien upon any of
the properties or assets of the Company or any of its Subsidiaries,
pursuant to any such term.
H. Governmental Consent. No consent, approval or authorization of, or
declaration or filing with, any governmental authority is required for the
valid execution, delivery and performance by the Company of this Agreement,
or, after giving effect to the Merger, the Assumption Agreement, the Senior
Note Agreements or the Notes, or by any party thereto of the Subsidiary
Assumption Agreements or the Southern Timber Assumption Agreement.
I. Franchises, Licenses, Agreements, etc. At the Effective Time the
Company and its Subsidiaries will each be in possession of and operating in
substantial compliance with all franchises, grants, authorizations,
approvals, licenses, permits, easements, consents, certificates and orders
required to own or lease its respective properties and to permit the
conduct of its business, except for those franchises, grants,
authorizations, approvals, licenses, permits, easements, consents,
certificates and orders (collectively, "Permitted Exceptions") (i) which
are routine in nature and are expected to be obtained or given in the
ordinary course of business after the Effective Time, (ii) which are
administrative in nature and which are expected to be obtained or given in
the ordinary course of business after the Effective Time, or (iii) the
failure of which to be obtained or given would not individually or in the
aggregate materially and adversely affect the business, property or assets,
condition (financial or other), operations or prospects of the Company and
its Subsidiaries taken as a whole, or impair the ability of the Company to
perform its obligations under this Agreement, the Conversion Agreement, the
Assumption Agreement, the Senior Note Agreements or the Notes, or in the
ability of the parties to the Subsidiary Assumption Agreements or the
Southern Timber Assumption Agreement to perform their respective
obligations thereunder.
J. Title to Properties. At the Effective Time the Company and its
Subsidiaries will have good title to their real properties (other than
properties which are leased) and good title to all of their other
properties and assets, subject to no Lien of any kind except Liens
permitted by paragraph 6B(1) of the Senior Note Agreements. All leases
necessary in any material respect for the conduct of the businesses of the
Company and its Subsidiaries, are valid and subsisting and are in full
force and effect.
K. Environmental Matters.
(a) At the Effective Time the Company and its Subsidiaries will have all
environmental permits or licenses necessary for the conduct of its business
as to be conducted as of the Effective Time and, as to any such permit or
license that has expired or is about to expire, or is needed for the
proposed conduct of its business, the Company or such Subsidiary has or
will have timely and properly applied for renewal or receipt of the same.
The Company and its Subsidiaries are currently operating in material
compliance with the limits set forth in such environmental permits or
licenses and any noncompliance with such permits or licenses will not
result in any material liability or penalty to the Company or any of its
Subsidiaries and neither the Company nor any Subsidiary has any knowledge
of any threatened or pending proceeding for the revocation, loss or
termination of any such environmental permits or licenses.
(b) All facilities located on the real property owned by the Company and
its Subsidiaries at the Effective Time after giving effect to the
Conversion Transaction which are subject to regulation by the Federal
Resource Conservation and Recovery Act, as in effect on the date hereof,
are and have been operated by the Company and its Subsidiaries in material
compliance with such Act and neither the Company nor any of its
Subsidiaries, has received or, to the knowledge of the Company, been
threatened with, a notice of violation regarding such facilities which
reasonably can be expected to have a material adverse effect on the
business, properties or assets, condition (financial or other), operations
or prospects of the Company and its Subsidiaries taken as a whole.
(c) With respect to the real property to be owned by the Company and its
Subsidiaries as of the Effective Time, there has not occurred to the best
knowledge of the Company (i) any Release of any Hazardous Substance in a
Reportable Quantity, (ii) any discharge of any substance into ground,
surface, or navigable waters for which a notice of violation has been
received or threatened under any federal, state or local laws, rules or
regulations concerning water pollution, or (iii) any assertion of any Lien
pursuant to federal, state or local environmental law resulting from any
use, spill, discharge or clean-up of any hazardous or toxic substance or
waste, which occurrence can reasonably be expected to have a material
adverse effect on the business, properties or assets, condition (financial
or other), operations or prospects of the Company and its Subsidiaries
taken as a whole. As used in this paragraph, the terms "Release",
"Hazardous Substance", and "Reportable Quantity" shall have the meanings
assigned such terms under the Comprehensive Environmental Response
Compensation and Liability Act, as amended (CERCLA).
L. Status under Certain Statutes. Neither the Company nor any of its
Subsidiaries is subject to regulation under the Investment Company Act of
1940, the Public Utility Holding Company Act of 1935, the Transportation
Acts or the Federal Power Act, in each case as amended.
M. Year 2000. With respect to the Company and its Subsidiaries (after
giving effect to the Conversion Transaction), (a) a review and assessment
has been initiated of all areas within the Company's and its Subsidiaries'
business and operations (including those affected by suppliers, vendors and
customers) that could be adversely affected by the "Year 2000 Problem"
(that is, the risk that computer applications used by the Company or any of
its Subsidiaries (or suppliers, vendors and customers) may be unable to
recognize and properly perform date-sensitive functions involving certain
dates prior to and any date after December 31, 1999), (b) a plan and
timetable has been developed for addressing the Year 2000 Problem on a
timely basis, and (c) to date, that plan has been implemented in accordance
with that timetable. Any reprogramming required to avoid a Year 2000
Problem will be completed by June 30, 1999, except where failure to do so,
individually or in the aggregate, could not reasonably be expected to
result in a material adverse effect on the business, properties or assets,
condition (financial or other), operations or prospects of the Company and
its Subsidiaries taken as a whole. The cost to the Company and its
Subsidiaries of such reprogramming and testing and of the reasonably
foreseeable consequences of the Year 2000 Problem to the Company and its
Subsidiaries (including reprogramming errors and the failure of others'
systems or equipment) will not result in a Default or a material adverse
effect on the business, properties or assets, condition (financial or
other), operations or prospects of the Company and its Subsidiaries taken
as a whole. Except for such reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information
systems of the Company and its Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue through the final maturity date of
the Notes to be sufficient to permit the Company and its Subsidiaries to
conduct their respective businesses without a reasonable likelihood of
resulting in a material adverse effect on the business, property or assets,
condition (financial or other) or results of operations or prospects of the
Company and its Subsidiaries taken as a whole.
N. Incorporated Representations and Warranties. All of the
representations and warranties made in paragraph 4 of the First Mortgage
Note Amendment (as defined in paragraph 3E above) are true and correct and
are incorporated herein by reference with the same effect as if set forth
at length herein.
O. Disclosure. The Proxy Statement/Prospectus fairly describes, in all
material respects, the general nature of the business and principal
properties of the Company and its Subsidiaries after giving effect to the
Conversion Transaction. Neither this Agreement, the Proxy
Statement/Prospectus nor any other document, certificate or statement
furnished to you by or on behalf of the Company or any Subsidiary in
connection herewith contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading. There is no fact peculiar to
the Company which materially adversely affects or in the future may (so far
as the Company can now reasonably foresee) materially adversely affect the
businesses, property or assets, condition (financial or other) or results
of operations or prospects of the Company and its Subsidiaries and which
has not been set forth in this Agreement, or in the Proxy
Statement/Prospectus.
5. Expenses; Indemnification.
The Company shall, whether or not the transactions contemplated hereby are
consummated, save each holder of Notes harmless for all out-of-pocket
expenses arising in connection with the execution and delivery or
performance of this Agreement, the Assumption Agreement, the Southern
Timber Assumption Agreement or the Subsidiary Assumption Agreements,
including the reasonable fees and expenses of special counsel for the
Noteholders. The Company shall also indemnify and save each holder of
Notes harmless from and against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever (including, without limitation, any
taxes, and any additional taxes imposed on any amounts payable pursuant to
this paragraph 5) which may at any time be imposed on, incurred by or
asserted against any holder of Notes in any way arising out of, relating to
or resulting from this Agreement or the transactions contemplated hereby.
The obligations of the Company under this paragraph 5 shall survive the
transfer of any Note or portion thereof or interest therein by a holder of
Notes or any transferee and the payment of any Note.
6. Miscellaneous.
A. Continuity and Integration of Agreements. The Senior Note
Agreements, as supplemented and amended by this Agreement, shall remain in
full force and effect and are hereby ratified and confirmed, and the Senior
Note Agreements and this Agreement shall be deemed to be and construed as a
single agreement. Without limitation of the foregoing, or any provision of
the Senior Note Agreements, all representations and warranties made herein
or in any certificate or document delivered in connection herewith shall
for all purposes be deemed made by the Company in, and delivered by the
Company pursuant to and in connection with, the Senior Note Agreements.
B. Survival of Representations and Warranties. All representations and
warranties contained herein shall survive the execution and delivery of
this Agreement, and the transfer of any Note by a holder thereof. Such
representations and warranties may be relied upon by any transferee of a
Note from a holder thereof.
C. Successors and Assigns. All covenants and agreements in this
Agreement contained by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
D. Descriptive Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
E. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
F. Operating Partnership a Party. The Operating Partnership is a party
to this Agreement for purposes of making the representations and warranties
in paragraph 4 hereof and to acknowledge its obligations under paragraph 5
hereof after the Merger.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK.
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this letter and return the same
to the Company whereupon this letter shall become a binding agreement among
us.
Very truly yours,
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its General Partner
By:____________________________
Name: Diane M. Irvine
Title: Vice President and
Chief Financial Officer
PLUM CREEK ACQUISITION PARTNERS, L.P.
By: Plum Creek Timber I, L.L.C.,
its General Partner
By: Plum Creek Timber Company, Inc.,
its Managing Member
By:____________________________
Name: Diane M. Irvine
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is accepted as of the date first above written:
AMERUS LIFE HOLDINGS, INC. (formerly Central Life Assurance Company)
By:
Name:
Title:
FARM BUREAU LIFE INSURANCE COMPANY
By:
Name:
Title:
FIRST COLONY LIFE INSURANCE COMPANY
By:
Name:
Title:
GUARANTEE LIFE INSURANCE COMPANY
By:
Name:
Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:
Name:
Title:
MUTUAL OF OMAHA INSURANCE COMPANY
By:
Name:
Title:
NEW YORK LIFE INSURANCE COMPANY
By:
Name:
Title:
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By:
Name:
Title:
By______________________________
Name:
Title:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By:
Name:
Title:
TRANSAMERICA LIFE AND ANNUITY
INSURANCE COMPANY
By:
Name:
Title:
TRANSAMERICA OCCIDENTAL LIFE
INSURANCE COMPANY
By:
Name:
Title:
UNITED OF OMAHA LIFE INSURANCE
COMPANY
By:
Name:
Title:
SCHEDULE I
8.73% Senior Notes due 2009
(Issued 8/1/94)
Name of Noteholder Principal Amount
- ------------------ of Notes
----------------
AmerUs Life Holdings, Inc. (formerly Central
Life Assurance Company $ 6,000,000
Farm Bureau Life Insurance Company 6,000,000
First Colony Life Insurance Company 10,000,000
Guarantee Life Insurance Company 4,000,000
Massachusetts Mutual Life Insurance Company 10,000,000
Mutual of Omaha Insurance Company 4,000,000
New York Life Insurance Company 3,000,000
Principal Mutual Life Insurance Company 25,000,000
Teachers Insurance and Annuity Association of America 51,000,000
TransAmerica Life and Annuity Insurance Company 10,000,000
TransAmerica Occidental Life Insurance Company 10,000,000
United of Omaha Life Insurance Company 11,000,000
---------------
$ 150,000,000
PLUM CREEK TIMBER COMPANY, L.P.
999 Third Avenue
Seattle, Washington 98104
As of January 15, 1999 To each of the Noteholders listed on Schedule I hereto
Re: Senior Note Agreements
Dear Noteholder:
Plum Creek Timber Company, L.P., a Delaware limited partnership (the
"Company"), has heretofore entered into Senior Note Agreements dated as of
November 13, 1996 (said Agreements as heretofore amended by the amendment
dated January 15, 1999 being herein called the "Senior Note Agreements"),
pursuant to which the Company issued its Senior Notes, Series A, B, C and
D, due November 13, 2006, November 13, 2008, November 13, 2011 and November
13, 2016, respectively, in the aggregate principal amount of $200,000,000,
$200,000,000 of which remain outstanding and are held by the institutions
(individually a "Noteholder", and collectively the "Noteholders") in the
respective amounts shown on Schedule I (the "Notes"). Terms used herein
which are not otherwise defined herein have the meanings ascribed to them
in the Senior Note Agreements, as amended by this Agreement.
The Company proposes to convert its outstanding ownership interests into
shares of stock of Plum Creek Timber Company, Inc., a Delaware corporation
(the "Corporation"), through the merger (the "Merger") of the Company with
and into Plum Creek Acquisition Partners, L.P., a Delaware limited
partnership (the "Operating Partnership"). Prior to the Merger,
Manufacturing will form Plum Creek Manufacturing Holding Company, Inc.
("Holding") and will contribute a nominal amount to Holding in exchange for
96 percent of Holding's outstanding common stock (which will be non-voting
stock), and management of the Company will purchase (the "Management Stock
Purchase") the remaining 4 percent of such outstanding common stock (which
will be voting stock). Manufacturing and Holding will then form four new
Subsidiaries of Holding (the "New Subsidiaries"). Immediately prior to the
Merger, Manufacturing will contribute an undivided 75 percent interest in
substantially all of its assets (allocated in varying proportions) to the
New Subsidiaries in exchange for 75 percent (valued on a fair market value
basis at the time of transfer) of the outstanding capital stock of each of
the New Subsidiaries (which stock will be non-voting preferred stock) and
will contribute an undivided 25 percent interest in substantially all of
its assets to Holding. Immediately thereafter, Holding will contribute
such undivided 25 percent interest (allocated in the same proportion as
Manufacturing's contribution of its undivided interest) to each of the New
Subsidiaries in exchange for 25 percent (valued on a fair market value
basis at the time of transfer) of the outstanding capital stock of each of
the New Subsidiaries (which stock will be voting common stock). The
formation of Holding and the New Subsidiaries and the issuance of the
capital stock by such entities as described above is herein referred to as
the "Facilities Subsidiary Reorganization." The contribution of assets of
Manufacturing to Holding and the New Subsidiaries as described above is
herein referred to as the "Manufacturing Asset Transfer". Immediately
prior to the Merger, the Company will form Plum Creek Southern Timber,
L.L.C. as a Restricted Subsidiary ("Southern Timber, L.L.C."), into which
the Company will contribute all of its timberlands located in Louisiana and
Arkansas in exchange for Southern Timber, L.L.C. assuming (on a joint and
several basis) a portion of the indebtedness of the Company. The formation
of Southern Timber, L.L.C., transfer of Louisiana and Arkansas timberlands
to Southern Timber, L.L.C. and assumption of a portion of the current
indebtedness of the Company and future indebtedness of the Operating
Partnership by Southern Timber, L.L.C. are herein referred to as the
"Southern Timber Transaction." Immediately following the Merger, Marketing
will become a subsidiary of Manufacturing, with 75 percent of the
outstanding capital stock (which will be non-voting preferred stock) owned
by Manufacturing and 25 percent of the outstanding capital stock (which
will be voting common stock) owned by Holding (the "Marketing Stock
Transfer"). In addition, it is proposed that Marketing will be released as
an obligor on the First Mortgage Notes and Marketing and the New
Subsidiaries will each assume and become obligated in respect of varying
percentages of the Debt represented by the Company's 11-1/8% Senior Notes
due June 8, 2007 and the First Mortgage Notes (the "Subsidiary Note
Assumption"). Marketing will form a wholly-owned subsidiary (the "Land
Subsidiary") which will purchase from the Operating Partnership, on a
seller financed basis, certain real property (the "Better Use Property") of
the Operating Partnership that the Operating Partnership has determined has
a higher value as recreational, residential, grazing or agricultural
property than for timber production (the "HBU Transaction"). The foregoing
transactions (herein collectively called the "Conversion Transaction") are
to be effected (i) as provided in the Agreement and Plan of Conversion (the
"Conversion Agreement"), dated as of June 5, 1998, and amended on July 17,
1998, among the Company, the Corporation and Plum Creek Management Company,
L.P. (the sole general partner of the Company), (ii) as described in the
Proxy Statement/Prospectus dated December 9, 1998 (the "Proxy
Statement/Prospectus"), and (iii) as described above. After the
effectiveness of the Conversion Transaction, the Corporation will elect to
be treated as a real estate investment trust for Federal income tax
purposes.
In connection with the Conversion Transaction the Company is requesting
certain amendments to, and consents and waivers under and in respect of,
the Senior Note Agreements and, subject to the terms and provisions hereof,
the undersigned Noteholders are agreeable thereto. Accordingly, the
Company agrees with you as follows:
1. Amendments to Senior Note Agreements.
(a) Clause (vi) of paragraph 5A of the Senior Note Agreements is hereby
amended to read in its entirety as follows:
(vi) to the extent not delivered pursuant to clause (i), (ii),
(iii), (iv) or (v), promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as the Company
or the Corporation sends to its public security holders and copies of all
registration statements (without exhibits) and all reports which either the
Company or the Corporation files with the Securities and Exchange
Commission and any governmental body or agency succeeding to the functions
of the Securities and Exchange Commission;
(b) Paragraph 5A of the Senior Note Agreements is hereby further amended
by adding the following paragraph at the end thereof:
In preparing the financial statements, computations and reports
provided for herein the Facilities Subsidiary and its Subsidiaries shall be
considered as consolidated or combined subsidiary entities of the Company
(and not accounted for on the equity method of accounting or as an
investment) notwithstanding that the Voting Stock thereof shall not be
owned by the Company, either directly or indirectly, and without regard to
whether they would be considered as such subsidiary entities under
generally accepted accounting principles.
(c) Paragraph 6B(1)(ix) of the Senior Note Agreements is hereby amended
to read in its entirety as follows:
(ix) from and after the time the Facilities Subsidiary becomes a
Restricted Subsidiary, Liens on (x) the accounts, rights to payment for
goods sold or services rendered that are evidenced by chattel paper or
instruments (and rights against persons who guarantee payment or collection
of the foregoing) of Manufacturing and its Subsidiaries which are
Restricted Subsidiaries, (y) the inventory of Manufacturing and its
Subsidiaries which are Restricted Subsidiaries and (z) the proceeds (as
defined in the Uniform Commercial Code in any applicable jurisdiction)
thereof, in each case securing the obligations of Manufacturing and such
Restricted Subsidiaries under the Facility Subsidiary's Revolving Credit
Facility (and any extension, renewal, refunding or refinancing thereof)
permitted by paragraph 6B(2)(x),
(d) Paragraph 6B(2)(i) of the Senior Note Agreements is hereby amended to
read in its entirety as follows:
(i) Funded Debt represented by the Notes, the Other Senior Notes
and the Assumption Agreements;
(e) Paragraph 6B(2)(vii) of the Senior Note Agreements is hereby amended
to read in its entirety as follows:
(vii) the Company's guarantee of Funded Debt (and related obligations
not constituting Debt) incurred by Manufacturing to finance the making of
capital improvements, expansions and additions to the property, plant and
equipment of Manufacturing and its Subsidiaries which are Restricted
Subsidiaries pursuant to the Facilities Subsidiary's Facility, provided
that such guarantee shall be subordinated to the Notes by subordination
provisions substantially the same as those contained in paragraph 7I of the
Mortgage Note Agreements, and provided, further, that the aggregate
outstanding principal amount of such Funded Debt shall at no time exceed
$20,000,000,
(f) Paragraph 6B(2)(x) of the Senior Note Agreements is hereby amended to
read in its entirety as follows:
(x) from and after the time the Facilities Subsidiary becomes a
Restricted Subsidiary, Debt incurred by Manufacturing or any of its
Subsidiaries which is a Restricted Subsidiary pursuant to the Facilities
Subsidiary's Revolving Credit Facility (and any extension, renewal,
refunding or refinancing thereof, including any refunding or refinancing in
an amount in excess of the principal amount then outstanding under the
Facilities Subsidiary's Revolving Credit Facility) which is unsecured or is
secured by Liens permitted by paragraph 6B(1)(ix), not in excess of an
aggregate principal amount of $20,000,000 at any time outstanding, provided
that neither Manufacturing nor any such Restricted Subsidiary shall suffer
to exist any Debt permitted by this clause (x) on any day after the date of
the Merger unless there shall have been a period of at least 45 consecutive
days within the 12 months immediately preceding such day during which
Manufacturing and all of such Restricted Subsidiaries shall have been free
from all Debt permitted by this clause (x),
(g) That portion of the first sentence of paragraph 6B(6) of the Senior
Note Agreements ending with the words "years preceding such year of
determination;" in clause (b) thereof is hereby amended (effectively
immediately notwithstanding the provisions of paragraph 3 hereof) in its
entirety as follows:
In any calendar year, harvest Timber (the term "harvest" and
correlative terms shall include, without duplication, both the harvesting
activities to be conducted by the Company and sales of Timber to other
Persons for current harvesting activities being conducted by such Persons)
on the Timberlands then owned directly or indirectly by the Company in
excess of the amount set forth for such calendar year in the following
table:
Calendar Year Maximum Cunits to be Harvested
- ------------- ------------------------------
1998 through 2000 2330 MCCF
2001 and each calendar year thereafter 2270 MCCF
plus, in each year, the amount, if any, by which (a) the sum of (x) the
cumulative amount set forth in the table above for the years preceding such
year of determination and (y) 2,342 MCCF, exceeds (b) the cumulative amount
actually harvested in such years preceding such year of determination;
(h) Paragraph 6C of the Senior Note Agreements is amended in its entirety
to read as follows:
The Company covenants that it will not, and will not permit any
Subsidiary to, engage in any business other than Permitted Businesses. In
addition, the Company will not, and will not permit any Restricted
Subsidiary to, (i) sell, transfer or otherwise dispose of any of its
Timberlands or Timber (collectively, "Timber Properties") to Holding or any
Subsidiary of Holding (whether or not at the time they are Restricted
Subsidiaries, and herein collectively called the "Manufacturing Entities")
unless such transaction is a transaction permitted under clause (v) or
(vii) of paragraph 6B(5), or (ii) invest in or otherwise transfer to any of
the Manufacturing Entities the proceeds ("Timber Proceeds") of the sale or
disposition of any such Timber Properties (unless such proceeds are derived
from a transaction permitted under clause (v) or (vii) of paragraph 6B(5)).
Any Timber Proceeds being used to "purchase productive assets in the same
line of business" under the provisions of paragraph 6B(5)(viii) shall not
be used for any purpose except for the acquisition of Timber Properties to
be owned directly by the Company or a Restricted Subsidiary which is not
one of the Manufacturing Entities. Notwithstanding the foregoing, the
Company and its Restricted Subsidiaries may sell Timber to the
Manufacturing Entities in connection with, and in transactions which
constitute part of, harvesting activities conducted in accordance with the
requirements of paragraph 6B(6). All acquisitions of Timber Properties by
the Company and its Restricted Subsidiaries shall be made only by the
Company directly or indirectly through Restricted Subsidiaries which are
not Manufacturing Entities.
(i) Paragraph 7A (xiv) of the Senior Note Agreements is amended in its
entirety to read as follows:
(xiv) this Agreement, the Southern Timber Assumption Agreement or any
Future Southern Timber Assumption Agreement shall at any time, for any
reason, cease to be in full force and effect or shall be declared to be
null and void in whole or in any material part by the final judgment (which
is nonappealable or has not been stayed pending appeal or as to which all
rights to appeal have expired or been exhausted) of any court or other
governmental or regulatory authority having jurisdiction in respect
thereof, or the validity or the enforceability of this Agreement, the
Southern Timber Assumption Agreement or any Future Southern Timber
Assumption Agreement shall be contested by or on behalf of the Company, or
the Company shall renounce this Agreement, the Southern Timber Assumption
Agreement or any Future Southern Timber Assumption Agreement, or deny that
it is bound by the terms hereof or has any further liability hereunder; or
(j) The proviso following clause (b)(vii) of the definition of Available
Cash and the definitions of Designated Repurchases (and the references to
that term in paragraphs 6B(3) and 6B(9) of the Senior Note Agreements) and
Distribution Support Agreement in paragraph 10B of the Senior Note
Agreements are hereby deleted, clause (ii) of the definition of Capital
Transaction is hereby amended to read "(ii) sales of equity interests by
the Corporation the proceeds of which are contributed to the Company", and
the following definitions set forth in paragraph 10B of the Senior Note
Agreements are hereby amended in their entirety to read as follows:
"Facilities Subsidiary's Facility" shall mean any facility pursuant
to which Manufacturing may incur Debt for purposes of making capital
improvements, additions to, or expansions of, property, plant and equipment
of the Facilities Subsidiary or its Subsidiaries which are Restricted
Subsidiaries.
"Facilities Subsidiary" shall mean, collectively, Manufacturing,
Marketing, Holding, the New Subsidiaries and any other Subsidiary of
Manufacturing satisfying the requirements of clause (ii) of the definition
of Wholly-Owned Subsidiary contained herein.
"Facility's Subsidiary Revolving Credit Facility" shall mean any
facility pursuant to which Manufacturing or any of its Subsidiaries which
is a Restricted Subsidiary may obtain revolving credit, take-down credit,
the issuance of standby and payment letters of credit and back-up for the
issuance of commercial paper.
"General Partner" shall mean Plum Creek Timber I, L.L.C., a limited
liability company organized and existing under the laws of the State of
Delaware, and its successors and assigns as General Partner of the Company.
"Mortgage Note Agreements" shall mean the Note Agreements, dated as
of May 31, 1989 and amended as of January 1, 1991, April 22, 1993,
September 1, 1993, May 20, 1994, June 15, 1995, May 31, 1996, April 15,
1997 and January 15, 1999, providing for the issuance and sale of
$160,000,000 original aggregate principal amount of the 11-1/8% First
Mortgage Notes of the Facilities Subsidiary to the purchasers listed in the
schedule of purchasers attached thereto.
"Partnership Agreement" shall mean the Agreement of Limited
Partnership of the Company, as in effect at the time of and after giving
effect to the Merger, and as the same may, from time to time, be amended,
modified or supplemented in accordance with the terms thereof.
"Restricted Payment" shall mean (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
stock of or other ownership interests in the Company or any shares of
Voting Stock of a Facilities Operating Subsidiary not owned by the Company
(directly or indirectly), now or hereafter outstanding, except a dividend
payable solely in shares of stock of or ownership interests in the Company,
and (b) any redemption, retirement, purchase or other acquisition, direct
or indirect, of any shares of any class of stock of or other ownership
interests in the Company or any shares of Voting Stock of a Facilities
Operating Subsidiary not owned by the Company (directly or indirectly), now
or hereafter outstanding, or of any warrants, rights or options to acquire
any such shares or interests, except to the extent that the consideration
therefor consists of shares of stock of or other ownership interests in the
Company.
"Restricted Subsidiary" shall mean any Wholly-Owned Subsidiary other
than any Designated Immaterial Subsidiary.
"Wholly-Owned Subsidiary" shall mean any Subsidiary organized under
the laws of any state of the United States of America which conducts the
major portion of its business in the United States of America and (i) in
the case of any Subsidiary, all the stock and other ownership interests of
which are owned by the Company either directly or indirectly through
Wholly-Owned Subsidiaries (other than Manufacturing or one or any of its
Subsidiaries) and (ii) at such time as the Mortgage Notes shall have been
paid in full and retired, (x) Manufacturing provided that all the stock and
other ownership interests thereof are owned by the Company either directly
or indirectly through Wholly-Owned Subsidiaries (other than a Subsidiary of
Manufacturing), (y) Holding provided that (1) Holding shall engage in no
business except the ownership of its Subsidiaries, (2) all the outstanding
stock and ownership interests thereof (other than Voting Stock) shall be
owned by the Company either directly or indirectly through Manufacturing,
(3) at least 51% of the Voting Stock thereof (to the extent it is not so
owned by the Company or Manufacturing) shall be owned by the Management
Voting Group, (4) the Voting Stock of Holding shall not account for more
than 4% of the equity ownership of Holding (nor, through such ownership,
shall it account for more than 1% of the direct or indirect equity
ownership of any Subsidiary of Holding) and (5) no more than 35% of the
Voting Stock of Holding shall be owned by any one individual, and (z) any
other Subsidiary of Manufacturing, provided that all the outstanding stock
and ownership interests thereof (other than Voting Stock) shall be owned by
the Company (either directly or indirectly through Wholly-Owned
Subsidiaries of the type described in clause (i) above) and the Voting
Stock of which (to the extent it is not so owned by the Company) shall be
owned by Holding.
(k) The following new defined terms are hereby added to paragraph 10B of
the Senior Note Agreements in proper alphabetical order:
"Assumption Agreements" means those certain Assumption Agreements
executed as contemplated by (and in substantially the respective forms
designated as Exhibits A, B, C and D to) the Amendment to Senior Note
Agreements dated as of January 15, 1999, together with any assumption
agreements executed after January 15, 1999, and that are contemplated by
paragraph 2, clause (b)(ii) of the Southern Timber Assumption Agreement.
"Company" means Plum Creek Acquisition Partners, L.P., successor to
Plum Creek Timber Company, L.P. pursuant to the Merger, and its successors
and assigns as permitted by the provisions of paragraph 6B(5).
"Corporation" shall mean Plum Creek Timber Company, Inc., a Delaware
corporation, and its successors.
"Facilities Operating Subsidiaries" shall mean Marketing, Holding and
the New Subsidiaries and "Facilities Operating Subsidiary" shall mean any
one of them.
"Future Southern Timber Assumption Agreements" means assumption
agreements that are contemplated by paragraph 2, clause (b)(ii) of the
Southern Timber Assumption Agreement.
"Holding" shall mean Plum Creek Manufacturing Holding Company, Inc. a
Delaware corporation.
"Management Voting Group" shall mean, at any time, a group consisting
of four or more individuals who are then current officers of the Company
who legally and beneficially own in the aggregate not less than 51% of the
outstanding Voting Stock of Holding.
"Merger" shall mean the merger of Plum Creek Timber Company, L.P.
with and into Plum Creek Acquisition Partners, L.P. as provided in the
Agreement and Plan of Conversion, dated as of June 5, 1998, and amended on
July 17, 1998, among Plum Creek Timber Company, Inc., Plum Creek Timber
Company, L.P. and Plum Creek Management Company, L.P.
"New Subsidiaries" shall mean Plum Creek Northwest Lumber, Inc., a
Delaware corporation, Plum Creek Northwest Plywood, Inc., a Delaware
corporation, Plum Creek MDF, Inc., a Delaware corporation, and Plum Creek
Southern Lumber, Inc., a Delaware corporation, and "New Subsidiary" shall
mean any one of them.
"Other Senior Notes" means the following outstanding Senior Notes of
the Company (other than the "Notes" as defined herein):
(i) the 8.73% Senior Notes due August 1, 2009; (ii) the 11-1/8%
Senior Notes due June 8, 2007; (iii) the Senior Notes, Series A, B, C and
D, due November 13, 2006, 2008, 2011 and 2016, respectively; and (iv) the
Senior Notes, Series E, F and G, due February 12, 2007, 2009 and 2011,
respectively.
"Southern Timber Assumption Agreement" means that certain Assumption
Agreement executed as contemplated by (and in substantially the form of
Exhibit D to) the Amendment to Senior Note Agreements dated as of
January 15, 1999.
"Ton" shall mean 2,000 pounds of green saw logs and pulpwood. For
purposes of conversion of Timber in the Company's Maine timberlands, one
million Tons shall equal 355 MCCF.
2. Consent and Waiver.
The undersigned Noteholders hereby consent to the consummation of the
Manufacturing Asset Transfer, the Management Stock Purchase, the Marketing
Stock Transfer, the Facilities Subsidiary Reorganization, the HBU
Transaction, the Southern Timber Transaction (provided the assumption of
indebtedness portion of the Southern Timber Transaction is effected in the
manner specified in paragraph 3D hereof) and the Subsidiary Note Assumption
(provided the same is effected in the manner specified in paragraph 3D
hereof) and the formation of Holding and the New Subsidiaries and hereby
waive compliance by the Company with the provisions of paragraphs 6B(3)
(Loans, Advances, Investments and Contingent Liabilities), 6B(4) (Sale of
Stock and Debt of Subsidiaries), 6B(9) (Transactions with Affiliates), and
6D (Issuance of Stock by Subsidiaries) of the Senior Note Agreements solely
for purposes of effectuating (and only to the extent necessary to
effectuate) such transactions in the context of consummating the entire
Conversion Transaction as described in and as contemplated by the
Conversion Agreement and the Proxy Statement/Prospectus. The effectiveness
of this Agreement shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of any of the holders of the
Notes under this Agreement or the Senior Note Agreements, nor constitute a
waiver of any other provision of this Agreement or the Senior Note
Agreements.
3. Conditions to Effectiveness.
Except as provided in paragraph 1(g) hereof, the amendments, consents and
waivers set forth in paragraphs 1 and 2 hereof shall become effective at
the "Effective Time" (as defined in the Conversion Agreement), subject to
the fulfillment to your satisfaction (or your waiver) of the following
conditions:
A. Opinion of Company's Counsel. You shall have received favorable
opinions from (i) James A. Kraft, General Counsel of the Company, covering
such matters incident to the transactions described herein as you may
reasonably request, and (ii) Skadden, Arps, Slate, Meagher & Flom, special
tax counsel to the Company and the Corporation in connection with the
Conversion Transaction, substantially in the form referenced in Annex I
attached to the Proxy Statement/Prospectus and covering such other matters
incident to the transactions described herein as you may reasonably
request. Such opinions shall be addressed to you, shall be dated the date
of the Effective Time, and shall be otherwise satisfactory in substance and
form to you and to your special counsel.
B. Opinion of Noteholders' Counsel. You shall have received a favorable
opinion from Willkie Farr & Gallagher, special counsel for the Noteholders,
covering such matters incident to the transactions described herein as you
may reasonably request, addressed to you, dated the date of the Effective
Time and otherwise satisfactory in substance and form to you.
C. Merger. The Merger shall have become effective in the manner
provided for in the Conversion Agreement prior to July 31, 1999 and the
Operating Partnership shall have executed and delivered an Assumption
Agreement in substantially the form of Exhibit A hereto in conformity with
the provisions of clause (iv) of paragraph 6B(5) of the Senior Note
Agreements (together with an Officers' Certificate specifying compliance
with the matters referred to in said clause (iv)). No provision of the
Conversion Agreement shall have been amended, nor compliance with any
provision thereof, or satisfaction of any condition to the Conversion
Transaction set forth therein, shall have been waived without your consent.
D. Assumption of Certain Notes. Marketing and each New Subsidiary shall
have executed and delivered a Subsidiary Assumption Agreement (a
"Subsidiary Assumption Agreement") substantially in the respective forms of
Exhibits B and C hereto thereby becoming an obligor in respect of a portion
of the First Mortgage Notes and the 11-1/8% Senior Notes due June 8, 2007
(all as more particularly described in Exhibits B and C). Southern Timber,
L.L.C. shall have executed and delivered the Southern Timber Assumption
Agreement substantially in the form of Exhibit D hereto thereby becoming an
obligor in respect of a portion of the indebtedness of the Company (all as
more particularly described in Exhibit D).
E. First Mortgage Notes. The Mortgage Note Agreements shall have been
amended by an amendment agreement in substantially the form of agreement
heretofore delivered to you by the Company (the "First Mortgage Note
Amendment") and all amendments, waivers and consents provided for therein
shall have become and remain effective.
F. Other Senior Notes. The Note Agreements relating to the Other Senior
Notes (as defined in paragraph 1(j) above) shall have been amended by
amendment agreements substantially in the form of this Agreement (with such
changes therein as to form but not of substance, as may be appropriate in
the circumstances) and all amendments, waivers and consents provided for in
such amendment agreements shall have become and remain effective.
G. Rating of Notes. The Notes shall have received an investment grade
rating from one of the four "nationally recognized statistical rating
organizations" and you shall have received evidence that such rating
remains in effect at the Effective Time.
H. Amendment Fee. The Company shall have paid to each Noteholder an
amendment fee in an amount equal to 0.02% of the principal amount of Notes
held by such Noteholder as specified on Schedule I hereto. Such fee shall
be payable within ten days of the date that the Company receives executed
counterparts of this Agreement from the Required Holders, whether or not
the Conversion Transaction is consummated.
I. Representations and Warranties; No Default. The representations and
warranties contained in paragraph 4 hereof shall be true in all material
respects on and as of the date of the Effective Time; there shall exist on
the date of the Effective Time no Event of Default or Default; and the
Company shall have delivered to you an Officers' Certificate, dated the
date of the Effective Time, to both such effects.
J. Proceedings. All proceedings taken or to be taken in connection with
the transactions contemplated hereby and all documents incident thereto
shall be satisfactory in substance and form to you, and you shall have
received all such counterpart originals or certified or other copies of
such documents as you may reasonably request.
K. Noteholders Consent. The Company shall have received executed
counterparts of this Agreement from the Required Holders.
4. Representations and Warranties.
The Company (the term "Company" as used herein including both Plum Creek
Timber Company, L.P. and the Operating Partnership as its successor in the
Merger) represents and warrants as follows:
A. Organization. The Company is a limited partnership duly organized,
validly existing and in good standing under the Delaware Revised Uniform
Limited Partnership Act and has all requisite partnership power and
authority to own and operate its properties, to conduct its business as now
conducted and as proposed to be conducted and to enter into and perform its
obligations under this Agreement and (after giving effect to the Merger)
the Assumption Agreement, the Senior Note Agreements, the Notes and the
Subsidiary Assumption Agreement to which it is a party. As of the
Effective Time the Facilities Operating Subsidiaries will each be a duly
organized and validly existing corporation and in good standing under the
laws of its jurisdiction of incorporation with all requisite corporate
power and authority to own and operate its properties, to conduct its
business as proposed to be conducted and to enter into and perform its
obligations under the Subsidiary Assumption Agreement to which it is a
party.
B. Qualification. Each of the Company and its Subsidiaries is duly
qualified or registered for transaction of business and in good standing as
a foreign limited partnership or corporation in each jurisdiction in which
the failure so to qualify or be registered would have a material adverse
effect on the business, property or assets, condition (financial or other),
operations or prospects of the Company and its Subsidiaries taken as a
whole, or on the ability of the Company to perform its obligations under
this Agreement or the Conversion Agreement, or (after giving effect to the
Merger) the Assumption Agreement, the Senior Note Agreements or the Notes,
or in the ability of the parties to the Subsidiary Assumption Agreements
and the Southern Timber Assumption Agreement to perform their obligations
thereunder.
C. Financial Statements. The Company has delivered to you a complete
and correct copy of the Proxy Statement/Prospectus (which for the purposes
of this paragraph 4 shall include only those documents incorporated by
reference as of the date hereof). The unaudited pro forma condensed
consolidated financial statements of the Corporation contained in the Proxy
Statement/Prospectus (the "Pro Forma Statements") comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act of 1933, as amended, and the Securities Exchange Act of
1934, as amended, and the published rules and regulations thereunder and
the assumptions on which the pro forma adjustments reflected in the Pro
Forma Statements are based provide a reasonable basis for presenting the
significant effects of the transactions contemplated by the Pro Forma
Statements and such pro forma adjustments give appropriate effect to such
assumptions and are properly applied in the Pro Forma Statements. Inasmuch
as the Corporation at the Effective Time will be entirely a holding company
owning the Operating Partnership, with no substantial assets or liabilities
apart from the Operating Partnership, the Pro Forma Statements
substantially reflect the pro forma position of the Operating Partnership
and its Subsidiaries after giving effect to the Merger.
D. Subsidiaries. As of the Effective Time the Company will own,
directly or indirectly, all of the issued and outstanding equity interests
of all of its Subsidiaries except, in the case of Holding and its
Subsidiaries, the Voting Stock of Holdings owned by the Management Voting
Group, which interests will have been duly authorized and validly issued,
fully paid and non-assessable and be owned free and clear of any Liens
(except for Liens on the shares of Voting Stock of Holdings owned by the
Management Voting Group in favor of the Company as security for the unpaid
subscription price for such shares of Voting Stock). As of the Effective
Time there will be outstanding no warrants or options to acquire, or
instruments convertible into or exchangeable for, any equity interest in
any such Subsidiary.
E. Changes, etc. Since the date of the Proxy Statement/Prospectus (a)
the Company and its Subsidiaries have not incurred any material liabilities
or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business except for those
transactions described in the Proxy Statement/Prospectus as constituting a
part of the Conversion Transaction, and (b) there has not been (i) any
material adverse change in the business, property or assets, condition
(financial or other), operations or prospects of the Company and its
Subsidiaries taken as a whole, or (ii) any Restricted Payment of any kind
declared, paid or made by the Company other than regular quarterly
declarations and payments of distributions to unit holders of the Company
in accordance with paragraph 6A of the Senior Note Agreements.
F. Actions Pending. There is no action, suit, investigation or
proceeding pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries, or any properties or rights of the
Company or any of its Subsidiaries, by or before any court, arbitrator or
administrative or governmental body which questions the validity of this
Agreement, the Conversion Agreement, the Assumption Agreement, the Southern
Timber Assumption Agreement or the Subsidiary Assumption Agreements or any
action taken or to be taken pursuant to any thereof, which would be
reasonably likely to result in any material adverse change in the business,
properties or assets, condition (financial or other), operations or
prospects of the Company and its Subsidiaries taken as a whole, or in the
ability of the Company to perform its obligations under this Agreement, the
Conversion Agreement or (after giving effect to the Merger) the Assumption
Agreement, the Senior Note Agreements or the Notes, or in the ability of
the parties to the Subsidiary Assumption Agreements or the Southern Timber
Assumption Agreement to perform their obligations thereunder.
G. Compliance with other Instruments, etc. Neither the Company nor any
Subsidiary of the Company is in violation of any term of the Partnership
Agreement or of any term of any agreement or instrument to which it is a
party or by which it or its properties is bound or any term of any
applicable law, ordinance, rule or regulation of any governmental authority
or any term of any applicable order, judgment or decree of any court,
arbitrator or governmental authority, the consequences of which violation
would be reasonably likely to have a material adverse effect on the
business, properties or assets, condition( financial or other), operations
or prospects of the Company and its Subsidiaries taken as a whole or on the
ability of the Company to perform its obligations under this Agreement, or
(after giving effect to the Merger) the Assumption Agreement, the Senior
Note Agreements or the Notes, or on the ability of the parties to the
Subsidiary Assumption Agreements or the Southern Timber Assumption
Agreement to perform their obligations thereunder. The execution, delivery
and performance by the Company of this Agreement and (after giving effect
to the Merger) the Assumption Agreement, the Senior Note Agreements and the
Notes, and the execution of the Subsidiary Assumption Agreements and the
Southern Timber Assumption Agreement by the parties thereto, will not in
any case result in any violation of or be in conflict with or constitute a
default under any such term or result in the creation of (or impose any
obligation on the Company or any such party to create) any Lien upon any of
the properties or assets of the Company or any of its Subsidiaries,
pursuant to any such term.
H. Governmental Consent. No consent, approval or authorization of, or
declaration or filing with, any governmental authority is required for the
valid execution, delivery and performance by the Company of this Agreement,
or, after giving effect to the Merger, the Assumption Agreement, the Senior
Note Agreements or the Notes, or by any party thereto of the Subsidiary
Assumption Agreements or the Southern Timber Assumption Agreement.
I. Franchises, Licenses, Agreements, etc. At the Effective Time the
Company and its Subsidiaries will each be in possession of and operating in
substantial compliance with all franchises, grants, authorizations,
approvals, licenses, permits, easements, consents, certificates and orders
required to own or lease its respective properties and to permit the
conduct of its business, except for those franchises, grants,
authorizations, approvals, licenses, permits, easements, consents,
certificates and orders (collectively, "Permitted Exceptions") (i) which
are routine in nature and are expected to be obtained or given in the
ordinary course of business after the Effective Time, (ii) which are
administrative in nature and which are expected to be obtained or given in
the ordinary course of business after the Effective Time, or (iii) the
failure of which to be obtained or given would not individually or in the
aggregate materially and adversely affect the business, property or assets,
condition (financial or other), operations or prospects of the Company and
its Subsidiaries taken as a whole, or impair the ability of the Company to
perform its obligations under this Agreement, the Conversion Agreement, the
Assumption Agreement, the Senior Note Agreements or the Notes, or in the
ability of the parties to the Subsidiary Assumption Agreements or the
Southern Timber Assumption Agreement to perform their respective
obligations thereunder.
J. Title to Properties. At the Effective Time the Company and its
Subsidiaries will have good title to their real properties (other than
properties which are leased) and good title to all of their other
properties and assets, subject to no Lien of any kind except Liens
permitted by paragraph 6B(1) of the Senior Note Agreements. All leases
necessary in any material respect for the conduct of the businesses of the
Company and its Subsidiaries, are valid and subsisting and are in full
force and effect.
K. Environmental Matters.
(a) At the Effective Time the Company and its Subsidiaries will have all
environmental permits or licenses necessary for the conduct of its business
as to be conducted as of the Effective Time and, as to any such permit or
license that has expired or is about to expire, or is needed for the
proposed conduct of its business, the Company or such Subsidiary has or
will have timely and properly applied for renewal or receipt of the same.
The Company and its Subsidiaries are currently operating in material
compliance with the limits set forth in such environmental permits or
licenses and any noncompliance with such permits or licenses will not
result in any material liability or penalty to the Company or any of its
Subsidiaries and neither the Company nor any Subsidiary has any knowledge
of any threatened or pending proceeding for the revocation, loss or
termination of any such environmental permits or licenses.
(b) All facilities located on the real property owned by the Company and
its Subsidiaries at the Effective Time after giving effect to the
Conversion Transaction which are subject to regulation by the Federal
Resource Conservation and Recovery Act, as in effect on the date hereof,
are and have been operated by the Company and its Subsidiaries in material
compliance with such Act and neither the Company nor any of its
Subsidiaries, has received or, to the knowledge of the Company, been
threatened with, a notice of violation regarding such facilities which
reasonably can be expected to have a material adverse effect on the
business, properties or assets, condition (financial or other), operations
or prospects of the Company and its Subsidiaries taken as a whole.
(c) With respect to the real property to be owned by the Company and its
Subsidiaries as of the Effective Time, there has not occurred to the best
knowledge of the Company (i) any Release of any Hazardous Substance in a
Reportable Quantity, (ii) any discharge of any substance into ground,
surface, or navigable waters for which a notice of violation has been
received or threatened under any federal, state or local laws, rules or
regulations concerning water pollution, or (iii) any assertion of any Lien
pursuant to federal, state or local environmental law resulting from any
use, spill, discharge or clean-up of any hazardous or toxic substance or
waste, which occurrence can reasonably be expected to have a material
adverse effect on the business, properties or assets, condition (financial
or other), operations or prospects of the Company and its Subsidiaries
taken as a whole. As used in this paragraph, the terms "Release",
"Hazardous Substance", and "Reportable Quantity" shall have the meanings
assigned such terms under the Comprehensive Environmental Response
Compensation and Liability Act, as amended (CERCLA).
L. Status under Certain Statutes. Neither the Company nor any of its
Subsidiaries is subject to regulation under the Investment Company Act of
1940, the Public Utility Holding Company Act of 1935, the Transportation
Acts or the Federal Power Act, in each case as amended.
M. Year 2000. With respect to the Company and its Subsidiaries (after
giving effect to the Conversion Transaction), (a) a review and assessment
has been initiated of all areas within the Company's and its Subsidiaries'
business and operations (including those affected by suppliers, vendors and
customers) that could be adversely affected by the "Year 2000 Problem"
(that is, the risk that computer applications used by the Company or any of
its Subsidiaries (or suppliers, vendors and customers) may be unable to
recognize and properly perform date-sensitive functions involving certain
dates prior to and any date after December 31, 1999), (b) a plan and
timetable has been developed for addressing the Year 2000 Problem on a
timely basis, and (c) to date, that plan has been implemented in accordance
with that timetable. Any reprogramming required to avoid a Year 2000
Problem will be completed by June 30, 1999, except where failure to do so,
individually or in the aggregate, could not reasonably be expected to
result in a material adverse effect on the business, properties or assets,
condition (financial or other), operations or prospects of the Company and
its Subsidiaries taken as a whole. The cost to the Company and its
Subsidiaries of such reprogramming and testing and of the reasonably
foreseeable consequences of the Year 2000 Problem to the Company and its
Subsidiaries (including reprogramming errors and the failure of others'
systems or equipment) will not result in a Default or a material adverse
effect on the business, properties or assets, condition (financial or
other), operations or prospects of the Company and its Subsidiaries taken
as a whole. Except for such reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information
systems of the Company and its Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue through the final maturity date of
the Notes to be sufficient to permit the Company and its Subsidiaries to
conduct their respective businesses without a reasonable likelihood of
resulting in a material adverse effect on the business, property or assets,
condition (financial or other) or results of operations or prospects of the
Company and its Subsidiaries taken as a whole.
N. Incorporated Representations and Warranties. All of the
representations and warranties made in paragraph 4 of the First Mortgage
Note Amendment (as defined in paragraph 3E above) are true and correct and
are incorporated herein by reference with the same effect as if set forth
at length herein.
O. Disclosure. The Proxy Statement/Prospectus fairly describes, in all
material respects, the general nature of the business and principal
properties of the Company and its Subsidiaries after giving effect to the
Conversion Transaction. Neither this Agreement, the Proxy
Statement/Prospectus nor any other document, certificate or statement
furnished to you by or on behalf of the Company or any Subsidiary in
connection herewith contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading. There is no fact peculiar to
the Company which materially adversely affects or in the future may (so far
as the Company can now reasonably foresee) materially adversely affect the
businesses, property or assets, condition (financial or other) or results
of operations or prospects of the Company and its Subsidiaries and which
has not been set forth in this Agreement, or in the Proxy
Statement/Prospectus.
5. Expenses; Indemnification.
The Company shall, whether or not the transactions contemplated hereby are
consummated, save each holder of Notes harmless for all out-of-pocket
expenses arising in connection with the execution and delivery or
performance of this Agreement, the Assumption Agreement, the Southern
Timber Assumption Agreement or the Subsidiary Assumption Agreements,
including the reasonable fees and expenses of special counsel for the
Noteholders. The Company shall also indemnify and save each holder of
Notes harmless from and against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever (including, without limitation, any
taxes, and any additional taxes imposed on any amounts payable pursuant to
this paragraph 5) which may at any time be imposed on, incurred by or
asserted against any holder of Notes in any way arising out of, relating to
or resulting from this Agreement or the transactions contemplated hereby.
The obligations of the Company under this paragraph 5 shall survive the
transfer of any Note or portion thereof or interest therein by a holder of
Notes or any transferee and the payment of any Note.
6. Miscellaneous.
A. Continuity and Integration of Agreements. The Senior Note
Agreements, as supplemented and amended by this Agreement, shall remain in
full force and effect and are hereby ratified and confirmed, and the Senior
Note Agreements and this Agreement shall be deemed to be and construed as a
single agreement. Without limitation of the foregoing, or any provision of
the Senior Note Agreements, all representations and warranties made herein
or in any certificate or document delivered in connection herewith shall
for all purposes be deemed made by the Company in, and delivered by the
Company pursuant to and in connection with, the Senior Note Agreements.
B. Survival of Representations and Warranties. All representations and
warranties contained herein shall survive the execution and delivery of
this Agreement, and the transfer of any Note by a holder thereof. Such
representations and warranties may be relied upon by any transferee of a
Note from a holder thereof.
C. Successors and Assigns. All covenants and agreements in this
Agreement contained by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
D. Descriptive Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
E. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
F. Operating Partnership a Party. The Operating Partnership is a party
to this Agreement for purposes of making the representations and warranties
in paragraph 4 hereof and to acknowledge its obligations under paragraph 5
hereof after the Merger.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK.
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this letter and return the same
to the Company whereupon this letter shall become a binding agreement among
us.
Very truly yours,
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its General Partner
By:____________________________
Name: Diane M. Irvine
Title: Vice President and
Chief Financial Officer
PLUM CREEK ACQUISITION PARTNERS, L.P.
By: Plum Creek Timber I, L.L.C.,
its General Partner
By: Plum Creek Timber Company, Inc.,
its Managing Member
By:____________________________
Name: Diane M. Irvine
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is accepted as of the date first above written:
ALLSTATE LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
AMERICAN CENTURION LIFE
ASSURANCE COMPANY
By:
Name:
Title:
AMERICAN ENTERPRISE LIFE
INSURANCE COMPANY
By:
Name:
Title:
IDS LIFE INSURANCE COMPANY
By:
Name:
Title:
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE COMPANY
By:
Name:
Title:
AMERICAN GENERAL LIFE INSURANCE
COMPANY OF NEW YORK
By:
Name:
Title:
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
By:
Name:
Title:
AMERITAS LIFE INSURANCE CORP.
By: Ameritas Investment Advisors,
Inc. as Agent
By:
Name:
Title:
CIGNA REINSURANCE COMPANY
By: CIGNA Investments, Inc.
By:
Name:
Title:
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA Investments, Inc.
By:
Name:
Title:
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:
Name:
Title:
THE EQUITABLE OF COLORADO, INC.
By:
Name:
Title:
FARM BUREAU LIFE INSURANCE COMPANY OF MICHIGAN
By: Advantus Capital Management, Inc.
By:
Name:
Title:
FEDERATED MUTUAL INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By:
Name:
Title:
MINNESOTA LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By:
Name:
Title:
GUARANTEE LIFE INSURANCE COMPANY
By:
Name:
Title:
RGA REINSURANCE COMPANY
By: Guarantee Life Insurance Company
By:
Name:
Title:
THE MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK
By:
Name:
Title:
LINCOLN LIFE & ANNUITY COMPANY
OF NEW YORK
By:
Name:
Title:
NATIONWIDE LIFE INSURANCE COMPANY
By:
Name:
Title:
NATIONWIDE LIFE ANNUITY INSURANCE
COMPANY
By:
Name:
Title:
NEW YORK LIFE INSURANCE COMPANY
By:
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By:
Name:
Title:
PROVIDENT LIFE AND ACCIDENT
INSURANCE COMPANY
By:
Name:
Title:
PROVIDIAN LIFE AND HEALTH
INSURANCE COMPANY
By:
Name:
Title:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By:
Name:
Title:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By:
Name:
Title:
TRANSAMERICA LIFE INSURANCE AND
ANNUITY COMPANY
By:
Name:
Title:
TRANSAMERICA OCCIDENTAL LIFE
INSURANCE COMPANY
By:
Name:
Title:
THE UNION CENTRAL LIFE INSURANCE
COMPANY
By:
Name:
Title:
WOODMEN ACCIDENT AND LIFE COMPANY
By:
Name:
Title:
SCHEDULE I
Senior Notes due 2006, 2008, 2011 and 2016
(Issued 11/13/96)
Name of Noteholder Principal Amount
- ------------------ of Notes
----------------
Allstate Life Insurance Company $ 10,000,000
American Centurion Life Assurance Company 500,000
American Enterprise Life Insurance Company 4,750,000
IDS Life Insurance Company 1,000,000
American General Life and Accident Insurance Company 12,000,000
American General Life Insurance Company of New York 3,000,000
The Variable Annuity Life Insurance Company 10,000,000
Ameritas Life Insurance Corp. 1,250,000
CIGNA Reinsurance Company 2,300,000
Connecticut General Life Insurance Company 13,700,000
The Equitable Life Assurance Society of the United States 5,750,000
The Equitable of Colorado, Inc. 3,000,000
Farm Bureau Life Insurance Company of Michigan 2,500,000
Federated Mutual Insurance Company 2,500,000
Minnesota Life Insurance Company 7,500,000
Guarantee Life Insurance Company 420,000
RGA Reinsurance Company 980,000
The Mutual Life Insurance Company of New York 10,000,000
Lincoln Life & Annuity Company of New York 2,000,000
Nationwide Life Insurance Company 3,000,000
Nationwide Life Annuity Insurance Company 3,000,000
New York Life Insurance Company 20,000,000
The Northwestern Mutual Life Insurance Company 15,000,000
Provident Life and Accident Insurance Company 8,600,000
Providian Life and Health Insurance Company 5,000,000
The Prudential Insurance Company of America 20,000,000
Teachers Insurance and Annuity Association of America 10,000,000
Transamerica Life Insurance and Annuity Company 5,700,000
Transamerica Occidental Life Insurance Company 12,300,000
The Union Central Life Insurance Company 3,000,000
Woodmen Accident and Life Company 1,250,000
---------------
$ 200,000,000
PLUM CREEK TIMBER COMPANY, L.P.
999 Third Avenue
Seattle, Washington 98104
As of April 1, 1999
SDW Timber III, L.L.C.
225 Franklin Street
Boston, MA 02110
Ladies and Gentlemen:
Plum Creek Timber Company, L.P., a Delaware limited partnership (the
"Company"), has heretofore entered into a Senior Note Agreement dated as of
November 12, 1998 (the "Senior Note Agreement"), pursuant to which the
Company issued its senior notes in the aggregate principal amount of
$171,375,000 ($71,406,250 of 7.17% Senior Notes due 2007, Series E,
$49,984,375 of 7.17% Senior Notes due 2009, Series F, and $49,984,375 of
7.23% Senior Notes due 2011, Series G), all of which remain outstanding and
which are held by you (the "Noteholder"). The Senior Note Agreement was
previously amended by an amendment dated as of February 12, 1999, and
entered into between the Company and the Noteholder (the "First
Amendment"). Terms used herein which are not otherwise defined herein have
the meanings ascribed to them in the Senior Note Agreement, as amended by
the First Amendment and this Agreement. As used herein, the term "this
Agreement" and references thereto shall mean this agreement as it may from
time to time be amended or supplemented.
The Company is requesting certain amendments to, and consents and waivers
under and in respect of, the Senior Note Agreement and, subject to the
terms and provisions hereof, the undersigned Noteholder is agreeable
thereto. As provided in the First Amendment, the modifications to the
Senior Note Agreement provided for in the second, third and fourth
paragraphs of page 1 of the First Amendment (all in connection with the
adjustment to the interest rates applicable to each Series of Notes), as
well as the modifications set forth in paragraphs 2(c), 2(k), 2(l) and 2(m)
of the First Amendment (collectively, the "Effective Provisions") became
effective as of February 12, 1999. With the exception of the Effective
Provisions, this Agreement shall supersede the First Amendment in its
entirety. The provisions of this Agreement and the Effective Provisions
are intended, inter alia, to replace in their entirety the provisions of
paragraph 11 of the Senior Note Agreement and upon acceptance of this
Agreement by the Noteholder, paragraph 11 shall be deleted in its entirety
from the Senior Note Agreement.
Accordingly, the Company agrees with you as follows:
1. Conversion Transaction. The Company proposes to convert its
outstanding ownership interests into shares of stock of Plum Creek Timber
Company, Inc., a Delaware corporation (the "Corporation"), through the
merger (the "Merger") of the Company with and into Plum Creek Acquisition
Partners, L.P., a Delaware limited partnership (the "Operating
Partnership"). Prior to the Merger, Manufacturing will form Plum Creek
Manufacturing Holding Company, Inc. ("Holding") and will contribute a
nominal amount to Holding in exchange for 96 percent of Holding's
outstanding common stock (which will be non-voting stock), and management
of the Company will purchase (the "Management Stock Purchase") the
remaining 4 percent of such outstanding common stock (which will be voting
stock). Manufacturing and Holding will then form four new Subsidiaries of
Holding (the "New Subsidiaries"). Immediately prior to the Merger,
Manufacturing will contribute an undivided 75 percent interest in
substantially all of its assets (allocated in varying proportions) to the
New Subsidiaries in exchange for 75 percent (valued on a fair market value
basis at the time of transfer) of the outstanding capital stock of each of
the New Subsidiaries (which stock will be non-voting preferred stock) and
will contribute an undivided 25 percent interest in substantially all of
its assets to Holding. Immediately thereafter, Holding will contribute
such undivided 25 percent interest (allocated in the same proportion as
Manufacturing's contribution of its undivided interest) to each of the New
Subsidiaries in exchange for 25 percent (valued on a fair market value
basis at the time of transfer) of the outstanding capital stock of each of
the New Subsidiaries (which stock will be voting common stock). The
formation of Holding and the New Subsidiaries and the issuance of the
capital stock by such entities as described above is herein referred to as
the "Facilities Subsidiary Reorganization." The contribution of assets of
Manufacturing to Holding and the New Subsidiaries as described above is
herein referred to as the "Manufacturing Asset Transfer". Immediately
prior to the Merger, the Company will form Plum Creek Southern Timber,
L.L.C. as a Restricted Subsidiary ("Southern Timber, L.L.C."), into which
the Company will contribute all of its timberlands located in Louisiana and
Arkansas in exchange for Southern Timber, L.L.C. assuming (on a joint and
several basis) a portion of the indebtedness of the Company. The formation
of Southern Timber, L.L.C., transfer of Louisiana and Arkansas timberlands
to Southern Timber, L.L.C. and assumption of a portion of the current
indebtedness of the Company and future indebtedness of the Operating
Partnership by Southern Timber, L.L.C. are herein referred to as the
"Southern Timber Transaction." Immediately following the Merger, Marketing
will become a subsidiary of Manufacturing, with 75 percent of the
outstanding capital stock (which will be non-voting preferred stock) owned
by Manufacturing and 25 percent of the outstanding capital stock (which
will be voting common stock) owned by Holding (the "Marketing Stock
Transfer"). In addition, it is proposed that Marketing will be released as
an obligor on the Mortgage Notes and Marketing and the New Subsidiaries
will each assume and become obligated in respect of varying percentages of
the Debt represented by the Company's 11 1/8% Senior Notes due June 8, 2007
and the First Mortgage Notes (the "Subsidiary Note Assumption"). Marketing
will form a wholly-owned subsidiary (the "Land Subsidiary") which will
purchase from the Operating Partnership, on a seller financed basis,
certain real property (the "Better Use Property") of the Operating
Partnership that the Operating Partnership has determined has a higher
value as recreational, residential, grazing or agricultural property than
for timber production (the "HBU Transaction"). The foregoing transactions
(herein collectively called the "Conversion Transaction") are to be
effected (i) as provided in the Agreement and Plan of Conversion (the
"Conversion Agreement"), dated as of June 5, 1998, and amended on July 17,
1998, among the Company, the Corporation and Plum Creek Management Company,
L.P. (the sole general partner of the Company), (ii) as described in the
Proxy Statement/Prospectus dated December 9, 1998 (the "Proxy
Statement/Prospectus") and (iii) as described above. After the
effectiveness of the Conversion Transaction, the Corporation will elect to
be treated as a real estate investment trust for Federal income tax
purposes. The provisions of this paragraph 1 are provided by the Company
as background and the Noteholder is not responsible for such provisions nor
should there be any implication that the Noteholder is agreeing that such
statements are accurate, as to which the Company is solely responsible.
2. Amendments to Senior Note Agreement.
(a) Clause (vi) of paragraph 5A of the Senior Note Agreement is hereby
amended to read in its entirety as follows:
(vi) to the extent not delivered pursuant to clause (i), (ii),
(iii), (iv) or (v), promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as the Company
or the Corporation sends to its public security holders and copies of all
registration statements (without exhibits) and all reports which either the
Company or the Corporation files with the Securities and Exchange
Commission and any governmental body or agency succeeding to the functions
of the Securities and Exchange Commission;
(b) Paragraph 5A of the Senior Note Agreement is hereby further amended by
adding the following paragraph at the end thereof.
In preparing the financial statements, computations and reports
provided for herein, the Facilities Subsidiary and its Subsidiaries shall
be considered as consolidated or combined subsidiary entities of the
Company (and not accounted for on the equity method of accounting or as an
investment) notwithstanding that the Voting Stock thereof shall not be
owned by the Company, either directly or indirectly, and without regard to
whether they would be considered as such subsidiary entities under
generally accepted accounting principles.
(c) Paragraph 5B of the Senior Note Agreement was amended by the First
Amendment in its entirety to read as follows:
The Company covenants that it will (i) permit any Person designated
in writing by any Significant Holder holding 5% or more of the Notes (or if
the Notes are then pledged to secure any obligation, any Person holding 5%
or more of the principal amount of the Debt constituting such obligation
(herein called a "Secured Holder"), but which shall not include any Person
acting on behalf of any holder which is engaged directly in any Permitted
Business in competition with the Company or any Subsidiary), at such
holder's or holders' expense (except during the continuance of an Event of
Default, in which case at the expense of the Company), to visit and inspect
any of the properties of the Company and its Subsidiaries, to examine the
books and financial records of the Company and its Subsidiaries and make
copies thereof or extracts therefrom and to discuss the affairs, finances
and accounts of the Company or any of such Subsidiaries with the principal
officers of the Company and its independent public accountants, all upon
reasonable notice and at such reasonable times and as often as such
Significant Holder may reasonably request, and (ii) with reasonable
promptness, deliver to any Significant Holder (but not including any holder
which is engaged directly in any Permitted Business in competition with the
Company or any Subsidiary) or Secured Holder such other information and
financial data with respect to the Company as such Significant Holder or
Secured Holder may reasonably request.
(d) Paragraph 6B(1)(ix) of the Senior Note Agreement is hereby amended to
read in its entirety as follows:
(ix) from and after the time the Facilities Subsidiary becomes a
Restricted Subsidiary, Liens on (x) the accounts, rights to payment for
goods sold or services rendered that are evidenced by chattel paper or
instruments (and rights against persons who guarantee payment or collection
of the foregoing) of Manufacturing and its Subsidiaries which are
Restricted Subsidiaries, (y) the inventory of Manufacturing and its
Subsidiaries which are Restricted Subsidiaries and (z) the proceeds (as
defined in the Uniform Commercial Code in any applicable jurisdiction)
thereof, in each case securing the obligations of Manufacturing and such
Restricted Subsidiaries under the Facility Subsidiary's Revolving Credit
Facility (and any extension, renewal, refunding or refinancing thereof)
permitted by paragraph 6B(2)(x),
(e) Paragraph 6B(2)(i) of the Senior Note Agreements is hereby amended to
read in its entirety as follows:
(i) Funded Debt represented by the Note, the Other Senior Notes and
the Assumption Agreements;
(f) Paragraph 6B(2)(vii) of the Senior Note Agreement is hereby amended to
read in its entirety as follows:
(vii) the Company's guarantee of Funded Debt (and related obligations
not constituting Debt) incurred by Manufacturing to finance the making of
capital improvements, expansions and additions to the property, plant and
equipment of Manufacturing and its Subsidiaries which are Restricted
Subsidiaries pursuant to the Facilities Subsidiary's Facility, provided
that such guarantee shall be subordinated to the Notes by subordination
provisions substantially the same as those contained in paragraph 7I of the
Mortgage Note Agreements, and provided, further, that the aggregate
outstanding principal amount of such Funded Debt shall at no time exceed
$20,000,000,
(g) Paragraph 6B(2)(x) of the Senior Note Agreement is hereby amended to
read in its entirety as follows:
(x) from and after the time the Facilities Subsidiary becomes a
Restricted Subsidiary, Debt incurred by Manufacturing or any of its
Subsidiaries which is a Restricted Subsidiary pursuant to the Facilities
Subsidiary's Revolving Credit Facility (and any extension, renewal,
refunding or refinancing thereof, including any refunding or refinancing in
an amount in excess of the principal amount then outstanding under the
Facilities Subsidiary's Revolving Credit Facility) which is unsecured or is
secured by Liens permitted by paragraph 6B(1)(ix), not in excess of an
aggregate principal amount of $20,000,000 at any time outstanding, provided
that neither Manufacturing nor any such Restricted Subsidiary shall suffer
to exist any Debt permitted by this clause (x) on any day after the date of
the Merger unless there shall have been a period of at least 45 consecutive
days within the 12 months immediately preceding such day during which
Manufacturing and all of such Restricted Subsidiaries shall have been free
from all Debt permitted by this clause (x),
(h) That portion of the first sentence of paragraph 6B(6) of the Senior
Note Agreement ending with the words "years preceding such year of
determination;" in clause (b) thereof is hereby amended (effective
immediately notwithstanding the provisions of paragraph 4 hereof) in its
entirety as follows:
In any calendar year, harvest Timber (the term "harvest" and
correlative terms shall include, without duplication, both the harvesting
activities to be conducted by the Company and sales of Timber to other
Persons for current harvesting activities being conducted by such Persons)
on the Timberlands then owned directly or indirectly by the Company in
excess of the amount set forth for such calendar year in the following
table:
Calendar Year Maximum Cunits to be Harvested
- ------------- ------------------------------
1998 through 2000 2330 MCCF
2001 and each calendar year thereafter 2270 MCCF
plus, in each year, the amount, if any, by which (a) the sum of (x) the
cumulative amount set forth in the table above for the years preceding such
year of determination and (y) 2,342 MCCF, exceeds (b) the cumulative amount
actually harvested in such years preceding such year of determination;
(i) Paragraph 6C of the Senior Note Agreement is amended in its entirety
to read as follows:
The Company covenants that it will not, and will not permit any
Subsidiary to, engage in any business other than Permitted Businesses. In
addition, the Company will not, and will not permit any Restricted
Subsidiary to, (i) sell, transfer or otherwise dispose of any of its
Timberlands or Timber (collectively, "Timber Properties") to Holding or any
Subsidiary of Holding (whether or not at the time they are Restricted
Subsidiaries, and herein collectively called the "Manufacturing Entities")
unless such transaction is a transaction permitted under clause (v) or
(vii) of paragraph 6B(5), or (ii) invest in or otherwise transfer to any of
the Manufacturing Entities the proceeds ("Timber Proceeds") of the sale or
disposition of any such Timber Properties (unless such proceeds are derived
from a transaction permitted under clause (v) or (vii) of paragraph 6B(5)).
Any Timber Proceeds being used to "purchase productive assets in the same
line of business" under the provisions of paragraph 6B(5)(viii) shall not
be used for any purpose except for the acquisition of Timber Properties to
be owned directly by the Company or a Restricted Subsidiary which is not
one of the Manufacturing Entities. Notwithstanding the foregoing, the
Company and its Restricted Subsidiaries may sell Timber to the
Manufacturing Entities in connection with, and in transactions which
constitute part of, harvesting activities conducted in accordance with the
requirements of paragraph 6B(6). All acquisitions of Timber Properties by
the Company and its Restricted Subsidiaries shall be made only by the
Company directly or indirectly through Restricted Subsidiaries which are
not Manufacturing Entities.
(j) Paragraph 7A (xvi) of the Senior Note Agreements is amended in its
entirety to read as follows:
(xvi) this Agreement, the Southern Timber Assumption Agreement
or any Future Southern Timber Assumption Agreement shall at any time, for
any reason, cease to be in full force and effect or shall be declared to be
null and void in whole or in any material part by the final judgment (which
is nonappealable or has not been stayed pending appeal or as to which all
rights to appeal have expired or been exhausted) of any court or other
governmental or regulatory authority having jurisdiction in respect
thereof, or the validity or the enforceability of this Agreement, the
Southern Timber Assumption Agreement or any Future Southern Timber
Assumption Agreement shall be contested by or on behalf of the Company, or
the Company shall renounce this Agreement, the Southern Timber Assumption
Agreement or any Future Southern Timber Assumption Agreement, or deny that
it is bound by the terms hereof or has any further liability hereunder; or
(k) The proviso following clause (b)(vii) of the definition of Available
Cash and the definitions of Designated Repurchases (and the references to
that term in paragraphs 6B(3) and 6B(9) of the Senior Note Agreement) are
hereby deleted, clause (ii) of the definition of Capital Transaction set
forth in 10B of the Senior Note Agreement is hereby amended to read "(ii)
sales of equity interests by the Corporation the proceeds of which are
contributed to the Company", and the following definitions set forth in
paragraph 10B of the Senior Note Agreement are hereby amended in their
entirety to read as follows:
"Facilities Subsidiary's Facility" shall mean any facility pursuant
to which Manufacturing may incur Debt for purposes of making capital
improvements, additions to, or expansions of, property, plant and equipment
of the Facilities Subsidiary or its Subsidiaries which are Restricted
Subsidiaries.
"Facilities Subsidiary" shall mean, collectively, Manufacturing,
Marketing, Holding, the New Subsidiaries and any other Subsidiary of
Manufacturing satisfying the requirements of clause (ii) of the definition
of Wholly-Owned Subsidiary contained herein.
"Facility's Subsidiary Revolving Credit Facility" shall mean any
facility pursuant to which Manufacturing or any of its Subsidiaries which
is a Restricted Subsidiary may obtain revolving credit, take-down credit,
the issuance of standby and payment letters of credit and back-up for the
issuance of commercial paper.
"General Partner" shall mean Plum Creek Timber I, L.L.C., a limited
liability company organized and existing under the laws of the State of
Delaware, and its successors and assigns as General Partner of the Company.
"Mortgage Note Agreements" shall mean the Note Agreements, dated as
of May 31, 1989 and amended as of January 1, 1991, April 22, 1993,
September 1, 1993, May 20, 1994, June 15, 1995, May 31, 1996, April 15,
1997 and January 15, 1999, providing for the issuance and sale of
$160,000,000 original aggregate principal amount of the 11-1/8% First
Mortgage Notes of the Facilities Subsidiary to the purchasers listed in the
schedule of purchasers attached thereto.
"Partnership Agreement" shall mean the Agreement of Limited
Partnership of the Company, as in effect at the time of and after giving
effect to the Merger, and as the same may, from time to time, be amended,
modified or supplemented in accordance with the terms thereof.
"Restricted Payment" shall mean (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
stock of or other ownership interests in the Company or any shares of
Voting Stock of a Facilities Operating Subsidiary not owned by the Company
(directly or indirectly), now or hereafter outstanding, except a dividend
payable solely in shares of stock of or ownership interests in the Company,
and (b) any redemption, retirement, purchase or other acquisition, direct
or indirect, of any shares of any class of stock of or other ownership
interests in the Company or any shares of Voting Stock of a Facilities
Operating Subsidiary not owned by the Company (directly or indirectly), now
or hereafter outstanding, or of any warrants, rights or options to acquire
any such shares or interests, except to the extent that the consideration
therefor consists of shares of stock of or other ownership interests in the
Company.
"Restricted Subsidiary" shall mean any Wholly-Owned Subsidiary other
than any Designated Immaterial Subsidiary.
"Wholly-Owned Subsidiary" shall mean any Subsidiary organized under
the laws of any state of the United States of America which conducts the
major portion of its business in the United States of America and (i) in
the case of any Subsidiary, all the stock and other ownership interests of
which are owned by the Company either directly or indirectly through
Wholly-Owned Subsidiaries (other than Manufacturing or one or any of its
Subsidiaries) and (ii) at such time as the Mortgage Notes shall have been
paid in full and retired, (x) Manufacturing provided that all the stock and
other ownership interests thereof are owned by the Company either directly
or indirectly through Wholly-Owned Subsidiaries (other than a Subsidiary of
Manufacturing), (y) Holding provided that (1) Holding shall engage in no
business except the ownership of its Subsidiaries, (2) all the outstanding
stock and ownership interests thereof (other than Voting Stock) shall be
owned by the Company either directly or indirectly through Manufacturing,
(3) at least 51% of the Voting Stock thereof (to the extent it is not so
owned by the Company or Manufacturing) shall be owned by the Management
Voting Group, (4) the Voting Stock of Holding shall not account for more
than 4% of the equity ownership of Holding (nor, through such ownership,
shall it account for more than 1% of the direct or indirect equity
ownership of any Subsidiary of Holding) and (5) no more than 35% of the
Voting Stock of Holding shall be owned by any one individual, and (z) any
other Subsidiary of Manufacturing, provided that all the outstanding stock
and ownership interests thereof (other than Voting Stock) shall be owned by
the Company (either directly or indirectly through Wholly-Owned
Subsidiaries of the type described in clause (i) above) and the Voting
Stock of which (to the extent it is not so owned by the Company) shall be
owned by Holding.
(l) The following new defined terms are hereby added to paragraph 10B of
the Senior Note Agreement in proper alphabetical order:
"Assumption Agreements" means those certain Assumption Agreements
executed as contemplated by (and in substantially the respective forms
designated as Exhibits A, B, C and D to) the Amendment to Senior Note
Agreements dated as of April 1, 1999, together with any assumption
agreements executed after April 1, 1999, and that are contemplated by
paragraph 2, clause (b)(ii) of the Southern Timber Assumption Agreement.
"Company" means Plum Creek Acquisition Partners, L.P., successor to
Plum Creek Timber Company, L.P. pursuant to the Merger, and its successors
and assigns as permitted by the provisions of paragraph 6B(5).
"Corporation" shall mean Plum Creek Timber Company, Inc., a Delaware
corporation, and its successors.
"Facilities Operating Subsidiaries" shall mean Marketing, Holding and
the New Subsidiaries and "Facilities Operating Subsidiary" shall mean any
one of them.
"Future Southern Timber Assumption Agreements" means assumption
agreements that are contemplated by paragraph 2, clause (b)(ii) of the
Southern Timber Assumption Agreement.
"Holding" shall mean Plum Creek Manufacturing Holding Company, Inc. a
Delaware corporation.
"Management Voting Group" shall mean, at any time, a group consisting
of four or more individuals who are then current officers of the Company
who legally and beneficially own in the aggregate not less than 51% of the
outstanding Voting Stock of Holding.
"Merger" shall mean the merger of Plum Creek Timber Company, L.P.
with and into Plum Creek Acquisition Partners, L.P. as provided in the
Agreement and Plan of Conversion, dated as of June 5, 1998, and amended on
July 17, 1998, among Plum Creek Timber Company, Inc., Plum Creek Timber
Company, L.P. and Plum Creek Management Company, L.P.
"New Subsidiaries" shall mean Plum Creek Northwest Lumber, Inc., a
Delaware corporation, Plum Creek Northwest Plywood, Inc., a Delaware
corporation, Plum Creek MDF, Inc., a Delaware corporation, and Plum Creek
Southern Lumber, Inc., a Delaware corporation, and "New Subsidiary" shall
mean any one of them.
"Southern Timber Assumption Agreement" means that certain Assumption
Agreement executed as contemplated by (and in substantially the form of
Exhibit D to) the Amendment to Senior Note Agreement dated as of April 1,
1999.
(m) The definition of "Required Holders" set forth in paragraph 10B of
the Senior Note Agreement was amended by the First Amendment in its
entirety to read as follows:
"Required Holder(s)" shall mean the holder or holders of greater than
50% of the aggregate principal amount of the Notes from time to time
outstanding.
(n) The penultimate sentence of paragraph 12E of the Senior Note
Agreement was amended by the First Amendment in its entirety to read as
follows:
Notwithstanding any provision to the contrary contained in this
Agreement, the Notes may not be pledged to or for the benefit of any Person
engaged in a Permitted Business.
(o) Paragraph 12I of the Senior Note Agreement was amended by the First
Amendment in its entirety to read as follows:
All covenants and other agreements in this Agreement contained by or
on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including,
without limitation, any Transferee) whether so expressed or not. In that
connection and in implementation of the intent and purposes of the
foregoing sentence, in the event that the Notes are pledged ("Pledged
Notes") by the owner thereof (the "Note Owner") to secure any obligation
("Noteholder Debt"), the Note Owner may authorize (but shall not be
required to authorize) that each holder of Noteholder Debt to exercise or
cause to be exercised the same rights and remedies under this Agreement as
a holder of Notes in the same aggregate principal amount as the Noteholder
Debt held by such holder and to receive the benefits of a holder of Notes.
Such rights and benefits may include, without limitation, the right (either
alone or together with other holders of Noteholder Debt, as appropriate) to
demand payment and cause acceleration of Notes under paragraph 7A (which,
in any particular instance, may be a principal amount of Notes equal to the
principal amount of Noteholder Debt held by such holders), and to receive
reimbursement of expenses.
3. Consent and Waiver. The undersigned Noteholder hereby consents to
the consummation of the Manufacturing Asset Transfer, the Management Stock
Purchase, the Marketing Stock Transfer, the Facilities Subsidiary
Reorganization, the Subsidiary Note Assumption (provided the same is
effected in the manner specified in paragraph 4E hereof), the HBU
Transaction, the Southern Timber Transaction (provided the assumption of
indebtedness portion of the Southern Timber Transaction is effected in the
manner specified in paragraph 4E hereof) and the formation of Holding and
the New Subsidiaries and hereby waives compliance by the Company with the
provisions of paragraphs 6B(3) (Loans, Advances, Investments and Contingent
Liabilities), 6B(4) (Sale of Stock and Debt of Subsidiaries), 6B(9)
(Transactions with Affiliates), and 6D (Issuance of Stock by Subsidiaries)
of the Senior Note Agreement solely for purposes of effectuating (and only
to the extent necessary to effectuate) such transactions in the context of
consummating the entire Conversion Transaction as described in and as
contemplated by the Conversion Agreement and the Proxy
Statement/Prospectus. The effectiveness of this Agreement shall not,
except as expressly provided herein, operate as a waiver of any right,
power or remedy of any of the holders of the Notes under this Agreement or
the Senior Note Agreement, nor constitute a waiver of any other provision
of this Agreement or the Senior Note Agreement.
4. Conditions to Effectiveness. The deletion of paragraph 11 of the
Senior Note Agreement provided for in the preamble hereto and the
amendments in paragraph 2(h) hereof shall become effective immediately upon
acceptance of this Agreement by the Required Holders. The other
amendments, set forth in paragraph 2 and the consents and waivers set forth
in paragraph 3 hereof shall become effective at the "Effective Time" (as
defined in the Conversion Agreement), subject to the fulfillment to the
satisfaction of (or waiver by) the Required Holders of the following
conditions:
A. Other Senior Notes. The Note Agreements (the "Other Senior
Note Agreements") relating to the Other Senior Notes shall have been
amended by amendment agreements (the "Senior Note Amendments") executed by
the holders of such Notes (the "Other Senior Noteholders") having the same
substantive effect (as to such Other Senior Note Agreements) and all
amendments, waivers and consents provided for in such amendment agreements
shall have become effective. The Noteholders shall have received true and
correct copies of the Senior Note Amendments.
B. Opinion of Company's Counsel. The holders of the Notes (the
"Noteholders") shall have received favorable opinions from counsel to the
Company and the Corporation, substantially in the respective forms attached
to, or otherwise provided for in, the Senior Note Amendments (or such other
forms of opinions as may be actually delivered to the Other Senior
Noteholders on the date of the Effective Time), addressed to the
Noteholders, dated the date of the Effective Time and otherwise
satisfactory in substance and form to the Required Holders (as defined in
the Other Senior Note Agreements) of the Other Senior Notes.
C. Opinion of Noteholders' Counsel. The Noteholders shall have
received a favorable opinion from Willkie Farr & Gallagher, special counsel
for the Other Senior Noteholders, substantially in the form attached to, or
otherwise provided for in, the Senior Note Amendments (or such other form
of opinion as may be actually delivered to the Other Senior Noteholders on
the date of the Effective Time), addressed to the Noteholders, dated the
date of the Effective Time and otherwise satisfactory in substance and form
to the Required Holders (as defined in the Other Senior Note Agreements) of
the Other Senior Notes.
D. Merger. The Merger shall have become effective in the manner
provided for in the Conversion Agreement prior to July 15, 1999 and the
Operating Partnership shall have executed and delivered an Assumption
Agreement in substantially the form of Exhibit A hereto in conformity with
the provisions of clause (iv) of paragraph 6B(5) of the Senior Note
Agreement (together with an Officers' Certificate specifying compliance
with the matters referred to in said clause (iv)). No provision of the
Conversion Agreement shall have been amended, nor compliance with any
provision thereof, or satisfaction of any condition to the Conversion
Transaction set forth therein, shall have been waived without the consent
of the Required Holders (as defined in the Other Senior Note Agreements) of
the Other Senior Notes.
E. Assumption of Certain Notes. Marketing and each New Subsidiary
shall have executed and delivered a Subsidiary Assumption Agreement (a
"Subsidiary Assumption Agreement") substantially in the respective forms of
Exhibits B and C hereto thereby becoming an obligor in respect of a portion
of the Mortgage Notes and the Company's 11 1/8% Senior Notes due June 8,
2007 (all as more particularly described in Exhibits B and C). Southern
Timber, L.L.C. shall have executed and delivered the Southern Timber
Assumption Agreement substantially in the form of Exhibit D hereto thereby
becoming an obligor in respect of a portion of the indebtedness of the
Company (all as more particularly described in Exhibit D).
F. Mortgage Notes. The Mortgage Note Agreements shall have been
amended by an amendment agreement in substantially the form of agreement
heretofore delivered to the Holders by the Company (the "First Mortgage
Note Amendment") and all amendments, waivers and consents provided for
therein shall have become and remain effective.
G. Other Senior Notes. The Note Agreements relating to the Other
Senior Notes shall have been amended by amendment agreements substantially
in the form of this Agreement (with such changes therein as to form but not
of substance, as may be appropriate in the circumstances) and all
amendments, waivers and consents provided for in such amendment agreements
shall have become and remain effective.
H. Rating of Notes. The Notes shall have received an investment
grade rating from one of the four Nationally Recognized Statistical Rating
Organizations and the Noteholders shall have received evidence that such
rating remains in effect at the Effective Time.
I. Representations and Warranties; No Default. The
representations and warranties contained in paragraph 5 hereof shall be
true in all material respects on and as of the date of the Effective Time;
there shall exist on the date of the Effective Time no Event of Default or
Default; and the Company shall have delivered to you an Officers'
Certificate, dated the date of the Effective Time, to both such effects.
J. Proceedings. All proceedings taken or to be taken in
connection with the transactions contemplated hereby and all documents
incident thereto shall be satisfactory in substance and form to the
Required Holders (as defined in the Other Senior Note Agreements) of the
Other Senior Notes, and the Noteholders shall have received all such
counterpart originals or certified or other copies of such documents as the
Required Holders (as defined in the Other Senior Note Agreements) of the
Other Senior Notes may reasonably request.
K. Required Holders' Consent. The Company shall have received
executed counterparts of this Agreement from the Required Holders.
5. Representations and Warranties. The Company (the term "Company" as
used in this paragraph 5 including both Plum Creek Timber Company, L.P. and
the Operating Partnership as its successor in the Merger) represents and
warrants to the Noteholder (for its benefit and for the benefit of its
successors and assigns, including persons holding obligations of the
Noteholder for which the Notes have been pledged as collateral security) as
follows:
A. Organization. The Company is a limited partnership duly
organized, validly existing and in good standing under the Delaware Revised
Uniform Limited Partnership Act and has all requisite partnership power and
authority to own and operate its properties, to conduct its business as now
conducted and as proposed to be conducted and to enter into and perform its
obligations under this Agreement and (after giving effect to the Merger)
the Assumption Agreement, the Senior Note Agreement, the Notes and the
Subsidiary Assumption Agreement to which it is a party. As of the
Effective Time the Facilities Operating Subsidiaries will each be a duly
organized and validly existing corporation and in good standing under the
laws of its jurisdiction of incorporation with all requisite corporate
power and authority to own and operate its properties, to conduct its
business as proposed to be conducted and to enter into and perform its
obligations under the Subsidiary Assumption Agreement to which it is a
party.
B. Qualification. Each of the Company and its Subsidiaries is
duly qualified or registered for transaction of business and in good
standing as a foreign limited partnership or corporation in each
jurisdiction in which the failure so to qualify or be registered would have
a material adverse effect on the business, property or assets, condition
(financial or other), operations or prospects of the Company and its
Subsidiaries taken as a whole, or on the ability of the Company to perform
its obligations under this Agreement or the Conversion Agreement, or (after
giving effect to the Merger) the Assumption Agreement, the Senior Note
Agreement or the Notes, or in the ability of the parties to the Subsidiary
Assumption Agreements and the Southern Timber Assumption Agreement to
perform their obligations thereunder.
C. Subsidiaries. As of the Effective Time the Company will own,
directly or indirectly, all of the issued and outstanding equity interests
of all of its Subsidiaries except, in the case of Holding and its
Subsidiaries, the Voting Stock of Holdings owned by the Management Voting
Group, which interests will have been duly authorized and validly issued,
fully paid and non-assessable and be owned free and clear of any Liens
(except for Liens on the shares of Voting Stock of Holdings owned by the
Management Voting Group in favor of the Company as security for the unpaid
subscription price for such shares of Voting Stock). As of the Effective
Time there will be outstanding no warrants or options to acquire, or
instruments convertible into or exchangeable for, any equity interest in
any such Subsidiary.
D. Changes, etc. Since the date of the Proxy Statement/Prospectus
(a) the Company and its Subsidiaries have not incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transactions not in the ordinary course of business except for
those transactions described in the Proxy Statement/Prospectus as
constituting a part of the Conversion Transaction, and (b) there has not
been (i) any material adverse change in the business, property or assets,
condition (financial or other), operations or prospects of the Company and
its Subsidiaries taken as a whole, or (ii) any Restricted Payment of any
kind declared, paid or made by the Company other than regular quarterly
declarations and payments of distributions to unit holders of the Company
in accordance with paragraph 6A of the Senior Note Agreement.
E. Actions Pending. There is no action, suit, investigation or
proceeding pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries, or any properties or rights of the
Company or any of its Subsidiaries, by or before any court, arbitrator or
administrative or governmental body which questions the validity of this
Agreement, the Conversion Agreement, the Assumption Agreement, the Southern
Timber Assumption Agreement or the Subsidiary Assumption Agreements or any
action taken or to be taken pursuant to any thereof, which would be
reasonably likely to result in any material adverse change in the business,
properties or assets, condition (financial or other), operations or
prospects of the Company and its Subsidiaries taken as a whole, or in the
ability of the Company to perform its obligations under this Agreement, the
Conversion Agreement or (after giving effect to the Merger) the Assumption
Agreement, the Senior Note Agreements or the Notes, or in the ability of
the parties to the Subsidiary Assumption Agreements to perform their
obligations thereunder.
F. Compliance with other Instruments, etc. Neither the Company
nor any Subsidiary of the Company is in violation of any term of the
Partnership Agreement or of any term of any agreement or instrument to
which it is a party or by which it or its properties is bound or any term
of any applicable law, ordinance, rule or regulation of any governmental
authority or any term of any applicable order, judgment or decree of any
court, arbitrator or governmental authority, the consequences of which
violation would be reasonably likely to have a material adverse effect on
the business, properties or assets, condition (financial or other),
operations or prospects of the Company and its Subsidiaries taken as a
whole or on the ability of the Company to perform its obligations under
this Agreement, or (after giving effect to the Merger) the Assumption
Agreement, the Senior Note Agreements or the Notes, or on the ability of
the parties to the Subsidiary Assumption Agreements or the Southern Timber
Assumption Agreement to perform their obligations thereunder. The
execution, delivery and performance by the Company of this Agreement and
(after giving effect to the Merger) the Assumption Agreement, the Senior
Note Agreement and the Notes, and the execution of the Subsidiary
Assumption Agreements and the Southern Timber Assumption Agreement by the
parties thereto, will not in any case result in any violation of or be in
conflict with or constitute a default under any such term or result in the
creation of (or impose any obligation on the Company or any such party to
create) any Lien upon any of the properties or assets of the Company or any
of its Subsidiaries, pursuant to any such term.
G. Governmental Consent. No consent, approval or authorization
of, or declaration or filing with, any governmental authority is required
for the valid execution, delivery and performance by the Company of this
Agreement, or, after giving effect to the Merger, the Assumption Agreement,
the Senior Note Agreement or the Notes, or by any party thereto of the
Subsidiary Assumption Agreements or the Southern Timber Assumption
Agreement.
H. Franchises, Licenses, Agreements, etc. At the Effective Time
the Company and its Subsidiaries will each be in possession of and
operating in substantial compliance with all franchises, grants,
authorizations, approvals, licenses, permits, easements, consents,
certificates and orders required to own or lease its respective properties
and to permit the conduct of its business, except for those franchises,
grants, authorizations, approvals, licenses, permits, easements, consents,
certificates and orders (collectively, "Permitted Exceptions") (i) which
are routine in nature and are expected to be obtained or given in the
ordinary course of business after the Effective Time, (ii) which are
administrative in nature and which are expected to be obtained or given in
the ordinary course of business after the Effective Time, or (iii) the
failure of which to be obtained or given would not individually or in the
aggregate materially and adversely affect the business, property or assets,
condition (financial or other), operations or prospects of the Company and
its Subsidiaries taken as a whole, or impair the ability of the Company to
perform its obligations under this Agreement, the Conversion Agreement, the
Assumption Agreement, the Senior Note Agreement or the Notes, or in the
ability of the parties to the Subsidiary Assumption Agreements or the
Southern Timber Assumption Agreement to perform their respective
obligations thereunder.
I. Title to Properties. At the Effective Time the Company and its
Subsidiaries will have good title to their real properties (other than
properties which are leased) and good title to all of their other
properties and assets, subject to no Lien of any kind except Liens
permitted by paragraph 6B(1) of the Senior Note Agreement. All leases
necessary in any material respect for the conduct of the businesses of the
Company and its Subsidiaries are valid and subsisting and are in full force
and effect.
J. Environmental Matters.
(a) At the Effective Time the Company and its Subsidiaries will have
all environmental permits or licenses necessary for the conduct of its
business as to be conducted as of the Effective Time and, as to any such
permit or license that has expired or is about to expire, or is needed for
the proposed conduct of its business, the Company or such Subsidiary has or
will have timely and properly applied for renewal or receipt of the same.
The Company and its Subsidiaries are currently operating in material
compliance with the limits set forth in such environmental permits or
licenses and any noncompliance with such permits or licenses will not
result in any material liability or penalty to the Company or any of its
Subsidiaries and neither the Company nor any Subsidiary has any knowledge
of any threatened or pending proceeding for the revocation, loss or
termination of any such environmental permits or licenses.
(b) All facilities located on the real property owned by the Company
and its Subsidiaries at the Effective Time after giving effect to the
Conversion Transaction which are subject to regulation by the Federal
Resource Conservation and Recovery Act, as in effect on the date hereof,
are and have been operated by the Company and its Subsidiaries in material
compliance with such Act and neither the Company nor any of its
Subsidiaries, has received or, to the knowledge of the Company, been
threatened with, a notice of violation regarding such facilities which
reasonably can be expected to have a material adverse effect on the
business, properties or assets, condition (financial or other), operations
or prospects of the Company and its Subsidiaries taken as a whole.
(c) With respect to the real property to be owned by the Company and
its Subsidiaries as of the Effective Time, there has not occurred to the
best knowledge of the Company (i) any Release of any Hazardous Substance in
a Reportable Quantity, (ii) any discharge of any substance into ground,
surface, or navigable waters for which a notice of violation has been
received or threatened under any federal, state or local laws, rules or
regulations concerning water pollution, or (iii) any assertion of any Lien
pursuant to federal, state or local environmental law resulting from any
use, spill, discharge or clean-up of any hazardous or toxic substance or
waste, which occurrence can reasonably be expected to have a material
adverse effect on the business, properties or assets, condition (financial
or other), operations or prospects of the Company and its Subsidiaries
taken as a whole. As used in this paragraph, the terms "Release",
"Hazardous Substance", and "Reportable Quantity" shall have the meanings
assigned such terms under the Comprehensive Environmental Response
Compensation and Liability Act, as amended (CERCLA).
K. Status under Certain Statutes. Neither the Company nor any of
its Subsidiaries is subject to regulation under the Investment Company Act
of 1940, the Public Utility Holding Company Act of 1935, the Transportation
Acts or the Federal Power Act, in each case as amended.
L. Year 2000. With respect to the Company and its Subsidiaries
(after giving effect to the Conversion Transaction), (a) a review and
assessment has been initiated of all areas within the Company's and its
Subsidiaries' business and operations (including those affected by
suppliers, vendors and customers) that could be adversely affected by the
"Year 2000 Problem" (that is, the risk that computer applications used by
the Company or any of its Subsidiaries (or suppliers, vendors and
customers) may be unable to recognize and properly perform date-sensitive
functions involving certain dates prior to and any date after December 31,
1999), (b) a plan and timetable has been developed for addressing the Year
2000 Problem on a timely basis, and (c) to date, that plan has been
implemented in accordance with that timetable. Any reprogramming required
to avoid a Year 2000 Problem will be completed by June 30, 1999, except
where failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a material adverse effect on the
business, properties or assets, condition (financial or other), operations
or prospects of the Company and its Subsidiaries taken as a whole. The
cost to the Company and its Subsidiaries of such reprogramming and testing
and of the reasonably foreseeable consequences of the Year 2000 Problem to
the Company and its Subsidiaries (including reprogramming errors and the
failure of others' systems or equipment) will not result in a Default or a
material adverse effect on the business, properties or assets, condition
(financial or other), operations or prospects of the Company and its
Subsidiaries taken as a whole. Except for such reprogramming referred to
in the preceding sentence as may be necessary, the computer and management
information systems of the Company and its Subsidiaries are and, with
ordinary course upgrading and maintenance, will continue through the final
maturity date of the Notes to be sufficient to permit the Company and its
Subsidiaries to conduct their respective businesses without a reasonable
likelihood of resulting in a material adverse effect on the business,
property or assets, condition (financial or other) or results of operations
or prospects of the Company and its Subsidiaries taken as a whole.
M. Incorporated Representations and Warranties. All of the
representations and warranties made in paragraph 4 of the First Mortgage
Note Amendment (as defined in paragraph 4F above) are true and correct and
are incorporated herein by reference with the same effect as if set forth
at length herein.
N. Disclosure. The Company has delivered or caused to be
delivered complete and correct copies of (i) the Company's Annual Report on
Form 10-K as filed with the Securities and Exchange Commission on March 9,
1998 (fiscal year ended December 31, 1997), the Company's Quarterly Reports
on Form 10-Q as filed with the Securities and Exchange Commission on May
12, 1998 (quarter ended March 31, 1998), August 13, 1998 (quarter ended
June 30, 1998) and November 13, 1998 (quarter ended September 30, 1998) and
the Company's Current Reports on Form 8-K dated April 17, 1998 ( filed on
April 20, 1998), June 5, 1998 ( filed on June 8, 1998), July 20, 1998 (
filed on July 20, 1998), October 6, 1998 (filed on October 13, 1998),
November 12, 1998 (filed on November 20, 1998), December 18, 1998 (filed on
December 18, 1998) and February 8, 1999 (filed on February 10, 1999)
(together, the "1934 Act Reports") and (ii) the Proxy Statement/Prospectus
(which for the purposes of this paragraph 5 shall include only those
documents incorporated by reference as of the date hereof). The annual
financial statements and schedules included in the 1934 Act Reports have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods specified and present
fairly the financial position for the dates specified, and the results of
their operations and cash flows of the Company for the respective periods
specified. The quarterly financial statements and schedules included in
the 1934 Act Reports present fairly the financial position for the dates
specified and the results of operations for the quarterly periods
presented. The unaudited pro forma condensed consolidated financial
statements of the Corporation contained in the Proxy Statement/Prospectus
(the "Pro Forma Statements") comply as to form in all material respects
with the applicable accounting requirements of the Securities Act of 1933
and the Securities Exchange Act of 1934 and the published rules and
regulations thereunder and the assumptions on which the pro forma
adjustments reflected in the Pro Forma Statements are based provide a
reasonable basis for presenting the significant effects of the transactions
contemplated by the Pro Forma Statements and such pro forma adjustments
give appropriate effect to such assumptions and are properly applied in the
Pro Forma Statements. Inasmuch as the Corporation at the Effective Time
will be entirely a holding company owning the Operating Partnership, with
no substantial assets or liabilities apart from the Operating Partnership,
the Pro Forma Statements substantially reflect the pro forma position of
the Operating Partnership and its Subsidiaries after giving effect to the
Merger. The Company has participated in the preparation of the Private
Placement Memorandum, dated January 1999 (the "Memorandum"), relating to
the transactions contemplated hereby and prepared by NationsBanc Montgomery
Securities LLC and Donaldson Lufkin & Jenrette Securities Corporation. The
Memorandum fairly describes, in all material respects, the nature of the
business and properties of the Company. This Agreement, the Memorandum (as
it relates to the Company, the Senior Note Agreement and the Notes), the
Proxy Statement/Prospectus and the other documents, certificates or other
writings delivered to you by or on behalf of the Company in connection with
the transactions contemplated by the Senior Note Agreement as amended by
this Agreement, taken as a whole, do not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which
they were made. There is no fact peculiar to the Company which materially
adversely affects or in the future may (so far as the Company can now
reasonably foresee) materially adversely affect the business, property or
assets, condition or results of operations of the Company and its
subsidiaries and which has not been set forth in this Agreement, the
Memorandum, the Proxy Statement/Prospectus, or the 1934 Act Reports or in
the other documents, certificates and statements in writing furnished to
the Noteholder (or to others at the Noteholder's request) by or on behalf
of the Company prior to the date hereof in connection with the transactions
contemplated by the Senior Note Agreement as amended by this Agreement.
O. Representations and Warranties; No Default. The
representations and warranties of the Company contained in paragraph 8 of
the Senior Note Agreement are true and correct in all material respects on
and as of the date of this Agreement with the same effect as if made on an
as of the date hereof. No Default or Event of Default has occurred and is
continuing as of the date of this Agreement or would result from the
transactions contemplated hereby that constitutes or would constitute a
Default or an Event of Default.
6. Expenses; Indemnification. The Company shall, whether or not the
transactions contemplated hereby are consummated, save each holder of Notes
(including persons holding obligations of the Noteholder for which the
Notes have been pledged as collateral security) harmless for all out-of-
pocket expenses arising after the date of this Agreement in connection with
the execution and delivery or performance of this Agreement, the Assumption
Agreement, the Southern Timber Assumption Agreement or the Subsidiary
Assumption Agreements, including the reasonable fees and expenses of
special counsel for such holders.. The Company shall also indemnify and
save each holder of Notes (including persons holding obligations of the
Noteholder for which the Notes have been pledged as collateral security)
harmless from and against all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of
any kind whatsoever (including, without limitation, any taxes, and any
additional taxes imposed on any amounts payable pursuant to this paragraph
6) which may at any time be imposed on, incurred by or asserted against any
holder of Notes (including persons holding obligations of the Noteholder
for which the Notes have been pledged as collateral security) in any way
hereafter arising out of, relating to or resulting from this Agreement or
the transactions contemplated thereby and hereby. The obligations of the
Company under this paragraph 6 shall survive the transfer of any Note or
portion thereof or interest therein by a holder of Notes or any transferee
and the payment of any Note.
7. Miscellaneous.
A. Continuity and Integration of Agreements. The Senior Note
Agreement, as supplemented and amended by this Agreement, shall remain in
full force and effect and are hereby ratified and confirmed, and the Senior
Note Agreement and this Agreement shall be deemed to be and construed as a
single agreement. Without limitation of the foregoing, or any provision of
the Senior Note Agreement, all representations and warranties made herein
or in any certificate or document delivered in connection herewith shall
for all purposes be deemed made by the Company in, and delivered by the
Company pursuant to and in connection with, the Senior Note Agreement.
B. Survival of Representations and Warranties. All
representations and warranties contained herein shall survive the execution
and delivery of this Agreement, and the transfer of any Note by a holder
thereof. Such representations and warranties may be relied upon by any
transferee of a Note from a holder thereof (including persons holding
obligations of the Noteholder for which the Notes have been pledged as
collateral security).
C. Successors and Assigns. All covenants and agreements in this
Agreement contained by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
D. Descriptive Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
E. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
F. Operating Partnership a Party. The Operating Partnership is a
party to this Agreement for purposes of making the representations and
warranties in paragraph 5 hereof and to acknowledge its obligations under
paragraph 6 hereof after the Merger.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK.
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this letter and return the same
to the Company whereupon this letter shall become a binding agreement among
us.
Very truly yours,
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P., its General Partner
By:
Name: Diane M. Irvine
Title: Vice President and
Chief Financial Officer
PLUM CREEK ACQUISITION PARTNERS, L.P.
By: Plum Creek Timber I, L.L.C., its General Partner
By: Plum Creek Timber Company, Inc., its Managing Member
By: Name: Diane M. Irvine
Title: Vice President and
Chief Financial Officer
Receipt of the foregoing Agreement is acknowledged.
SDW TIMBER III, L.L.C.
By:______________________
Name:
Title:
The foregoing Agreement is accepted as of the date first above written.
ALLSTATE LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
Authorized Signatories
UNITED OF OMAHA LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
COMPANION LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
MINNESOTA LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By:____________________________
Name:
Title:
MUTUAL TRUST LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By:____________________________
Name:
Title:
AMERICAN GENERAL LIFE INSURANCE COMPANY AMERICAN GENERAL ANNUITY INSURANCE
COMPANY
By:________________________________
Name:
Title:
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA Investments, Inc. (authorized agent)
By:____________________________
Name:
Title:
INSURANCE COMPANY OF NORTH AMERICA
By: CIGNA Investments, Inc. (authorized agent)
By:____________________________
Name:
Title:
UNION FIDELITY LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
GE LIFE AND ANNUITY ASSURANCE COMPANY
By:________________________________
Name:
Title:
PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY
By:________________________________
Name:
Title:
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
INVESTORS PARTNER LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
SIGNATURE 3 LIMITED
By: John Hancock Mutual Life Insurance
Company as Portfolio Advisor
By:____________________________
Name:
Title:
LUCENT TECHNOLOGIES INC MASTER PENSION TRUST
By: John Hancock Mutual Life Insurance
Company as Portfolio Advisor
By:____________________________
Name:
Title:
JOHN HANCOCK REASSURANCE COMPANY LTD.
By:________________________________
Name:
Title:
MONY LIFE INSURANCE COMPANY (for the account of a separate account)
By:________________________________
Name:
Title:
MONY LIFE INSURANCE COMPANY OF AMERICA
By:________________________________
Name:
Title:
NEW YORK LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By:________________________________
Name:
Title:
TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY
By:________________________________
Name:
Title:
WOODMEN ACCIDENT AND LIFE COMPANY
By:________________________________
Name:
Title:
THE UNION CENTRAL LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
THIS CONSENT AND FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT (this "Consent and Amendment"), dated as of
April 2, 1999 is entered into by and among Plum Creek Timber Company,
L.P., a Delaware limited partnership (the "Company"), Plum Creek
Acquisition Partners, L.P., a Delaware limited partnership (the
"Operating Partnership"), the several financial institutions from time
to time party to the Credit Agreement defined below (collectively, the
"Banks"; individually, a "Bank"), Bank of America National Trust and
Savings Association, as agent for the Banks ("Agent"), and ABN Amro
Bank N.V., Seattle Branch and U.S. Bank National Association, as Senior
Co-Agents (collectively, the "Senior Co-Agent").
RECITALS
WHEREAS, the Company, the Banks, the Agent, and the Senior Co-
Agent are parties to the Amended and Restated Revolving Credit
Agreement, dated as of December 13, 1996 (the "Credit Agreement"),
pursuant to which the Banks have extended certain credit facilities to
the Company.
WHEREAS, the Company proposes to convert its outstanding
ownership interests into shares of stock of Plum Creek Timber Company,
Inc., a Delaware corporation (the "Corporation"), through a merger (the
"Merger") of the Company with and into the Operating Partnership, of
which the Corporation is a limited partner and of which Plum Creek
Timber I, L.L.C. is the general partner. Prior to the Merger, Plum
Creek Manufacturing, L.P. ("Manufacturing") will form Plum Creek
Manufacturing Holding Company, Inc. ("Holding") and will contribute a
nominal amount to Holding in exchange for 96 percent of Holding's
outstanding common stock (which will be non-voting stock), and
management of the Company will purchase (the "Management Stock
Purchase") the remaining 4 percent of such outstanding common stock
(which will be voting stock). Manufacturing and Holding will then form
four new Subsidiaries of Holding (the "New Subsidiaries").
WHEREAS, immediately prior to the Merger, the Company proposes
that Manufacturing will contribute an undivided 75 percent interest in
substantially all of its assets (allocated in varying proportions) to
the New Subsidiaries in exchange for 75 percent (valued on a fair
market value basis at the time of transfer) of the outstanding capital
stock of each of the New Subsidiaries (which stock will be non-voting
preferred stock) and will contribute an undivided 25 percent interest
in substantially all of its assets to Holding. Immediately thereafter,
Holding will contribute such undivided 25 percent interest (allocated
in the same proportion as Manufacturing's contribution of its undivided
interest) to each of the New Subsidiaries in exchange for 25 percent
(valued on a fair market value basis at the time of transfer) of the
outstanding capital stock of each of the New Subsidiaries (which stock
will be voting common stock).
WHEREAS, the formation of Holding and the New Subsidiaries and
the issuance of the capital stock by such entities as described above
is herein referred to as the "Facilities Subsidiary Reorganization."
The contribution of assets of Manufacturing to Holding and the New
Subsidiaries as described above is herein referred to as the
"Manufacturing Asset Transfer." Immediately prior to the Merger, the
Company will form Plum Creek Southern Timber, L.L.C. ("Southern Timber,
L.L.C."), into which the Company will contribute all of its timberlands
located in Louisiana and Arkansas in exchange for Southern Timber,
L.L.C. assuming (on a joint and several basis) a portion of the
indebtedness of the Company. The formation of Southern Timber, L.L.C.,
transfer of Louisiana and Arkansas timberlands to Southern Timber,
L.L.C. and assumption of a portion of the current indebtedness of the
Company and future indebtedness of the Operating Partnership by
Southern Timber, L.L.C. are herein referred to as the "Southern Timber
Transaction."
WHEREAS, immediately following the Merger, Plum Creek Marketing,
Inc. ("Marketing") will become a subsidiary of Manufacturing, with 75
percent of the outstanding capital stock (which will be non-voting
preferred stock) owned by Manufacturing and 25 percent of the
outstanding capital stock (which will be voting common stock) owned by
Holding (the "Marketing Stock Transfer").
WHEREAS, the Company also proposes that Marketing be released as
an obligor on the Mortgage Notes and Marketing and the New Subsidiaries
will each assume and become obligated in respect of varying percentages
of the Indebtedness represented by the Company's 11 1/8% Senior Notes
Due June 8, 2007 and the Mortgage Notes (the "Subsidiary Note
Assumption"). The foregoing transactions (herein collectively called
the "Conversion Transaction") are to be effected (i) as provided in the
Agreement and Plan of Conversion (the "Conversion Agreement"), dated as
of June 5, 1998, and amended on July 17, 1998, among the Company, the
Corporation, and Plum Creek Management Company, L.P. (the sole general
partner of the Company), and (ii) as described in the Proxy
Statement/Prospectus dated January 28, 1999 (the "Proxy
Statement/Prospectus"). After the effectiveness of the Conversion
Transaction, the Corporation will elect to be treated as a real estate
investment trust for Federal income tax purposes.
WHEREAS, in connection with the Conversion Transaction the
Company is requesting certain amendments to, and consents and waivers
under and in respect of, the Credit Agreement and the Company, the
Banks, and the Agent now hereby wish to amend the Credit Agreement in
certain respects, all as set forth in greater detail below.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned in the Credit Agreement, as
amended by this Consent and Amendment.
2. Amendment to Credit Agreement. The Credit Agreement is hereby
amended as indicated by the blacklined changes shown on the composite,
conformed copy of the Credit Agreement attached hereto as Exhibit A.
3. Consent and Waiver.
(a) The Banks signatory hereto hereby consent to the
consummation of the Manufacturing Asset Transfer, the Management Stock
Purchase, the Marketing Stock Transfer, the Facilities Subsidiary
Reorganization, the Conversion Transaction, the Southern Timber
Transaction, the Subsidiary Note Assumption, and the formation of
Holding and the New Subsidiaries and hereby waive compliance by the
Company with the provisions of sections 8.4 (Loans and Investments),
8.5 (Limitation on Indebtedness) (only to the extent necessary to
permit Southern Timber, L.L.C. to assume certain indebtedness of the
Company in connection with the Southern Timber Transaction), 8.6
(Transactions with Affiliates), 8.8 (Sale of Stock and Indebtedness of
Subsidiaries), 8.15 (Issuance of Stock by Subsidiaries), and 8.16
(Amendments) of the Credit Agreement solely for purposes of
effectuating (and only to the extent necessary to effectuate) such
transactions in the context of consummating the entire Conversion
Transaction as described in and contemplated by the Conversion
Agreement and the Proxy Statement/Prospectus. The effectiveness of
this Consent and Amendment shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of the Agent,
the Senior Co-Agent, or any of the Banks, nor constitute a waiver of
any other provision of this Consent and Amendment or the Credit
Agreement.
(b) The Agent and the Banks consent to the execution and
delivery by Southern Timber, L.L.C. of an assumption agreement
substantially in the form attached hereto as Exhibit B with respect to
the Obligations (the "Assumption Agreement"). The Company acknowledges
and agrees that no such assumption by Southern Timber, L.L.C. operates
to release the Company from its liability for the Obligations, nor
shall the Agent or any Lender have any obligation to pursue any claim
or remedy against Southern Timber, L.L.C., and that the Company shall
at all times remain primarily liable for all Obligations
notwithstanding the acceptance of such assumption agreement or any
similar agreement by the Agent or the Banks now or in the future.
4. Representations and Warranties. The Company (the term "Company" in
this section includes both Plum Creek Timber Company, L.P. and the
Operating Partnership as its successor in the Merger) hereby represents
and warrants to the Agent and each of the Banks as follows:
(a) The execution, delivery and performance by the Company of
this Consent and Amendment and by Southern Timber, L.L.C. of the
Assumption Agreement have been duly authorized by all necessary
corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or action by, any
Person (including any Governmental Authority) in order to be effective
and enforceable. The Credit Agreement as amended by this Consent and
Amendment constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
without defense, counterclaim or offset. The Assumption Agreement
constitutes a legal, valid and binding obligation of Southern Timber,
L.L.C., enforceable against Southern Timber, L.L.C. in accordance with
its terms, without defense, counterclaim or offset.
(b) All representations and warranties of the Company contained
in the Credit Agreement are true and correct as though made on and as
of the date hereof (except to the extent such representations and
warranties specifically relate to an earlier date, in which case they
were true and correct as of such earlier date).
(c) The Company is entering into this Consent and Amendment on
the basis of its own investigation and for its own reasons, without
reliance upon the Agent, any Bank or any other person.
(d) Southern Timber, L.L.C. is a Wholly-Owned Subsidiary.
5. Amendment Fee. In consideration of the execution of this Amendment,
the Company agrees to pay to the Agent for the benefit of each Bank
that has executed and delivered (by actual delivery or facsimile) this
Amendment to the Agent or its counsel by 5:00 p.m. (San Francisco time)
on April 2, 1999, an amendment fee equal to 0.10% of the Commitments of
such Banks. One-half of such fee shall be payable as a condition to
the First Effective Date (as defined below) and one-half shall be
payable as a condition to the Effective Date (as defined below).
6. Effective Dates.
(a) The amendments of Sections 8.3 and 8.18 of the Credit
Agreement by virtue of paragraph 2 hereof shall become effective upon
the first Business Day after April 2, 1999 upon which each of the
following conditions has occurred (the "First Effective Date"):
(i) Majority Banks. Agent shall have received executed
counterparts of this Consent and Amendment from the Majority Banks and
the Company.
(ii) Payment of Fee. Agent shall have received payment in
immediately available funds of one-half of the amendment fee referenced
in Section 5 above.
(b) The remaining amendments, consents and waivers set forth in
paragraphs 2 and 3 hereof shall become effective at the "Effective
Time" (as defined in the Conversion Agreement), subject to each of the
following conditions either being fulfilled to the satisfaction of the
Majority Banks or waived by the Majority Banks (the "Effective Date"):
(i) First Effective Date. The First Effective Date shall
have occurred.
(ii) Opinion of Company's Counsel. Agent shall have
received an opinion satisfactory to it from (A) James A. Kraft, General
Counsel of the Company, covering such matters incident to the
transactions described herein as Agent may reasonably request, and (B)
Skadden, Arps, Slate, Meagher & Flom, special tax counsel to the
Company and the Corporation in connection with the Conversion
Transaction, substantially in the form referenced in Annex I attached
to the Proxy Statement/Prospectus and covering such other matters
incident to the transactions described herein as Agent may reasonably
request. Such opinions shall be addressed to the Banks, shall be dated
the date of the Effective Time, and shall be otherwise satisfactory in
substance and form to Agent and Agent's counsel.
(iii) Effectiveness of Merger. The Merger shall have
become effective in the manner provided for in the Conversion Agreement
prior to July 31, 1999. No provision of the Conversion Agreement shall
have been amended, nor compliance with any provision thereof, or
satisfaction of any condition to the Conversion Transaction set forth
therein, shall have been waived without your consent.
(iv) Effectiveness of Note Amendments. The 1994 Senior
Note Agreements, the 1996 Senior Note Agreements, the Note Agreements,
and the Mortgage Notes shall have been amended by an amendment
agreement in substantially the form of agreements heretofore delivered
to Agent by the Company and all amendments, waivers and consents
provided for therein shall have become and remain effective.
(v) Costs and Expenses. The Company shall have paid all
accrued and unpaid fees, costs and expenses to the extent then due and
payable at the Effective Time, together with Attorney Costs of BofA to
the extent invoiced prior to or at the Effective Time, together with
such additional amounts of Attorney Costs as shall constitute BofA's
reasonable estimate of Attorney Costs incurred or to be incurred
through the closing proceedings, provided that such estimate shall not
thereafter preclude final settling of accounts between the Company and
BofA.
(vi) Representations and Warranties; No Default. The
representations and warranties contained in Paragraph 4 hereof shall be
true in all material respects on and as of the date of the Effective
Time; there shall exist on the date of the Effective Time no Event of
Default or Default; and the Company shall have delivered to Agent an
Officer's Certificate, dated the date of the Effective Time, to both
such effects.
(vii) Proceedings. All proceedings taken or to be taken in
connection with the transactions contemplated hereby and all documents
incident thereto shall be satisfactory in substance and form to Agent,
and Agent shall have received all such counterpart originals or
certified or other copies of such documents as Agent may reasonably
request.
(viii) Payment of Fee. Agent shall have received
payment in immediately available funds of the remaining one-half of the
amendment fee referenced in Section 5 above.
(ix) Assumption Agreement. The Assumption Agreement shall
have been duly executed and delivered to the Agent by Southern Timber,
L.L.C.
7. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants
and provisions of the Credit Agreement are and shall remain in full
force and effect, and all references therein and in the other Loan
Documents to the Credit Agreement shall henceforth refer to the Credit
Agreement as amended by this Consent and Amendment. This Consent and
Amendment shall be deemed incorporated into, and a part of, the Credit
Agreement.
(b) This Consent and Amendment shall be binding upon and inure
to the benefit of the parties hereto and thereto and their respective
successors and assigns. No third party beneficiaries are intended in
connection with this Consent and Amendment.
(c) This Consent and Amendment shall be governed by and
construed in accordance with the law of the State of California.
(d) This Consent and Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which, when taken together, shall be deemed to constitute but one and
the same instrument.
(e) This Consent and Amendment, together with the Credit
Agreement, contains the entire and exclusive agreement of the parties
hereto with reference to the matters discussed herein and therein.
This Consent and Amendment supersedes all prior drafts and
communications with respect thereto.
(f) If any term or provision of this Consent and Amendment
shall be deemed prohibited by or invalid under any applicable law, such
provision shall be invalidated without affecting the remaining
provisions of this Consent and Amendment or the Credit Agreement,
respectively.
(g) The Company hereby covenants to pay or to reimburse the
Agent, upon demand, for all costs and expenses (including allocated
costs of in-house counsel) incurred in connection with the development,
preparation, negotiation, execution and delivery of this Consent and
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Consent and Amendment
as of the date first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: PLUM CREEK MANAGEMENT COMPANY, L.P.
its general partner
By: ------------------------------
Name: ----------------------------
Title: ---------------------------
PLUM CREEK ACQUISITION PARTNERS, L.P.
By: PLUM CREEK TIMBER I, L.L.C.,
its General Partner
By: PLUM CREEK TIMBER COMPANY, INC.,
its Managing Member
By: ------------------------------
Name: ----------------------------
Title: ---------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Agent, as a Bank, as the Swingline
Bank and as an Issuing Bank
By: ------------------------------
Name: ----------------------------
Title: ---------------------------
NATIONSBANK, N.A.
By: ------------------------------
Name: ----------------------------
Title: ---------------------------
ABN AMRO BANK N.V., SEATTLE BRANCH
By: ABN AMRO North America, Inc., as
agent
By: ------------------------------
Name: ----------------------------
Title: ---------------------------
By: ------------------------------
Name: ----------------------------
Title: ---------------------------
U.S. BANK NATIONAL ASSOCIATION
By: ------------------------------
Name: ----------------------------
Title: ---------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD.,
SEATTLE BRANCH
By: ------------------------------
Name: ----------------------------
Title: ---------------------------
UNION BANK OF CALIFORNIA, N.A.
By: ------------------------------
Name: ----------------------------
Title: ---------------------------
CREDIT LYONNAIS NEW YORK BRANCH
By: ------------------------------
Name: ----------------------------
Title: ---------------------------
THE SUMITOMO BANK, LIMITED
By: ------------------------------
Name: ----------------------------
Title: ---------------------------
Deletions appear as text surrounded by []
Additions appear as text surrounded by \\
\EXHIBIT A TO
CONSENT AND FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF
APRIL 2, 1999\
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Dated as of December 13, 1996
among
PLUM CREEK [TIMBER COMPANY, L.P.] \ACQUISITION
PARTNERS, L.P.,\
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Agent
\ABN AMRO BANK N.V.,
and U.S. BANK NATIONAL ASSOCIATION\
[NationsBank, N.A.],
as Senior Co-[Agent] \Agents\
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
TABLE OF CONTENTS
Page
Table of Schedules and Exhibits..........................................v
1. Definitions...........................................................1
1.1 Defined Terms........................................................1
1.2 Other Interpretive Provisions........................................30
1.3 Accounting Principles................................................31
2. The Credits...........................................................31
2.1 Amounts and Terms of Commitments.....................................31
2.2 Loan Accounts........................................................32
2.3 Procedure for Borrowing Revolving Loans..............................32
2.4 Conversion and Continuation Elections for Borrowings.................33
2.5 Voluntary Termination or Reduction of Commitments....................34
2.6 Optional Prepayments.................................................35
2.7 Mandatory Prepayments of Loans; Mandatory Commitment Reductions......35
2.8 Repayment............................................................37
2.9 Interest.............................................................37
2.10 Swingline Loans.....................................................38
2.11 Fees................................................................40
2.12 Computation of Fees and Interest....................................40
2.13 Payments by the Company.............................................41
2.14 Payments by the Banks to the Agent..................................41
2.15 Sharing of Payments, Etc............................................42
2.16 Loan Tranches.......................................................43
3. The Letters Of Credit.................................................44
3.1 The Letter of Credit Facility........................................44
3.2 Issuance, Amendment and Renewal of Letters of Credit.................45
3.3 Risk Participations, Drawings and Reimbursements.....................48
3.4 Repayment of Participations..........................................49
3.5 Role of the Issuing Bank.............................................50
3.6 Obligations Absolute.................................................50
3.7 Cash Collateral Pledge...............................................51
3.8 Letter of Credit Fees................................................52
3.9 Uniform Customs and Practice.........................................52
4. Taxes, Yield Protection And Illegality................................52
4.1 Taxes................................................................52
4.2 Illegality...........................................................55
4.3 Increased Costs and Reduction of Return..............................56
4.4 Funding Losses.......................................................56
4.5 Inability to Determine Rates.........................................57
4.6 Certificate of Bank..................................................57
4.7 Survival.............................................................57
5. Conditions Precedent..................................................58
5.1 Conditions of Initial Credit Extensions..............................58
5.2 Conditions to All Credit Extensions..................................59
6. Representations And Warranties........................................60
6.1 Corporate Existence and Power........................................60
6.2 Authorization; No Contravention......................................61
6.3 Governmental Authorization...........................................61
6.4 Binding Effect.......................................................61
6.5 Litigation...........................................................61
6.6 No Default...........................................................62
6.7 ERISA Compliance.....................................................62
6.8 Use of Proceeds; Margin Regulations..................................64
6.9 Title to Properties..................................................64
6.10 Taxes...............................................................64
6.11 Financial Condition.................................................64
6.12 Environmental Matters...............................................65
6.13 Regulated Entities..................................................66
6.14 No Burdensome Restrictions..........................................66
6.15 Solvency............................................................66
6.16 Labor Relations.....................................................66
6.17 Copyrights, Patents, Trademarks and Licenses, Etc...................66
6.18 Subsidiaries........................................................67
6.19 Partnership Interests...............................................67
6.20 Broker's, Transaction Fees..........................................67
6.21 Insurance...........................................................67
6.22 Full Disclosure.....................................................67
7. Affirmative Covenants.................................................69
7.1 Financial Statements.................................................69
7.2 Certificates; Other Information......................................70
7.3 Notices..............................................................71
7.4 Preservation of Partnership Existence, Etc...........................72
7.5 Maintenance of Property..............................................73
7.6 Insurance............................................................73
7.7 Payment of Obligations...............................................73
7.8 Compliance with Laws.................................................73
7.9 Inspection of Property and Books and Records.........................74
7.10 Environmental Laws..................................................74
7.11 Use of Proceeds.....................................................74
7.12 Solvency............................................................74
8. Negative Covenants....................................................74
8.1 Limitation on Liens..................................................75
8.2 Merger; Disposition of Assets........................................76
8.3 Harvesting Restrictions..............................................79
8.4 Loans and Investments................................................80
8.5 Limitation on Indebtedness...........................................81
8.6 Transactions with Affiliates.........................................83
8.7 Use of Proceeds......................................................83
8.8 Sale of Stock and Indebtedness of Subsidiaries.......................84
8.9 Certain Contracts....................................................85
8.10 Joint Ventures......................................................85
8.11 Compliance with ERISA...............................................86
8.12 Sale and Leaseback..................................................86
8.13 Restricted Payments.................................................86
8.14 Change in Business..................................................87
8.15 Issuance of Stock by Subsidiaries...................................88
8.16 Amendments..........................................................88
8.17 Available Cash......................................................88
8.18 Interest Coverage Ratio.............................................89
9. Events Of Default.....................................................89
9.1 Event of Default.....................................................89
9.2 Remedies.............................................................92
9.3 Rights Not Exclusive.................................................92
10. The Agent............................................................93
10.1 Appointment and Authorization.......................................93
10.2 Delegation of Duties................................................93
10.3 Liability of Agent..................................................93
10.4 Reliance by Agent...................................................94
10.5 Notice of Default...................................................95
10.6 Credit Decision.....................................................95
10.7 Indemnification of Agent............................................95
10.8 Agent in Individual Capacity........................................96
10.9 Successor Agent.....................................................96
10.10 Senior Co-Agent....................................................97
11. Miscellaneous........................................................97
11.1 Amendments and Waivers..............................................97
11.2 Notices.............................................................98
11.3 No Waiver; Cumulative Remedies......................................99
11.4 Costs and Expenses..................................................99
11.5 Indemnity...........................................................100
11.6 Marshalling; Payments Set Aside.....................................100
11.7 Successors and Assigns..............................................100
11.8 Assignments, Participations, Etc....................................100
11.9 Set-off.............................................................103
11.10 Automatic Debits of Fees...........................................103
11.11 Notification of Addresses, Lending Offices, Etc....................103
11.12 Counterparts.......................................................104
11.13 Severability.......................................................104
11.14 No Third Parties Benefited.........................................104
11.15 Time...............................................................104
11.16 Governing Law and Jurisdiction.....................................104
11.17 Arbitration; Reference.............................................104
11.18 Entire Agreement...................................................105
TABLE OF SCHEDULES AND EXHIBITS
Schedules
Schedule 1.1 - Corporate Investment Policy
Schedule 2.1 - Commitments
Schedule 6.7 - Plans
Schedule 6.12 - Environmental Matters
Schedule 6.18 - Subsidiaries
Schedule 8.1 - Permitted Liens
Schedule 8.4 - Permitted Investments
Schedule 11.2 - Addresses for Notices
Exhibits
Exhibit A - Notice of Borrowing
Exhibit B - Notice of Conversion/Continuation
Exhibit C-1 - Legal Opinion of Counsel for the Company
Exhibit C-2 - Legal Opinion of Perkins Coie
Exhibit D - Compliance Certificate
Exhibit E -Form of Cash Collateral Account Agreement
Exhibit F - Form of Assignment and Acceptance Agreement
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is entered into as of
December 13, 1996, among PLUM CREEK [TIMBER COMPANY] \ACQUISITION PARTNERS\,
L.P., a Delaware limited partnership \and successor to PLUM CREEK
TIMBER COMPANY, L.P.\ (the "Company"), the several financial
institutions from time to time party to this Agreement (collectively,
the "Banks"; individually, a "Bank"), [NATIONSBANK, N.A.] \ABN AMRO BANK
N.V. and U.S. BANK NATIONAL ASSOCIATION\, as senior co-[agent] \agents\ for
the Banks, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as a
letter of credit issuing bank and as agent for the Banks.
WHEREAS, the Company and Bank of America National Trust and
Savings Association entered into a Revolving Credit and Bridge Loan
Agreement dated as of October 17, 1996 (the "Existing Credit
Agreement");
WHEREAS, the Banks have agreed to make available to the Company a
revolving credit facility with a letter of credit subfacility upon
the terms and conditions set forth in this Agreement;
WHEREAS, to give effect to the foregoing, the Company, the Banks,
the Senior Co-Agent and the Agent desire to amend and restate the
Existing Credit Agreement;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties hereby amend
and restate the Existing Credit Agreement in its entirety as follows:
1. DEFINITIONS
1.1 Defined Terms
In addition to the terms defined elsewhere in this Agreement, the
following terms have the following meanings:
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. A Person shall be deemed to
control another Person if the controlling Person possesses, directly
or indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities, by contract or otherwise. Without
limitation, any director, executive officer or beneficial owner of 5%
or more of the equity of a Person shall for the purposes of this
Agreement, be deemed to control the other Person. Notwithstanding
the foregoing, no Bank shall be deemed an "Affiliate" of the Company
or of any Subsidiary of the Company.
"Agent" means BofA in its capacity as agent for the Banks
hereunder, and any successor agent.
"Agent's Payment Office" means the address for payments set forth
on Schedule 11.2 in relation to the Agent or such other address as
the Agent may from time to time specify in accordance with
Section 11.2.
"Agent-Related Persons" means BofA, the Arranger, and any
successor agent arising under Section 10.9 and any successor to BofA
as letter of credit issuing bank or Swingline Bank hereunder,
together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.
"Aggregate Commitment" means the combined Revolving Commitments
of the Banks, in the initial amount of two hundred twenty-five
million dollars ($225,000,000), as such amount may be reduced from
time to time pursuant to this Agreement.
"Agreement" means this Amended and Restated Revolving Credit
Agreement, as amended from time to time in accordance with the terms
hereof.
"Applicable Margin" means, in respect of all Loans outstanding on
any date (A) for the period from the Closing Date through March 31,
1997, 0.4500% for Offshore Rate Loans and 0.0000% for Base Rate
Loans, and (B) from April 1, 1997, the percentage specified below
opposite the Interest Coverage Ratio (which ratio shall be calculated
on a four quarter rolling basis for the relevant fiscal quarter)
calculated for the periods described below.
INTEREST COVERAGE RATIO AT APPLICABLE MARGIN
END OF FISCAL QUARTER
Offshore Rate Base Rate
------------- ---------
Greater than or equal to 4.0 0.3500% 0.0000%
Less than 4.0 but greater than
or equal to 3.7 0.4000% 0.0000%
Less than 3.7 but greater than
or equal to 3.4 0.4500% 0.0000%
Less than 3.4 but greater than
or equal to 3.1 0.5500% 0.0000%
Less than 3.1 but greater than
or equal to 2.8 0.6500% 0.0000%
Less than 2.8 but greater than
or equal to 2.5 0.8750% 0.0000%
Less than 2.5 1.1250% 0.0000%
The Applicable Margin for each fiscal quarter commencing on and
after April 1, 1997 shall be calculated in reliance on the financial
reports delivered pursuant to subsections 7.1(a) and 7.1(c) and the
certificate delivered pursuant to subsection 7.2(b) with respect to
the fiscal quarter ending one fiscal quarter before the fiscal
quarter in question (e.g., June 30 financials determine the
Applicable Margin for the fiscal quarter beginning October 1). If
the Company fails to deliver such financial reports and certificate
to the Agent for any fiscal quarter by the beginning of the next
succeeding fiscal quarter (e.g., by October 1 for the fiscal quarter
ending June 30), then the Applicable Margin for the following fiscal
quarter (e.g., October 1 through December 31) shall equal the next
higher Applicable Margin as set forth in the chart above immediately
below the previously effective Applicable Margin; thus if the
Applicable Margin had previously been 0.6500% for Offshore Rate Loans
and 0.0000% for Base Rate Loans, a failure to deliver quarterly
financials by the first day of the next fiscal quarter would cause
the Applicable Margin to be 0.8750% and 0.0000%, respectively, for
the duration of that quarter. In addition, if such financial reports
and certificate when delivered indicate that the Applicable Margin
for such period should have been higher than the Applicable Margin
provided for in the previous sentence, then the Company shall pay on
the date of delivery of such financial reports and certificate an
amount equal to the positive difference, if any, between the interest
that the Company should have paid hereunder had the financial reports
and certificate been delivered on a timely basis over what the
Company actually paid. The Applicable Margin shall be adjusted
automatically as to all Loans then outstanding (without regard to the
timing of Interest Periods) as of the effective date of any change in
the Applicable Margin.
"Arranger" means BA Securities, Inc., a Delaware corporation.
"Assignee" has the meaning specified in subsection 11.8(a).
"Assignment and Acceptance" has the meaning specified in
subsection 11.8(a).
"Attorney Costs" means and includes all fees and disbursements of
any law firm or other external counsel, the allocated cost of
internal legal services and all disbursements of internal counsel.
"Available Cash" means, with respect to any calendar quarter,
(i) the sum of:
(a) the Company's net income (or net loss) (excluding gain on the
sale of any Capital Asset) for such quarter,
(b) the amount of depletion, depreciation, amortization and other
noncash charges utilized in determining net income of the Company for
such quarter,
(c) the amount of any reduction in reserves of the Company of the
types referred to in clause (ii)(d) below,
(d) proceeds received by the Company from the sale of Designated
Acres, and
(e) any Cash from Capital Transactions received by the Company
during such quarter in specific contemplation that such Cash from
Capital Transactions will be used to refund or refinance any payment
of Indebtedness of the type specified in clause (ii)(a) below which
was made in either of the two immediately preceding quarters,
less (ii) the sum of:
(a) all payments of principal on Indebtedness made by the Company
in such quarter (excluding any payments of principal on Indebtedness
made with Cash from Capital Transactions received by the Company
during such quarter or, to the extent such Cash from Capital
Transactions remains available, received by the Company during the
four immediately preceding quarters),
(b) capital expenditures made by the Company during such quarter
(excluding any capital expenditures for such quarter made with Cash
from Capital Transactions received by the Company during such quarter
or, to the extent such Cash from Capital Transactions remains
available, received by the Company during the four immediately
preceding quarters, and capital expenditures which the General
Partner reasonably anticipates will be financed with Cash from
Capital Transactions within 90 days from the end of such quarter),
(c) the amount of any capital expenditures made by the Company in
a prior quarter which was anticipated would be financed from Cash
from Capital Transactions but which have not been financed from such
source within 90 days from the end of such quarter,
(d) the amount of any reserves of the Company established during
such quarter which are necessary or appropriate (1) to provide funds
for the future payment of items of the types specified in
clauses (ii)(a) and (ii)(b) above, (2) to provide additional working
capital, (3) to provide funds for cash distributions with respect to
any one or more of the next four quarters, or (4) to provide funds
for the future payment of interest in an amount equal to the interest
to be accrued in the next quarter,
(e) the amount of any noncash items of income utilized in
determining net income of the Company for such quarter,
(f) the amount of any Investments (other than guarantees,
contingent liabilities or endorsements, except to the extent payments
are actually made under such guarantees, contingent liabilities or
endorsements) made by the Company during such quarter pursuant to
subsections 8.4(a), (h) or (i) (or in the case of any Subsidiary,
Investments (other than guarantees, contingent liabilities or
endorsements, except to the extent payments are actually made under
such guarantees, contingent liabilities or endorsements) of similar
type) to the extent not included in capital expenditures or payments
on principal on Indebtedness made by the Company during such quarter
(excluding any such Investments for such quarter made with Cash from
Capital Transactions received by the Company during such quarter or,
to the extent such Cash from Capital Transactions remains available,
received by the Company during the four immediately preceding
quarters, and Investments which the General Partner reasonably
anticipates will be financed with Cash from Capital Transactions
within 90 days from the end of such quarter), and
(g) the amount of any Investments (other than guarantees,
contingent liabilities or endorsements, except to the extent payments
are actually made under such guarantees, contingent liabilities or
endorsements) made by the Company in a prior quarter pursuant to
subsections 8.4(a), (h) or (i) (or in the case of any Subsidiary,
Investments (other than guarantees, contingent liabilities or
endorsements, except to the extent payments are actually made under
such guarantees, contingent liabilities or endorsements) of similar
type) to the extent not included in capital expenditures made by the
Company during such quarter which was anticipated would be financed
from Cash from Capital Transactions but which have not been financed
from such source within 90 days from the end of such quarter.
Notwithstanding the foregoing, "Available Cash" shall not take
into account any reductions in reserves or disbursements made or
reserves established after commencement of the dissolution and
liquidation of the Company. In determining "Available Cash," (i) all
items under clauses (i)(a), (b), (c), (d) and (e) above and all items
under clauses (ii)(a), (b), (c), (d), (e), (f) and (g) above shall be
calculated on a combined basis with any Subsidiary of the Company
whose income is accounted for on a consolidated or combined basis
with the Company and, in accordance therewith, "Available Cash" shall
include a percentage of each such item of each such Subsidiary equal
to the Company's percentage ownership interest in such Subsidiary,
provided, however, that the items under clauses (i)(a), (b), (c), (d)
and (e) above shall only be included in Available Cash to the extent
that the General Partner determines such amount to be legally
available for dividends or distributions to the Company by such
Subsidiary; (ii) the amount of net income and the amount of
depletion, depreciation, amortization and other noncash charges
utilized in determining net income shall be determined, with respect
to the Company, by the General Partner in accordance with generally
accepted accounting principals and, with respect to any Subsidiary,
by its Board of Directors (or by such other body or person which has
the ultimate management authority of such Subsidiary) in accordance
with generally accepted accounting principles; (iii) the net income
of any Subsidiary shall be determined on an after-tax basis; (iv) the
amount of any reductions in, or additions to, reserves for purposes
of clauses (i)(c) and (ii)(d) above shall be determined, with respect
to the Company, by the General Partner in its reasonable good faith
judgment and, with respect to any Subsidiary, by its Board of
Directors (or by such other body or person which has the ultimate
management authority of such Subsidiary) in its reasonable good faith
judgment; and (v) any determination of whether any capital
expenditures or Investments are financed, or anticipated to be
financed, with Cash from Capital Transactions for purposes of
clause (ii)(b) or (ii)(f) above shall be made, with respect to the
Company, by the General Partner in its reasonable good faith judgment
and, with respect to any Subsidiary, by its Board of Directors (or by
such other body or person which has the ultimate management authority
of such Subsidiary) in its reasonable good faith judgment.
"Bank" has the meaning specified in the introductory clause
hereto. References to the "Banks" shall include BofA in its capacity
as a Swingline Bank and an Issuing Bank, for purposes of
clarification only, to the extent that BofA may have any rights or
obligations in addition to those of the Banks due to its status as a
Swingline Bank or an Issuing Bank, its status as such will be
specifically referenced.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978
(11 U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of:
(a) the rate of interest in effect for such day as publicly
announced from time to time by BofA in San Francisco, California, as
its "reference rate." It is a rate set by BofA based upon various
factors including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate; and
(b) 0.50% per annum above the latest Federal Funds Rate.
Any change in the reference rate announced by BofA shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan or an L/C Advance that bears
interest based on the Base Rate.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Board Foot" means a unit of measurement one foot square and one
inch thick.
"Borrowing" means a borrowing hereunder consisting of Loans of
the same Type made to the Company on the same day by the Banks, or a
Swingline Loan or Loans made to the Company on the same day by the
Swingline Bank, in each case pursuant to Article II, and, other than
in the case of Base Rate Loans, having the same Interest Period.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco
are authorized or required by law to close and, if the applicable
Business Day relates to any Offshore Rate Loan, means such a day on
which dealings are carried on in the applicable offshore dollar
interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of
law, in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Capital Asset" means any asset on the Company's or any
Subsidiary's balance sheet, as the case may be, other than inventory,
accounts receivable or any other current asset and assets disposed of
in connection with normal retirements or replacements.
"Capital Expenditure Tranche" has the meaning specified in
Section 2.16.
"Capital Expenditure Tranche Loan" means a Loan allocated by the
Company to the Capital Expenditure Tranche as provided in
Section 2.16.
"Capital Lease" has the meaning specified in the definition of
"Capital Lease Obligations."
"Capital Lease Obligations" means all monetary obligations of the
Company or any of its Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, is classified as a
capital lease ("Capital Lease").
"Capital Transaction" means (i) borrowings and sales of debt
securities (other than for working capital purposes and other than
for items purchased on open account in the ordinary course of
business) by the Company, (ii) sales of equity interests by the
[Company ]\REIT the proceeds of which are contributed to the
Company,\ and (iii) sales or other voluntary or involuntary
dispositions of any assets of the Company (other than (x) sales or
other dispositions of inventory in the ordinary course of business,
(y) sales or other dispositions of other current assets including
receivables and accounts and (z) sales or other dispositions of
assets as a part of normal retirements or replacements), in each case
prior to the commencement of the dissolution and liquidation of the
Company, provided that in determining Cash from Capital Transactions,
items (i), (ii) and (iii) above shall include, with respect to each
Subsidiary of the Company whose income is accounted for on a
consolidated or combined basis with the Company, a percentage of each
such item of such Subsidiary equal to the Company's percentage
ownership interest in such Subsidiary.
"Cash Collateral Account Agreement" means an agreement or
agreements entered into between the Company and the Agent
substantially in the form of Exhibit E.
"Cash Collateralize" means to pledge and deposit with or deliver
to the Agent, for the benefit of (i) in the case of L/C Obligations,
the Agent, the Issuing Banks and the Banks, (ii) in the case of
Offshore Rate Loans, the Agent and the Banks, and (iii) in the case
of Swingline Loans, the Agent, the Swingline Bank and the Banks, in
each case as collateral for the L/C Obligations, the Loans or the
Swingline Loans, as the case may be, cash or deposit account balances
pursuant to a Cash Collateral Account Agreement. Derivatives of such
term shall have corresponding meaning.
"Cash from Capital Transactions" means at any date, such amounts
of cash as are determined by the General Partner to be cash made
available to the Company from or by reason of a Capital Transaction.
"CERCLA" has the meaning specified in the definition of
"Environmental Laws."
"Closing Date" means the date on which all conditions precedent
set forth in Section 5.1 are satisfied or waived by all Banks.
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Commitment," with respect to each Bank, has the meaning
specified in Section 2.1.
"Commitment Fee Percentage" means (A) for the period from the
Closing Date through March 31, 1997, 0.1500% and (B) from April 1,
1997, the percentage specified below opposite the Interest Coverage
Ratio (which ratio shall be calculated on a rolling four quarter
basis for the relevant fiscal quarter) calculated for the periods
described below.
INTEREST COVERAGE RATIO AT END OF COMMITMENT FEE PERCENTAGE
FISCAL QUARTER -------------------------
Greater than or equal to 4.0 0.1250%
Less than 4.0 but greater than or equal to 3.7 0.1375%
Less than 3.7 but greater than or equal to 3.4 0.1500%
Less than 3.4 but greater than or equal to 3.1 0.1750%
Less than 3.1 but greater than or equal to 2.8 0.2000%
Less than 2.8 but greater than or equal to 2.5 0.2750%
Less than 2.5 0.3250%
The Commitment Fee Percentage for each fiscal quarter commencing
on and after April 1, 1997, shall be calculated in reliance on the
financial reports delivered pursuant to subsections 7.1(a) and 7.1(c)
and the certificate delivered pursuant to subsection 7.2(b) with
respect to the fiscal quarter before the fiscal quarter in question
(e.g., June 30 financials determine the Commitment Fee Percentage for
the fiscal quarter beginning October 1). If the Company fails to
deliver such financial reports and certificate to the Agent for any
fiscal quarter by the beginning of the next succeeding fiscal quarter
(e.g., by October 1 for the fiscal quarter ending June 30), then the
Commitment Fee Percentage for the following fiscal quarter (e.g.,
October 1 through December 31) shall equal the next higher Commitment
Fee Percentage as set forth in the chart above immediately below the
previously effective Commitment Fee Percentage; thus if the
Commitment Fee Percentage had previously been 0.2000%, a failure to
deliver quarterly financials by the first day of the next fiscal
quarter would cause the Commitment Fee Percentage to be 0.2750% for
the duration of that quarter. In addition, if such financial reports
and certificate when delivered indicate that the Commitment Fee
Percentage for such period should have been higher than the
Commitment Fee Percentage provided for in the previous sentence, then
the Company shall pay on the date of delivery of such financial
reports and certificate an amount equal to the positive difference,
if any, between the interest that the Company should have paid
hereunder had the financial reports and certificate been delivered on
a timely basis over what the Company actually paid.
"Commitment Percentage" means, as to any Bank, the percentage
equivalent of the aggregate of such Bank's Commitment divided by the
Aggregate Commitment.
"Company's Knowledge" or "Knowledge of the Company" shall mean
the actual knowledge of (i) Rick R. Holley, President and Chief
Executive Officer, Charles P. Grenier, Executive Vice President,
Diane M. Irvine, Vice President and Chief Financial Officer, James A.
Kraft, Vice President, General Counsel and Secretary, Susanna N.
Duke, Director, Law and Human Resources, William R. Brown, Vice
President, Resource Management, and Mitchell Leu, Environmental
Engineer, and any successor to the offices and officers, such persons
being the principal persons employed by the Company ultimately
responsible for environmental operations and compliance, ERISA and
legal matters relating to the Company and (ii) the Treasurer or any
other person having the primary responsibility for the day-to-day
administration of, and dealings with the Agent and the Banks in
connection with, this Agreement.
"Contractual Obligations" means, as to any Person, any provision
of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or
by which it or any of its property is bound.
"Controlled Group" means the Company and all Persons (whether or
not incorporated) under common control or treated as a single
employer with the Company pursuant to Section 414(b), (c), (m) or (o)
of the Code.
"Conversion/Continuation Date" means any date on which, under
Section 2.4, the Company (a) converts Loans of one Type to another
Type, or (b) continues as Loans of the same Type, but with a new
Interest Period, Loans having Interest Periods expiring on such date.
"Credit Extension" means and includes (a) the making of any Loan
hereunder, including any conversion or continuation thereof, and
(b) the Issuance of any Letter of Credit hereunder.
"Cunit" means 100 cubic feet of wood.
"Debt Proceeds" means the proceeds of Indebtedness permitted by
subsection 8.5(i), net of customary expenses payable to Persons that
are not Affiliates of the Company.
"Default" means any event or circumstance which, with the giving
of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
"Designated Acres" means up to an aggregate of 200,000 acres
owned by the Company which (based on the good faith determination of
the Responsible Representatives that such acres have at the time such
determination is made a higher value as recreational, residential,
grazing or agricultural property than for timber production) may be
reasonably designated by the General Partner at the time of the sale
thereof as constituting Designated Acres (such aggregate number of
acres to be determined over the term of existence of the Note
Agreements).
"Designated Immaterial Subsidiary" means any entity which would
otherwise be a Restricted Subsidiary and which at any time is
designated by the Company as a Designated Immaterial Subsidiary,
provided that no such designation of any entity as a Designated
Immaterial Subsidiary shall be effective unless (i) at the time of
such designation, such entity does not own any shares of stock or
Indebtedness of any Restricted Subsidiary which is not simultaneously
being designated as a Designated Immaterial Subsidiary,
(ii) immediately after giving effect to such designation, (a) the
Company could incur at least $1 of additional Funded Debt pursuant to
subsection 8.5(i), and (b) no condition or event shall exist which
constitutes an Event of Default or Material Default, (iii) the
Company is permitted to make the Investment in such entity resulting
from such designation pursuant to, and within the limitations
specified in, subsection 8.4(i), treating the aggregate book value
(including equity in retained earnings) of the Investments of the
Company and its Subsidiaries in such entity immediately prior to such
designation as the cost of such Investment, and provided, further,
that if at any time all Designated Immaterial Subsidiaries on a
combined basis would be a "significant subsidiary" (assuming the
Company is the registrant) within the meaning of Regulation S-X
(17 C.F.R. Part 210) the Company shall designate one or more
Designated Immaterial Subsidiaries which are directly owned by the
Company and its Restricted Subsidiaries as Restricted Subsidiaries
such that the condition in this proviso is no longer applicable and
the entities so designated shall no longer be Designated Immaterial
Subsidiaries. Any entity which has been designated a Designated
Immaterial Subsidiary shall not thereafter become a Restricted
Subsidiary except pursuant to a designation required by the last
proviso in the preceding sentence, and any Designated Immaterial
Subsidiary which has been designated a Restricted Subsidiary pursuant
to the last proviso of the preceding sentence shall not thereafter be
redesignated as a Designated Immaterial Subsidiary.
["Designated Repurchases" means and includes purchases,
redemptions or other acquisitions, in each case at a price not to
exceed fair market value, of the publicly traded limited partnership
interests in the Company, which are retired by the Company within six
months of such purchase, redemption or other acquisition.]
"Dollars," "dollars" and "$" each mean lawful money of the
United States.
"Domestic Lending Office" means, with respect to each Bank and
the Swingline Bank, the office of that Bank and the Swingline Bank
designated as such in Schedule 11.2 or such other office of the Bank
and the Swingline Bank as it may from time to time specify to the
Company and the Agent.
"EBITDA" means, for any period, for the Company and its
Subsidiaries on a combined basis, determined in accordance with GAAP,
the sum of (a) the net income (or net loss) for such period, plus
(b) all amounts treated as expenses for depreciation, depletion and
interest and the amortization of intangibles of any kind to the
extent included in the determination of such net income (or loss),
plus (c) all adjustments arising by virtue of the conversion from
average cost accounting to a LIFO basis with respect to inventory to
the extent included in the determination of such net income, plus
(d) all accrued taxes on or measured by income to the extent included
in the determination of such net income (or loss), plus or minus, as
applicable, (e) in connection with any Timber previously acquired
within such period, an amount equal to a good faith estimate of such
additional amounts as would be included in clauses (a), (b), (c), or
(d) above had such Timber been owned by the Company or one of its
Subsidiaries for the entirety of such period, as certified (in a
certificate containing such detail as the Required Banks may
reasonably request) by a Responsible Officer of the Company based
upon such Responsible Officer's good faith estimates of applicable
revenues and expenses arising from such Timber and assuming aggregate
timber harvests in an amount that does not require application of the
proceeds thereof to the purchase of Timber or the repayment of
Qualified Debt under Section 8.3; provided, however, that net income
(or loss) shall be computed for purposes of computing EBITDA without
giving effect to extraordinary losses or extraordinary gains.
"Effective Amount" means (i) with respect to any Loans or
Swingline Loans, as the case may be, on any date, the aggregate
outstanding principal amount thereof after giving effect to any
Borrowings and prepayments or repayments thereof occurring on such
date; and (ii) with respect to any outstanding L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving
effect to any Issuances of Letters of Credit occurring on such date
and any other changes in the aggregate amount of the L/C Obligations
as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters
of Credit taking effect on such date.
"Eligible Assignee" means (i) a commercial bank organized under
the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $250,000,000; (ii) a
commercial bank organized under the laws of any other country which
is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least
$250,000,000, provided that such bank is acting through a branch or
agency located in the United States; and (iii) a Person that is
primarily engaged in the business of commercial banking and that is
(A) a Subsidiary of a Bank, (B) a Subsidiary of a Person of which a
Bank is a Subsidiary, or (C) a Person of which a Bank is a
Subsidiary.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability
or responsibility for violation of any Environmental Law, or for
release or injury to the environment or threat to public health,
personal injury (including sickness, disease or death), property
damage, natural resources damage, or otherwise alleging liability or
responsibility for damages (punitive or otherwise), cleanup, removal,
remedial or response costs, restitution, civil or criminal penalties,
injunctive relief, or other type of relief, resulting from or based
upon (a) the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and non-
negligent, sudden or non-sudden, accidental or non-accidental
placement, spills, leaks, discharges, emissions or releases) of any
Hazardous Material at, in, or from Property, whether or not owned by
such person, or (b) any other circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and
codes, together with all administrative orders, directed duties,
requests, licenses, authorizations and permits of, and agreements
with, any Governmental Authorities, in each case relating to
environmental, health, safety, land use, conservation, and timber
harvesting matters; including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Clean Air Act, the Federal Water Pollution Control
Act of 1972, the Solid Waste Disposal Act, the Federal Resource
Conservation and Recovery Act, the Toxic Substances Control Act, the
Emergency Planning and Community Right-to-Know Act.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and regulations promulgated
thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the
meaning of Section 414(b) or 414(c) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a
Qualified Plan or a Multiemployer Plan; (b) a withdrawal by the
Company or any ERISA Affiliate from a Qualified Plan subject to
Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA);
(c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan; (d) the filing of a notice of
intent to terminate, the treatment of a plan amendment as a
termination under Section 4041 or 4041A of ERISA or the commencement
of proceedings by the PBGC to terminate a Qualified Plan or
Multiemployer Plan subject to Title IV of ERISA; (e) a failure by the
Company or any ERISA Affiliate to make required contributions to a
Qualified Plan or Multiemployer Plan; (f) an event or condition which
might reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Qualified Plan or Multiemployer Plan; (g) the
imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Company or any ERISA Affiliate; (h) an application for a funding
waiver or an extension of any amortization period pursuant to
Section 412 of the Code with respect to any Plan; (i) a non-exempt
prohibited transaction occurs with respect to any Plan for which the
Company may be directly or indirectly liable; or (j) a violation of
the applicable requirements of Section 404 or 405 of ERISA or the
exclusive benefit rule under Section 401(a) of the Code by any
fiduciary or disqualified person with respect to any Plan for which
the Company may be directly or indirectly liable.
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances
specified in Section 9.1.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended, and regulations promulgated thereunder.
"Existing Credit Agreement" has the meaning specified in the
recitals hereto.
\"Facilities Operating Subsidiaries" means, collectively, Plum
Creek Marketing, Inc., a Delaware corporation, Holding, and the New
Subsidiaries and a "Facilities Operating Subsidiary" shall mean any
one of them.\
"Facilities Subsidiary" means, collectively, Plum Creek
Manufacturing, L.P., a Delaware limited partnership, [and] Plum Creek
Marketing, Inc., a Delaware corporation\, Holding, the New
Subsidiaries, and any other Subsidiary of Plum Creek Manufacturing,
L.P. satisfying the requirements of clause (ii) of the definition of
Wholly-Owned Subsidiary\.
"Facilities Subsidiary's Facility" means any facility pursuant to
which [the Facilities Subsidiary] \Plum Creek Manufacturing, L.P.\
may incur Indebtedness for purposes of making capital improvements,
additions to, or expansions of, property, plant and equipment of the
Facilities Subsidiary or its Subsidiaries \which are Restricted
Subsidiaries\.
"Facilities Subsidiary's Revolving Credit Facility" means any
facility pursuant to which [the Facilities] \Plum Creek
Manufacturing, L.P. or any of its Subsidiaries which is a Restricted\
Subsidiary may obtain revolving credit, take-down credit, the
issuance of standby and payment letters of credit and backup for the
issuance of commercial paper.
"FDIC" means the Federal Deposit Insurance Corporation, or any
entity succeeding to any of its principal functions.
"Federal Funds Rate" means, for any period, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board
(including any such successor, "H.15(519)") for such day opposite the
caption "Federal Funds (Effective)". If on any relevant day such
rate is not yet published in H.15(519), the rate for such day will be
the rate set forth in the daily statistical release designated as the
Composite 3:30 p.m. Quotations for U.S. Government Securities, or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, the "Composite 3:30 p.m.
Quotation") for such day under the caption "Federal Funds Effective
Rate". If on any relevant day the appropriate rate for such previous
day is not yet published in either H.15(519) or the Composite
3:30 p.m. Quotations, the rate for such day will be the arithmetic
mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York
time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System, or any entity succeeding to any of its
principal functions.
\"First Amendment" means that certain Consent and First Amendment
to Amended and Restated Revolving Credit Agreement dated as of April
2, 1999, among the Company, the Banks, the Agent, and the Senior Co-
Agent.\
"Form 1001" has the meaning specified in subsection 4.1(f).
"Form 4224" has the meaning specified in subsection 4.1(f).
"Funded Debt" means, without duplication, any Indebtedness
payable more than one year from the date of the creation thereof;
provided that any Indebtedness shall be treated as Funded Debt,
regardless of its term, if such Indebtedness is renewable at the
option of the Company pursuant to the terms thereof or of a revolving
credit or similar agreement effective for more than one year after
the date of the creation of such Indebtedness, or may be payable out
of the proceeds of similar Indebtedness pursuant to the terms of such
Indebtedness or any such agreement.
"GAAP" means generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the accounting profession),
or in such other statements by such other entity as may be in general
use by significant segments of the U.S. accounting profession, which
are applicable to the circumstances as of the date of determination.
"General Partner" means Plum Creek [Management Company, L.P., a
Delaware limited partnership, the managing general partner of the
Company] \Timber I, L.L.C., a limited liability company organized and
existing under the laws of the State of Delaware\, and any successor
managing general partner of the Company.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guarantee" means the guarantee in paragraph 7 of the Mortgage
Note Agreements.
"Hazardous Materials" means all those substances which are
regulated by, or which may form the basis of liability under, any
Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, hazardous waste,
hazardous constituent, special waste, hazardous substance, hazardous
material, or toxic substance, or petroleum or petroleum derived
substance or waste.
\"Holding" shall mean Plum Creek Manufacturing Holding Company,
Inc., a Delaware corporation.\
"Honor Date" has the meaning specified in subsection 3.3(b).
"Indebtedness" of any Person means, as of any date of
determination, without duplication, (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of
property or services, (b) all amounts owed by such Person to banks or
other Persons in respect of reimbursement obligations under letters
of credit, surety bonds, banker's acceptances and other similar
instruments guaranteeing payment or other performance of obligations
by such Person, (c) all indebtedness for borrowed money or for the
deferred purchase price of property or services secured by any Lien
on any property owned by such Person, to the extent attributable to
such Person's interest in such property, even though such Person has
not assumed or become liable for the payment thereof, (d) lease
obligations of such Person which, in accordance with GAAP, should be
capitalized, (e) lease obligations of such Person under leases which
have a term (including any option to renew exercisable at the
discretion of the lessee thereunder) longer than 10 years or under
leases under which the lessor, pursuant to an agreement with such
Person, has acquired the property specifically for the purpose of
leasing it to such Person, (f) obligations payable out of the
proceeds of production from property of such Person, even though such
Person has not assumed or become liable for the payment thereof,
(g) the Swap Termination Value with respect to Swap Contracts, and
(h) any obligations of any other Person of the type described in the
above clauses (a) through (g), inclusive, which are guaranteed or in
effect guaranteed by such Person through any agreement (contingent or
otherwise) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation (whether in the form of
loans, advances, stock purchases, capital contributions or
otherwise), or to maintain the solvency or any balance sheet or other
financial condition of the obligor of such obligation, or to make
payment for any property, securities, products, materials or supplies
or for any transportation or services regardless of the non-delivery
or nonfurnishing thereof, in any such case if the purpose or intent
of such agreement is to provide assurance that such obligation will
be paid or discharged, or that any agreements relating thereto will
be complied with, or that the holders of such obligation will be
protected against loss in respect thereof or to otherwise assure or
hold harmless the holder of any primary obligation against loss in
respect thereof. The amount of any obligations of the type described
in clause (h) of this definition shall be deemed equal to the stated
or determinable amount of the primary obligation in respect of which
such obligation is made or, if not stated or if not determinable, the
maximum reasonably anticipated liability in respect thereof.
"Indemnified Person" has the meaning specified in
subsection 11.5.
"Indemnified Liabilities" has the meaning specified in
subsection 11.5.
"Independent Auditor" has the meaning specified in subsection
7.1(a).
"Insolvency Proceeding" means (a) any case, action or proceeding
before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors, or (b) any general
assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other, similar arrangement in respect of its
creditors generally or any substantial portion of its creditors; in
each case (a) and (b) undertaken under U.S. Federal, State or foreign
law, including the Bankruptcy Code.
"Interest Coverage Ratio" means, as measured quarterly on the
last day of each fiscal quarter for the four fiscal quarter period
then ending, the ratio of
(i) EBITDA;
to
(ii) the combined interest expense (including capitalized
interest) of the Company and its Subsidiaries for the four fiscal
quarter period then ending calculated in accordance with GAAP, plus
interest expense that would have been payable during such four fiscal
quarters had any Indebtedness incurred during such period for the
purpose of acquiring Timber and related assets been incurred at the
beginning of such period, based upon the interest rate applicable to
such Indebtedness at the end of such period.
"Interest Payment Date" means, (a) with respect to any Offshore
Rate Loan, the last day of each Interest Period applicable to such
Loan, (b) with respect to any Base Rate Loan, the last Business Day
of each calendar quarter and each date a Base Rate Loan is converted
into another Type of Loan, and (c) with respect to any Swingline
Loan, the Business Day agreed upon by the Company and the Swingline
Bank, which will not be later than the fourteenth Business Day
following the Borrowing date thereof or, if sooner, the Revolving
Termination Date; provided, however, that if any Interest Period for
an Offshore Rate Loan exceeds three months, the date which falls
three months after the beginning of such Interest Period and after
each Interest Payment Date thereafter shall also be an Interest
Payment Date.
"Interest Period" means, with respect to any Offshore Rate Loan,
the period commencing on the Business Day the Loan is disbursed or on
the Conversion/Continuation Date on which the Loan is converted into
or continued as an Offshore Rate Loan, and ending on the date that is
one week or one, two, three or six months thereafter, as selected by
the Company in its Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be;
provided that:
(i) if any Interest Period would otherwise end on a day which
is not a Business Day, that Interest Period shall be extended to
the next succeeding Business Day unless, in the case of an
Offshore Rate Loan, the result of such extension would be to
carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period pertaining to an Offshore Rate
Loan that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall end
on the last Business Day of the calendar month at the end of such
Interest Period; and
(iii) no Interest Period for any Revolving Loan shall extend
beyond the Revolving Termination Date.
"Investment Policy" means the Corporate Investment Policy of the
Company, as it existed on April 5, 1993 and as attached hereto as
Schedule 1.1 (without giving effect to any later amendments thereto).
"Investments" has the meaning specified in Section 8.4.
"Issuance Date" has the meaning specified in subsection 3.1(a).
"Issue" means, with respect to any Letter of Credit, to issue or
to extend the expiry of, or to renew or increase the amount of, such
Letter of Credit; and the terms "Issued," "Issuing" and "Issuance"
have corresponding meanings.
"Issuing Bank" means BofA in its capacity as issuer of one or
more Letters of Credit hereunder, together with any replacement
letter of credit issuer arising under subsection 10.1(b) or
Section 10.9.
"Joint Venture" means a partnership, joint venture or other
similar legal arrangement (whether created pursuant to contract or
conducted through a separate legal entity) now or hereafter formed by
the Company or any of its Restricted Subsidiaries with another Person
in order to conduct a common venture or enterprise with such Person.
"L/C Advance" means each Bank's participation in any L/C
Borrowing in accordance with its Commitment Percentage.
"L/C Amendment Application" means an application form for
amendment of outstanding standby letters of credit as shall at any
time be in use at an Issuing Bank, as such Issuing Bank shall
require.
"L/C Application" means an application form for issuances of
standby letters of credit as shall at any time be in use at an
Issuing Bank, as such Issuing Bank shall require.
"L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been
reimbursed on the date when made nor converted into a Borrowing of
Revolving Loans under subsection 3.3(c).
"L/C Commitment" means the commitment of the Issuing Banks to
Issue, and the commitment of the Banks severally to participate in,
Letters of Credit from time to time Issued or outstanding under
Article III, in an aggregate amount not to exceed on any date twenty
million dollars ($20,000,000), as the same shall be reduced as a
result of a reduction in the L/C Commitment pursuant to Section 2.5;
provided that the L/C Commitment is a part of the Aggregate
Commitment, rather than a separate, independent commitment.
"L/C Obligations" means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus
(b) the amount of all unreimbursed drawings under all Letters of
Credit, including all outstanding L/C Borrowings.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any Issuing Bank's
standard form documents for letter of credit issuances.
"Lending Office" means, with respect to any Bank and the
Swingline Bank, the office or offices of the Bank and the Swingline
Bank specified as its "Lending Office" or "Domestic Lending Office"
or "Offshore Lending Office," as the case may be, opposite its name
on Schedule 11.2, or such other office or offices of the Bank and the
Swingline Bank as it may from time to time notify the Company and the
Agent.
"Letters of Credit" means any standby letters of credit Issued by
the Issuing Bank pursuant to Article III.
"Letter of Credit Rate" means, for any period, a rate per annum
equal to (A) for the period from the Closing Date through March 31,
1997, 0.4500%, and (B) from April 1, 1997, the percentage specified
below opposite the Interest Coverage Ratio (which ratio shall be
calculated on a rolling four quarter basis for the relevant fiscal
quarter) calculated for the periods described below.
INTEREST COVERAGE RATIO AT END OF LETTER OF CREDIT RATE
FISCAL QUARTER ---------------------
Greater than or equal to 4.0 0.3500%
Less than 4.0 but greater than or equal to 3.7 0.4000%
Less than 3.7 but greater than or equal to 3.4 0.4500%
Less than 3.4 but greater than or equal to 3.1 0.5500%
Less than 3.1 but greater than or equal to 2.8 0.6500%
Less than 2.8 but greater than or equal to 2.5 0.8750%
Less than 2.5 1.1250%
The Letter of Credit Rate for each fiscal quarter commencing on
and after April 1, 1997, shall be calculated in reliance on the
financial reports delivered pursuant to subsections 7.1(a) and 7.1(c)
and the certificate delivered pursuant to subsection 7.2(b) with
respect to the fiscal quarter before the fiscal quarter in question
(e.g., June 30 financials determine the Letter of Credit Rate for the
fiscal quarter beginning October 1). If the Company fails to deliver
such financial reports and certificate to the Agent for any fiscal
quarter by the beginning of the next succeeding fiscal quarter (e.g.,
by October 1 for the fiscal quarter ending June 30), then the Letter
of Credit Rate for the following fiscal quarter (e.g., October 1
through December 31) shall equal the next higher Letter of Credit
Rate as set forth in the chart above immediately below the previously
effective Letter of Credit Rate; thus if the Letter of Credit Rate
had previously been 0.6500%, a failure to deliver quarterly
financials by the first day of the next fiscal quarter would cause
the Letter of Credit Rate to be 0.8750% for the duration of that
quarter. In addition, if such financial reports and certificate when
delivered indicate that the Letter of Credit Rate for such period
should have been higher than the Letter of Credit Rate provided for
in the previous sentence, then the Company shall pay on the date of
delivery of such financial reports and certificate an amount equal to
the positive difference, if any, between the interest that the
Company should have paid hereunder had the financial reports and
certificate been delivered on a timely basis over what the Company
actually paid.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien, preference or priority or charge of any kind
(including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any lease in the
nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction).
"Loan" means an extension of credit by a Bank or the Swingline
Bank, as the case may be, to the Company under Article II or
Article III, and may be a Revolving Loan, a Swingline Loan or an L/C
Advance.
"Loan Documents" means this Agreement, the L/C-Related Documents,
and all documents delivered to the Agent in connection herewith and
therewith.
"Majority Banks" means (a) at any time that Loans are
outstanding, any Banks holding at least 66-2/3% of the then aggregate
unpaid principal amount of the Loans, and (b) at any other time,
Banks holding at least 66-2/3% of the Commitments or, if the
Commitments have been terminated or expired, Banks that held at least
66-2/3% of the Commitments as in effect immediately before such
termination or expiration.
\"Management Voting Group" shall mean, at any time, a group
consisting of four or more individuals who are then current officers
of the Company who legally and beneficially own in the aggregate not
less than 51% of the outstanding Voting Stock of Holding.\
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means (a) a material adverse change in,
or a material adverse effect upon, any of the operations, business,
properties, condition (financial or otherwise) or prospects of the
Company or the Company and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of the Company to perform under
any Loan Document and avoid any Event of Default; or (c) a material
adverse effect upon the legality, validity, binding effect or
enforceability of any Loan Document.
"Material Default" means any continuing Default as to which a
written notice of such Default (which notice has not been rescinded)
shall have been received by the Company or the General Partner from
the Agent or any Bank, or any continuing Event of Default.
"Maximum Pro Forma Annual Interest Charges" means, as of any
date, the highest total amount payable during any period of four
consecutive fiscal quarters, commencing with the fiscal quarter in
which such date occurs and ending with the fiscal quarter in which
the Revolving Termination Date occurs, by the Company and its
Restricted Subsidiaries on a combined basis, after eliminating all
intercompany transactions, in respect of interest charges
((a) including amortization of debt discount and expense and imputed
interest on Capital Lease Obligations and on other obligations
included in Indebtedness which do not have stated interest,
(b) assuming, in the case of fluctuating interest rates which cannot
be determined in advance, that the rate in effect on such date will
remain in effect throughout such period, and (c) treating the
principal amount of all Indebtedness outstanding as of such date
under a revolving credit or similar agreement as maturing and
becoming due and payable on the scheduled maturity date thereof,
without regard to any provision permitting such maturity date to be
extended) on all Indebtedness of the Company and its Restricted
Subsidiaries outstanding on such date (excluding the Guarantee and
the guarantees of the Facilities Subsidiary's Facility and the
Facilities Subsidiary's Revolving Credit Facility but including, to
the extent not already included, all other Indebtedness outstanding
on such date which is guaranteed or in effect guaranteed by the
Company or any Restricted Subsidiaries), after giving effect to any
Indebtedness proposed to be created on such date and to the
concurrent retirement of any other Indebtedness.
"MCCF" means one thousand Cunits.
\"Merger" means the merger of Plum Creek Timber Company, L.P.
with and into Plum Creek Acquisition Partners, L. P. as provided in
the Agreement and Plan of Conversion, dated as of June 5, 1998,
amended on July 17, 1998, among Plum Creek Timber Company, Inc., Plum
Creek Timber Company, L.P. and Plum Creek Management Company, L.P.\
"MMBF" means one million Board Feet.
"Mortgage Note Agreements" means the Mortgage Note Agreement,
dated as of May 31, 1989, providing for the issuance and sale by the
Facilities Subsidiary of its 11 1/8% First Mortgage Notes to the
purchasers listed in the schedule of purchasers attached thereto, as
amended by (a) that certain Mortgage Note Agreement Amendment,
Consent and Waiver dated as of January 1, 1991, (b) that certain
letter agreement dated April 22, 1993, (c) that certain Mortgage Note
Agreement Amendment dated as of September 1, 1993, (d) that certain
Mortgage Note Agreement Amendment dated as of May 20, 1994, (e) that
certain Amendment to Mortgage Note Agreement dated as of June 15,
1995 [and]\,\ (f) that certain Mortgage Note Agreements Amendment
dated as of May 31, 1996\, (g) that certain Mortgage Note Agreements
Amendment dated as of April 15, 1997, and (h) that certain Mortgage
Note Agreements Amendment dated as of January 15, 1999\.
"Mortgage Notes" means the 11 1/8% First Mortgage Notes of the
Facilities Subsidiary issued and sold pursuant to the Mortgage Note
Agreements.
"Multiemployer Plan" means a "multiemployer plan" (within the
meaning of Section 4001(a)(3) of ERISA) and to which any ERISA
Affiliate makes, is making, or is obligated to make contributions or,
during the preceding three calendar years, has made, or been
obligated to make, contributions.
"Net Proceeds" means proceeds in cash as and when received by the
Person making a sale of Property, net of: (a) the direct costs
relating to such sale excluding amounts payable to the Company or any
Affiliate of the Company, (b) sale, use or other transaction taxes
paid or payable as a result thereof, and (c) amounts required to be
applied to repay principal, interest and prepayment premiums and
penalties on Indebtedness secured by a Lien on the asset which is the
subject of such disposition.
\"New Subsidiaries" shall mean Plum Creek Northwest Lumber, Inc.,
a Delaware corporation, Plum Creek Northwest Plywood, Inc., a
Delaware corporation, Plum Creek MDF, Inc., a Delaware corporation,
and Plum Creek Southern Lumber, Inc., a Delaware corporation, and
"New Subsidiary" shall mean any one of them.\
"1994 Notes" means the 8.73% Senior Notes due August 1, 2009 in
the aggregate principal amount of $150,000,000 issued and sold
pursuant to the 1994 Senior Note Agreements.
"1994 Senior Note Agreements" means that certain Senior Note
Agreement dated as of August 1, 1994 providing for the issuance and
sale by the Company of the 1994 Senior Notes to the purchasers listed
in the schedule of purchasers attached thereto, as amended by (a)
that certain Senior Note Agreement Amendment dated as of October 15,
1995 [and]\,\ (b) that certain Senior Note Agreements Amendment dated
as of May 31, 1996\, (c) that certain Senior Note Agreements
Amendment dated as of April 15, 1997, and by (d) that certain Senior
Note Agreements Amendment dated as of January 15, 1999.
"1998 Notes" means those certain senior promissory notes in the
aggregate principal amount of $171,375,000 issued and sold pursuant
to the 1998 Senior Note Agreement\.
"1996 Notes" means those certain senior promissory notes in the
aggregate principal amount of $200,000,000 issued and sold pursuant
to the 1996 Senior Note Agreements.
"1996 Senior Note Agreement" means that certain Senior Note
Agreement dated as of November 13, 1996, providing for the issuance
and sale by the Company of the 1996 Notes to the purchasers listed in
the schedule of purchasers attached thereto\, as amended by that
certain Senior Note Agreements Amendment dated as of January 15,
1999.
"1998 Senior Note Agreement" means that certain Senior Note
Agreement dated as of November 12, 1998, providing for the issuance
and sale by the Company of the 1998 Notes to SDW Timber 1, L.L.C., as
amended by that certain Senior Note Agreement dated as of February
12, 1999\.
"Notes" means those certain senior promissory notes in the
aggregate principal amount of $165,000,000 issued and sold pursuant
to the Note Agreements.
"Note Agreements" means that certain Senior Note Agreement dated
as of May 31, 1989, providing for the issuance and sale by the
Company of the Notes to the purchasers listed in the schedule of
purchasers attached thereto, as amended by (a) that certain Senior
Note Agreement Amendment, Consent and Waiver dated as of January 1,
1991, (b) that certain letter agreement dated April 22, 1993,
(c) that certain Senior Note Agreement Amendment dated as of
September 1, 1993 (d) that certain Senior Note Agreement Amendment
dated as of May 20, 1994, [and by]\(e)\ that certain Senior Note
Agreements Amendment dated as of May 31, 1996\, (f) that certain
Senior Note Agreements Amendment dated as of April 15, 1997, and by
(g) that certain Senior Note Agreements Amendment dated as of January
15, 1999\.
"Notice of Borrowing" means a notice given by the Company to the
Agent pursuant to Sections 2.3, or 2.10, as the case may be, in
substantially the form of Exhibit A.
"Notice of Conversion/Continuation" means a notice given by the
Company to the Agent pursuant to Section 2.4, in substantially the
form of Exhibit B.
"Notice of Lien" means any "notice of lien" or similar document
intended to be filed or recorded with any court, registry, recorder's
office, central filing office or other Governmental Authority for the
purpose of evidencing, creating, perfecting or preserving the
priority of a Lien securing obligations owing to a Governmental
Authority.
"Obligations" means all Loans, and other Indebtedness, advances,
debts, liabilities, obligations, covenants and duties owing by the
Company to any Bank, the Agent, the Senior Co-Agent, the Issuing
Banks, the Swingline Bank, or any other Person required to be
indemnified, that arises under any Loan Document, whether or not for
the payment of money, whether arising by reason of an extension of
credit, loan, guaranty, indemnification or in any other manner,
whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired.
"Offshore Lending Office" means with respect to each Bank, the
office of such Bank designated as such in Schedule 11.2 or such other
office of such Bank as such Bank may from time to time specify to the
Company and the Agent.
"Offshore Rate" means, for each Interest Period in respect of
Offshore Rate Loans comprising part of the same Borrowing, an
interest rate per annum (rounded upward to the nearest 1/16th of 1%)
determined pursuant to the following formula:
IBOR
Offshore Rate = ------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any
Interest Period the reserve percentage (expressed as a decimal,
rounded upward to the nearest 1/100th of 1%) in effect for such
day under regulations issued from time to time by the Federal
Reserve Board for determining the reserve requirement (including
any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities") having a term
comparable to such Interest Period; and
"IBOR" means the rate of interest per annum determined by the
Agent as the rate at which dollar deposits in the approximate
amount of BofA's Offshore Rate Loan and having a maturity
comparable to such Interest Period would be offered by BofA's
Grand Cayman Branch, Grand Cayman B.W.I. (or such other office as
may be designated for such purpose by BofA), to major banks in
the offshore dollar interbank market upon request of such banks
at approximately 11:00 a.m. (New York City time) two Business
Days prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all
Offshore Rate Loans then outstanding as of the effective date of any
change in the Eurodollar Reserve Percentage.
"Offshore Rate Loan" means any Loan that bears interest based on
the Offshore Rate.
"Operating Lease" means, as applied to any Person, any lease of
Property which is not a Capital Lease.
"Ordinary Course of Business" means, in respect of any
transaction involving the Company or any Subsidiary of the Company,
the ordinary course of such Person's business, as conducted by any
such Person in accordance with past practice and undertaken by such
Person in good faith and not for purposes of evading any covenant or
restriction in any Loan Document.
"Organization Documents" means, \(i)\for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate
of determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement,
and all applicable resolutions of the board of directors (or any
committee thereof) of such corporation; [and,]\(ii)\ for any limited
partnership, the certificate of limited partnership, the limited
partnership agreement, and all applicable partnership resolutions\;
and (iii) for any limited liability company, the certificate of
formation or articles of organization, the operating agreement or
comparable document, and all other documents evidencing the authority
and validity of actions taken by the limited liability company\.
"Other Taxes" has the meaning specified in subsection 4.1(b).
"Participant" has the meaning specified in subsection 11.8(d).
"Partnership Agreement" means the [Amended and Restated]
Agreement of Limited Partnership of the Company, as in effect [on the
Closing Date] \at the time of and after giving effect to the Merger\,
and as the same may, from time to time, be amended, modified or
supplemented in accordance with the terms thereof.
"Partner Entities" means the [General Partner, the PCMC General
Partner and the PC Advisory General Partner.] \REIT.\
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any of its principal functions under ERISA.
["PC Advisory General Partner" means PC Advisory Corp. I, a
Delaware corporation, the managing general partner of the PCMC
General Partner, and any successor managing general partner of the
PCMC General Partner.
"PCMC General Partner" means PC Advisory Partners I, L.P., a
Delaware limited partnership, the managing general partner of the
General Partner, and any successor managing general partner of the
General Partner.]
"Permitted Business" means any business engaged in by the
Company or the Facilities Subsidiary on the Closing Date, pulp and
paper manufacturing and any business substantially similar or related
to any such business.
"Permitted Liens" has the meaning specified in Section 8.1.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture\, limited liability company,\ or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3)
of ERISA) which the Company or any ERISA Affiliate sponsors or
maintains or to which the Company or any ERISA Affiliate makes, is
making or is obligated to make contributions, and includes any
Multiemployer Plan or Qualified Plan.
"Principal Repayment Proviso" means that for any period of
calculation, the aggregate amount of scheduled principal repayment on
Indebtedness (x) shall not include voluntary prepayments of
Indebtedness except to the extent such voluntary prepayments includes
any amounts that would have been scheduled principal repayments
during such period, and (y) shall not include the amount of any
scheduled principal repayment to the extent the Company refinanced or
rescheduled such scheduled repayments and the scheduled principal
repayments due before the Revolving Termination Date under the
refinancing or rescheduling have been or will be included in the
calculation of the aggregate amount of scheduled principal repayments
for the periods in which they are due.
"Pro Forma Free Cash Flow" as of any date means (i) net income of
the Company and its Restricted Subsidiaries on a pro forma combined
basis (excluding (a) gain on the sale of any Capital Asset,
(b) noncash items of income, and (c) any distributions or other
income received from, or equity of the Company or any Restricted
Subsidiary in the earnings of, any entity which is not a Restricted
Subsidiary) for the period of four consecutive fiscal quarters
immediately prior to such date (such period of four consecutive
fiscal quarters being the "Measurement Period"), determined in
accordance with GAAP plus depreciation, depletion, amortization and
other noncash charges, interest expense on Indebtedness and provision
for income taxes, minus (ii) capital expenditures made by the Company
and its Restricted Subsidiaries during the Measurement Period, to
maintain their respective operations; provided, however, if (A) the
Company or a Restricted Subsidiary is acquiring a Restricted
Subsidiary or assets and (B) Pro Forma Free Cash Flow is being
determined in connection therewith, such Restricted Subsidiary shall
be considered to have been a Restricted Subsidiary during the entire
Measurement Period and such assets shall be considered to have been
owned by the Company during the entire Measurement Period if net
income attributable to such Restricted Subsidiary or such assets (as
the case may be) for the entire Measurement Period is readily
determinable and confirmed pursuant to an audit or a certification
prepared in good faith by the Company's chief financial officer;
further provided, however, that portion of Pro Forma Free Cash Flow
allocable to such Restricted Subsidiary or assets shall be reduced on
a pro rata basis to the extent Timber has been harvested by such
Restricted Subsidiary or from such assets during the Measurement
Period at a rate greater than the rate at which the Company has
harvested Timber from its Timberlands during the Measurement Period,
as certified in good faith by the chief financial officer of the
Company; and finally provided, however, if Pro Forma Free Cash Flow
is being determined for any Measurement Period and a Restricted
Subsidiary or assets have been sold or otherwise disposed of at any
time during such Measurement Period by the Company or any Restricted
Subsidiary, such Restricted Subsidiary shall not be considered to
have been a Restricted Subsidiary during any part of such Measurement
Period and such assets shall not be considered to have been owned by
the Company during any part of such Measurement Period, and the net
income that otherwise would have been attributable to such Restricted
Subsidiary or asset during such Measurement Period shall be certified
in good faith by the chief financial officer of the Company.
"Pro Rata Share" means, with respect to the payment of principal
or interest on account of Revolving Loans or L/C Advances, each
Bank's pro rata share of the outstanding principal balance of the
Loans or L/C Advances with respect to which such payment is being
made.
"Property" means any estate or interest in any kind of property
or asset, whether real, personal or mixed, and whether tangible or
intangible.
"Qualified Debt" means, as to the Company, as of any date of
determination, without duplication, all outstanding indebtedness of
the Company for borrowed money, including Indebtedness represented by
the Notes, the 1994 Notes, the 1996 Notes, and this Agreement
(including L/C Borrowings and Loans used to repay L/C Borrowings, but
excluding L/C Obligations with respect to undrawn Letters of Credit).
"Qualified Plan" means a pension plan (as defined in Section 3(2)
of ERISA) intended to be tax-qualified under Section 401(a) of the
Code and which any ERISA Affiliate sponsors, maintains, or to which
it makes, is making or is obligated to make contributions, or in the
case of a multiple employer plan (as described in Section 4064(a) of
ERISA) has made contributions at any time during the immediately
preceding period covering at least five (5) plan years, but excluding
any Multiemployer Plan.
\"REIT" means Plum Creek Timber Company, Inc., a Delaware
corporation.\
"Reportable Event" means, as to any Plan, (a) any of the events
set forth in Section 4043(c) of ERISA or the regulations thereunder,
other than any such event for which the 30-day notice requirement
under ERISA has been waived in regulations issued by the PBGC, (b) a
withdrawal from a Plan described in Section 4063 of ERISA, or (c) a
cessation of operations described in Section 4062(e) of ERISA.
"Requirement of Law" means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to
or binding upon the Person or any of its property or to which the
Person or any of its property is subject.
"Responsible Officer" means the chief executive officer, the
president or any vice president of the [General Partner] \REIT\, or
any other officer having substantially the same authority and
responsibility; or, with respect to compliance with financial
covenants, the chief financial officer or the treasurer of the
[General Partner] \REIT\, or any other officer having substantially
the same authority and responsibility.
"Responsible Representatives" means (a) in the case of any
transaction in which the value of any assets disposed of or received
have a value of less than $5,000,000 or in which payments made are
less than $5,000,000, the chief executive officer, chief financial
officer or chief operating officer of the [Company] \REIT\, and
(b) in the case of any other transaction, the Board of Directors of
the [PC Advisory General Partner] \REIT\.
"Restricted Payment" means (a) any [payment] \dividend\ or other
distribution, direct or indirect, [in respect of any partnership
interest in the Company, except a distribution payable solely in
additional partnership] \on account of any shares of any class of
stock of or other ownership interests in the Company or any shares of
Voting Stock of a Facilities Operating Subsidiary not owned by the
Company (directly or indirectly), now or hereafter outstanding,
except a dividend payable solely in shares of stock of or ownership\
interests in the Company, and (b) any [payment] \redemption,
retirement, purchase or other acquisition\, direct or indirect, [on
account of the redemption, retirement, purchase or other acquisition
of any partnership interest in the Company including, without
limitation, any Designated Repurchases; or, if the Company is at any
time reorganized as or changed (by merger, sale of assets or
otherwise) into a corporation, (i) any dividend or other
distribution, direct or indirect, on account] of any shares of any
class of stock of [the Company now or hereafter outstanding, except a
dividend payable solely in shares of stock of the Company, and
(ii) any redemption, retirement, purchase or other acquisition,
direct or indirect, of any shares of any class of stock of the
Company] \or other ownership interests in the Company or any shares
of Voting Stock of a Facilities Operating Subsidiary not owned by the
Company (directly or indirectly)\, now or hereafter outstanding, or
of any warrants, rights or options to acquire any such shares \or
interests\, except to the extent that the consideration therefor
consists of shares of stock of \or other ownership interests in\ the
Company.
"Restricted Subsidiary" means any Wholly-Owned Subsidiary other
than [(a) any] \any\ Designated Immaterial Subsidiary [and (b) the
Facilities Subsidiary or any Subsidiary directly or indirectly owned
by the Facilities Subsidiary, provided that after the Mortgage Notes
shall have been paid in full and retired, the Facilities Subsidiary
and its Subsidiaries shall become and be Restricted Subsidiaries].
"Revolving Facility Tranche" has the meaning specified in
Section 2.16.
"Revolving Facility Tranche Loan" means a Loan allocated by the
Company to the Revolving Facility Tranche as provided in
Section 2.16.
"Revolving Loan" has the meaning specified in Section 2.1, and
may be an Offshore Rate Loan or a Base Rate Loan.
"Revolving Termination Date" means the earlier to occur of:
(a) December 13, 2001; and
(b) the date on which the Aggregate Commitment shall
terminate in accordance with the provisions of this Agreement.
"Riverwood Supply Agreement" means the Supply Agreement dated
October 18, 1996, between Riverwood International Corporation and the
Company.
"SEC" means the Securities and Exchange Commission, or any entity
succeeding to any of its principal functions.
"Senior Co-Agent" means [NationsBank, N.A. in its]\,
collectively, ABN Amro Bank N.V. and U.S. Bank National Association,
in their\ capacity as Senior Co-[Agent] \Agents\ for the Banks
hereunder.
"Solvent" means, as to any Person at any time, that (a) (i) in
the case of a Person that is not a partnership, the fair value of the
Property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated
liabilities), and (ii) in the case of a Person that is a partnership,
the sum of (A) the fair value of the Property of such Person plus
(B) the sum of the excess of the fair value of each general partner's
non-partnership Property over such partner's non-partnership debts
(together, the "Applicable Property") is greater than the amount of
such Person's liabilities (including disputed, contingent and
unliquidated liabilities), as such value for purposes of both
clauses (i) and (ii) is established and liabilities evaluated for
purposes of Section 101(31) of the Bankruptcy Code and, in the
alternative, for purposes of the Uniform Fraudulent Transfer Act;
(b) the present fair saleable value of the Property of such Person
(or, in the case of a partnership, the Applicable Property for such
Person) is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become
absolute and matured; (c) such Person is able to realize upon its
Property and pay its debts and other liabilities (including disputed,
contingent and unliquidated liabilities) as they mature in the normal
course of business; (d) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature; and (e) such
Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's
Property would constitute unreasonably small capital.
"Subsidiary" of a Person means any corporation, partnership\,
limited liability company\ or other entity a majority of (i) the
total combined voting power of all classes of Voting Stock of which
or (ii) the outstanding equity interests of which shall, at the time
of which any determination is being made, be owned by the Company
either directly or through Subsidiaries.
"Swap Contract" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity
index swap or option, bond, note or bill option, interest rate
option, forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swaption,
currency option or any other, similar transaction (including any
option to enter into any of the foregoing) or any combination of the
foregoing, and, unless the context otherwise clearly requires, any
master agreement relating to or governing any or all of the
foregoing.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts,
(a) for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to
the date referenced in clause (a) the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined by the
Company (or, for purposes of subsection 9.1(e), by the Majority
Banks) based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts
(which may include any Bank).
"Swingline Bank" means BofA or its assignee under Section 11.8.
"Swingline Clean-Up Day" has the meaning specified in
subsection 2.7(a)(iii).
"Swingline Commitment" has the meaning specified in Section 2.10.
"Swingline Loan" has the meaning specified in Section 2.10.
"Taxes" has the meaning specified in subsection 4.1(a).
"Timber" means standing trees not yet harvested.
"Timberlands" means the timberlands owned by the Company as of
the Closing Date and any timberlands acquired by the Company or any
Subsidiary after the Closing Date.
\"Ton" means 2,000 pounds of green saw logs and pulpwood.\
"Transferee" has the meaning specified in subsection 11.8(e).
"Type" means either an Offshore Rate Loan or a Base Rate Loan.
"UCC" means the Uniform Commercial Code as in effect in the State
of California.
"UCP" has the meaning specified in Section 3.9.
"Unfunded Pension Liabilities" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan's assets, determined in accordance with
the assumptions used by the Plan's actuaries for funding the Plan
pursuant to Section 412 of the Code for the applicable plan year.
"United States" and "U.S." each means the United States of
America.
"Voting Stock" means, with respect to any corporation or other
entity, any shares of stock or other ownership interests of such
corporation or entity whose holders are entitled under ordinary
circumstances to vote for the election of directors of such
corporation or to manage any such other entity (irrespective of
whether at the time stock or ownership interests of any other class
or classes shall have or might have voting power by reason of the
happening of any contingency).
"Wholly-Owned Subsidiary" means any Subsidiary organized under
the laws of any state of the United States which conducts the major
portion of its business in the United States[, and ] \and (i) in the
case of any Subsidiary,\ all of the stock or other ownership
interests of [every class of which, except director's qualifying
shares, and except in the case of the Facilities Subsidiary not more
than 5% of the outstanding Voting Stock shall, at the time as of
which any determination is being made, be] \which are\ owned by the
Company either directly or through Wholly-Owned Subsidiaries \(other
than Plum Creek Manufacturing, L.P. or one or any of its
Subsidiaries) and (ii) at such time as the Mortgage Notes shall have
been paid in full and retired, (x) Plum Creek Manufacturing, L.P.
provided that all the stock and other ownership interests thereof are
owned by the Company either directly or indirectly through Wholly-
Owned Subsidiaries (other than a Subsidiary of Plum Creek
Manufacturing, L.P.), (y) Holding provided that (1) Holding shall
engage in no business except the ownership of its Subsidiaries, (2)
all the outstanding stock and ownership interests thereof (other than
Voting Stock) shall be owned by the Company either directly or
indirectly through Plum Creek Manufacturing, L.P., (3) at least 51%
of the Voting Stock thereof (to the extent it is not so owned by the
Company or Plum Creek Manufacturing, L.P.) shall be owned by the
Management Voting Group, (4) the Voting Stock of Holding shall not
account for more than 4% of the equity ownership of Holding (nor,
through such ownership, shall it account for more than 1% of the
direct or indirect equity ownership of any Subsidiary of Holding) and
(5) no more than 35% of the Voting Stock of Holding shall be owned by
any one individual, and (z) any other Subsidiary of Plum Creek
Manufacturing, L.P., provided that all the outstanding stock and
ownership interests thereof (other than Voting Stock) shall be owned
by the Company (either directly or indirectly through Wholly-Owned
Subsidiaries of the type described in clause (i) above) and the
Voting Stock of which (to the extent it is not so owned by the
Company) shall be owned by Holding\.
"Withdrawal Liabilities" means, as of any determination date, the
aggregate amount of the liabilities, if any, pursuant to Section 4201
of ERISA if the Controlled Group made a complete withdrawal from all
Multiemployer Plans and any increase in contributions pursuant to
Section 4243 of ERISA.
1.2 Other Interpretive Provisions
(a) Defined Terms. Unless otherwise specified herein or therein,
all terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered
pursuant hereto. The meaning of defined terms shall be equally
applicable to the singular and plural forms of the defined terms.
Terms (including uncapitalized terms) not otherwise defined herein
and that are defined in the UCC shall have the meanings therein
described.
(b) The Agreement. The words "hereof," "herein," "hereunder" and
words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, section, schedule and exhibit references
are to this Agreement unless otherwise specified.
(c) Certain Common Terms.
(i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(d) Performance; Time. Whenever any performance obligation
hereunder (other than a payment obligation) shall be stated to be due
or required to be satisfied on a day other than a Business Day, such
performance shall be made or satisfied on the next succeeding
Business Day. In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but excluding,"
and the word "through" means "to and including". If any provision of
this Agreement refers to any action taken or to be taken by any
Person, or which such Person is prohibited from taking, such
provision shall be interpreted to encompass any and all means, direct
or indirect, of taking, or not taking, such action.
(e) Contracts. Unless otherwise expressly provided herein,
references to agreements and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications
thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document.
(f) Laws. References to any statute or regulation are to be
construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(g) Captions. The captions and headings of this Agreement are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
(h) Independence of Provisions. The parties acknowledge that
this Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar
matters, and that such limitations, tests and measurements are
cumulative and must each be performed, except as expressly stated to
the contrary in this Agreement.
(i) Interpretation. This Agreement is the result of negotiations
among and has been reviewed by counsel to the Agent, the Company and
other parties, and is the product of all parties hereto.
Accordingly, this Agreement and the other Loan Documents shall not be
construed against the Banks, the Senior Co-Agent or the Agent merely
because of the Agent's, the Senior Co-Agent's or Banks' involvement
in the preparation of such documents and agreements.
1.3 Accounting Principles
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made,
in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer
to such fiscal periods of the Company.
\(c) In preparing the financial statements, computations, and
reports provided for herein, the Facilities Subsidiary and its
Subsidiaries shall be considered as consolidated or combined
subsidiary entities of the Company (and not accounted for on the
equity method of accounting or as an investment) notwithstanding that
the Voting Stock thereof shall not be owned by the Company, either
directly or indirectly, and without regard to whether they would be
considered as such subsidiary entities under GAAP.\
2. THE CREDITS
2.1 Amounts and Terms of Commitments
Each Bank severally agrees, on the terms and conditions
hereinafter set forth, to make loans to the Company (each such loan,
a "Revolving Loan") from time to time on any Business Day from the
Closing Date to the Revolving Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth
opposite the Bank's name in Schedule 2.1 under the heading
"Commitment" (such amount as the same may be reduced pursuant to
Section 2.5 or Section 2.7, or as a result of one or more assignments
pursuant to Section 11.8, the Bank's "Commitment"); provided,
however, that, after giving effect to any Borrowings, the Effective
Amount of all Revolving Loans, Swingline Loans, and L/C Obligations
shall not at any time exceed the Aggregate Commitment; and provided,
further, that the Effective Amount of the Revolving Loans of any Bank
plus such Bank's Commitment Percentage of the Effective Amount of all
L/C Obligations and Swingline Loans shall not at any time exceed such
Bank's Commitment. Within the limits of each Bank's Commitment, and
subject to the other terms and conditions hereof, until the Revolving
Termination Date, the Company may borrow under this Section 2.1,
prepay pursuant to Section 2.8 and reborrow pursuant to this
Section 2.1.
2.2 Loan Accounts
The Loans made by each Bank (including the Swingline Bank) and
the Letters of Credit Issued by an Issuing Bank shall be evidenced by
one or more loan accounts maintained by such Bank or Issuing Bank, as
the case may be, in the ordinary course of business. The loan
accounts or records maintained by the Agent, the Swingline Bank, each
Issuing Bank and each such Bank shall be conclusive absent manifest
error of the amount of the Loans made by the Banks to the Company and
the Letters of Credit issued for the account of the Company, and the
interest and payments thereon. Any failure so to record or any error
in doing so shall not, however, limit or otherwise affect the
obligation of the Company hereunder to pay any amount owing with
respect to the Loans or any Letter of Credit.
2.3 Procedure for Borrowing Revolving Loans
(a) Each Borrowing of Revolving Loans shall be made upon the
Company's irrevocable written notice delivered to the Agent in
accordance with Section 11.2 in the form of a Notice of Borrowing
(which notice must be received by the Agent prior to 9:00 a.m. (San
Francisco time)) (i) three Business Days prior to the requested
Borrowing date, in the case of Offshore Rate Loans; and (ii) on the
requested Borrowing date, in the case of Base Rate Loans, specifying:
(A) that the Borrowing comprises Revolving Loans;
(B) the amount of the Borrowing, which shall be in an
aggregate minimum principal amount of three million dollars
($3,000,000) except in the case of Offshore Rate Loans with a
proposed Interest Period of one week, in which case the aggregate
minimum principal amount shall be twelve million dollars
($12,000,000) or, in either case, any multiple of five hundred
thousand dollars ($500,000) in excess thereof;
(C) the requested Borrowing date, which shall be a Business
Day;
(D) whether the Borrowing is to comprise Offshore Rate Loans
or Base Rate Loans;
(E) the duration of the Interest Period applicable to the
Borrowing described in such notice. If the Notice of Borrowing shall
fail to specify the duration of the Interest Period for any Borrowing
comprising Offshore Rate Loans, such Interest Period shall be 90 days
or three months, respectively; and
(F) with respect to any Borrowing after the date the Company
gives the notice regarding allocation of Loans pursuant to
Section 2.16, whether the Borrowing shall be allocated to the
Revolving Facility Tranche or the Capital Expenditure Tranche.
(b) Upon receipt of the Notice of Borrowing, the Agent will
promptly notify each Bank thereof and of the amount of such Bank's
Commitment Percentage of the Borrowing.
(c) Each Bank will make the amount of its Commitment Percentage
of the Borrowing available to the Agent for the account of the
Company at the Agent's Payment Office by 12:00 noon (San Francisco
time) on the Borrowing date requested by the Company in funds
immediately available to the Agent. The proceeds of all such
Revolving Loans will then be made available to the Company by the
Agent at such office by crediting the account of the Company on the
books of BofA with the aggregate of the amounts made available to the
Agent by the Banks and in like funds as received by the Agent, unless
on the date of the Borrowing all or any portion of the proceeds
thereof shall then be required to be applied to the repayment of any
outstanding Swingline Loans pursuant to Section 2.10 or the
reimbursement of any outstanding drawings under Letters of Credit
pursuant to Section 3.3, in which case such proceeds or portion
thereof shall be applied to the repayment of such Swingline Loans or
the reimbursement of such Letter of Credit drawings, as the case may
be.
(d) Unless the Majority Banks shall otherwise agree, during the
existence of a Default or an Event of Default, the Company may not
elect to have a Loan made as an Offshore Rate Loan.
(e) After giving effect to any Borrowing, there shall not be more
than six different Interest Periods in effect in respect of all Loans
(other than Swingline Loans) then outstanding.
2.4 Conversion and Continuation Elections for
Borrowings
(a) The Company may upon irrevocable written notice to the Agent
in accordance with subsection 2.4(b):
(i) elect to convert on any Business Day, any Base Rate Loans
other than Swingline Loans (or any part thereof in an amount not less
than $3,000,000 except in the case of a conversion into an Offshore
Rate Loans with a proposed Interest Period of one week, which shall
be in an amount not less than $12,000,000, or that is in an integral
multiple of $500,000 in excess thereof) into Offshore Rate Loans;
(ii) elect to convert on the last day of the applicable
Interest Period any Offshore Rate Loans having Interest Periods
maturing on such day (or any part thereof in an amount not less than
$3,000,000, or that is in an integral multiple of $500,000 in excess
thereof) into Base Rate Loans;
(iii) elect to continue on the last day of the applicable
Interest Period any Offshore Rate Loans having Interest Periods
maturing on such day (or any part thereof in an amount not less than
$3,000,000 except in the case of a continuation of an Offshore Rate
Loans with a proposed Interest Period of one week, which shall be in
an amount not less than $12,000,000, or that is in an integral
multiple of $500,000 in excess thereof);
provided, that if the aggregate amount of Offshore Rate Loans in respect
of any Borrowing shall have been reduced, by payment, prepayment, or
conversion of part thereof to be less than $500,000, such Offshore
Rate Loans shall automatically convert into Base Rate Loans, and on
and after such date the right of the Company to continue such Loans
as, and convert such Loans into, Offshore Rate Loans shall terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation
in accordance with Section 11.2 to be received by the Agent not later
than 9:00 a.m. (San Francisco time) (i) at least three Business Days
in advance of the Conversion/Continuation Date, if the Loans are to
be converted into or continued as Offshore Rate Loans; and (ii) on
the Conversion/Continuation Date, if the Loans are to be converted
into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or
continued;
(C) the nature of the proposed conversion or continuation;
and
(D) other than in the case of Base Rate Loans, the duration
of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, the Company has failed to select timely a new
Interest Period to be applicable to such Offshore Rate Loans or if
any Default or Event of Default shall then exist, the Company shall
be deemed to have elected to convert such Offshore Rate Loans into
Base Rate Loans effective as of the expiration date of such current
Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the
Agent will promptly notify each Bank thereof, or, if no timely notice
is provided by the Company, the Agent will promptly notify each Bank
of the details of any automatic conversion. All conversions and
continuations shall be made pro rata according to the respective
outstanding principal amounts of the Loans with respect to which the
notice was given held by each Bank.
(e) Unless the Majority Banks shall otherwise agree, during the
existence of a Default or Event of Default, the Company may not elect
to have a Loan converted into or continued as an Offshore Rate Loan.
(f) Notwithstanding any other provision contained in this
Agreement, after giving effect to any conversion or continuation of
any Loans there shall not be more than six different Interest Periods
in effect in respect of all Loans (other than Swingline Loans) then
outstanding.
2.5 Voluntary Termination or Reduction of Commitments
The Company may, upon not less than five Business Days prior
notice to the Agent, terminate or permanently reduce the Aggregate
Commitment (and, to the extent provided in subsection 2.7(b), the L/C
Commitment and the Swingline Commitment) by an aggregate minimum
amount of $5,000,000 or any multiple of $5,000,000 in excess thereof;
provided that no such reduction or termination shall be permitted if,
after giving effect thereto and to any prepayments of the Loans made
on the effective date thereof, the Effective Amount of Revolving
Loans, Swingline Loans and L/C Obligations would exceed the Aggregate
Commitment then in effect. Once reduced in accordance with this
Section 2.5, the Aggregate Commitment may not be increased. Any
reduction of the Aggregate Commitment shall be applied to each Bank's
Commitment in accordance with such Bank's Commitment Percentage. All
accrued commitment fees to the effective date of any reduction or
termination of the Aggregate Commitment shall be paid on the
effective date of such reduction or termination.
2.6 Optional Prepayments
Subject to Section 4.4, the Company may, at any time or from time
to time, by written notice delivered to the Agent at least three
Business Days prior to the proposed prepayment date in the case of
Offshore Rate Loans, on the proposed prepayment date in the case of
Base Rate Loans, and on the proposed prepayment date (which notice
must be received by the Agent not later than 9:00 a.m. (San Francisco
time)) in the case of Swingline Loans, (i) ratably prepay Revolving
Loans, in whole or in part, in minimum principal amounts of
$5,000,000 or any multiple of $1,000,000 in excess thereof, and
(ii) prepay in whole or in part Swingline Loans in minimum principal
amounts of $250,000 or any multiple of $100,000 in excess thereof, or
in such other amounts with the consent of the Swingline Bank. Such
notice of prepayment shall specify (i) the date and amount of such
prepayment, (ii) whether such prepayment is of Base Rate Loans or
Offshore Rate Loans, or any combination thereof, and whether such
Loans constitute Swingline Loans or Revolving Loans, and (iii) if
applicable, whether such prepayment is of a Revolving Facility
Tranche Loan or a Capital Expenditure Tranche Loan, or both. Such
notice shall not thereafter be revocable by the Company and the Agent
will promptly notify (i) in the case of Revolving Loans, each Bank
thereof and of such Bank's Pro Rata Share of such prepayment, and
(ii) in the case of Swingline Loans, the Swingline Bank thereof and
of the amount of such prepayment. If such notice is given by the
Company, the Company shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such date
on the amount prepaid and any amounts required pursuant to
Section 4.4.
2.7 Mandatory Prepayments of Loans; Mandatory
Commitment Reductions
(a) Mandatory Prepayments.
(i) Asset Dispositions. If the Company or any of its
Restricted Subsidiaries shall at any time or from time to time make
or agree to make a sale of Properties permitted by subsection 8.2(i),
or harvest excess Timber permitted by Section 8.3, then (A) the Net
Proceeds of such sale shall either be paid pro rata by the Company as
a prepayment of Qualified Debt or be reinvested in accordance with
subsection 8.2(i), or (B) the Net Proceeds from such excess harvest
shall either be paid pro-rata by the Company as a prepayment of
Qualified Debt or be reinvested in accordance with Section 8.3.
Prepayments to Banks under this subsection 2.7(a) shall be applied to
repay the outstanding principal amount of the Revolving Loans.
(ii) L/C Obligations. If on any date the Effective Amount
of L/C Obligations exceeds the L/C Commitment, the Company shall Cash
Collateralize on such date the outstanding Letters of Credit in an
amount equal to the excess of the Effective Amount of L/C Obligations
over the L/C Commitment. Subject to Section 4.4, if on any date
after giving effect to any Cash Collateralization made on such date
pursuant to the preceding sentence, the Effective Amount of all
Revolving Loans, Swingline Loans, and L/C Obligations exceeds the
Aggregate Commitment, the Company shall immediately, and without
notice or demand, prepay the outstanding principal amount of the
Revolving Loans, Swingline Loans and L/C Advances by an amount equal
to the applicable excess.
(iii) Swingline Loans. The Company shall be required to
prepay Swingline Loans (A) if following any reduction of the
Swingline Commitment pursuant to subsection 2.7(b) the Effective
Amount of Swingline Loans would exceed the Swingline Commitment as
reduced, the Company shall prepay on the reduction date the Swingline
Loans in an amount equal to the amount of such excess, and (B) so
that for one Business Day during each successive two calendar week
period the aggregate principal amount of Swingline Loans shall be $0
(a "Swingline Clean-Up Day"), the Company shall prepay on the
Swingline Clean-Up Day the outstanding principal amount of the
Swingline Loans (which Swingline Loans may not be reborrowed until
such Swingline Clean-Up Day has ended).
(iv) Revolving Facility Tranche Loans. If the Company has
given a notice pursuant to Section 2.16 allocating all or a portion
of the Loans to the Revolving Facility Tranche, the Company shall
cause, for a period of at least 45 consecutive days during the 12
calendar month period after the effective date of such notice and
during each successive 12 calendar month period prior to the
Revolving Termination Date, no L/C Obligations to be outstanding and
the aggregate principal amount of Revolving Facility Tranche Loans to
be $0.
(b) Mandatory Commitment Reductions.
(i) The Aggregate Commitments shall be reduced from time to
time by the amount of any mandatory prepayment that would be required
by subsection 2.7(a)(i) if Revolving Loans were outstanding, whether
or not any Revolving Loans are outstanding at such time. Such
reduction shall be applied pro rata among the respective Commitments
of the Banks and shall be effective as of the earlier of the date
that such prepayment is made or the date by which such prepayment is
(or would be) due and payable hereunder. All accrued commitment fees
to the effective date of any reduction or termination of the
Aggregate Commitment shall be paid on the effective date of such
reduction or termination.
(ii) No reduction in the Aggregate Commitment pursuant to
Section 2.5 or subsection 2.7(b)(i) shall reduce the L/C Commitment
unless and until the Aggregate Commitment has been reduced to
$20,000,000; thereafter, any reduction in the Aggregate Commitment
pursuant to Section 2.5 shall equally reduce the L/C Commitment.
(iii) At no time shall the Swingline Commitment exceed the
Aggregate Commitment, and any reduction of the Aggregate Commitment
which reduces the Aggregate Commitment below the then current amount
of the Swingline Commitment shall result in an automatic
corresponding reduction of the Swingline Commitment to the amount of
the Aggregate Commitment, as so reduced, without any action on the
part of the Swingline Bank.
(c) General. Any prepayments of Loans pursuant to
subsection 2.7(a) shall be applied first to any Base Rate Loans then
outstanding, second to Cash Collateralize or to prepay Swingline
Loans as directed by the Swingline Bank in its sole discretion, and
third, at the Company's option, to Cash Collateralize or to prepay in
the inverse order of their stated maturity Offshore Rate Loans.
Subject to the foregoing and so long as no default or Event of
Default shall then exist, if applicable, any such prepayments shall
be applied to Revolving Facility Tranche Loans and Capital
Expenditure Tranche Loans as directed by the Company. The Company
shall pay, together with each prepayment under this Section 2.7,
accrued interest on the amount prepaid and any amounts required
pursuant to Section 4.4.
2.8 Repayment
(a) The Company shall repay to the Banks in full on the Revolving
Termination Date the Effective Amount of all Revolving Loans.
(b) The Company shall repay to the Swingline Bank in full on the
Revolving Termination Date the Effective Amount of all Swingline
Loans.
2.9 Interest
(a) Subject to subsection 2.9(c): (i) each Loan (other than any
Swingline Loan) shall bear interest on the outstanding principal
amount thereof from the date when made until it becomes due at a rate
per annum equal to the Offshore Rate or the Base Rate, as the case
may be, plus the Applicable Margin; and (ii) each Swingline Loan
shall bear interest on the principal amount thereof from the date
when made until it becomes due at a rate per annum equal to the Base
Rate plus the Applicable Margin or any other rate agreed to by the
Swingline Bank in its sole discretion.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date and in the case of a Swingline Loan bearing an
interest rate other than the Base Rate, on the date agreed to by the
Swingline Bank in its sole discretion. Interest shall also be paid
on the date of any prepayment of Loans pursuant to Section 2.6 and
2.7 for the portion of the Loans so prepaid and upon payment
(including prepayment) in full thereof and, during the existence of
any Event of Default, interest shall be paid on demand of the Agent
at the request or with the consent of the Majority Banks.
(c) While any Event of Default exists or after acceleration, the
Company shall pay interest (after as well as before entry of judgment
thereon to the extent permitted by law) on the principal amount of
all Obligations due and unpaid, at a rate per annum that is
determined, in the case of Loans other than Base Rate Loans, by
adding 2% per annum to the Applicable Margin then in effect for such
Loans and, in the case of other Obligations, at a rate equal to the
Base Rate plus 2% per annum.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company hereunder shall be subject to the
limitation that payments of interest shall not be required, for any
period for which interest is computed hereunder, to the extent (but
only to the extent) that contracting for or receiving such payment by
the respective Bank would be contrary to the provisions of any law
applicable to such Bank limiting the highest rate of interest which
may be lawfully contracted for, charged or received by such Bank, and
in such event the Company shall pay such Bank interest at the highest
rate permitted by applicable law.
2.10 Swingline Loans
(a) Subject to the terms and conditions hereof, the Swingline
Bank severally agrees to make a portion of the Aggregate Commitment
available to the Company by making swingline loans (individually, a
"Swingline Loan"; collectively, the "Swingline Loans") to the Company
on any Business Day during the period from the Closing Date to the
Revolving Termination Date in accordance with the procedures set
forth in this Section in an aggregate principal amount at any one
time outstanding not to exceed $25,000,000, notwithstanding the fact
that such Swingline Loans, when aggregated with the Swingline Bank's
outstanding Loans, may exceed the Swingline Bank's Commitment (the
amount of such commitment of the Swingline Bank to make Swingline
Loans to the Company pursuant to this subsection 2.10(a), as the same
shall be reduced pursuant to subsection 2.7(b) or as a result of any
assignment pursuant to Section 11.8, the Swingline Bank's "Swingline
Commitment"); provided, that at no time shall (i) the Effective
Amount of all Revolving Loans, Swingline Loans and L/C Obligations
exceed the Aggregate Commitment, or (ii) the Effective Amount of all
Swingline Loans exceed the Swingline Commitment. Additionally, no
more than four Swingline Loans may be outstanding at any one time.
Within the foregoing limits, and subject to the other terms and
conditions hereof, the Company may borrow under this
subsection 2.10(a), prepay pursuant to subsection 2.6 and reborrow
pursuant to this subsection 2.10(a).
(b) The Company shall provide the Agent (with a copy to the
Swingline Bank) irrevocable written notice (including notice via
facsimile confirmed immediately by a telephone call) in the form of a
Notice of Borrowing of any Swingline Loan requested hereunder (which
notice must be received by the Swingline Bank and the Agent prior to
12:00 noon (San Francisco time) on the requested Borrowing date)
specifying (i) the amount to be borrowed, (ii) the requested
Borrowing date, which must be a Business Day, and (iii) with respect
to any requested Swingline Loan after the date the Company gives the
notice regarding allocation of Loans pursuant to Section 2.16,
whether the requested Swingline Loan shall be allocated to the
Revolving Facility Tranche or the Capital Expenditure Tranche. Upon
receipt of the Notice of Borrowing, the Swingline Bank will
immediately confirm with the Agent (by telephone or in writing) that
the Agent has received a copy of the Notice of Borrowing from the
Company and, if not, the Swingline Bank will provide the Agent with a
copy thereof. Unless the Swingline Bank has received notice prior to
2:00 p.m. on such Borrowing date from the Agent (A) directing the
Swingline Bank not to make the requested Swingline Loan as a result
of the limitations set forth in the proviso set forth in the first
sentence of subsection 2.10(a); or (B) that one or more conditions
specified in Article V are not then satisfied; then, subject to the
terms and conditions hereof, the Swingline Bank will, not later than
3:00 p.m. (San Francisco time) on the Borrowing date specified in
such Notice, make the amount of its Swingline Loan available to the
Agent for the account of the Company at the Agent's Payment Office in
funds immediately available to the Agent. The proceeds of such
Swingline Loan will then promptly be made available to the Company by
the Agent crediting the account of the Company on the books of BofA
with the aggregate of the amounts made available to the Agent by the
Swingline Bank and in like funds as received by the Agent. Each
Borrowing pursuant to this Section shall be in an aggregate principal
amount equal to two hundred fifty thousand dollars ($250,000) or an
integral multiple of one hundred thousand dollars ($100,000) in
excess thereof, unless otherwise agreed by the Swingline Bank.
(c) If (i) any Swingline Loans shall remain outstanding at
9:00 a.m. (San Francisco time) on the Business Day immediately prior
to a Swingline Clean-Up Day and by such time on such Business Day the
Agent shall have received neither (A) a Notice of Borrowing delivered
pursuant to Section 2.3 requesting that Revolving Loans be made
pursuant to Section 2.1 on the Swingline Clean-Up Day in an amount at
least equal to the aggregate principal amount of such Swingline
Loans, nor (B) any other notice indicating the Company's intent to
repay such Swingline Loans with funds obtained from other sources, or
(ii) any Swingline Loans shall remain outstanding during the
existence of a Default or Event of Default and the Swingline Bank
shall in its sole discretion notify the Agent that the Swingline Bank
desires that such Swingline Loans be converted into Revolving Loans,
then the Agent shall be deemed to have received a Notice of Borrowing
from the Company pursuant to Section 2.3 requesting that Base Rate
Loans be made pursuant to Section 2.1 on such Swingline Clean-Up Day
(in the case of the circumstances described in clause (i) above) or
on the first Business Day subsequent to the date of such notice from
the Swingline Bank (in the case of the circumstances described in
clause (ii) above) in an amount equal to the aggregate amount of such
Swingline Loans, and the procedures set forth in subsections 2.3(b)
and 2.3(c) shall be followed in making such Base Rate Loans;
provided, that such Base Rate Loans shall be made notwithstanding the
Company's failure to comply with subsections 5.2(b) and 5.2(c); and
provided, further, that if a Borrowing of Revolving Loans becomes
legally impracticable and if so required by the Swingline Bank at the
time such Revolving Loans are required to be made by the Banks in
accordance with this subsection 2.10(c), each Bank agrees that in
lieu of making Revolving Loans as described in this
subsection 2.10(c), such Bank shall purchase a participation from the
Swingline Bank in the applicable Swingline Loans in an amount equal
to such Bank's Commitment Percentage of such Swingline Loans, and the
procedures set forth in subsections 11.8 shall be followed in
connection with the purchases of such participations. Upon such
purchases of participations, the prepayment requirements of
subsection 2.7(a)(ii) shall be deemed waived with respect to such
Swingline Loans. The proceeds of such Base Rate Loans, or
participations purchased, shall be applied to repay such Swingline
Loans. A copy of each notice given by the Agent to the Banks
pursuant to this subsection 2.10(c) with respect to the making of
Revolving Loans, or the purchases of participations, shall be
promptly delivered by the Agent to the Company. Each Bank's
obligation in accordance with this Agreement to make the Revolving
Loans, or purchase the participations, as contemplated by this
subsection 2.10(c), shall be absolute and unconditional and shall not
be affected by any circumstance, including (1) any set-off,
counterclaim, recoupment, defense or other right which such Bank may
have against the Swingline Bank, the Company or any other Person for
any reason whatsoever; (2) the occurrence or continuance of a
Default, an Event of Default or a Material Adverse Effect; or (3) any
other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
2.11 Fees
In addition to certain fees described in Section 3.8:
(a) Agency Fees. The Company shall pay, to the extent not
previously paid, to BofA for BofA's own account fees in the amounts
and at the times set forth in a letter agreement between the Company,
BofA and the Arranger dated October 8, 1996. The foregoing fees
shall be non-refundable.
(b) Commitment Fees. The Company shall pay to the Agent for the
account of each Bank a commitment fee on the average daily unused
portion of such Bank's Commitment, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based upon
the daily utilization for that quarter as calculated by the Agent,
equal to the Commitment Fee Percentage. For purposes of calculating
utilization under this subsection, (i) the Aggregate Commitment shall
be deemed used to the extent of the Effective Amount of all Revolving
Loans and L/C Obligations, and (ii) with respect to the Commitment of
the Swingline Bank, the making of any Swingline Loan shall not be
considered a use of a portion of such Swingline Bank's Commitment.
Such commitment fee shall accrue from the Closing Date to the
Revolving Termination Date and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter, commencing
on the first such day after this Agreement is executed by the Company
through the Revolving Termination Date, with the final payment to be
made on the Revolving Termination Date; provided that, in connection
with any reduction or termination of the Aggregate Commitment
pursuant to Section 2.5 or Section 2.7, the accrued commitment fee
calculated for the period ending on such date shall also be paid on
the date of such reduction or termination, with the next succeeding
quarterly payment being calculated on the basis of the period from
the reduction or termination date to such quarterly payment date.
The commitment fees provided in this subsection shall accrue at all
times after the above-mentioned commencement date, including at any
time during which one or more conditions in Article V are not met.
2.12 Computation of Fees and Interest
(a) All computations of interest payable in respect of Base Rate
Loans at all times that the Base Rate is determined by BofA's
"reference rate" shall be made on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed. All other
computations of fees and interest under this Agreement shall be made
on the basis of a 360-day year and actual days elapsed, which results
in more interest being paid than if computed on the basis of a 365-
day year. Interest and fees shall accrue during each period during
which interest or such fees are computed from the first day thereof
to the last day thereof.
(b) The Agent will, with reasonable promptness, notify the
Company and the Banks of each determination of an Offshore Rate;
provided that any failure to do so shall not relieve the Company of
any liability hereunder or provide the basis for any claim against
the Agent. Any change in the interest rate on a Loan resulting from
a change in the Applicable Margin, Reserve Percentage, Eurocurrency
Reserve Percentage, or the Assessment Rate shall become effective as
of the opening of business on the day on which such change in the
Applicable Margin, Reserve Percentage, Eurocurrency Reserve
Percentage, or the Assessment Rate becomes effective. The Agent will
with reasonable promptness notify the Company and the Banks of the
effective date and the amount of each such change, provided that any
failure to do so shall not relieve the Company of any liability
hereunder or provide the basis for any claim against the Agent.
(c) Each determination of an interest rate by the Agent pursuant
hereto shall be conclusive and binding on the Company and the Banks
in the absence of manifest error.
2.13 Payments by the Company
(a) All payments (including prepayments) to be made by the
Company on account of principal, interest, fees and other amounts
required hereunder shall be made without set-off, recoupment or
counterclaim; shall, except as otherwise expressly provided herein,
be made to the Agent for the ratable account of the Banks at the
Agent's Payment Office, and shall be made in dollars and in
immediately available funds, no later than 10:00 a.m. (San Francisco
time) on the date specified herein. The Agent will promptly
distribute to each Bank its Pro Rata Share (or other applicable share
as expressly provided herein) of such principal, interest, fees or
other amounts, in like funds as received. Any payment which is
received by the Agent later than 10:00 a.m. (San Francisco time)
shall be deemed to have been received on the immediately succeeding
Business Day and any applicable interest or fee shall continue to
accrue.
(b) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such
case be included in the computation of interest or fees, as the case
may be; subject to the provisions set forth in the definition of
"Interest Period" herein.
(c) Unless the Agent shall have received notice from the Company
prior to the date on which any payment is due to the Banks hereunder
that the Company will not make such payment in full as and when
required hereunder, the Agent may assume that the Company has made
such payment in full to the Agent on such date in immediately
available funds and the Agent may (but shall not be so required), in
reliance upon such assumption, cause to be distributed to each Bank
on such due date an amount equal to the amount then due such Bank.
If and to the extent the Company shall not have made such payment in
full to the Agent, each Bank shall repay to the Agent on demand such
amount distributed to such Bank, together with interest thereon for
each day from the date such amount is distributed to such Bank until
the date such Bank repays such amount to the Agent, at the Federal
Funds Rate as in effect for each such day.
2.14 Payments by the Banks to the Agent
(a) Unless the Agent shall have received notice from a Bank on
the Closing Date or, with respect to each Borrowing after the Closing
Date, at least one Business Day prior to the date of any proposed
Borrowing, that such Bank will not make available to the Agent as and
when required hereunder for the account of the Company the amount of
that Bank's Commitment Percentage of the Borrowing, the Agent may
assume that each Bank has made such amount available to the Agent in
immediately available funds on the Borrowing date and the Agent may
(but shall not be so required), in reliance upon such assumption,
make available to the Company on such date a corresponding amount.
If and to the extent any Bank shall not have made its full amount
available to the Agent in immediately available funds and the Agent
in such circumstances has made available to the Company such amount,
that Bank shall on the next Business Day following the date of such
Borrowing make such amount available to the Agent, together with
interest at the Federal Funds Rate for and determined as of each day
during such period. A notice of the Agent submitted to any Bank with
respect to amounts owing under this subsection 2.14(a) shall be
conclusive, absent manifest error. If such amount is so made
available, such payment to the Agent shall constitute such Bank's
Loan on the date of such Borrowing for all purposes of this
Agreement. If such amount is not made available to the Agent on the
next Business Day following the date of such Borrowing, the Agent
shall notify the Company of such failure to fund and, upon demand by
the Agent, the Company shall pay such amount to the Agent for the
Agent's account, together with interest thereon for each day elapsed
since the date of such Borrowing, at a rate per annum equal to the
interest rate applicable at the time to the Loans comprising such
Borrowing.
(b) The failure of any Bank to make any Loan on any date of
borrowing shall not relieve any other Bank of any obligation
hereunder to make a Loan on the date of such borrowing, but no Bank
shall be responsible for the failure of any other Bank to make the
Loan to be made by such other Bank on the date of any borrowing.
2.15 Sharing of Payments, Etc.
If, other than as expressly provided elsewhere herein, any Bank
shall obtain on account of the Loans made by it any payment (whether
voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its Commitment Percentage of payments on
account of the Loans obtained by all the Banks, such Bank shall
forthwith (a) notify the Agent of such fact, and (b) purchase from
the other Banks such participations in the Loans made by them as
shall be necessary to cause such purchasing Bank to share the excess
payment ratably with each of them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from the
purchasing Bank, such purchase shall to that extent be rescinded and
each other Bank shall repay to the purchasing Bank the purchase price
paid therefor, together with an amount equal to such paying Bank's
proportionate share (according to the proportion of (i) the amount of
such paying Bank's required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other amount
paid or payable by the purchasing Bank in respect of the total amount
so recovered. The Company agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 2.15 may, to
the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to Section 11.9)
with respect to such participation as fully as if such Bank were the
direct creditor of the Company in the amount of such participation.
The Agent will keep records (which shall be conclusive and binding in
the absence of manifest error) of participations purchased pursuant
to this Section 2.15 and will in each case notify the Banks following
any such purchases or repayments.
2.16 Loan Tranches
The Company may, at any time and from time to time, upon at least
five Business Days notice to the Agent, allocate all or a portion of
Borrowings, including with respect to Swingline Loans and L/C
Obligations, to a revolving credit facility tranche (the "Revolving
Facility Tranche") or a capital expenditure tranche (the "Capital
Expenditure Tranche"), or both; provided that
(A) at no time shall the Effective Amount of all Revolving Loans
and Swingline Loans allocated to the Revolving Facility Tranche plus
the Effective Amount of all L/C Obligations exceed $15,000,000;
(B) at no time shall the Effective Amount of all Revolving Loans
and Swingline Loans allocated to the Capital Expenditure Tranche
exceed $20,000,000;
(C) upon allocation to the Revolving Facility Tranche or the
Capital Expenditure Tranche, as case may be, Loans shall remain so
allocated notwithstanding any conversion or continuation of Loans
pursuant to Section 2.3;
(D) the Company and each of the Banks agree that the
establishment of the Revolving Facility Tranche and the Capital
Expenditure Tranche is intended to assist the Company in its
compliance with Section 8.5 and the corresponding provisions of the
Note Agreements, the 1994 Senior Note Agreements and the Mortgage
Note Agreements. Accordingly, neither the failure by the Company to
comply in any respect with this Section 2.16 nor the failure by the
Agent or any Bank to identify or remedy such noncompliance shall give
rise to any liability against the Agent or any Bank or any defense to
compliance by the Company with Section 8.5; and
(E) all Letters of Credit shall be deemed allocated to the
Revolving Facility Tranche.
Such notice of allocation shall specify (i) the effective date of
such allocation which shall not be a date earlier than the date of
such notice, (ii) the aggregate principal amount of Loans (identified
by Type of Loan) and L/C Obligations to be allocated to the Revolving
Facility Tranche, the Capital Expenditure Tranche, or both, as the
case may be, and (iii) in the case of allocations to the Capital
Expenditure Tranche, the Company shall represent and warrant that the
proceeds of all Loans allocated thereto have been used solely to
finance capital improvements, expansions and additions to the
Company's property (including Timberlands), plant and equipment. The
Agent will promptly notify the Banks of such notice of allocation of
Loans and L/C Obligations.
3. THE LETTERS OF CREDIT
3.1 The Letter of Credit Facility
(a) On the terms and conditions set forth herein, (i) each
Issuing Bank agrees, (A) from time to time on any Business Day during
the period from the Closing Date until 30 days before the Revolving
Termination Date to issue Letters of Credit for the account of the
Company or the Facilities Subsidiary, and to amend or renew Letters
of Credit previously issued by it, in accordance with subsections
3.2(c) and 3.2(d), and (B) to honor drafts under the Letters of
Credit; and (ii) the Banks severally agree to participate in Letters
of Credit Issued for the account of the Company or the Facilities
Subsidiary; provided, that the Issuing Banks shall not be obligated
to Issue, and no Bank shall be obligated to participate in, any
Letter of Credit if as of the date of Issuance of such Letter of
Credit (the "Issuance Date") (1) the Effective Amount of all
Revolving Loans, Swingline Loans, and L/C Obligations exceeds the
Aggregate Commitment, (2) the Effective Amount of all Revolving Loans
of such Bank plus the participation of such Bank, if any, in the
Effective Amount of all Swingline Loans and L/C Obligations exceeds
such Bank's Commitment, or (3) the Effective Amount of L/C
Obligations exceeds the L/C Commitment. Within the foregoing limits,
and subject to the other terms and conditions hereof, the Company's
ability to obtain Letters of Credit shall be fully revolving, and,
accordingly, the Company may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit which have expired or
which have been drawn upon and reimbursed. The Company shall be
primarily liable for all obligations hereunder and under the L/C-
Related Documents with respect to any Letter of Credit Issued for the
account of the Facilities Subsidiary.
(b) Each of the Issuing Banks is under no obligation to Issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain such Issuing Bank from Issuing such Letter of Credit, or any
Requirement of Law applicable to such Issuing Bank or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuing Bank shall
prohibit, or request that such Issuing Bank refrain from, the
Issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Bank with respect to
such Letter of Credit any restriction, reserve or capital requirement
(for which such Issuing Bank is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon such Issuing
Bank any unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which such Issuing Bank in good faith deems
material to it;
(ii) such Issuing Bank has received written notice from any
Bank, the Agent or the Company, on or prior to the Business Day prior
to the requested date of Issuance of such Letter of Credit, that one
or more of the applicable conditions contained in Article V is not
then satisfied;
(iii) the expiry date of any requested Letter of Credit is
(A) more than one year after the date of Issuance, unless the
Majority Banks have approved such expiry date in writing, or
(B) after the Revolving Termination Date, unless all of the Banks
have approved such expiry date in writing;
(iv) the expiry date of any requested Letter of Credit is
prior to the maturity date of any financial obligation to be
supported by the requested Letter of Credit, unless such Letter of
Credit is issued in connection with worker's compensation or to
secure self-insurance deductibles or certain payments required in
connection with export log yards, or all of the Banks have approved
such expiry date in writing;
(v) any requested Letter of Credit does not provide for
drafts, or is not otherwise in form and substance reasonably
acceptable to such Issuing Bank, or the Issuance of a Letter of
Credit may violate any policies of such Issuing Bank applicable to
customers and credits of a type similar to the Company and the
transactions contemplated in this Agreement;
(vi) any standby Letter of Credit is for the purpose of
supporting the issuance of any letter of credit by any other Person;
(vii) such Letter of Credit is in a face amount less than
$100,000 or to be denominated in a currency other than Dollars; or
(viii) the requested Letter of Credit provides for payment
thereunder sooner than the Business Day following the presentation to
such Issuing Bank of the documentation required thereunder.
3.2 Issuance, Amendment and Renewal of Letters of
Credit
(a) Each Letter of Credit shall be issued upon the irrevocable
written request of the Company (or, if such Letter of Credit is to be
for the account of the Facilities Subsidiary, the joint and several
irrevocable written request of the Company and the applicable
Facilities Subsidiary) received by an Issuing Bank (with a copy sent
by the Company to the Agent) at least five days (or such shorter time
as such Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of issuance. Each such
request for issuance of a Letter of Credit shall be made by an
original writing or by facsimile, confirmed immediately in an
original writing, in the form of an L/C Application, and shall
specify in form and detail satisfactory to such Issuing Bank:
(i) the proposed date of issuance of the Letter of Credit
(which shall be a Business Day);
(ii) the face amount of the Letter of Credit;
(iii) the expiry date of the Letter of Credit;
(iv) the name and address of the beneficiary thereof;
(v) the documents to be presented by the beneficiary of the
Letter of Credit in case of any drawing thereunder;
(vi) the full text of any certificate to be presented by
the beneficiary in case of any drawing thereunder; and
(vii) such other usual and customary matters as the Issuing
Bank may require.
(b) At least three Business Days prior to the Issuance of any
Letter of Credit or any amendment or renewal of a Letter of Credit,
the Issuing Bank issuing such Letter of Credit will confirm with the
Agent (by telephone or in writing) that the Agent has received a copy
of the L/C Application or L/C Amendment Application from the Company
and, if not, such Issuing Bank will provide the Agent with a copy
thereof. Unless such Issuing Bank has received notice on or before
the Business Day immediately preceding the date such Issuing Bank is
to issue, amend or renew a requested Letter of Credit from the Agent
(A) directing such Issuing Bank not to issue, amend or renew such
Letter of Credit because such issuance amendment or renewal is not
then permitted under subsection 3.1(a) as a result of the limitations
set forth in clauses (1) through (3) thereof or
subsection 3.1(b)(ii); or (B) that one or more conditions specified
in Article V are not then satisfied; then, subject to the terms and
conditions hereof, such Issuing Bank shall, on the requested date,
issue a Letter of Credit for the account of the Company or amend or
renew a Letter of Credit, as the case may be, in accordance with such
Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding and
prior to the Revolving Termination Date, an Issuing Bank shall, upon
the written request of the Company received by such Issuing Bank
(with a copy sent by the Company to the Agent) at least five days (or
such shorter time as such Issuing Bank may agree in a particular
instance in its sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit issued by it. Each such
request for amendment of a Letter of Credit shall be made by an
original writing or by facsimile, confirmed immediately in an
original writing, made in the form of an L/C Amendment Application
and shall specify in form and detail satisfactory to such Issuing
Bank:
(i) the Letter of Credit to be amended;
(ii) the proposed date of amendment of the Letter of Credit
(which shall be a Business Day);
(iii) the nature of the proposed amendment; and
(iv) such other usual and customary matters as such Issuing
Bank may require.
Such Issuing Bank shall be under no obligation to amend any Letter of
Credit if: (A) such Issuing Bank would have no obligation at such
time to issue such Letter of Credit in its amended form under the
terms of this Agreement; or (B) the beneficiary of any such letter of
Credit does not accept the proposed amendment to the Letter of
Credit. The Agent will promptly notify the Banks of the receipt by
it of any L/C Application or L/C Amendment Application.
(d) Each Issuing Bank and the Banks agree that, while a Letter of
Credit is outstanding and prior to the Revolving Termination Date, at
the option of the Company and upon the written request of the Company
received by an Issuing Bank (with a copy sent by the Company to the
Agent) at least five days (or such shorter time as such Issuing Bank
may agree in a particular instance in its sole discretion) prior to
the proposed date of notification of renewal, such Issuing Bank shall
be entitled to authorize the automatic renewal of any Letter of
Credit issued by it. Each such request for renewal of a Letter of
Credit shall be made by an original writing or by facsimile,
confirmed immediately in an original writing, in the form of an L/C
Amendment Application, and shall specify in form and detail
satisfactory to such Issuing Bank:
(i) the Letter of Credit to be renewed;
(ii) the proposed date of notification of renewal of the
Letter of Credit (which shall be a Business Day);
(iii) the revised expiry date of the Letter of Credit; and
(iv) such other usual and customary matters as the Issuing
Bank may require.
Such Issuing Bank shall be under no obligation so to renew any Letter of
Credit if: (A) such Issuing Bank would have no obligation at such
time to issue or amend such Letter of Credit in its renewed form
under the terms of this Agreement; or (B) the beneficiary of any such
Letter of Credit does not accept the proposed renewal of the Letter
of Credit. If any outstanding Letter of Credit shall provide that it
shall be automatically renewed unless the beneficiary thereof
receives notice from such Issuing Bank that such Letter of Credit
shall not be renewed, and if at the time of renewal such Issuing Bank
would be entitled to authorize the automatic renewal of such Letter
of Credit in accordance with this subsection 3.2(d) upon the request
of the Company but such Issuing Bank shall not have received any L/C
Amendment Application from the Company with respect to such renewal
or other written direction by the Company with respect thereto, such
Issuing Bank shall nonetheless be permitted to allow such Letter of
Credit to renew, and the Company and the Banks hereby authorize such
renewal, and, accordingly, such Issuing Bank shall be deemed to have
received an L/C Amendment Application from the Company requesting
such renewal.
(e) In connection with Letters of Credit that automatically renew
or extend their expiry date, each Issuing Bank may, at its election
(or as required by the Agent at the direction of the Majority Banks),
deliver any notices of termination or other communications to any
Letter of Credit beneficiary or transferee, and take any other action
as necessary or appropriate, at any time and from time to time, in
order to cause the expiry date of such Letter of Credit to be a date
not later than the Revolving Termination Date.
(f) This Agreement shall control in the event of any conflict
with any L/C-Related Document (other than any Letter of Credit).
(g) Each Issuing Bank will also deliver to the Agent,
concurrently or promptly following its delivery of a Letter of
Credit, or amendment to or renewal of a Letter of Credit, to an
advising bank or a beneficiary, a true and complete copy of each such
Letter of Credit or amendment to or renewal of a Letter of Credit.
(h) Each Issuing Bank shall deliver to the Agent such reports
with respect to the Letters of Credit as the Agent may reasonably
request from time to time.
3.3 Risk Participations, Drawings and Reimbursements
(a) Immediately upon the Issuance of each Letter of Credit, each
Bank shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Issuing Bank issuing such Letter of
Credit a participation in such Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) the Commitment
Percentage of such Bank, times (ii) the maximum amount available to
be drawn under such Letter of Credit and the amount of such drawing,
respectively. For purposes of Section 2.1, each Issuance of a Letter
of Credit shall be deemed to utilize the Commitment of each Bank by
an amount equal to the amount of such participation.
(b) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the Issuing Bank
which issued such Letter of Credit will promptly notify the Company.
The Company shall reimburse such Issuing Bank, directly or with the
proceeds of a Loan, prior to 10:00 a.m. (San Francisco time), on each
date that any amount is paid by such Issuing Bank under any Letter of
Credit (each such date, an "Honor Date"), in an amount equal to the
amount so paid by such Issuing Bank. If the Company fails to
reimburse such Issuing Bank for the full amount of any drawing under
any Letter of Credit by 10:00 a.m. (San Francisco time) on the Honor
Date, such Issuing Bank will promptly notify the Agent and the Agent
will promptly notify each Bank thereof, and the Company shall be
deemed to have requested that Base Rate Loans be made by the Banks to
be disbursed on the Honor Date under such Letter of Credit, subject
to the aggregate amount of the un-utilized portion of the Aggregate
Commitment and subject to the conditions set forth in Section 5.2.
Any notice given by such Issuing Bank or the Agent pursuant to this
subsection 3.3(b) may be oral if immediately confirmed in writing
(including by facsimile); provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of
such notice.
(c) Each Bank shall upon any notice pursuant to subsection 3.3(b)
make available to the Agent for the account of the relevant Issuing
Bank an amount in Dollars and in immediately available funds equal to
its Commitment Percentage of the amount of the drawing, whereupon the
participating Banks shall (subject to subsection 3.3(d)) each be
deemed to have made a Loan consisting of a Base Rate Loan to the
Company in that amount. If any Bank so notified fails to make
available to the Agent for the account of such Issuing Bank the
amount of such Bank's Commitment Percentage of the amount of the
drawing by no later than 12:00 noon (San Francisco time) on the Honor
Date, then interest shall accrue on such Bank's obligation to make
such payment, from the Honor Date to the date such Bank makes such
payment, at a rate per annum equal to the Federal Funds Rate in
effect from time to time during such period. The Agent will promptly
give notice of the occurrence of the Honor Date, but failure of the
Agent to give any such notice on the Honor Date or in sufficient time
to enable any Bank to effect such payment on such date shall not
relieve such Bank from its obligations under this Section 3.3.
(d) With respect to any unreimbursed drawing that is not
converted into Loans consisting of Base Rate Loans to the Company in
whole or in part, because of the Company's failure to satisfy the
conditions set forth in Section 5.2 or for any other reason, the
Company shall be deemed to have incurred from the relevant Issuing
Bank an L/C Borrowing in the amount of such drawing, which L/C
Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at a rate per annum equal to the Base Rate
plus 2% per annum, and each Bank's payment to such Issuing Bank
pursuant to subsection 3.3(c) shall be deemed payment in respect of
its participation in such L/C Borrowing and shall constitute an L/C
Advance from such Bank in satisfaction of its participation
obligation under this Section 3.3.
(e) Each Bank's obligation in accordance with this Agreement to
make the Loans or L/C Advances, as contemplated by this Section 3.3,
as a result of a drawing under a Letter of Credit, shall be absolute
and unconditional and without recourse to the relevant Issuing Bank
and shall not be affected by any circumstance, including (i) any set-
off, counterclaim, recoupment, defense or other right which such Bank
may have against such Issuing Bank, the Company or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of a
Default, an Event of Default or a Material Adverse Effect; or
(iii) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing; provided, however, that each
Bank's obligation to make Revolving Loans under this Section 3.3 is
subject to the conditions set forth in Section 5.2.
3.4 Repayment of Participations
(a) Upon (and only upon) receipt by the Agent for the account of
an Issuing Bank of immediately available funds from the Company
(i) in reimbursement of any payment made by such Issuing Bank under
the Letter of Credit with respect to which any Bank has paid the
Agent for the account of such Issuing Bank for such Bank's
participation in the Letter of Credit pursuant to Section 3.3 or
(ii) in payment of interest thereon, the Agent will pay to each Bank,
in the same funds as those received by the Agent for the account of
such Issuing Bank, the amount of such Bank's Commitment Percentage of
such funds, and such Issuing Bank shall receive the amount of the
Commitment Percentage of such funds of any Bank that did not so pay
the Agent for the account of such Issuing Bank.
(b) If the Agent or an Issuing Bank is required at any time to
return to the Company, or to a trustee, receiver, liquidator,
custodian, or any official in any Insolvency Proceeding, any portion
of the payments made by the Company to the Agent for the account of
such Issuing Bank pursuant to subsection 3.4(a) in reimbursement of a
payment made under the Letter of Credit or interest or fee thereon,
each Bank shall, on demand of the Agent, forthwith return to the
Agent or such Issuing Bank the amount of its Commitment Percentage of
any amounts so returned by the Agent or such Issuing Bank plus
interest thereon from the date such demand is made to the date such
amounts are returned by such Bank to the Agent or such Issuing Bank,
at a rate per annum equal to the Federal Funds Rate in effect from
time to time.
3.5 Role of the Issuing Bank
(a) Each Bank and the Company agree that, in paying any drawing
under a Letter of Credit, each of the Issuing Banks shall not have
any responsibility to obtain any document (other than any sight draft
and certificates expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any
such document.
(b) No Agent-Related Person, the Senior Co-Agent, nor any of the
respective correspondents, participants or assignees of the Issuing
Banks shall be liable to any Bank for: (i) any action taken or
omitted in connection herewith at the request or with the approval of
the Banks (including the Majority Banks, as applicable); (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Company's pursuing such
rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. No Agent-Related
Person, the Senior Co-Agent, nor any of the respective
correspondents, participants or assignees of an Issuing Bank, shall
be liable or responsible for any of the matters described in
clauses (i) through (vii) of Section 3.6; provided, however, anything
in such clauses to the contrary notwithstanding, that the Company may
have a claim against an Issuing Bank, and such Issuing Bank may be
liable to the Company, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by
the Company which the Company proves were caused by such Issuing
Bank's willful misconduct or gross negligence or such Issuing Bank's
willful or grossly negligent failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing: (i) each Issuing Bank may accept
documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) such Issuing Bank shall not be
responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.
3.6 Obligations Absolute
The obligations of the Company under this Agreement and any L/C-
Related Document to reimburse each Issuing Bank for a drawing under a
Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into Loans shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and each such other L/C-Related Document
under all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement or
any L/C-Related Document;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Company in
respect of any Letter of Credit or any other amendment or waiver of
or any consent to departure from all or any of the L/C-Related
Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary
or any transferee of any Letter of Credit (or any Person for whom any
such beneficiary or any such transferee may be acting), the Issuing
Banks or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby or by the L/C-Related Documents
or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit;
(v) any payment by an Issuing Bank under any Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of any Letter of Credit; or any payment made by
such Issuing Bank under any Letter of Credit to any Person purporting
to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of any Letter of
Credit, including any arising in connection with any Insolvency
Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations
of the Company in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, the Company or a guarantor.
3.7 Cash Collateral Pledge
Upon (i) the request of the Agent, (A) if an Issuing Bank has
honored any full or partial drawing request on any Letter of Credit
and such drawing has resulted in an L/C Borrowing hereunder, or
(B) if, as of the Revolving Termination Date, any Letters of Credit
may for any reason remain outstanding and partially or wholly
undrawn, or (ii) the occurrence of the circumstances described in
subsection 2.7(a) requiring the Company to Cash Collateralize Letters
of Credit, then, the Company shall immediately Cash Collateralize the
L/C Obligations in an amount equal to the L/C Obligations. The
Company hereby grants to the Agent, for the benefit of the Agent, the
Issuing Banks and the Banks, a security interest in all such cash and
deposit account balances used to Cash Collateralize the Company's
obligations hereunder.
3.8 Letter of Credit Fees
(a) The Company shall pay to the Agent for the account of each of
the Banks a letter of credit fee with respect to the Letters of
Credit on the average daily maximum amount available to be drawn of
the outstanding Letters of Credit, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based upon
Letters of Credit outstanding for that quarter as calculated by the
Agent, equal to the Letter of Credit Rate. Such letter of credit
fees shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter during which Letters of Credit
are outstanding, commencing on the first such quarterly date to occur
after the Closing Date, through the Revolving Termination Date (or
such later date upon which the outstanding Letters of Credit shall
expire), with the final payment to be made on the Revolving
Termination Date (or such later expiration date).
(b) The Company shall pay to the Agent for the account of each
Issuing Bank a letter of credit fronting fee per annum with respect
to the outstanding Letters of Credit issued by such Issuing Bank
equal to 0.125% per annum of the average daily maximum amount
available to be drawn under such outstanding Letters of Credit,
computed on a quarterly basis in arrears on the last Business Day of
each calendar quarter based upon Letters of Credit issued by such
Issuing Bank outstanding for that quarter as calculated by the Agent.
Such fronting fees shall be calculated on the basis of a 360-day year
and actual days elapsed and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter during
which Letters of Credit are outstanding, commencing on the first such
quarterly date to occur after the Closing Date, through the Revolving
Termination Date (or such later date upon which the outstanding
Letters of Credit shall expire), with the final payment to be made on
the Revolving Termination Date (or such later expiration date).
(c) The Company shall pay to each Issuing Bank from time to time
on demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of such
Issuing Bank relating to letters of credit as from time to time in
effect.
3.9 Uniform Customs and Practice
The Uniform Customs and Practice for Documentary Credits as
published by the International Chamber of Commerce ("UCP") most
recently at the time of issuance of any Letter of Credit shall
(unless otherwise expressly provided in the Letters of Credit) apply
to the Letters of Credit.
4. TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes
(a) Subject to subsection 4.1(g), any and all payments by the
Company to each Bank or the Agent under this Agreement shall be made
free and clear of, and without deduction or withholding for, any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in
the case of each Bank and the Agent, such taxes (including income
taxes or franchise taxes) as are imposed on or measured by each
Bank's net income by the jurisdiction under the laws of which such
Bank or the Agent, as the case may be, is organized or maintains a
Lending Office or any political subdivision thereof (all such non-
excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes").
(b) In addition, the Company shall pay any present or future
stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder
or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Documents (hereinafter
referred to as "Other Taxes").
(c) Subject to subsection 4.1(g), the Company shall indemnify and
hold harmless each Bank and the Agent for the full amount of Taxes or
Other Taxes (including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 4.1) paid by the
Bank or the Agent and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Payment under this indemnification shall be made
within 30 days from the date the Bank or the Agent makes written
demand therefor. Each Bank and the Agent, severally with respect to
the amounts received by it from the Company as indemnification under
this subsection 4.1(c), agrees upon the request of the Company and at
the Company's expense, to use commercially reasonable efforts to
obtain a refund of any Taxes or Other Taxes for which it received
indemnification hereunder if such Taxes or Other Taxes were
incorrectly or illegally asserted.
(d) If the Company shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, then, subject to
subsection 4.1(g):
(i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable
to additional sums payable under this Section 4.1) such Bank or the
Agent, as the case may be, receives an amount equal to the sum it
would have received had no such deductions been made;
(ii) the Company shall make such deductions; and
(iii) the Company shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within 30 days after the date of any payment by the Company
of Taxes or Other Taxes, the Company shall furnish to the Agent the
original or a certified copy of a receipt evidencing payment thereof,
or other evidence of payment satisfactory to the Agent.
(f) Each Bank which is a foreign person (i.e., a person other
than a United States person for United States Federal income tax
purposes) agrees that:
(i) it shall, no later than the Closing Date (or, in the case
of a Bank which becomes a party hereto pursuant to Section 11.8 after
the Closing Date, the date upon which the Bank becomes a party
hereto) deliver to the Company through the Agent two accurate and
complete signed originals of Internal Revenue Service Form 4224 or
any successor thereto ("Form 4224"), or two accurate and complete
signed originals of Internal Revenue Service Form 1001 or any
successor thereto ("Form 1001"), as appropriate, in each case
indicating that the Bank is on the date of delivery thereof entitled
to receive payments of principal, interest and fees under this
Agreement free from withholding of United States Federal income tax;
(ii) if at any time the Bank makes any changes
necessitating a new Form 4224 or Form 1001, it shall with reasonable
promptness deliver to the Company through the Agent in replacement
for, or in addition to, the forms previously delivered by it
hereunder, two accurate and complete signed originals of Form 4224;
or two accurate and complete signed originals of Form 1001, as
appropriate, in each case indicating that the Bank is on the date of
delivery thereof entitled to receive payments of principal, interest
and fees under this Agreement free from withholding of United States
Federal income tax;
(iii) it shall, before or promptly after the occurrence of
any event (including the passing of time but excluding any event
mentioned in (ii) above) requiring a change in or renewal of the most
recent Form 4224 or Form 1001 previously delivered by such Bank,
deliver to the Company through the Agent two accurate and complete
original signed copies of Form 4224 or Form 1001 in replacement for
the forms previously delivered by the Bank; and
(iv) it shall, promptly upon the Company's or the Agent's
reasonable request to that effect, deliver to the Company or the
Agent (as the case may be) such other forms or similar documentation
as may be required from time to time by any applicable law, treaty,
rule or regulation in order to establish such Bank's tax status for
withholding purposes.
(g) The Company will not be required to pay any additional
amounts in respect of United States Federal income tax pursuant to
subsection 4.1(d), subsection 4.1(a) or subsection 4.1(c) to any Bank
for the account of any Lending Office of such Bank:
(i) if the obligation to pay such additional amounts would
not have arisen but for a failure by such Bank to comply with its
obligations under subsection 4.1(f) in respect of such Lending
Office;
(ii) if such Bank shall have delivered to the Company a
Form 4224 in respect of such Lending Office pursuant to
subsection 4.1(f), and such Bank shall not at any time be entitled to
exemption from deduction or withholding of United States Federal
income tax in respect of payments by the Company hereunder for the
account of such Lending Office for any reason other than a change in
United States law or regulations or in the official interpretation of
such law or regulations by any governmental authority charged with
the interpretation or administration thereof (whether or not having
the force of law) after the date of delivery of such Form 4224; or
(iii) if the Bank shall have delivered to the Company a
Form 1001 in respect of such Lending Office pursuant to
subsection 4.1(f), and such Bank shall not at any time be entitled to
exemption from deduction or withholding of United States Federal
income tax in respect of payments by the Company hereunder for the
account of such Lending Office for any reason other than a change in
United States law or regulations or any applicable tax treaty or
regulations or in the official interpretation of any such law, treaty
or regulations by any governmental authority charged with the
interpretation or administration thereof (whether or not having the
force of law) after the date of delivery of such Form 1001.
(h) If, at any time, the Company requests any Bank to deliver any
forms or other documentation pursuant to subsection 4.1(f)(iv), then
the Company shall, on demand of such Bank through the Agent,
reimburse such Bank for any costs and expenses (including Attorney
Costs) reasonably incurred by such Bank in the preparation or
delivery of such forms or other documentation.
(i) If the Company is required to pay additional amounts to any
Bank or the Agent pursuant to subsection 4.1(d), then such Bank shall
use its reasonable best efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as
to eliminate any such additional payment by the Company which may
thereafter accrue if such change in the judgment of such Bank is not
otherwise disadvantageous to such Bank.
4.2 Illegality
(a) If any Bank shall determine that the introduction of any
Requirement of Law, or any change in any Requirement of Law or in the
interpretation or administration thereof, has made it unlawful, or
that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its Lending Office to make
Offshore Rate Loans, then, on notice thereof by the Bank to the
Company through the Agent, the obligation of that Bank to make
Offshore Rate Loans shall be suspended until the Bank shall have
notified the Agent and the Company that the circumstances giving rise
to such determination no longer exist.
(b) If a Bank shall determine that it is unlawful to maintain any
Offshore Rate Loan, the Company shall prepay in full all Offshore
Rate Loans of that Bank then outstanding, together with interest
accrued thereon, either on the last day of the Interest Period
thereof if the Bank may lawfully continue to maintain such Offshore
Rate Loans to such day, or immediately, if the Bank may not lawfully
continue to maintain such Offshore Rate Loans, together with any
amounts required to be paid in connection therewith pursuant to
Section 4.4. If the Company is required to so prepay any Offshore
Rate Loan, then concurrently with such prepayment, the Company may
borrow from the affected Bank, in the amount of such repayment, a
Base Rate Loan.
(c) If the obligation of any Bank to make or maintain Offshore
Rate Loans has been so terminated or suspended, the Company may
elect, by giving notice to the Bank through the Agent that all Loans
which would otherwise be made by the Bank as Offshore Rate Loans
shall be instead Base Rate Loans.
(d) Before giving any notice to the Agent under this Section, the
affected Bank shall designate a different Lending Office with respect
to its Offshore Rate Loans if such designation will avoid the need
for giving such notice or making such demand and will not, in the
judgment of the Bank, be illegal or otherwise disadvantageous to the
Bank.
4.3 Increased Costs and Reduction of Return
(a) If any Bank shall determine that, due to either (i) the
introduction of or any change after the date hereof (other than any
change by way of imposition of or increase in reserve requirements
included in the calculation of the Offshore Rate or in respect of the
assessment rate payable by any Bank to the FDIC for insuring U.S.
deposits) in or in the interpretation of any law or regulation or
(ii) the compliance with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force
of law), there shall be any increase in the cost to such Bank of
agreeing to make or making, funding or maintaining any Offshore Rate
Loans or participating in Letters of Credit, or, in the case of an
Issuing Bank, any increase in the cost to such Issuing Bank of
agreeing to issue, issuing or maintaining any Letter of Credit or of
agreeing to make or making, funding or maintaining any unpaid drawing
under any Letter of Credit, then the Company shall be liable for, and
shall from time to time, upon demand therefor by such Bank (with a
copy of such demand to the Agent), pay to the Agent for the account
of such Bank, additional amounts as are sufficient to compensate such
Bank for such increased costs.
(b) If any Bank shall have determined that (i) the introduction
of any Capital Adequacy Regulation after the date hereof, (ii) any
change in any Capital Adequacy Regulation after the date hereof,
(iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof
after the date hereof, or (iv) compliance by the Bank (or its Lending
Office) or any corporation controlling the Bank, with any Capital
Adequacy Regulation, affects or would affect the amount of capital
required or expected to be maintained by the Bank or any corporation
controlling the Bank and (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy and such
Bank's desired return on capital) determines that the amount of such
capital is increased as a consequence of its Commitment, loans,
credits or obligations under this Agreement, then, upon demand of
such Bank (with a copy to the Agent), the Company shall upon demand
pay to the Bank, from time to time as specified by the Bank,
additional amounts sufficient to compensate the Bank for such
increase.
4.4 Funding Losses
The Company agrees to reimburse each Bank and to hold each Bank
harmless from any loss or expense which the Bank may sustain or incur
as a consequence of:
(a) the failure of the Company to make any payment or mandatory
prepayment of principal of any Offshore Rate Loan (including payments
made after any acceleration thereof);
(b) the failure of the Company to borrow, continue or convert a
Loan after the Company has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion/Continuation;
(c) the failure of the Company to make any prepayment of any Loan
after the Company has given a notice in accordance with Section 2.6;
(d) the prepayment (including pursuant to Section 2.6 or 2.7) of
an Offshore Rate Loan on a day which is not the last day of the
Interest Period with respect thereto; or
(e) the conversion pursuant to Section 2.4 of any Offshore Rate
Loan to a Base Rate Loan on a day that is not the last day of the
respective Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate
Loans hereunder or from fees payable to terminate the deposits from
which such funds were obtained.
4.5 Inability to Determine Rates
If the Majority Banks shall have determined that for any reason
adequate and reasonable means do not exist for ascertaining the
Offshore Rate for any requested Interest Period with respect to a
proposed Offshore Rate Loan or that the Offshore Rate applicable
pursuant to subsection 2.9(a) for any requested Interest Period with
respect to a proposed Offshore Rate Loan does not adequately and
fairly reflect the cost to such Banks of funding such Loan, the Agent
will forthwith give notice of such determination to the Company and
each Bank. Thereafter, the obligation of the Banks to make or
maintain Offshore Rate Loans, as the case may be, hereunder shall be
suspended until the Agent upon the instruction of the Majority Banks
revokes such notice in writing. Upon receipt of such notice, the
Company may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Company does
not revoke such notice, the Banks shall make, convert or continue the
Loans, as proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Loans shall be
made, converted or continued as Base Rate Loans instead of Offshore
Rate Loans.
4.6 Certificate of Bank
Each Bank, if claiming reimbursement or compensation pursuant to
this Article IV, shall deliver to the Company, a certificate setting
forth in reasonable detail the amount payable to such Bank hereunder
and such certificate shall be conclusive and binding on the Company
in the absence of manifest error.
4.7 Survival
The covenants, agreements and obligations of the Company in this
Article IV shall survive the payment of all other Obligations.
5. CONDITIONS PRECEDENT
5.1 Conditions of Initial Credit Extensions
The obligation of each Bank to make its initial Credit Extension
hereunder is subject to the condition that the Agent shall have
received on or before the Closing Date all of the following, in form
and substance satisfactory to the Agent and, as to the items
referenced in subsection 5.1(h) and (i), the Majority Banks, and in
sufficient copies for each Bank:
(a) Revolving Credit Agreement. This Agreement executed by the
Company, the Agent, the Senior Co-Agent and each of the Banks;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of
the PC Advisory General Partner, as general partner of the PCMC
General Partner, as general partner of the General Partner, as
general partner of the Company, approving and authorizing the
execution, delivery and performance by such entities on behalf of the
Company of this Agreement and the other Loan Documents to be
delivered hereunder, and authorizing the borrowing of the Loans,
certified as of the Closing Date by the Secretary or an Assistant
Secretary of the PC Advisory General Partner; and
(ii) A certificate of the Secretary or Assistant Secretary
of the PC Advisory General Partner certifying that the certificate
delivered at the closing of the Existing Credit Agreement with
respect to the names and true signatures of the duly authorized
officers of the General Partner, as general partner of the Company,
authorized to execute, deliver and perform, as applicable, this
Agreement on behalf of the Company, and all other Loan Documents to
be delivered hereunder, remains in each case true and correct as of
the Closing Date;
(c) Articles of Incorporation; By-laws; Partnership Documents and
Good Standing. Each of the following documents:
(i) the partnership certificate of each of the Company, the
General Partner, and the PCMC General Partner as in effect on the
Closing Date, certified by the Secretary of State (or similar,
applicable Governmental Authority) of the state of formation of such
entities as of a recent date, and a certificate of the Secretary or
Assistant Secretary of the PC Advisory General Partner confirming
that the certified copies of the partnership agreement of each of the
Company, the General Partner, and the PCMC General Partner delivered
at the closing of the Existing Credit Agreement remain true, correct,
and complete as of the Closing Date;
(ii) a certificate of the Secretary or Assistant Secretary
of the PC Advisory General Partner confirming that the certified
copies of the articles or certificate of incorporation of the PC
Advisory General Partner and the bylaws of the PC Advisory General
Partner delivered at the closing of the Existing Credit Agreement
remain true, correct, and complete as of the Closing Date; and
(iii) a good standing certificate for each of the Company,
the General Partner, the PCMC General Partner, and the PC Advisory
General Partner from the Secretary of State (or similar, applicable
Governmental Authority) of its state of incorporation or formation,
as applicable as of a recent date;
(d) Legal Opinions. An opinion of (i) James A. Kraft, Vice
President, General Counsel and Secretary of the Company and
(ii) Perkins Coie, counsel to the Company, each addressed to the
Agent and the Banks and substantially in the form of Exhibits C-1 and
C-2, respectively;
(e) Payment of Fees. The Company shall have paid all accrued and
unpaid fees, costs and expenses to the extent then due and payable on
the Closing Date, together with Attorney Costs of BofA to the extent
invoiced prior to or on the Closing Date, together with such
additional amounts of Attorney Costs as shall constitute BofA's
reasonable estimate of Attorney Costs incurred or to be incurred
through the closing proceedings, provided that such estimate shall
not thereafter preclude final settling of accounts between the
Company and BofA; including any such costs, fees and expenses arising
under or referenced in Sections 2.11, 4.1 and 11.4;
(f) Certificate. A certificate signed by a Responsible Officer,
dated as of the Closing Date, stating that:
(i) the representations and warranties contained in
Article VI are true and correct on and as of such date, as though
made on and as of such date;
(ii) no Default or Event of Default exists or would result
from the initial Credit Extension; and
(iii) there has not occurred or existed since December 31,
1995 any event or circumstance that has resulted or could reasonably
be expected to result in a Material Adverse Effect;
(g) Credit Agreements. A certificate of a Responsible Officer
attaching a true, correct, and complete copy of the 1996 Senior Note
Agreement and confirming that the certified copies of the Note
Agreements, the Mortgage Note Agreements, and the 1994 Senior Note
Agreements delivered at the closing of the Existing Credit Agreement
remain true, correct, and complete as of the Closing Date;
(h) Repayment of Existing Loans. On the Closing Date, the
Company shall have repaid in full all amounts outstanding under the
Existing Credit Agreement, including accrued interest and fees not
yet due, or have irrevocably directed the Agent to apply the initial
proceeds of Loans hereunder toward such repayment in full; and
(i) Other Documents. Such other approvals, opinions, documents
or materials as the Agent or the Majority Banks may reasonably
request.
5.2 Conditions to All Credit Extensions
The obligation of each Bank and the Swingline Bank to make any
Loans to be made by it (including its initial Loan) or to continue or
convert any Loan pursuant to Section 2.4, and the obligation of each
Issuing Bank to Issue any Letter of Credit (including the initial
Letter of Credit) is subject to the satisfaction of the following
conditions precedent on the relevant date of Borrowing,
Conversion/Continuation Date or Issuance Date:
(a) Notice, Application. As to any Loan, the Agent shall have
received (with, in the case of the initial Loan only, a copy for each
Bank) a Notice of Borrowing or a Notice of Conversion/Continuation,
as applicable, or in the case of any Issuance of any Letter of
Credit, the relevant Issuing Bank and the Agent shall have received
an L/C Application or L/C Amendment Application, as required under
Section 3.2;
(b) Continuation of Representations and Warranties. The
representations and warranties made by the Company contained in
Article VI shall be true and correct on and as of such date of
Borrowing or Conversion/Continuation Date with the same effect as if
made on and as of such date of Borrowing or Conversion/Continuation
Date (except to the extent such representations and warranties
specifically relate to an earlier date, in which case they shall be
true and correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Credit Extension.
Each Notice of Borrowing, Notice of Conversion/Continuation and
L/C Application or L/C Amendment Application submitted by the Company
hereunder shall constitute a representation and warranty by the
Company hereunder, as of the date of each such notice, request or
application and as of the date of each Borrowing, each
Conversion/Continuation Date, or Issuance Date, as applicable, that
the conditions in Section 5.2 are satisfied.
6. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank
that:
6.1 Corporate Existence and Power
(a) The Company, each of its Subsidiaries, and each of the
Partner Entities:
(i) is a limited partnership\, limited liability company,\ or
corporation, duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation;
(ii) is duly qualified as a foreign partnership\, limited
liability company,\ or corporation, as applicable, and licensed and
in good standing, under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its
business requires such qualification or license; and
(iii) is in compliance with all Requirements of Law except
where failure to so comply would not reasonably be expected to have a
Material Adverse Effect.
(b) The Company and each of its Subsidiaries has the power and
authority and all governmental licenses, authorizations, consents and
approvals to own its assets and carry on its business; and the
Company and each of the Partner Entities has the power and authority
and all governmental licenses, authorizations, consents and approvals
to execute, deliver, and perform its obligations under, the Loan
Documents.
6.2 Authorization; No Contravention
The execution, delivery and performance by the Company of this
Agreement, and any other Loan Document to which the Company is party,
have been duly authorized by all necessary [corporate and partnership
action on behalf of the PC Advisory General Partner, as general
partner of the PCMC General Partner, as general partner] \partnership
action by the Company, by all necessary limited liability company
action by the General Partner and by all necessary corporate action
by the REIT, as managing member\ of the General Partner, [as general
partner of the Company, and by all necessary partnership action on
behalf of the Company,] and do not and will not:
(a) contravene the terms of the Organization Documents of any of
the Company or the Partner Entities;
(b) conflict with or result in any breach or contravention of, or
the creation of any Lien under, any document evidencing any
Contractual Obligation to which such Person is a party or any order,
injunction, writ or decree of any Governmental Authority to which
such Person or its Property is subject; or
(c) violate any Requirement of Law.
6.3 Governmental Authorization
No approval, consent, exemption, authorization, or other action
by, or notice to, or filing with, any Governmental Authority is
necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Company, the Partner
Entities or any of their Subsidiaries of the Agreement or any other
Loan Document.
6.4 Binding Effect
This Agreement and each other Loan Document to which the Company
is a party constitute the legal, valid and binding obligations of the
Company [and the Partner Entities], enforceable against the Company
[and the Partner Entities] in accordance with their respective terms
except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditor's
rights generally or by equitable principles relating to
enforceability.
6.5 Litigation
There are no actions, suits, proceedings, claims or disputes
pending, or to the Company's Knowledge and the knowledge of the
Partner Entities, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the
Company, the Partner Entities or their Subsidiaries or any of their
respective Properties which:
(a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby or
thereby; or
(b) have a reasonable probability of success on the merits and
which, if determined adversely to the Company, the Partner Entities
or their Subsidiaries, would reasonably be expected to have a
Material Adverse Effect. No injunction, writ, temporary restraining
order or any order of any nature has been issued by any court or
other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other
Loan Document, or directing that the transactions provided for herein
or therein not be consummated as herein or therein provided.
6.6 No Default
No Default or Event of Default exists or would result from the
incurring of any Obligations by the Company. Neither the Company,
the Partner Entities, nor any of their Subsidiaries is in default
under or with respect to any Contractual Obligation in any respect
which, individually or together with all such defaults, would
reasonably be expected to have a Material Adverse Effect or that
would, if such default had occurred after the Closing date, create an
Event of Default under subsection 9.1(e).
6.7 ERISA Compliance
(a) Schedule 6.7 lists all Plans \as of the date of the First
Amendment\ and separately identifies Plans intended to be Qualified
Plans and Multiemployer Plans.
(b) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state
law, including all requirements under the Code or ERISA for filing
reports (which are true and correct in all material respects as of
the date filed), and benefits have been paid in accordance with the
provisions of the Plan.
(c) Except as specifically disclosed in Schedule 6.7, each
Qualified Plan has been determined by the IRS to qualify under
Section 401 of the Code, and the trusts created thereunder have been
determined to be exempt from tax under the provisions of Section 501
of the Code, and to the Company's Knowledge nothing has occurred
which would cause the loss of such qualification or tax-exempt
status.
(d) Except as specifically disclosed in Schedule 6.7, there is no
outstanding liability under Title IV of ERISA (other than premiums
due but not delinquent under Section 4007 of ERISA) with respect to
any Plan maintained or sponsored by the Company or any ERISA
Affiliate, nor with respect to any Plan to which the Company or any
ERISA Affiliate contributes or is obligated to contribute, and which
liability would reasonably be expected to have a Material Adverse
Effect.
(e) Except as specifically disclosed in Schedule 6.7, no Plan
subject to Title IV of ERISA has any Unfunded Pension Liability which
would reasonably be expected to have a Material Adverse Effect.
(f) Except as specifically disclosed in Schedule 6.7, the Company
and its ERISA Affiliates have not ever represented, promised or
contracted (whether in oral or written form) to any current or former
employee (either individually or to employees as a group) that such
current or former employee(s) would be provided, at any cost to the
Company or its ERISA Affiliates, with life insurance or employee
welfare plan benefits (within the meaning of section 3(1) of ERISA)
following retirement or termination of employment, other than
benefits mandated by applicable law, including but not limited to,
continuation coverage required to be provided under Section 4980B of
the Code or Title I, Subtitle B, Part 6 of ERISA, and which cost
would reasonably be expected to have a Material Adverse Effect. To
the extent that the Company or its ERISA Affiliates have made any
such representation, promise or contract, they have expressly
reserved the right to amend or terminate such life insurance or
employee welfare plan benefits with respect to claims not yet
incurred.
(g) The Company and its ERISA Affiliates have complied in all
material respects with the notice and continuation coverage
requirements of Section 4980B of the Code.
(h) Except as specifically disclosed in Schedule 6.7, no ERISA
Event has occurred or, to the Company's Knowledge is reasonably
expected to occur with respect to any Plan which would reasonably be
expected to have a Material Adverse Effect.
(i) There are no pending or, to the Company's Knowledge,
threatened claims, actions or lawsuits, other than routine claims for
benefits in the usual and ordinary course, asserted or instituted
against (i) any Plan maintained or sponsored by the Company or its
assets, (ii) the Company or its ERISA Affiliates with respect to any
Qualified Plan, or (iii) any fiduciary with respect to any Plan for
which the Company or its ERISA Affiliates may be directly or
indirectly liable, through indemnification obligations or otherwise
and which claim, action or lawsuit would reasonably be expected to
have a Material Adverse Effect. This representation is not made with
respect to any Multiemployer Plan.
(j) Except as specifically disclosed in Schedule 6.7, neither the
Company nor any ERISA Affiliate has incurred nor, to the Company's
Knowledge, reasonably expects to incur (i) any liability (and, to the
Company's knowledge, no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability)
under Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan or (ii) any liability under Title IV of ERISA (other than
premiums due and not delinquent under Section 4007 of ERISA) with
respect to a Plan, and which liability would reasonably be expected
to have a Material Adverse Effect.
(k) Except as specifically disclosed in Schedule 6.7, neither the
Company nor any ERISA Affiliate has transferred any Unfunded Pension
Liability to a Person other than the Company or an ERISA Affiliate or
otherwise engaged in a transaction that is subject to Section 4069 or
4212(c) of ERISA.
(l) The Company has not engaged, directly or indirectly, in a
non-exempt prohibited transaction (as defined in Section 4975 of the
Code or Section 406 of ERISA) in connection with any Plan which would
reasonably be expected to have a Material Adverse Effect.
6.8 Use of Proceeds; Margin Regulations
The proceeds of the Loans are intended to be and shall be used
solely for the purposes set forth in and permitted by Section 7.11,
and are intended to be and shall be used in compliance with
Section 8.7. Neither the Company, the Partner Entities, nor any of
their Subsidiaries is generally engaged in the business of purchasing
or selling Margin Stock or extending credit for the purpose of
purchasing or carrying Margin Stock.
6.9 Title to Properties
The Company and each of its Subsidiaries have good record and
marketable title in fee simple to, or valid leasehold interests in,
all real Property necessary or used in the ordinary conduct of their
respective businesses, except for such defects in title as would not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect. As of the Closing Date, the Property of the
Company and its Subsidiaries is subject to no Liens, other than
Permitted Liens.
6.10 Taxes
The Company, the Partner Entities and their Subsidiaries have
filed all Federal and other material tax returns and reports required
to be filed, and have paid all Federal and other material taxes,
assessments, fees and other governmental charges levied or imposed
upon them or their Properties, income or assets otherwise due and
payable, except those which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP and no Notice of Lien has been filed
or recorded. There is no proposed tax assessment against the Company,
the Partner Entities or any of their Subsidiaries which would, if the
assessment were made, have a Material Adverse Effect.
6.11 Financial Condition
(a) The audited combined financial statements of financial
condition of the Company and its Subsidiaries dated December 31,
1995, and the related combined statements of income and combined
statement of cash flows for the fiscal year ended on that date:
(i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise
expressly noted therein;
(ii) fairly present the financial condition of the Company
and its Subsidiaries as of the date thereof and results of operations
for the period covered thereby; and
(iii) show all material Indebtedness and other liabilities,
direct or contingent of the Company and its combined Subsidiaries as
of the date thereof, including liabilities for taxes and material
commitments.
(b) Since December 31, 1995, there has been no Material Adverse
Effect.
\(c) The Company has delivered to the Agent a complete and
correct copy of the Proxy Statement/Prospectus (as defined in the
First Amendment) (which for the purposes of this paragraph shall
include only those documents incorporated by reference as of the date
of the First Amendment). The unaudited pro forma condensed
consolidated financial statements of the Corporation (as defined in
the First Amendment) contained in the Proxy Statement/Prospectus (the
"Pro Forma Statements") comply as to form in all material respects
with the applicable accounting requirements of the Securities Act of
1933 and the Securities Exchange Act of 1934 and the published rules
and regulations thereunder and the assumptions on which the pro forma
adjustments reflected in the Pro Forma Statements are based provide a
reasonable basis for presenting the significant effects of the
transactions contemplated by the Pro Forma Statements and such pro
forma adjustments give appropriate effect to such assumptions and are
properly applied in the Pro Forma Statements. Inasmuch as the
Corporation at the Effective Date (as defined in the First Amendment)
will be entirely a holding company owning the Company, with no
substantial assets or liabilities apart from the Company, the Pro
Forma Statements substantially reflect the pro forma position of the
Company and its Subsidiaries after giving effect to the Merger.\
6.12 Environmental Matters
(a) Except as specifically disclosed in Schedule 6.12, the on-
going operations of the Company, the Partner Entities and each of
their Subsidiaries comply in all respects with all Environmental
Laws, except such non-compliance which would not (if enforced in
accordance with applicable law) result in liability in excess of
$25,000,000 in the aggregate.
(b) Except as specifically disclosed in Schedule 6.12, the
Company, the Partner Entities and each of their Subsidiaries have
obtained all licenses, permits, authorizations and registrations
required under any Environmental Law ("Environmental Permits") and
necessary for their respective ordinary course operations, all such
Environmental Permits are in good standing, and the Company, the
Partner Entities and each of their Subsidiaries are in compliance
with all terms and conditions of such Environmental Permits except
where the failure to obtain, maintain in good standing or comply with
such Environmental Permits would not reasonably be expected to have a
Material Adverse Effect.
(c) Except as specifically disclosed in Schedule 6.12, none of
the Company, the Partner Entities, any of their Subsidiaries or any
of their respective present Property or operations, is subject to any
outstanding written order from or agreement with any Governmental
Authority, nor subject to any judicial or docketed administrative
proceeding, respecting any Environmental Law, Environmental Claim or
Hazardous Material arising out of a violation or alleged violation of
any Environmental Law.
(d) Except as specifically disclosed in Schedule 6.12, \as of the
date of the First Amendment\ there are no Hazardous Materials or
other conditions or circumstances existing with respect to any
Property, or arising from operations prior to the Closing Date, of
the Company, the Partner Entities, or any of their Subsidiaries that
would reasonably be expected to give rise to Environmental Claims
with a potential liability of the Company and its Subsidiaries in
excess of $25,000,000 in the aggregate for any such condition,
circumstance or Property. In addition, except as specifically
disclosed in Schedule 6.12 [(i) neither]\(i), as of the date of the
First Amendment neither\ the Company, the Partner Entities nor any of
their Subsidiaries has any underground storage tanks (x) that are not
properly registered or permitted under applicable Environmental Laws,
or (y) that are leaking or disposing of Hazardous Materials off-site,
and (ii) the Company, the Partner Entities and their Subsidiaries
have notified all of their employees of the existence, if any, of any
health hazard arising from the conditions of their employment and
have met all notification requirements under Title III of CERCLA and
all other Environmental Laws.
6.13 Regulated Entities
None of the Company, the Partner Entities, any Person controlling
the Company or the Partner Entities, or any Subsidiary of the Company
or the Partner Entities, is (a) an "Investment Company" within the
meaning of the Investment Company Act of 1940; or (b) subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, any state public
utilities code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness.
6.14 No Burdensome Restrictions
Neither the Company nor any of its Subsidiaries is a party to or
bound by any Contractual Obligation, or subject to any charter or
corporate restriction, or any Requirement of Law, which would
reasonably be expected to have a Material Adverse Effect.
6.15 Solvency
The Company, the \REIT, the\ General Partner, the Facilities
Subsidiary, and the Restricted Subsidiaries are each Solvent.
6.16 Labor Relations
There are no material strikes, lockouts or other labor disputes
against the Company or any of its Subsidiaries, or, to the Company's
Knowledge, threatened against or affecting the Company or any of its
Subsidiaries, and no significant unfair labor practice complaint is
pending against the Company or any of its Subsidiaries or, to the
Company's Knowledge, threatened against any of them before any
Governmental Authority.
6.17 Copyrights, Patents, Trademarks and Licenses, Etc.
The Company or its Subsidiaries own or are licensed or otherwise
have the right to use all of the patents, trademarks, service marks,
trade names, copyrights, contractual franchises, authorizations and
other rights that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other
Person. To the Company's Knowledge, no slogan or other advertising
device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Company or
any of its Subsidiaries infringes upon any rights held by any other
Person; [except as specifically disclosed in Schedule 6.5,] \as of
the date of the First Amendment\ no claim or litigation regarding any
of the foregoing is pending or, to the Company's Knowledge,
threatened, and no patent, invention, device, application, principle
or any statute, law, rule, regulation, standard or code is pending
or, to the Company's Knowledge, proposed, which, in either case,
would reasonably be expected to have a Material Adverse Effect.
6.18 Subsidiaries
[The] \As of the Effective Date (as defined in the First
Amendment), the\ Company has no Subsidiaries other than those
specifically disclosed in part (a) of Schedule 6.18 hereto and has no
equity investments in any other corporation or entity other than
those specifically disclosed in part (b) of Schedule 6.18. Except as
disclosed in part (a) of Schedule 6.18, the Company owns 100% of the
ownership interests of its Subsidiaries. The Facilities Subsidiary
has issued no rights, warrants or options to acquire or instruments
convertible into or exchangeable for any equity interest in the
Facilities Subsidiary.
6.19 Partnership Interests
The only general partner of the Company is the General Partner,
which on the [Closing] \Effective\ Date \of the First Amendment\ will
own a [2%] \1%\ interest in the Company. [The only general partner
of the General Partner is the PCMC General Partner. The only general
partner of the PCMC General Partner is the PC Advisory General
Partner.]
6.20 Broker's, Transaction Fees
Neither the Company nor any of its Subsidiaries has any
obligation to any Person in respect of any finder's, broker's or
investment banker's fee in connection with the transactions
contemplated hereby.
6.21 Insurance
The Properties of the Company and its Subsidiaries are insured
with financially sound and reputable insurance companies not
Affiliates of the Company, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged
in similar businesses and owning similar Properties in localities
where the Company or such Subsidiary operates.
6.22 Full Disclosure
\(a)\ None of the representations or warranties made by the
Company, the \REIT, the\ General [Partners] \Partner\, or any of
their Subsidiaries in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of
the statements contained in each exhibit, report, written statement
or certificate furnished by or on behalf of the \REIT, the\ Company
or any of its Subsidiaries in connection with the Loan Documents,
contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which
they are made, not misleading as of the time when made or delivered.
\(b) The Proxy Statement/Prospectus (as defined in the First
Amendment) fairly describes, in all material respects, the general
nature of the business and principal properties of the Company and
its Subsidiaries after giving effect to the Conversion Transaction
(as defined in the First Amendment). Neither this Agreement, nor any
other document, certificate or statement furnished to the Agent or
Banks by or on behalf of the Company in connection herewith or in
connection with the First Amendment contains any untrue statement of
a material fact or omits to state a material fact necessary in order
to make the statements contained herein and therein not misleading.
There is no fact peculiar to the Company which has or may have (so
far as the Company can now reasonably foresee) a Material Adverse
Effect and which has not been set forth in this Agreement, the First
Amendment, or in the Proxy Statement/Prospectus.
6.23 Year 2000
With respect to the Company and its Subsidiaries (after
giving effect to the Conversion Transaction (as defined in the First
Amendment)), (a) a review and assessment has been initiated of all areas
within the Company's and its Subsidiaries, business and operations
(including those affected by suppliers, vendors and customers) that
could be adversely affected by the "Year 2000 Problem" (that is, the
risk that computer applications used by the Company or any of its
Subsidiaries (or suppliers, vendors and customers) may be unable to
recognize and properly perform date-sensitive functions involving
certain dates prior to and any date after December 31, 1999), (b) a plan
and timetable has been developed for addressing the Year 2000 Problem on
a timely basis, and (c) to date, that plan has been implemented in
accordance with that timetable. Any reprogramming required to avoid a
Year 2000 Problem will be completed by June 30, 1999, except where
failure to do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect. The cost to the
Company and its Subsidiaries of such reprogramming and testing and of
the reasonably foreseeable consequences of the Year 2000 Problem to the
Company and its Subsidiaries (including reprogramming errors and the
failure of others' systems or equipment) will not result in a Default or
a Material Adverse Effect. Except for such reprogramming referred to in
the preceding sentence as may be necessary, the computer and management
information systems of the Company and its Subsidiaries are and, with
ordinary course upgrading and maintenance, will continue through the
Revolving Termination Date to be sufficient to permit the Company and
its Subsidiaries to conduct their respective businesses without a
reasonable likelihood of resulting in a Material Adverse Effect.
6.24 Changes, etc.
From the date of the Proxy Statement/Prospectus to the Effective
Date (as defined in the First Amendment) (a) the Company and its
Subsidiaries have not incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business except for those
transactions described in the Proxy Statement/Prospectus as
constituting a part of the Conversion Transaction, and (b) there has
not been any Restricted Payment of any kind declared, paid or made by
the Company, other than regular quarterly declarations and payments
of distributions to unit holders of the Company in accordance with
Section 8.13.\
7. AFFIRMATIVE COVENANTS
The Company covenants and agrees that, so long as any Bank shall
have any Commitment hereunder, or the Swingline Bank shall have any
Swingline Commitment hereunder, or any Loan or other Obligation shall
remain unpaid or unsatisfied, or any Letter of Credit remains
outstanding, unless the Majority Banks waive compliance in writing:
7.1 Financial Statements
The Company shall deliver to the Agent in form and detail
satisfactory to the Agent and the Majority Banks, with sufficient
copies for each Bank:
(a) as soon as available, but not later than 90 days after the
end of each fiscal year, a copy of the audited combined balance sheet
of the Company as at the end of such year and the related combined
statements of income and statements of cash flows for such fiscal
year, setting forth in each case in comparative form the figures for
the previous fiscal year, and accompanied by the opinion of Coopers &
Lybrand, or another nationally-recognized independent public
accounting firm ("Independent Auditor") which report shall state that
such combined financial statements present fairly the financial
position for the periods indicated in conformity with GAAP applied on
a basis consistent with prior years. Such opinion shall not be
qualified or limited because of a restricted or limited examination
by Independent Auditor of any material portion of the Company's or
any Subsidiary's records and shall be delivered to the Agent pursuant
to a reliance agreement in favor of the Agent and Banks by such
Independent Auditor in form and substance satisfactory to the Agent
and the Majority Banks;
(b) as soon as available, but not later than 120 days after the
end of each fiscal year, a copy of an audited combining balance sheet
of the Company and each of its Subsidiaries as at the end of such
fiscal year and the related combining statements of income and
statement of cash flows for such fiscal year, all in reasonable
detail certified by an appropriate Responsible Officer as having been
used in connection with the preparation of the financial statements
referred to in subsection (a) of this Section 7.1;
(c) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each year, a copy
of the unaudited combined balance sheet of the Company and its
combined Subsidiaries as of the end of such quarter and the related
combined statements of income and statement of cash flows for the
period commencing on the first day and ending on the last day of such
quarter, and certified by an appropriate Responsible Officer as being
complete and correct and fairly presenting, in accordance with GAAP,
the financial position and the results of operations of the Company
and the Subsidiaries;
(d) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each year, a copy
of the unaudited combining balance sheets of the Company and each of
its Subsidiaries, and the related combining statements of income and
statement of cash flows for such quarter, all certified by an
appropriate Responsible Officer of the Company as having been used in
connection with the preparation of the financial statements referred
to in subsection (c) of this Section 7.1;
(e) as soon as available, but not later than September 30 of each
year, a business plan which shall include consolidated five year pro-
forma projections of the Company's balance sheet, income statement
and statement of cash flows, accompanied by appropriate assumptions
on which such projections are based\; and
(f) to the extent not delivered pursuant to any other clause of
this Section 7.1, promptly upon transmission thereof, copies of all
such financial statements, proxy statements, notices and reports as
the Company or the Corporation (as defined in the First Amendment)
sends to its public security holders and copies of all registration
statements (without exhibits) and all reports which either the
Company or the Corporation files with the SEC.
In preparing the financial statements, computations and reports
provided for herein the Facilities Subsidiary and its Subsidiaries
shall be considered as consolidated or combined subsidiary entities
of the Company (and not accounted for on the equity method of
accounting or as an investment) notwithstanding that the Voting Stock
thereof shall not be owned by the Company, either directly or
indirectly, and without regard to whether they would be considered as
such subsidiary entities under generally accepted accounting
principles.\
7.2 Certificates; Other Information
The Company shall furnish to the Agent, with sufficient copies
for each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a) above, a certificate of the
Independent Auditor stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of
Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) through (d) above, a certificate of
a Responsible Officer substantially in the form of Exhibit D
(i) stating that, to the best of such officer's knowledge, the
Company, during such period, has observed and performed all of its
covenants and other agreements, and satisfied every condition
contained in this Agreement to be observed, performed or satisfied by
it, and that such officer has obtained no knowledge of any Default or
Event of Default except as specified (by applicable
subsection reference) in such certificate, (ii) stating the
Applicable Margin to be in effect for the immediately following
fiscal quarter, and (iii) showing in detail the calculations
supporting such statement in respect of subsection 8.2(h),
Section 8.3, subsection 8.4(i), Section 8.5 and Section 8.13, and
supporting the computation of the Interest Coverage Ratio;
(c) promptly after the same are sent, copies of all financial
statements and reports which the Company sends to its limited
partners (excluding the Form K-1s); and promptly after the same are
filed, copies of all financial statements and regular, periodical or
special reports which the Company may make to, or file with, the SEC
or any successor or similar Governmental Authority; and
(d) promptly, such additional business, financial, corporate
affairs and other information as the Agent, at the request of any
Bank, may from time to time reasonably request.
7.3 Notices
The Company shall promptly upon becoming aware thereof notify the
Agent and each Bank:
(a) (i) of the occurrence of any Default or Event of Default,
(ii) of the occurrence or existence of any event or circumstance that
foreseeably will become a Default or Event of Default, and (iii) of
the occurrence or existence of any event or circumstance that would
cause the condition to Credit Extension set forth in
subsection 5.2(b) not to be satisfied if a Credit Extension were
requested on or after the date of such event or circumstance;
(b) of (i) any breach or non-performance of, or any default
under, any Contractual Obligation of the Company, the Partner
Entities, or any of their Subsidiaries which could result in a
Material Adverse Effect; and (ii) any dispute, litigation,
investigation, proceeding or suspension which may exist at any time
between the Company, the Partner Entities, or any of their
Subsidiaries and any Governmental Authority which could reasonably be
expected to result in a Material Adverse Effect;
(c) of the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Subsidiary
(i) which could reasonably be expected to have a Material Adverse
Effect, or (ii) in which the relief sought is an injunction or other
stay of the performance of this Agreement or any Loan Document;
(d) upon, but in no event later than 10 days after, becoming
aware of (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or
threatened against the Company or any of its Subsidiaries or any of
their respective Properties pursuant to any applicable Environmental
Laws where, if adversely determined, the potential liability or
expense relating thereto could exceed $25,000,000 or the potential
remedy with respect thereto would otherwise reasonably be expected to
have a Material Adverse Effect, (ii) all other Environmental Claims
which allege liability in excess of $25,000,000 or have the
possibility of remedies that would, if adversely determined,
otherwise reasonably be expected to constitute a Material Adverse
Effect, and (iii) any environmental or similar condition on any real
property adjoining or in the vicinity of the property of the Company
or any Subsidiary that would reasonably be anticipated to cause such
property or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of such property under
any Environmental Laws where the net book value of such property
exceeds $25,000,000;
(e) of any other litigation or proceeding affecting the Company
or any of its Subsidiaries which the Company would be required to
report to the SEC pursuant to the Exchange Act, within four days
after reporting the same to the SEC;
(f) of any of the following ERISA events affecting the Company or
any ERISA Affiliate (but in no event more than 20 days after such
event or, in the case of an event relating to a Multiemployer Plan,
no more than 30 days after the Company obtains knowledge of the
occurrence of such an event), together with (except in the case of a
Multiemployer Plan) a copy of any notice with respect to such event
that may be required to be filed with a Governmental Authority and
any notice delivered by a Governmental Authority to the Company or
any ERISA Affiliate with respect to such event:
(i) an ERISA Event which would reasonably be expected to have
a Material Adverse Effect;
(ii) the adoption of any new Qualified Plan that is subject
to Title IV of ERISA or section 412 of the Code that would reasonably
be expected to generate annual liabilities in excess of $10,000,000
by the Company or an ERISA Affiliate;
(iii) the adoption of any amendment to a Qualified Plan that
is subject to Title IV of ERISA or section 412 of the Code that would
reasonably be expected to generate annual liabilities in excess of
$10,000,000, if such amendment results in a material increase in
benefits or unfunded liabilities; or
(iv) the commencement of contributions by the Company or an
ERISA Affiliate to any Plan that is subject to Title IV of ERISA or
section 412 of the Code that would reasonably be expected to generate
annual liabilities in excess of $10,000,000;
(g) any Material Adverse Effect subsequent to the date of the
most recent audited financial statements of the Company delivered to
the Banks pursuant to subsection 7.1(a) or 5.1(g); and
(h) of any material labor controversy resulting in or threatening
to result in any strike, work stoppage, boycott, shutdown or other
labor disruption against or involving the Company or any of its
Subsidiaries.
Each notice pursuant to this Section shall be accompanied by a
written statement by a Responsible Officer of the Company setting
forth details of the occurrence referred to therein, and stating what
action the Company proposes to take with respect thereto and at what
time. Each notice under subsection 7.3(a) shall describe with
particularity any and all clauses or provisions of this Agreement or
other Loan Document that have been breached or violated.
7.4 Preservation of Partnership Existence, Etc.
The Company shall, except as permitted by Section 8.2, and shall
cause each of its Restricted Subsidiaries to:
(a) preserve and maintain in full force and effect its
partnership\, limited liability company,\ or corporate existence and
good standing under the laws of its state or jurisdiction of
formation or incorporation;
(b) preserve and maintain in full force and effect all rights,
privileges, qualifications, permits, licenses and franchises
necessary in the normal conduct of its business;
(c) use its reasonable efforts, in the Ordinary Course of
Business, to preserve its business organization and preserve the
goodwill and business of the customers, suppliers and others having
material business relations with it; and
(d) preserve or renew all of its registered trademarks, trade
names and service marks, the non-preservation of which would
reasonably be expected to have a Material Adverse Effect.
7.5 Maintenance of Property
The Company shall maintain, and shall cause each of its
Subsidiaries to maintain, and preserve all its Property which is used
or useful in its business in good working order and condition,
ordinary wear and tear excepted.
7.6 Insurance
The Company shall maintain, and shall cause each of its
Subsidiaries to maintain, with financially sound and reputable
independent insurers, insurance with respect to its Properties and
business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such
types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
7.7 Payment of Obligations
The Company shall, and shall cause its Subsidiaries to, pay and
discharge as the same shall become due and payable, all their
respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate
reserves in accordance with GAAP are being maintained by the Company
or such Subsidiary; and
(b) all Indebtedness, as and when due and payable, but subject to
any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
7.8 Compliance with Laws
The Company shall comply, and shall cause each of its
Subsidiaries to comply with all Requirements of Law of any
Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act) the non-compliance
with which would reasonably be expected to have a Material Adverse
Effect, except such as may be contested in good faith or as to which
a bona fide dispute may exist.
7.9 Inspection of Property and Books and Records
The Company shall maintain and shall cause each of its
Subsidiaries to maintain proper books of record and account, in which
full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters
involving the assets and business of the Company and such
Subsidiaries. The Company shall permit, and shall cause each of its
Subsidiaries to permit, representatives and independent contractors
of the Agent or any Bank to visit and inspect any of their respective
Properties, to examine their respective corporate, financial and
operating records, and make copies thereof or abstracts therefrom,
and to discuss their respective affairs, finances and accounts with
their respective directors, officers, and independent public
accountants, all at the expense of the Company and at such reasonable
times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Company; provided,
however, when an Event of Default exists the Agent or any Bank may do
any of the foregoing at the expense of the Company such Properties at
any time during normal business hours and without advance notice.
7.10 Environmental Laws
(a) The Company shall, and shall cause each of its Subsidiaries
to, conduct its operations and keep and maintain its Property in
compliance with all Environmental Laws, the non-compliance with which
would reasonably be expected to have a Material Adverse Effect.
(b) Upon the written request of the Agent or any Bank, the
Company shall submit and cause each of its Subsidiaries to submit, to
the Agent and with sufficient copies for each Bank, at the Company's
sole cost and expense, at reasonable intervals, a report providing an
update of the status of any environmental, health or safety
compliance, hazard or liability issue identified in any notice or
report required pursuant to subsection 7.3(d), that could,
individually or in the aggregate, result in liability in excess of
$25,000,000.
7.11 Use of Proceeds
The Company shall use the proceeds of the Loans solely as
follows: (a) to refinance existing Indebtedness, (b) to pay related
fees and expenses, and (c) to finance working capital and other
general partnership purposes, including acquisitions, not in
contravention of any Requirement of Law or of any Loan Document.
7.12 Solvency
The Company shall at all times be, and shall cause each of its
Restricted Subsidiaries to be, Solvent.
8. NEGATIVE COVENANTS
The Company hereby covenants and agrees that, so long as any Bank
shall have any Commitment hereunder, or the Swingline Bank shall have
any Swingline Commitment hereunder, or any Loan or other Obligation
shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, unless the Majority Banks waive compliance in
writing:
8.1 Limitation on Liens
The Company shall not, and shall not suffer or permit any of its
Restricted Subsidiaries to, directly or indirectly, make, create,
incur, assume or suffer to exist any Lien upon or with respect to any
part of its Property, whether now owned or hereafter acquired, other
than the following ("Permitted Liens"):
(a) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty,
or to the extent that non-payment thereof is permitted by
Section 7.7;
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
Ordinary Course of Business which are not delinquent or remain
payable without penalty or unless such lien is being contested in
good faith by appropriate proceedings promptly instituted and
diligently conducted and if such accrual or other appropriate
provision, if any, as shall be required by GAAP shall have been made
therefor;
(c) Liens (other than any Lien imposed by ERISA) incurred or
deposits made incidental to the conduct of its business or the
ownership of its Property including (i) pledges or deposits in
connection with worker's compensation, unemployment insurance and
other social security legislation, (ii) deposits to secure insurance,
the performance of bids, tenders, contracts, leases, licenses,
franchises and statutory obligations, each in the Ordinary Course of
Business, and (iii) other obligations which were not incurred or made
in connection with the borrowing of money, the obtaining of advances
or credit or the payment of the deferred purchase price of property
and which do not in the aggregate materially detract from the value
of its Property or materially impair the use of such Property in the
operation of its business;
(d) any attachment or judgment Lien, unless the judgment it
secures shall not, within 45 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not
have been discharged within 45 days after expiration of any such
stay;
(e) easements, rights-of-way, restrictions, leases, sub-leases
and other similar charges or encumbrances incurred in the Ordinary
Course of Business which, in each case, and in the aggregate, do not
materially interfere with the ordinary conduct of the business of the
Company or any Restricted Subsidiary;
(f) Liens on Property of any Restricted Subsidiary securing
obligations of such Restricted Subsidiary owing to the Company or
another Restricted Subsidiary;
(g) any Lien existing prior to the time of acquisition upon any
Property acquired by the Company or any Restricted Subsidiary after
the Closing Date through purchase, merger or consolidation or
otherwise, whether or not assumed by the Company or such Subsidiary,
or placed upon Property at (or within 30 days after) the later of the
time of acquisition or the completion of construction by the Company
or any Restricted Subsidiary to secure all or a portion of (or to
secure Indebtedness incurred to pay all or a portion of) the purchase
price thereof, provided that (i) any such Lien does not encumber any
other property of the Company or such Restricted Subsidiary, (ii) the
Indebtedness secured by such Lien is not prohibited by the provisions
of Section 8.5, (iii) the aggregate principal amount \(without
duplication)\ of the Indebtedness secured by such Lien at no time
exceeds 80% of the cost to the Company and its Restricted
Subsidiaries of the Property subject to such Lien, and (iv) the
aggregate outstanding principal amount (without duplication) of the
Indebtedness secured by all such Liens and the Indebtedness of all
Restricted Subsidiaries at no time (a) from June 30, 1996 to June 8,
1999, exceeds $25,000,000, and (b) from June 9, 1999 to the Revolving
Termination Date, exceeds $50,000,000;
(h) Liens on the accounts, rights to payment for goods sold or
services rendered that are evidenced by chattel paper or instruments,
and rights against persons who guarantee payment or collection of the
foregoing, and on the Company's inventory and on the proceeds (as
defined in the UCC in any applicable jurisdiction) thereof securing
the obligations of the Company permitted by subsection 8.5(d) and any
extension, renewal, refunding or refinancing thereof;
(i) [any Lien existing on the Property of the Company or its
Restricted Subsidiaries on the Closing Date and set forth in
Schedule 8.1 securing Indebtedness outstanding on such date] \from
and after the time the Facilities Subsidiary becomes a Restricted
Subsidiary, Liens on (x) the accounts, rights to payment for goods
sold or services rendered that are evidenced by chattel paper or
instruments (and rights against persons who guarantee payment or
collection of the foregoing) of Plum Creek Manufacturing, L.P. and
its Subsidiaries which are Restricted Subsidiaries, (y) the inventory
of Plum Creek Manufacturing, L.P. and its Subsidiaries which are
Restricted Subsidiaries and (z) the proceeds (as defined in the UCC
in any applicable jurisdiction) thereof, in each case securing the
obligations of Plum Creek Manufacturing, L.P. and such Restricted
Subsidiaries under the Facility Subsidiary's Revolving Credit
Facility (and any extension, renewal, refunding or refinancing
thereof)\;
(j) any Lien renewing, extending, refunding or refinancing any
Lien permitted by subsection (i) of this Section, provided that the
principal amount secured is not increased and the Lien is not
extended to other Property and further provided that the maturity of
the Lien is not extended beyond the maturity date of the Indebtedness
which, at the time the Lien was initially placed upon the Property
secured thereby, Responsible Representatives declare would have been
the maturity date of Indebtedness customary for the type of Property
being financed; and
(k) Liens, other than those set forth above, that secure amounts
that in the aggregate do not exceed $1,000,000.
8.2 Merger; Disposition of Assets
The Company shall not, and shall not suffer or permit any of its
Restricted Subsidiaries to, merge or consolidate with any Person or,
directly or indirectly, sell, lease or transfer or otherwise dispose
of (whether in one or a series of transactions) any Property
(including accounts and notes receivable, with or without recourse)
or enter into any agreement to do any of the foregoing, except that:
(a) any Restricted Subsidiary of the Company may merge with the
Company (provided that the Company shall be the continuing or
surviving corporation) or with any one or more other Restricted
Subsidiaries;
(b) any Restricted Subsidiary of the Company may sell, lease,
transfer or otherwise dispose of any of its assets to the Company or
a Restricted Subsidiary;
(c) any Restricted Subsidiary may merge or consolidate with any
other entity, provided that, immediately after giving effect to such
merger or consolidation (i) the continuing or surviving entity of
such merger or consolidation shall constitute a Restricted
Subsidiary, (ii) no Event of Default or Material Default shall exist,
and (iii) following the merger, the entity surviving the merger is
not engaged in any business other than a Permitted Business provided
that, after giving effect on a pro forma basis to such merger or
consolidation, the gross revenue contribution of pulp and paper
manufacturing activities of the Company and its Subsidiaries on a
combined basis for the 12 months preceding such merger or
consolidation does not exceed 33% of the total revenues of the
Company and its Subsidiaries on a combined basis;
(d) the Company may merge or consolidate with, or sell or dispose
of all or substantially all of its assets to, any other entity,
provided that (i) either (x) the Company shall be the continuing or
surviving entity (in the case of such merger) or (y) the successor or
acquiring entity shall be a solvent corporation or partnership
organized under the laws of any state of the United States and shall
expressly assume in writing all of the obligations of the Company
under this Agreement, the Note Agreements, the 1994 Senior Note
Agreements and the Mortgage Note Agreements, including all covenants
herein and therein contained, and such successor or acquiring
corporation or partnership shall succeed to and be substituted for
the Company with the same effect as if it had been named herein as a
party hereto, provided, however, that no such sale shall release the
Company from any of its obligations and liabilities under this
Agreement, the Note Agreements, the 1994 Senior Note Agreements and
the Mortgage Note Agreements unless such sale is followed by the
complete liquidation of the Company and substantially all the assets
of the Company immediately following such sale are distributed in
such liquidation, and (ii) immediately after such merger or
consolidation or such sale or other disposition, (x) no Event of
Default or Material Default shall exist, (y) the Company could incur
at least $1 of additional Funded Debt pursuant to subsection 8.5(i),
and (z) the entity surviving the merger or consolidation or to which
such assets have been transferred is not engaged in any business
other than a Permitted Business provided that, after giving effect on
a pro forma basis to such merger or consolidation, the gross revenue
contribution of pulp and paper manufacturing activities of the merged
or consolidated entity and its Subsidiaries on a combined basis for
the 12 months preceding such merger or consolidation does not exceed
33% of total revenues of such merged or consolidated entity and its
Subsidiaries on a combined basis;
(e) the Company or any Restricted Subsidiary may make
dispositions of inventory in the Ordinary Course of Business;
(f) the Company or any Restricted Subsidiary may sell Designated
Acres (or notes receivable arising from the sale of Designated Acres)
for the fair value thereof as reasonably determined in good faith by
Responsible Representatives;
(g) the Company and its Restricted Subsidiaries may exchange
Timberlands with other Persons in the Ordinary Course of Business,
provided that (i) the fair value of the Timberlands plus any Net
Proceeds received in such exchange is, in the good faith judgment of
the Responsible Representatives, not less than the fair value of
Timberlands exchanged plus any other consideration paid, (ii) such
exchange would not materially and adversely affect the business,
Property, condition or results of operations of the Company and its
Restricted Subsidiaries on a combined basis or of the Facilities
Subsidiary or impair the ability of the Company to perform its
obligations hereunder and under the Note Agreements, the 1994 Senior
Note Agreements and the Mortgage Note Agreements, and (iii) any
Properties shall be deemed sold to the extent of Net Proceeds
received and such sales shall be allowed only to the extent otherwise
permitted by this Section 8.2;
(h) the Company and its Restricted Subsidiaries may sell
Properties for cash for not less than the fair value thereof as
determined in good faith by the Responsible Representatives, provided
that the aggregate Net Proceeds of such sales in any calendar year do
not exceed $20,000,000; and
(i) the Company and its Restricted Subsidiaries may otherwise
sell Properties for cash in an amount not less than the fair value
thereof as determined in good faith by the Responsible
Representatives, if and only if (i) immediately after giving effect
to such proposed sale, no condition or event shall exist which
constitutes an Event of Default or Material Default, (ii) the Net
Proceeds of any such sale (x) are applied, within 180 days after such
sale to repayment of Qualified Debt, with a percentage of such
repayment being applied to the Loans in an amount equal to or greater
than the pro rata share of the Loans as a percentage of the
outstanding principal of other Qualified Debt, or (y) are applied,
within 180 days after such sale, to the purchase of productive assets
in the same line of business, provided that the Company shall have
notified the Agent promptly after its determination to so apply the
Net Proceeds, (iii) if (x) the Net Proceeds of any such sale exceed
$50,000,000, and if such Net Proceeds are not applied immediately as
set forth in (ii)(x) or (y) above, then the entire amount of such Net
Proceeds are placed immediately upon receipt thereof in an escrow or
cash collateral account or accounts, pursuant to an agreement or
agreements in form and substance reasonably satisfactory to holders
of greater than 50% of the outstanding principal balance of the
Qualified Debt, for the purpose of application in accordance with
clause (ii) above, and (y) all such Net Proceeds which are not then
held in escrow or cash collateral accounts pursuant to
subclause (iii)(x) and which have not been applied to the purchase of
productive assets in the same line of business or distributed to the
holders of Qualified Debt for application to the repayment of such
Qualified Debt exceed $100,000,000 in the aggregate at any time, all
such Net Proceeds in excess of $100,000,000 are placed immediately
upon receipt thereof in an escrow or cash collateral account or
accounts, pursuant to an agreement or agreements in form and
substance reasonably satisfactory to holders of greater than 50% of
the outstanding principal balance of the Qualified Debt, for the
purpose of application in accordance with clause (ii) above, and
(iv) immediately after giving effect to such sale (giving effect on a
pro forma basis to any proposed retirement of Qualified Debt out of
proceeds thereof), the Company could incur $1 of additional Funded
Debt pursuant to subsection 8.5(i).
8.3 Harvesting Restrictions
The Company shall not, and shall not suffer or permit any of its
Restricted Subsidiaries to, in any calendar year, harvest Timber
\(the term "harvest" and correlative terms shall include, without
duplication, both the harvesting activities to be conducted by the
Company and sales of Timber to other Persons for current harvesting
activities being conducted by such Persons)\ on the Timberlands then
owned \directly or indirectly\ by the Company in excess of the amount
set forth for such calendar year in the following table:
CALENDAR YEAR MAXIMUM MCCF TO BE HARVESTED
- ------------- [1996 (representing a carryover of 2,130
MCCF from prior years and 1,470 MCCF for
1996) 3,600 MCCF 19972000 1,970 MCCF
20012009 1,910]
----------------------------------------
\1998-2000 2,330 MCCF
2001-2009 2,270\ MCCF
plus, in each year, the amount, if any, by which \(a) the sum of (x)\
the cumulative amount set forth in the table above for the [preceding
years exceeds ]\years preceding such year of determination and (y)
2,342 MCCF, exceeds (b)\ the cumulative amount actually harvested in
such years \preceding such year of determination\;
unless (a) the Net Proceeds from such excess harvest are either
(i) applied, within 180 days after any such excess harvest to
repayment of Qualified Debt, with a percentage of such repayment
being applied to Loans in an amount equal to or greater than the pro
rata share of the Loans as a percentage of the outstanding principal
of other Qualified Debt or (ii) applied, within 180 days after any
such excess harvest, to purchase Timber (including Timber on
Timberlands purchased) having a fair value (in the good faith
judgment of the Responsible Representatives) not less than the fair
value of the Timber subject to such excess harvest, provided that the
Company shall have notified the Agent promptly after its
determination to so apply the Net Proceeds. For purposes of
computing maximum harvest, Board Feet will be converted into Cunits
at a ratio of 2.1 MCCF for each MMBF. \For purposes of conversion of
Timber in the Company's Maine timberlands, one million Tons shall
equal 355 MCCF.\
8.4 Loans and Investments
The Company shall not, and shall not suffer or permit any of its
Restricted Subsidiaries to, make or commit to make or permit to
remain outstanding any loan or advance to, or guarantee, endorse or
otherwise be or become contingently liable, directly or indirectly,
in connection with the obligations, stock or dividends of, or own,
purchase or acquire (or commit to own, purchase or acquire) any
stock, obligations or securities of, or any other interest in
(including, without limitation, the acquisition of all or
substantially all of the assets of a Person, or of any business or
division of a Person), or make or commit to make any capital
contribution to, any Person (all of the foregoing [(but excluding any
Designated Repurchases permitted by Section 8.13 hereof)] being
referred to herein as "Investments"), except that the Company or any
Restricted Subsidiary may:
(a) make Investments in the Facilities Subsidiary, provided that
the Company will not make or permit any Restricted Subsidiary to make
any such Investment (including any guaranty of obligations of the
Facilities Subsidiary otherwise permitted by this Section 8.4) unless
(i) immediately after giving effect to such Investment, no Event of
Default or Default, or "Default" or "Event of Default" as defined in
the Mortgage Note Agreements, shall exist, (ii) immediately prior to
giving effect to such Investment, no Default or Event of Default
(other than an "Event of Default" as defined in the Mortgage Note
Agreements) shall exist, and (iii) immediately after giving effect to
such Investment, the ratio of Pro Forma Free Cash Flow to Maximum Pro
Forma Annual Interest Charges is not less than 2.5 to 1.0\;\
(b) own, purchase or acquire real or personal property to be used
in the Ordinary Course of Business;
(c) own, purchase or acquire investments of the type specified
in, and in accordance with the requirements and limitations of, the
Investment Policy;
(d) continue to own Investments owned on the Closing Date as set
forth on Schedule 8.4;
(e) endorse negotiable instruments for collection in the Ordinary
Course of Business;
(f) become and be obligated under the Guarantee and under the
guarantees permitted by subsections 8.5(f) and (h), and acquire and
own subordinated subrogation rights upon performance of such
guarantees;
(g) make advances in the Ordinary Course of Business of the
Company or any Restricted Subsidiary, including deposits permitted
under subsection 8.1(c), advances to employees for travel, relocation
and other employment related expenses, advances to contractors
performing services for the Company or such Restricted Subsidiary,
advances to owners of timber or timber properties to acquire rights
to harvest timber and other similar advances;
(h) make Investments in Restricted Subsidiaries, or any entity
which immediately after such Investment will be a Restricted
Subsidiary; and
(i) make Investments not otherwise permitted by this Section 8.4
in entities engaged solely in a Permitted Business, provided that
(x) the aggregate cumulative amount of such Investments, to the
extent that such Investments are attributable to pulp and paper
manufacturing (as proportionately attributed by multiplying the
amount of an Investment by the percentage of revenues of the Person
in whom such Investment is made during the 12 months preceding such
Investment that are contributed by pulp and paper manufacturing),
does not exceed the sum of $50,000,000 (without giving effect to any
write-down of such Investments), and (y) the cumulative aggregate
amount of all such Investments including those subject to clause (x)
at original cost (including the principal amount of any obligations
guaranteed to the extent such guarantees are not otherwise permitted
by this Section 8.4) outstanding from time to time made pursuant to
this subsection (i) between the closing date of the Note Agreements
and any date thereafter shall not exceed the greater of $30,000,000
or 60% of the average annual Pro Forma Free Cash Flow for the two
fiscal years preceding such date.
8.5 Limitation on Indebtedness
The Company shall not, and shall not suffer or permit any of its
Restricted Subsidiaries to, create, incur, assume, suffer to exist,
or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(a) [Funded] Debt \of the Company\ represented by the Notes, the
1994 Notes, [and] the 1996 \Notes, and the 1998\ Notes and any
refinancing thereof so long as such refinancing does not increase the
principal amount thereof and is on terms no less favorable to the
Company, and to the rights of the Agent and the Banks hereunder, than
those contained on the Closing Date in the Notes, the 1994 Notes,
[and] the 1996 Notes\, the 1998 Notes,\ and the documentation
relating thereto;
(b) Funded Debt which is unsecured and is incurred by the Company
to finance the making of capital improvements, expansions and
additions to the Company's property (including Timberlands), plant
and equipment, provided that the aggregate outstanding principal
amount of such Funded Debt shall at no time exceed $20,000,000;
(c) Indebtedness of any Restricted Subsidiary owing to the
Company or to a Restricted Subsidiary;
(d) Indebtedness pursuant to a bank credit facility which is
unsecured or is secured by Liens permitted by subsection 8.1(h), not
in excess of an aggregate principal amount of $15,000,000 at any time
outstanding, provided that the Company shall not suffer to exist any
Indebtedness permitted by this subsection (d) on any day unless there
shall have been a period of at least 45 consecutive days within the
12 months immediately preceding such day during which the Company
shall have been free from all Indebtedness permitted by this
subsection (d);
(e) Indebtedness represented by the Guarantee and any refinancing
thereof so long as such refinancing does not increase the principal
amount thereof and is on terms no less favorable to the Company, and
to the rights of the Agent and the Banks hereunder, than those
contained on the Closing Date in the Guarantee and the documentation
relating thereto;
(f) the Company's guarantee of obligations incurred by the
Facilities Subsidiary pursuant to the Facilities Subsidiary's
Revolving Credit Facility (and any extension, renewal, refunding or
refinancing thereof permitted by clause (iv) of paragraph 6B(2) of
the Mortgage Note Agreements), provided that the aggregate
outstanding principal amount of such Indebtedness shall at no time
exceed $20,000,000, and provided further that such guarantee shall be
subordinated to the Notes by subordination provisions substantially
the same as those contained in paragraph 7I of the Mortgage Note
Agreements;
(g) the Company's guarantee of Funded Debt (and related
obligations not constituting Indebtedness) incurred by the Facilities
Subsidiary to finance the making of capital improvements, expansions
and additions to the Facilities Subsidiaries' Properties pursuant to
the Facilities Subsidiary's Facility, provided that such guarantee
shall be subordinated to the Notes by subordination provisions
substantially the same as those contained in paragraph 7I of the
Mortgage Note Agreements, and provided, further, that the aggregate
outstanding principal amount of such Funded Debt shall at no time
exceed $20,000,000;
(h) Funded Debt of the Company or any Restricted Subsidiary
secured by a Lien permitted by subsection 8.1(g), provided that
immediately after the acquisition of the Property subject to such
Lien or upon which such Lien is placed (or, if later, the incurrence
of the Indebtedness secured by such Lien), the Company could incur at
least $1 of additional Funded Debt pursuant to subsection (i) below;
(i) Funded Debt of the Company (other than Funded Debt owing to a
Restricted Subsidiary) in addition to that otherwise permitted by the
foregoing subsections of this Section 8.5, including guarantees of
Indebtedness to the extent permitted by Section 8.4 and not otherwise
permitted by the foregoing subsections of this Section 8.5, provided
that, on the date the Company becomes liable with respect to any such
additional Funded Debt and immediately after giving effect thereto
and to the concurrent retirement of any other Funded Debt, the ratio
of Pro Forma Free Cash Flow to Maximum Pro Forma Annual Interest
Charges is not less than 2.25 to 1.00; and provided, further, that
the aggregate outstanding principal amount of such additional Funded
Debt (but not including Funded Debt incurred under this Agreement)
shall not exceed $300,000,000;
(j) from and after the time that the Facilities Subsidiary
becomes a Restricted Subsidiary, Indebtedness incurred by the
Facilities Subsidiary pursuant to the Facilities Subsidiary's
Revolving Credit Facility (and any extension, renewal, refunding or
refinancing thereof, including any refunding or refinancing in an
amount in excess of the principal amount then outstanding under the
Facilities Subsidiary's Revolving Credit Facility) or any other
Indebtedness incurred by the Facilities Subsidiary pursuant to a bank
credit facility which is unsecured or is secured by Liens permitted
by subsection 8.1(h), not in excess of an aggregate principal amount
of $20,000,000 at any time outstanding, provided that to the extent
that the Facilities Subsidiary is a Restricted Subsidiary, the
Facilities Subsidiary shall not suffer to exist any Indebtedness
permitted by this subsection (j) on any day unless there shall have
been a period of at least 45 consecutive days within the 12 months
immediately preceding such day during which the Facilities Subsidiary
shall have been free from all Indebtedness permitted by this
subsection (j);
(k) from and after the time that the Facilities Subsidiary or any
Designated Immaterial Subsidiary becomes a Restricted Subsidiary,
Indebtedness of the Facilities Subsidiary or any such Designated
Immaterial Subsidiary outstanding at the time the Facilities
Subsidiary or such Designated Immaterial Subsidiary becomes a
Restricted Subsidiary, provided that (i) immediately after the
Facilities Subsidiary or any such Designated Immaterial Subsidiary
becomes a Restricted Subsidiary, the Company could incur at least $1
of additional Funded Debt pursuant to subsection (i) above (the
Facilities Subsidiary or any such Designated Immaterial Subsidiary
shall be deemed to be a Restricted Subsidiary for the four
consecutive fiscal quarters immediately prior to its becoming a
Restricted Subsidiary for purposes of determining Pro Forma Free Cash
Flow), and (ii) the aggregate amount (without duplication) of such
Indebtedness and all other Indebtedness, in each case, secured by
Liens permitted by subsection 8.1(g) does not violate subclause (iv)
to the proviso to such subsection (g);[ and]
(l) Indebtedness representing the Swap Termination Value of Swap
Contracts entered into in the ordinary course of business as bona
fide hedging transactions\; and
(m) Indebtedness of Plum Creek Southern Timber, L.L.C. evidenced
by an assumption agreement substantially in the form attached as
Exhibit B to the First Amendment, as well as any future assumption
agreements that are contemplated by paragraph 2, clause (b)(ii) of
such assumption agreement.\
8.6 Transactions with Affiliates
The Company shall not, and shall not suffer or permit any of its
Restricted Subsidiaries to directly or indirectly engage in any
transaction (including, without limitation, the purchase, sale or
exchange of assets or the rendering of any service), with any
Affiliate of the Company or of any such Restricted Subsidiary, except
in the Ordinary Course of Business and pursuant to the reasonable
requirements of the business of the Company or such Restricted
Subsidiary and upon fair and reasonable terms that are no less
favorable to the Company or such Restricted Subsidiary, as the case
may be, than those which might be obtained in an arm's-length
transaction at the time from Persons not an Affiliate of the Company
or such Restricted Subsidiary.
8.7 Use of Proceeds
(a) The Company shall not and shall not suffer or permit any of
its Subsidiaries to use any portion of the proceeds of the Loans or
other Credit Extension, directly or indirectly, (i) to purchase or
carry Margin Stock, (ii) to repay or otherwise refinance indebtedness
of the Company or others incurred to purchase or carry Margin Stock,
(iii) to extend credit for the purpose of purchasing or carrying any
Margin Stock, or (iv) to acquire any security in any transaction that
is subject to Section 13 or 14 of the Exchange Act.
(b) The Company shall not and shall not suffer or permit any of
its Subsidiaries to use any portion of the proceed of the Loans or
other Credit Extension, directly or indirectly, (i) knowingly to
purchase Ineligible Securities from a Section 20 Subsidiary during
any period in which such Section 20 Subsidiary makes a market in such
Ineligible Securities, (ii) knowingly to purchase during the
underwriting or placement period Ineligible Securities being
underwritten or privately placed by a Section 20 Subsidiary, or
(iii) to make payments of principal or interest on Ineligible
Securities underwritten or privately placed by a Section 20
Subsidiary and issued by or for the benefit of the Company or any
Affiliate of the Company. As used in this Section, "Section 20
Subsidiary" means the Subsidiary of the bank holding company
controlling any Bank, which Subsidiary has been granted authority by
the Federal Reserve Board to underwrite and deal in certain
Ineligible Securities; and "Ineligible Securities" means securities
which may not be underwritten or dealt in by member banks of the
Federal Reserve System under Section 16 of the Banking Act of 1933
(as U.S.C. Section 24, Seventh), as amended.
(c) After the date the Company has notified the Agent that the
Company intends to allocate Loans to the Capital Expenditure Tranche
and to qualify such Capital Expenditure Tranche Loans as Indebtedness
permitted under subsection 8.5(b), the Company shall not and shall
not suffer any of its Subsidiaries to use the proceeds of Capital
Expenditure Tranche Loans for purposes other than to finance capital
improvements, expansions and additions to the Company's property
(including Timberlands), plant and equipment.
8.8 Sale of Stock and Indebtedness of Subsidiaries
The Company shall not, and shall not suffer or permit any of its
Restricted Subsidiaries to, sell or otherwise dispose of, or part
with control of, any shares of stock or Indebtedness of any
Subsidiary, except to the Company or a Restricted Subsidiary, and
except that all shares of stock and Indebtedness of any Subsidiary
(other than the Facilities Subsidiary) at the time owned by or owed
to the Company and its Restricted Subsidiaries may be sold as an
entirety for a cash consideration which represents the fair value (as
determined in good faith by [the] \a\ Responsible [Representatives of
the PC Advisory General Partner)] \Officer)\ at the time of sale of
the shares of stock and Indebtedness so sold, provided that the
assets of such Subsidiary do not include any assets which could not
be disposed of pursuant to the provisions of Section 8.2 unless the
conditions to the sale of such assets set forth in Section 8.2 are
complied with, and further provided that, at the time of such sale,
such Subsidiary shall not own, directly or indirectly, any shares of
stock or Indebtedness of any other Subsidiary (unless all of the
shares of stock and Indebtedness of such other Subsidiary owned,
directly or indirectly, by the Company and its Subsidiaries are
simultaneously being sold as permitted by this Section 8.8).
8.9 Certain Contracts
The Company shall not, and shall not suffer or permit any of its
Restricted Subsidiaries to enter into or be a party to:
(a) any contract providing for the making of loans, advances or
capital contributions to any Person, or for the purchase of any
Property from any Person, in each case in order primarily to enable
such Person to maintain working capital, net worth or any other
balance sheet condition or to pay debts, dividends or expenses; or
(b) any contract for the purchase of materials, supplies or other
property or services if such contract (or any related document)
requires that payment for such materials, supplies or other property
or services shall be made regardless of whether or not delivery of
such materials, supplies or other property or services is ever made
or tendered, provided that nothing in this subsection (b) shall
prevent the Company from (i) entering into (x) take-or-pay contracts
in the Ordinary Course of Business with the United States Forest
Service, the Bureau of Land Management, the Bureau of Indian Affairs,
the Washington Department of Natural Resources or similar state or
federal governmental agencies or (y) the Riverwood Supply Agreement,
or (ii) making payments in satisfaction of contracts with such
Persons which contracts are deemed by the Responsible Representatives
to be disadvantageous to perform; or
(c) any contract to rent or lease (as lessee) any real or
personal property if such contract (or any related document) provides
that the obligation to make payments thereunder is absolute and
unconditional under conditions not customarily found in commercial
leases then in general use or requires that the lessee purchase or
otherwise acquire securities or obligations of the lessor; or
(d) any contract for the sale or use of materials, supplies or
other property, or the rendering of services, if such contract (or
any related document) requires that payment for such materials,
supplies or other property, or the use thereof, or payment for such
services, shall be subordinated to any indebtedness (of the purchaser
or user of such materials, supplies or other property or the Person
entitled to the benefit of such services) owed or to be owed to any
Person; or
(e) any other contract which in economic effect, is substantially
equivalent to a guarantee,
except as permitted by the provisions of subsection 8.4(a), (e), (f),
(g), (h) or (i).
8.10 Joint Ventures
The Company shall not, and shall not suffer or permit any of its
Restricted Subsidiaries to enter into any Joint Venture, other than
in Permitted Businesses and so long as any such Joint Venture is not
entered into for the purposes of evading any covenant or restriction
in any Loan Documents.
8.11 Compliance with ERISA
The Company shall not, and shall not suffer or permit any of its
Subsidiaries to, without the consent of the Majority Banks,
(i) terminate any Plan subject to Title IV of ERISA so as to result
in any material (in the opinion of the Majority Banks) liability to
the Company or any ERISA Affiliate, (ii) permit to exist any ERISA
Event with respect to any Plan other than a Multiemployer Plan, which
presents the risk of a material (in the opinion of the Majority
Banks) liability to the Company, (iii) make a complete or partial
withdrawal (within the meaning of ERISA Section 4201) from any
Multiemployer Plan so as to result in any material (in the opinion of
the Majority Banks) liability to the Company or any ERISA Affiliate,
(iv) enter into any new Plan or modify any existing Plan so as to
increase its obligations thereunder which could result in any
material (in the opinion of the Majority Banks) increase in its
liability with respect to such Plan, or (v) permit the present value
of all nonforfeitable accrued benefits under any Qualified Plan
(determined using the actuarial assumptions utilized by the Plan's
actuaries for funding the Plan pursuant to Section 412 of the Code)
materially (in the opinion of the Majority Banks) to exceed the fair
market value of Plan assets allocable to such benefits, all
determined as of the most recent valuation date for each such Plan.
8.12 Sale and Leaseback
The Company shall not, and shall not suffer or permit any of its
Restricted Subsidiaries to, enter into any arrangement with any
lender or investor or to which such lender or investor is a party
providing for the leasing by the Company or any Restricted Subsidiary
of real or personal property which has been or is to be sold or
transferred by the Company or any Restricted Subsidiary to such
lender or investor or to any Person to whom funds have been or are to
be advanced by such lender or investor on the security of such
property or rental obligations of the Company or any Restricted
Subsidiary, provided that this Section 8.12 shall not apply to any
property sold pursuant to subsection 8.2(h).
8.13 Restricted Payments
The Company shall not and shall not permit or suffer any
Subsidiary to directly or indirectly pay, declare, order, make or set
apart any sum for any Restricted Payment, except that the Company may
make, pay or set apart during each calendar quarter one or more
Restricted Payments if:
(a) such Restricted Payments are in an aggregate amount not
exceeding the amount by which Available Cash with respect to the
immediately preceding calendar quarter exceeds any amount contributed
to Available Cash with respect to such immediately preceding calendar
quarter by any Subsidiary if and to the extent that the payment of
such amount as a dividend or distribution to the Company has not been
made and is not at the time permitted by the terms of such
Subsidiary's charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to such
Subsidiary, provided that in determining Available Cash with respect
to such immediately preceding calendar quarter, the Company will
include in the amount of reserves established during such quarter
pursuant to clause (ii)(d) of the definition of Available Cash an
amount not less than (i) 50% of the aggregate amount of all interest
in respect of the Notes and the 1994 Notes to be paid on the interest
date immediately following such immediately preceding calendar
quarter, (ii) 100% of the aggregate amount of all interest in respect
of the Loans to be paid on the respective Interest Payment Dates for
such Loans, (iii) 25% of the aggregate amount of all principal in
respect of the Notes and the 1994 Notes scheduled to be paid
(determined in accordance with the Principal Repayment Proviso)
during the 12 calendar months immediately following such immediately
preceding calendar quarter, and (iv) for the final four full calendar
quarters preceding the Revolving Termination Date, 25% of the average
Effective Amount of Revolving Loans, Swingline Loans and L/C
Obligations outstanding at any time during such quarter of
computation, and the Company will not reduce the amount of the
reserves so included, in determining Available Cash for any calendar
quarter subsequent to such immediately preceding calendar quarter
pursuant to clause (i)(c) of the definition of Available Cash, unless
and until (A) the amount of interest or principal in respect of which
such amount has been reserved has in fact been paid and (B) in the
case of clause (iv) of this subsection 8.13(a), the amount of the
reserves so included exceeds fifty percent (50%) of the Effective
Amount of Revolving Loans, L/C Obligations and Swingline Loans at the
end of such quarter of computation; and
(b) immediately after giving effect to any such proposed action
no condition or event shall exist which constitutes an Event of
Default or Material Default.
The Company will not, in any event, directly or indirectly declare,
order, pay or make any Restricted Payment except in cash.
8.14 Change in Business
The Company [shall] \covenants that it will\ not, and [shall]
\will\ not permit any [of its Subsidiaries] \Subsidiary\ to, engage
in any business other than [a Permitted Business.] \Permitted
Businesses. In addition, the Company will not, and will not permit
any Restricted Subsidiary to, (i) sell, transfer or otherwise dispose
of any of its Timberlands or Timber (collectively, "Timber
Properties") to Holding or any Subsidiary of Holding (whether or not
at the time they are Restricted Subsidiaries, and herein collectively
called the "Manufacturing Entities") unless such transaction is a
transaction permitted under clause (f) or (h) of Section 8.2, or (ii)
invest in or otherwise transfer to any of the Manufacturing Entities
the proceeds ("Timber Proceeds") of the sale or disposition of any
such Timber Properties (unless such proceeds are derived from a
transaction permitted under clause (f) or (h) of Section 8.2). Any
Timber Proceeds being used to "purchase productive assets in the same
line of business" under the provisions of Section 8.2(i) shall not be
used for any purpose except for the acquisition of Timber Properties
to be owned directly by the Company or a Restricted Subsidiary which
is not one of the Manufacturing Entities. Notwithstanding the
foregoing, the Company and its Restricted Subsidiaries may sell
Timber to the Manufacturing Entities in connection with, and in
transactions which constitute part of, harvesting activities
conducted in accordance with the requirements of Section 8.3. All
acquisitions of Timber Properties by the Company and its Restricted
Subsidiaries shall be made only by the Company directly or indirectly
through Restricted Subsidiaries which are not Manufacturing
Entities.\
8.15 Issuance of Stock by Subsidiaries
The Company covenants that it will not permit any Subsidiary to
(either directly, or indirectly by the issuance of rights or options
for, or securities convertible into, such shares) issue, sell or
otherwise dispose of any shares of any class of its stock or
partnership or other ownership interests (other than directors'
qualifying shares) except to the Company or a Restricted Subsidiary,
and except to the extent that holders of minority interests may be
entitled to purchase stock by reason of preemptive rights.
8.16 Amendments
The Company shall not, and shall not suffer or permit any of its
Subsidiaries to amend, modify, supplement, waive or otherwise modify
any provision of any agreement evidencing Funded Debt in excess of
$35,000,000 which amendment, modification, supplement or waiver would
reasonably be expected to impair the Agent's or the Banks' rights
hereunder or the ability of the Company to perform its obligations
under any Loan Document.
8.17 Available Cash
The Company shall not at any time permit Available Cash to be
less than zero. For purposes of this Section 8.17, in determining
Available Cash with respect to the immediately preceding calendar
quarter, the Company will include in the amount of reserves
established during such quarter pursuant to clause (ii)(d)(1) (with
respect to principal on Indebtedness) and clause (ii)(d)(4) of the
definition of "Available Cash" an amount not less than (a) 50% of the
aggregate amount of all interest in respect of the Notes and the 1994
Notes to be paid on the interest date immediately following such
immediately preceding calendar quarter, (b) 100% of the aggregate
amount of all interest in respect of the Loans to be paid on the
respective Interest Payment Dates for such Loans, (c) 25% of the
aggregate amount of all principal in respect of the Notes and the
1994 Notes scheduled to be paid (determined in accordance with the
Principal Repayment Proviso) during the 12 calendar months
immediately following such immediately preceding calendar quarter,
and (d) for the final four full calendar quarters preceding the
Revolving Termination Date, 25% of the average Effective Amount of
Revolving Loans, Swingline Loans and L/C Obligations outstanding at
any time during such quarter of computation, and the Company will not
reduce the amount of the reserves so included in determining
Available Cash for any calendar quarter subsequent to such
immediately preceding calendar quarter pursuant to clause (i)(c) of
the definition of Available Cash, unless and until (i) the amount of
interest or principal in respect of which such amount has been
reserved has in fact been paid and (ii) in the case of clause (d) of
this Section 8.17, the amount of the reserves so included exceeds
fifty percent (50%) of the Effective Amount of Revolving Loans, L/C
Obligations and Swingline Loans at the end of such quarter of
computation.
8.18 Interest Coverage Ratio
The Company shall not permit its Interest Coverage Ratio at the
end of any fiscal quarter ending during the periods set forth below
to be equal to or less than the values indicated below for such
periods:
Period Interest Coverage Ratio
- ------ -----------------------
1 2.40
2 [2.75]
[3] [3.00] \2.50\
Period 1 shall extend from the Closing Date until the end of the
sixth (6th) fiscal quarter ending after the Closing Date; \and\
Period 2 shall extend from the end of Period [1 until the end of the
twelfth (12th) fiscal quarter ending after the Closing Date; and
Period 3 shall extend from the end of Period 2 until] \1until\ the
Revolving Termination Date.
9. EVENTS OF DEFAULT
9.1 Event of Default
Any of the following shall constitute an "Event of Default":
(a) Non-Payment. The Company fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or of
any L/C Obligation, or (ii) within 5 days after the same shall become
due, any interest, fee or any other amount payable hereunder or
pursuant to any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty
by the Company or any of its Subsidiaries made or deemed made herein,
in any Loan Document, or which is contained in any certificate,
document or financial or other statement by the Company, its
Responsible Representatives, any of its Subsidiaries, or their
respective Responsible Officers, furnished at any time under this
Agreement, or in or under any Loan Document, shall prove to have been
incorrect in any material respect on or as of the date made or deemed
made; or
(c) Specific Defaults. The Company fails to perform or observe
any term, covenant or agreement contained in Sections 7.3 or 7.9 or
Article VIII; or
(d) Other Defaults. The Company fails to perform or observe any
other term or covenant contained in this Agreement or any Loan
Document, and such default shall continue unremedied for a period of
20 days after the earlier of (i) the date upon which a Responsible
Officer or Responsible Representative of the Company knew or should
have known of such failure or (ii) the date upon which written notice
thereof is given to the Company by the Agent or any Bank; or
(e) Cross-Default. (i) The Company or any of its Subsidiaries
(A) fails to make any payment in respect of any Indebtedness (other
than in respect of Swap Contracts) having an aggregate principal
amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $5,000,000 when due
(whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise); or (B) fails to perform or observe any other
condition or covenant, or any other event shall occur or condition
exist, under any agreement or instrument relating to any such
Indebtedness, if the effect of such failure, event or condition is to
cause, or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Indebtedness (or a trustee or
agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due
and payable prior to its stated maturity, or with respect to any
contingent obligations, to become payable or cash collateral in
respect thereof to be demanded; or (ii) there occurs under any Swap
Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (1) any event of default under such Swap Contract as
to which the Company or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (2) any Termination Event (as so
defined) as to which the Company or any Subsidiary is an Affected
Party (as so defined), and, in either event, the Swap Termination
Value owed by the Company or such Subsidiary as a result thereof is
greater than $5,000,000, or
(f) Insolvency; Voluntary Proceedings. The Company, any of its
Subsidiaries, or any Partner Entity (i) ceases or fails to be
Solvent, or generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable
grace periods, if any, whether at stated maturity or otherwise;
(ii) voluntarily ceases to conduct its business in the ordinary
course; (iii) commences any Insolvency Proceeding with respect to
itself; or (iv) takes any action to effectuate or authorize any of
the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company, the Facilities
Subsidiary, any Restricted Subsidiary of the Company, or any Partner
Entity, or any writ, judgment, warrant of attachment, execution or
similar process, is issued or levied against a substantial part of
the Company's, any of its Restricted Subsidiaries', any Partner
Entities' or the Facilities Subsidiaries' Properties, and any such
proceeding or petition shall not be dismissed, or such writ,
judgment, warrant of attachment, execution or similar process shall
not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; (ii) the Company, any Partner Entity,
the Facilities Subsidiary, or any of the Company's Restricted
Subsidiaries admits the material allegations of a petition against it
in any Insolvency Proceeding, or an order for relief (or similar
order under non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) the Company, any Partner Entity, any of the Company's
Restricted Subsidiaries, or the Facilities Subsidiary acquiesces in
the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its Property or
business; or
(h) ERISA. (i) The Company or an ERISA Affiliate shall fail to
pay when due, after the expiration of any applicable grace period,
any installment payment with respect to its withdrawal liability
under a Multiemployer Plan; (ii) the Company or an ERISA Affiliate
shall fail to satisfy its contribution requirements under
Section 412(c)(11) of the Code, whether or not it has sought a waiver
under Section 412(d) of the Code; (iii) in the case of an ERISA Event
involving the withdrawal from a Plan of a "substantial employer" (as
defined in Section 4001(a)(2) or Section 4062(e) of ERISA), the
withdrawing employer's proportionate share of that Plan's Unfunded
Pension Liabilities is more than $10,000,000; (iv) in the case of an
ERISA Event involving the complete or partial withdrawal from a
Multiemployer Plan, the withdrawing employer has incurred a
withdrawal liability in an aggregate amount exceeding $10,000,000;
(v) in the case of an ERISA Event not described in clause (iii) or
(iv), the Unfunded Pension Liabilities of the relevant Plan or Plans
exceed $10,000,000; (vi) a Plan that is intended to be qualified
under Section 401(a) of the Code shall lose its qualification, and
the loss can reasonably be expected to impose on the Company or its
ERISA Affiliates liability (for additional taxes, to Plan
participants, or otherwise) in the aggregate amount of $10,000,000 or
more; (vii) the commencement or increase of contributions to, or the
adoption of or the amendment of a Plan by, the Company or an ERISA
Affiliate which commencement, increase or amendment shall result in a
net increase in unfunded liabilities to the Company and the ERISA
Affiliates in excess of $10,000,000; (viii) the Company or an ERISA
Affiliate engages in or otherwise becomes liable for a non-exempt
prohibited transaction and the initial tax or additional tax under
section 4975 of the Code relating thereto might reasonably be
expected to exceed $10,000,000; (ix) a violation of section 404 or
405 of ERISA or the exclusive benefit rule under section 401(a) of
the Code if such violation might reasonably be expected to expose
Company or its ERISA Affiliates to monetary liability in excess of
$10,000,000; (x) any member of the Controlled Group is assessed a tax
under section 4980B of the Code in excess of $10,000,000; or (xi) the
occurrence of any combination of events listed in clauses (iii)
through (x) that would reasonably be expected to result in a net
increase to the Company and its ERISA Affiliates in aggregate
Unfunded Pension Liabilities, unfunded liabilities, or any
combination thereof, in excess of $10,000,000; or
(i) Monetary Judgments. One or more non-interlocutory judgments,
orders or decrees shall be entered against the Company or any of its
Subsidiaries involving in the aggregate a liability (not fully
covered by independent third-party insurance) as to any single or
related series of transactions, incidents or conditions, of
$25,000,000 or more, and the same shall remain unsatisfied, unvacated
and unstayed pending appeal for a period of 30 days after the entry
thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
decree shall be rendered against the Company or any of its
Subsidiaries which does or would reasonably be expected to have a
Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(k) Auditors. The Agent or any Bank shall receive notice from
the Independent Auditor that the Agent and the Banks should no longer
use or rely upon any audit report or other financial data provided by
the Independent Auditor; or
(l) Adverse Change. One of the following has occurred and the
Agent, at the direction of the Majority Banks, shall so notify the
Company: (i) a material adverse change in, or a material adverse
effect upon, any of the operations, business, properties, or
condition (financial or otherwise) of the Company or the Company and
its Subsidiaries taken as a whole or as to any Restricted Subsidiary
which materially impairs the ability of the Company to perform under
any Loan Document and avoid any Event of Default, or (ii) a material
adverse effect upon the legality, validity, binding effect or
enforceability of any Loan Document.
9.2 Remedies
If any Event of Default occurs, the Agent shall, at the request
of, or may, with the consent of, the Majority Banks do any one or
more of the following:
(a) declare the Commitment of each Bank and the Swingline
Commitment of the Swingline Bank to make Loans and any obligation of
the Issuing Banks to issue Letters of Credit to be terminated,
whereupon such Commitments and obligations shall forthwith be
terminated;
(b) declare an amount equal to the maximum aggregate amount that
is or at any time thereafter may become available for drawing under
any outstanding Letters of Credit (whether or not any beneficiary
shall have presented, or shall be entitled at such time to present,
the drafts or other documents required to draw under such Letters of
Credit) to be immediately due and payable, and declare the unpaid
principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of any event specified in
paragraph (f) or (g) of Section 9.1 above (in the case of clause (i)
of paragraph (g) upon the expiration of the 60-day period mentioned
therein), the obligation of each Bank and the Swingline Bank to make
Loans and any obligation of the Issuing Banks to Issue Letters of
Credit shall automatically terminate and the unpaid principal amount
of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable without further
act of the Agent, the Issuing Banks, the Swingline Bank, or any Bank.
9.3 Rights Not Exclusive
The rights provided for in this Agreement and the other Loan
Documents are cumulative and are not exclusive of any other rights,
powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter
arising.
10. THE AGENT
10.1 Appointment and Authorization
(a) Each Bank and each Issuing Bank hereby irrevocably (subject
to Section 10.9) appoints, designates and authorizes the Agent to
take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as
are reasonably incidental thereto, including, without limitation, to
enter into Cash Collateral Account Agreements from time to time in
accordance with this Agreement, and to release funds to the Company
in accordance with Section 1(b) of the Cash Collateral Account
Agreement and, if applicable, pursuant to an Officer's Certificate
substantially in the form attached thereto as Exhibit A.
Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or in any other Loan Document, the Agent shall not
have any duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any fiduciary
relationship with any Bank or any Issuing Bank, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in
this Agreement with reference to the Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent
contracting parties.
(b) Each Issuing Bank shall act on behalf of the Banks with
respect to any Letters of Credit Issued by it and the documents
associated therewith until such time and except for so long as the
Agent may agree at the request of the Majority Banks to act for such
Issuing Bank with respect thereto; provided, however, that each
Issuing Bank shall have all of the benefits and immunities
(i) provided to the Agent in this Article X with respect to any acts
taken or omissions suffered by such Issuing Bank in connection with
Letters of Credit Issued by it or proposed to be Issued by it and the
application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Agent," as used in this
Article X, included such Issuing Bank with respect to such acts or
omissions, and (ii) as additionally provided in this Agreement with
respect to the Issuing Banks.
10.2 Delegation of Duties
The Agent may execute any of its duties under this Agreement or
any other Loan Document by or through agents, employees or attorneys-
in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.3 Liability of Agent
None of the Agent-Related Persons shall (i) be liable for any
action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence
or willful misconduct), or (ii) be responsible in any manner to any
of the Banks for any recital, statement, representation or warranty
made by the Company or any Subsidiary or Affiliate of the Company, or
any officer thereof, contained in this Agreement or in any other Loan
Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Loan Document, or for any failure of
the Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall
be under any obligation to any Bank to ascertain or to inquire as to
the observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Loan Document, or to
inspect the Properties, books or records of the Company or any of the
Company's Subsidiaries or Affiliates.
10.4 Reliance by Agent
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Company),
independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Majority Banks
as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a
request or consent of the Majority Banks and such request and any
action taken or failure to act pursuant thereto shall be binding upon
all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 5.1, each Bank that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent or made
available by the Agent to such Bank for consent, approval, acceptance
or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to the Bank, unless an
officer of the Agent responsible for the transactions contemplated by
the Loan Documents shall have received notice from the Bank prior to
the initial Credit Extension specifying its objection thereto and
either such objection shall not have been withdrawn by notice to the
Agent to that effect or the Bank shall not have made available to the
Agent the Bank's ratable portion of such Credit Extension.
10.5 Notice of Default
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest and fees required to
be paid to the Agent for the account of the Banks, unless the Agent
shall have received written notice from a Bank or the Company
referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". The
Agent will notify the Banks of its receipt of any such notice. The
Agent shall take such action with respect to such Default or Event of
Default as may be requested by the Majority Banks in accordance with
Article IX; provided, however, that unless and until the Agent has
received any such request, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem
advisable or in the best interest of the Banks.
10.6 Credit Decision
Each Bank expressly acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the
affairs of the Company and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Agent-Related Person
to any Bank. Each Bank represents to the Agent that it has,
independently and without reliance upon any Agent-Related Person and
based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company and its Subsidiaries, and all
applicable bank regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Company hereunder. Each Bank
also represents that it will, independently and without reliance upon
any Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other
condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be furnished
to the Banks by the Agent, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other
information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Company
which may come into the possession of any of the Agent-Related
Persons.
10.7 Indemnification of Agent
Whether or not the transactions contemplated hereby are
consummated, the Banks shall indemnify upon demand the Agent-Related
Persons (to the extent not reimbursed by or on behalf of the Company
and without limiting the obligation of the Company to do so), pro
rata from and against any and all Indemnified Liabilities; provided,
however, that no Bank shall be liable for the payment to the Agent-
Related Persons of any portion of such Indemnified Liabilities
resulting from such Person's gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank shall reimburse the
Agent upon demand for its ratable share of any costs or out-of-pocket
expenses (including reasonable Attorney Costs) incurred by the Agent
in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document, or any document contemplated by
or referred to herein, to the extent that the Agent is not reimbursed
for such expenses by or on behalf of the Company. Without limiting
the generality of the foregoing, if the Internal Revenue Service or
any other Governmental Authority of the United States or other
jurisdiction asserts a claim that the Agent did not properly withhold
tax from amounts paid to or for the account of any Bank hereunder
(because the appropriate form was not delivered, was not properly
executed, or because such Bank failed to notify the Agent of a change
in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Bank shall
indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the
amounts payable to the Agent under this Section, together with all
costs and expenses and attorneys' fees (including reasonable Attorney
Costs). The undertaking in this Section shall survive the payment of
all Obligations hereunder and the resignation or replacement of the
Agent.
10.8 Agent in Individual Capacity
BofA, [NationsBank,N.A.] \ABN Amro Bank N.V. and U.S. Bank
National Association\, and any of their respective Affiliates may
make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other
business with the Company and its Subsidiaries and Affiliates as
though neither BofA [nor NationsBank, N.A.]\, ABN Amro Bank N.V. nor
U.S. Bank National Association\ was the Agent and the Senior Co-
Agent, respectively, the Swingline Bank or an Issuing Bank hereunder
and without notice to or consent of the Banks. The Banks acknowledge
that, pursuant to such activities, BofA or its Affiliates may receive
information regarding the Company or its Affiliates (including
information that may be subject to confidentiality obligations in
favor of the Company or such Subsidiary) and acknowledge that the
Agent shall be under no obligation to provide such information to
them. With respect to its Loans and participation in Letters of
Credit, each of BofA [and NationsBank, N.A.]\, ABN Amro Bank N.V. and
U.S. Bank National Association\ shall have the same rights and powers
under this Agreement as any other Bank and may exercise the same as
though it were not the Agent or the Senior Co-Agent, as the case may
be, and the terms "Bank" and "Banks" shall include each of BofA [and
NationsBank, N.A.]\, ABN Amro Bank N.V. and U.S. Bank National
Association\ in its individual capacity.
10.9 Successor Agent
The Agent may, and at the request of the Majority Banks shall,
resign as Agent upon 30 days' notice to the Banks. If the Agent
resigns under this Agreement, the Majority Banks shall appoint from
among the Banks a successor agent for the Banks. If no successor
agent is appointed prior to the effective date of the resignation of
the Agent, the Agent may appoint, after consulting with the Banks and
the Company, a successor agent from among the Banks. Upon the
acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and duties of
the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as
Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article X and Sections
11.4 and 11.5 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement.
If no successor agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become
effective and the Banks shall perform all of the duties of the Agent
hereunder until such time, if any, as the Majority Banks appoint a
successor agent as provided for above. Notwithstanding the
foregoing, however, BofA may not be removed as the Agent at the
request of the Majority Banks unless BofA shall also simultaneously
be replaced as an "Issuing Bank" hereunder pursuant to documentation
in form and substance satisfactory to BofA.
10.10 Senior Co-Agent
[The] \Each\ Bank identified on the facing page or signature
pages of this Agreement as a "senior co-agent" shall have no right,
power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Banks as such. Each
Bank acknowledges that it has not relied, and will not rely, on [the]
\any\ Bank so identified in deciding to enter into this Agreement or
in taking or not taking action hereunder.
11. MISCELLANEOUS
11.1 Amendments and Waivers
No amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent with respect to any departure by
the Company therefrom, shall be effective unless the same shall be in
writing and signed by the Majority Banks, the Company and
acknowledged by the Agent, and then such waiver shall be effective
only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent
shall, unless in writing and signed by all the Banks, the Company and
acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank or the
Swingline Commitment of the Swingline Bank (or reinstate any such
Commitment terminated pursuant to subsection 9.2(a)), including,
without limitation, any amendment to or waiver of subsection 2.7(b)
or any other provision providing for a mandatory commitment
reduction, or subject any Bank to any additional obligations;
(b) postpone or delay any date fixed for any payment of
principal, interest, fees or other amounts due to the Banks (or any
of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or (subject to clause (iii) below) of any fees or
other amounts payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which shall be required for the
Banks or any of them to take any action hereunder; or
(e) amend this Section 11.1 or Section 2.15 or any provision
providing for consent or other action by all Banks;
and, provided further that (i) no amendment, waiver or consent shall,
unless in writing signed by the relevant Issuing Bank in addition to
the Majority Banks or all the Banks, as the case may be, affect the
rights or duties of such Issuing Bank under this Agreement or any
L/C-Related Document relating to any Letter of Credit Issued or to be
Issued by it, (ii) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Majority Banks or
all the Banks, as the case may be, affect the rights or duties of the
Agent under this Agreement or any other Loan Document, (iii) no
amendment, waiver or consent shall, unless in writing and signed by
the Swingline Bank in addition to the Majority Banks or all the
Banks, as the case may be, affect the rights or duties of the
Swingline Bank under this Agreement or any other Loan Document, and
(iv) the fee letter between the Company and BofA may be amended, or
rights and privileges thereunder waived, in a writing executed by the
parties thereto.
11.2 Notices
(a) All notices, requests and other communications provided for
hereunder shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided
that any matter transmitted by the Company by facsimile (i) shall be
immediately confirmed by a telephone call to the recipient at the
number specified on Schedule 11.2, and (ii) shall be followed
promptly by a hard copy original thereof) and mailed, faxed or
delivered, to the address or facsimile number specified for notices
on Schedule 11.2; or, as directed to the Company or the Agent, to
such other address as shall be designated by such party in a written
notice to the other parties, and as directed to each other party, at
such other address as shall be designated by such party in a written
notice to the Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted by
facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the U.S. mail, or if
delivered, upon delivery; except that, notwithstanding the foregoing,
notices pursuant to Article III to an Issuing Bank shall not be
effective until actually received by the Issuing Bank at the address
specified for the "Issuing Bank" on Schedule 11.2, and notices to the
Company or the Agent shall not be effective until actually received
by the Company or the Agent, respectively.
(c) The Company acknowledges and agrees that any agreement of the
Agent, the Issuing Banks, and the Banks at Article II and Article III
herein to receive certain notices by telephone and facsimile is
solely for the convenience and at the request of the Company. The
Agent, the Issuing Banks, and the Banks shall be entitled to rely on
the authority of any Person purporting to be a Person authorized by
the Company to give such notice and the Agent, the Issuing Banks and
the Banks shall not have any liability to the Company or other Person
on account of any action taken or not taken by the Agent, the Issuing
Banks or the Banks in reliance upon such telephonic or facsimile
notice. The obligation of the Company to repay the Loans and L/C
Obligations shall not be affected in any way or to any extent by any
failure by the Agent, the Issuing Banks, and the Banks to receive
written confirmation of any telephonic or facsimile notice or the
receipt by the Agent, the Issuing Banks and the Banks of a
confirmation which is at variance with the terms understood by the
Agent, the Issuing Banks, and the Banks to be contained in the
telephonic or facsimile notice.
11.3 No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part of
the Agent or any Bank, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege.
11.4 Costs and Expenses
The Company shall, whether or not the transactions contemplated
hereby shall be consummated:
(a) pay or reimburse BofA (including in its capacity as Agent)
and the Arranger within five Business Days after demand (subject to
subsection 5.1(e)) for all reasonable costs and expenses incurred by
BofA (including in its capacity as Agent) or Arranger in connection
with the development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or modification
to (in each case, whether or not consummated), this Agreement, any
Loan Document and any other documents prepared in connection herewith
or therewith, the initial assignments by BofA of its Loans and
Commitments hereunder, and the consummation of the transactions
contemplated hereby and thereby, including expenses of outside
experts, printing costs, and the reasonable Attorney Costs incurred
by BofA (including in its capacity as Agent) or Arranger with respect
thereto; provided, however, that this subsection (a) shall not apply
to any such costs and expenses incurred by BofA after any date that
BofA is no longer the Agent hereunder and after any such date any
references in this subsection (a) to BofA shall be deemed a reference
to the successor Agent; and
(b) pay or reimburse each Bank, the Agent, and the Arranger
within five Business Days after demand (subject to subsection 5.1(e))
for all costs and expenses incurred by them in connection with the
enforcement, attempted enforcement, or preservation of any rights or
remedies (including in connection with any "workout" or restructuring
regarding the Loans, and including in any Insolvency Proceeding or
appellate proceeding) under this Agreement, any other Loan Document,
and any such other documents, including Attorney Costs and appraisal
(including the allocated cost of internal appraisal services), audit,
environmental inspection and review (including the allocated cost of
such internal services), and search and filing costs, fees and
expenses, incurred by the Agent, the Arranger and any Bank.
11.5 Indemnity
Whether or not the transactions contemplated hereby shall be
consummated: The Company shall pay, indemnify, and hold each Bank,
the Agent, and each of their respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, claims, damages, penalties,
actions, judgments, suits, costs, charges, expenses or disbursements
(including reasonable Attorney Costs) of any kind or nature
whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, any Loan Documents,
or the transactions contemplated hereby and thereby, and with respect
to any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to this
Agreement, or the Loans or the Letters of Credit or the use of the
proceeds thereof, whether or not any Indemnified Person is a party
thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that the Company shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified
Liabilities arising from the gross negligence or willful misconduct
of such Indemnified Person. The agreements in this Section shall
survive payment of all other Obligations.
11.6 Marshalling; Payments Set Aside
Neither the Agent nor the Banks shall be under any obligation to
marshall any assets in favor of the Company or any other Person or
against or in payment of any or all of the Obligations. To the
extent that the Company makes a payment or payments to the Agent or
the Banks, or the Agent or the Banks enforce their Liens or exercise
their rights of set-off, and such payment or payments or the proceeds
of such enforcement or set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the
Agent in its discretion) to be repaid to a trustee, receiver or any
other party in connection with any Insolvency Proceeding, or
otherwise, then (a) to the extent of such recovery the obligation or
part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been
made or such enforcement or set-off had not occurred, and (b) each
Bank severally agrees to pay to the Agent upon demand its ratable
share of the total amount so recovered from or repaid by the Agent.
11.7 Successors and Assigns
The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors
and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior
written consent of the Agent and each Bank.
11.8 Assignments, Participations, Etc.
(a) Any Bank may, with the written consent of the Company at all
times other than during the existence of an Event of Default and the
Agent, which consents shall not be unreasonably withheld or delayed,
at any time assign and delegate to one or more Eligible Assignees
(each, an "Assignee") (provided that no written consent of the
Company or the Agent shall be required in connection with any
assignment and delegation by a Bank to an Eligible Assignee that is
an Affiliate of such Bank) all or any ratable part of all of the
Loans, the Commitments, the L/C Obligations and all other rights and
obligations of such Bank hereunder; provided, however, that (i) no
assignment shall in any event be less than $10,000,000 of the
Commitment of the assigning Bank under this Agreement unless as a
result of such assignment the assigning Bank's rights and obligations
hereunder shall be reduced to zero; (ii) if a Bank assigns less than
all of its rights and obligations hereunder, such Bank's aggregate
remaining Commitment, after giving effect to such assignment, shall
not be less than $10,000,000; and (iii) the Company and the Agent may
continue to deal solely and directly with such Bank in connection
with the interest so assigned to an Assignee until (A) written notice
of such assignment, together with payment instructions, addresses and
related information with respect to the Assignee, shall have been
given to the Company and the Agent by such Bank and the Assignee;
(B) such Bank and its Assignee shall have delivered to the Company
and the Agent an Assignment and Acceptance in the form of Exhibit F
("Assignment and Acceptance") and (C) the assignor Bank or Assignee
has paid to the Agent a processing fee in the amount of $3,500. In
connection with any assignment by BofA, its Swingline Commitment may
be in whole but not in part included as part of the assignment
transaction, and the Assignment and Acceptance may be appropriately
modified to include an assignment and delegation of its Swingline
Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Agent notifies the assignor
Bank that it has received (and provided its consent with respect to)
an executed Assignment and Acceptance and payment of the above-
referenced processing fee, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance,
shall have the rights and obligations of a Bank under the Loan
Documents, and (ii) the assignor Bank shall, to the extent that
rights and obligations hereunder and under the other Loan Documents
have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Immediately upon each Assignee's making its processing fee
payment under the Assignment and Acceptance, this Agreement shall be
deemed to be amended to the extent, but only to the extent, necessary
to reflect the addition of the Assignee and the resulting adjustment
of the Commitment arising therefrom. The Commitment allocated to each
Assignee shall reduce such Commitment of the assigning Bank pro
tanto.
(d) Any Bank may at any time sell to one or more commercial banks
or other Persons not Affiliates of the Company (a "Participant")
participating interests in any of the Loans, the Commitment of that
Bank and the other interests of that Bank (the "originating Bank")
hereunder and under the other Loan Documents; provided, however, that
(i) the originating Bank's obligations under this Agreement shall
remain unchanged, (ii) the originating Bank shall remain solely
responsible for the performance of such obligations, (iii) the
Company, the Issuing Banks and the Agent shall continue to deal
solely and directly with the originating Bank in connection with the
originating Bank's rights and obligations under this Agreement and
the other Loan Documents, and (iv) no Bank shall transfer or grant
any participating interest under which the Participant shall have
rights to approve any amendment to, or any consent or waiver with
respect to, this Agreement or any other Loan Document, except to the
extent such amendment, consent or waiver would require unanimous
consent of the Banks as described in the first proviso to
Section 11.1. In the case of any such participation, the Participant
shall be entitled to the benefit of Sections 4.1, 4.3 and 11.5 as
though it were also a Bank hereunder, and if amounts outstanding
under this Agreement are due and unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event
of Default, each Participant shall be deemed to have the right of
set-off in respect of its participating interest in amounts owing
under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this
Agreement.
(e) Each Bank agrees to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all
information identified as "confidential" by the Company and provided
to it by the Company or any Subsidiary of the Company, or by the
Agent on such Company's or Subsidiary's behalf, in connection with
this Agreement or any Loan Document, and neither it nor any of its
Affiliates shall use any such information for any purpose or in any
manner other than pursuant to the terms contemplated by this
Agreement; provided, however, that any Bank may disclose such
information (A) to the extent that such information was or becomes
generally available to the public other than as a result of a
disclosure by the Bank; (B) to the extent such information was or
becomes available to such Bank to whom it was furnished on a non-
confidential basis; (C) at the request or pursuant to any requirement
of any Governmental Authority to which the Bank is subject or in
connection with an examination of such Bank by any such authority;
(D) pursuant to subpoena or other court process; (E) when required to
do so in accordance with the provisions of any applicable Requirement
of Law; (F) to the extent reasonably required in connection with any
litigation or proceeding to which the Agent, any Bank or their
respective Affiliates may be party; (G) to the extent reasonably
required in connection with the exercise of any remedy hereunder or
under any other Loan Document; (H) to such Bank's independent
auditors and other professional advisors and (I) to such Bank's
Affiliates. Notwithstanding the foregoing, the Company authorizes
each Bank to disclose to any Participant or Assignee (each, a
"Transferee") and to any prospective Transferee, such financial and
other information in such Bank's possession concerning the Company or
its Subsidiaries which has been delivered to the Agent or the Banks
pursuant to this Agreement or which has been delivered to the Agent
or the Banks by the Company in connection with the Banks' credit
evaluation of the Company prior to entering into this Agreement;
provided that, unless otherwise agreed by the Company, such
Transferee agrees in writing to such Bank to keep such information
confidential to the same extent required of the Banks hereunder.
(f) Notwithstanding any other provision contained in this
Agreement or any other Loan Document to the contrary, any Bank may
assign all or any portion of the Loans held by it to any Federal
Reserve Bank or the United States Treasury as collateral security
pursuant to Regulation A of the Federal Reserve Board and any
Operating Circular issued by such Federal Reserve Bank, provided that
any payment in respect of such assigned Loans made by the Company to
or for the account of the assigning or pledging Bank in accordance
with the terms of this Agreement shall satisfy the Company's
obligations hereunder in respect to such assigned Loans to the extent
of such payment. No such assignment shall release the assigning Bank
from its obligations hereunder.
11.9 Set-off
In addition to any rights and remedies of the Banks provided by
law, if an Event of Default exists, each Bank is authorized at any
time and from time to time, without prior notice to the Company, any
such notice being waived by the Company to the fullest extent
permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held
by, and other indebtedness at any time owing to, such Bank and any of
its Affiliates to or for the credit or the account of the Company
against any and all Obligations owing to such Bank, now or hereafter
existing, irrespective of whether or not the Agent or such Bank shall
have made demand under this Agreement or any Loan Document and
although such Obligations may be contingent or unmatured. Each Bank
agrees promptly to notify the Company and the Agent after any such
set-off and application made by such Bank; provided, however, that
the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Bank under this
Section 11.9 are in addition to the other rights and remedies
(including other rights of set-off) which the Bank may have.
11.10 Automatic Debits of Fees
With respect to any commitment fee, facility fee, letter of
credit fee or other fee, or any other cost or expense (including
Attorney Costs) due and payable to the Agent, the Issuing Banks, the
Swingline Bank or BofA under the Loan Documents, the Company hereby
irrevocably authorizes BofA to debit any deposit account of the
Company with BofA in an amount such that the aggregate amount debited
from all such deposit accounts does not exceed such fee or other cost
or expense. If there are insufficient funds in such deposit accounts
to cover the amount of the fee or other cost or expense then due,
such debits will be reversed (in whole or in part, in BofA's sole
discretion) and such amount not debited shall be deemed to be unpaid.
No such debit under this Section 11.10 shall be deemed a setoff.
11.11 Notification of Addresses, Lending Offices, Etc.
Each Bank shall notify the Agent in writing of any changes in the
address to which notices to the Bank should be directed, of addresses
of its Offshore Lending Office, of payment instructions in respect of
all payments to be made to it hereunder and of such other
administrative information as the Agent shall reasonably request.
11.12 Counterparts
This Agreement may be executed by one or more of the parties to
this Agreement in any number of separate counterparts, each of which,
when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and
the same instrument. A set of the copies of this Agreement signed by
all the parties shall be lodged with the Company and the Agent.
11.13 Severability
The illegality or unenforceability of any provision of this
Agreement or any instrument or agreement required hereunder shall not
in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement
required hereunder.
11.14 No Third Parties Benefited
This Agreement is made and entered into for the sole protection
and legal benefit of the Company, the Banks, the Issuing Banks, the
Swingline Bank, the Senior Co-Agent, and the Agent, and their
permitted successors and assigns, and no other Person shall be a
direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement
or any of the other Loan Documents. Neither the Agent, the Senior
Co-Agent, the Swingline Bank, the Issuing Bank nor any Bank shall
have any obligation to any Person not a party to this Agreement or
other Loan Documents.
11.15 Time
Time is of the essence as to each term or provision of this
Agreement and each of the other Loan Documents.
11.16 Governing Law and Jurisdiction
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF CALIFORNIA; PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.
11.17 Arbitration; Reference
(a) Mandatory Arbitration. Any controversy or claim between or
among the parties, including but not limited to those arising out of
or relating to this Agreement or any agreements or instruments
relating hereto or delivered in connection herewith and any claim
based on or arising from an alleged tort, shall at the request of any
party be determined by arbitration. The arbitration shall be
conducted in accordance with the United States Arbitration Act (Title
9, U.S. Code), notwithstanding any choice of law provision in this
Agreement, and under the Commercial Rules of the American Arbitration
Association ("AAA"). The arbitrator(s) shall give effect to
applicable statutes of limitation in determining any claim. Any
controversy concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). Judgment upon the arbitration award
may be entered in any court having jurisdiction. The institution and
maintenance of an action for judicial relief or pursuit of a
provisional or ancillary remedy shall not constitute a waiver of the
right of any party, including the plaintiff, to submit the
controversy or claim to arbitration if any other party contests such
action for judicial relief.
(b) Judicial Reference. At the request of any party a controversy
or claim which is not submitted to arbitration as provided and
limited in subparagraph (a) shall be determined by a reference in
accordance with California Code of Civil Procedure Section 638 et
seq. If such an election is made, the parties shall designate to the
court a referee or referees selected under the auspices of the AAA in
the same manner as arbitrators are selected in AAA-sponsored
proceedings. The presiding referee of the panel, or the referee if
there is a single referee, shall be an active attorney or retired
judge. Judgment upon the award rendered by such referee or referees
shall be entered in the court in which such proceeding was commenced
in accordance with California Code of Civil Procedure Sections 644
and 645.
(c) Provisional Remedies, Self-Help and Foreclosure. No provision
of this paragraph shall limit the right of any party to this
Agreement to exercise self-help remedies such as setoff, foreclosure
against or sale of any real or personal property collateral or
security, or obtaining provisional or ancillary remedies from a court
of competent jurisdiction before, after, or during the pendency of
any arbitration or other proceeding. The exercise of a remedy does
not waive the right of either party to resort to arbitration or
reference.
11.18 Entire Agreement
This Agreement, together with the other Loan Documents, embodies
the entire agreement and understanding among the Company, the Banks,
the Swingline Bank, the Issuing Banks, the Senior Co-Agent and the
Agent, and supersedes all prior or contemporaneous Agreements and
understandings of such Persons, verbal or written, relating to the
subject matter hereof and thereof, except that (a) the fee letter
referenced in subsection 2.11(a), (b) any prior arrangements made
with respect to the payment by the Company of (or any indemnification
for) any fees, costs or expenses payable to or incurred (or to be
incurred) by or on behalf of the Agent or the Banks, and (c) the
representations and warranties (as of the dates made and deemed made)
and the indemnities of the Company set forth in the Existing Credit
Agreement and the "Loan Documents" as defined therein shall, in each
case, survive the execution and delivery of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in San Francisco, California by their
proper and duly authorized officers as of the day and year first
above written.
\PLUM CREEK ACQUISITION PARTNERS, L.P.
(successor by merger to\ Plum Creek
Timber Company, [L.P.By: Plum Creek
Management Company, L.P., its general
partner] \L.P.)
By: Plum Creek Timber I, L.L.C., its
General Partner\
[By: /s/ Diane M. Irvine] \By: Plum
Creek Timber Company, Inc.,
its Managing Member\
[Name: Diane M. Irvine Title: Vice
President and ]\By: \
[Chief Financial Officer] \Name:
Title: \
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as Agent
By:
[/s/ Michael J. Balok
Name: Michael J. BalokTitle:
Managing Director] \Name:
Title:\
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as a Bank, as the Swingline Bank and
as an Issuing Bank
By:
[/s/ Michael J. Balok
Name: Michael J. BalokTitle:
Managing Director] \Name:
Title:\
NATIONSBANK, N.A.
By:
[/s/ Michael Short
Name: Michael ShortTitle: Vice
President] \Name:
Title:\
ABN AMRO BANK N.V. SEATTLE BRANCH
By: ABN AMRO North America, Inc., as
agent
By:
[/s/ David McGinnis] \Name:
Title: \
[Name: David McGinnisTitle: Vice
President and Director] \By: \
[By: /s/ Erret E. Hummel
Name: Erret E. HummelTitle: Vice
President and Director] \Name:
Title:\
UNITED STATES NATIONAL BANK OF OREGON
By:
[/s/ Wade Black
Name: Wade BlackTitle: Vice
President] \Name:
Title:\
BANK OF AMERICA NW, N.A., dba
SEAFIRST BANK
By: [/s/ Paul R. Rollins,
Jr.]\.\
[Name: Paul R. Rollins, Jr.Title:
Senior Vice President] \Name: .
Title:\
THE BANK OF TOKYO-MITSUBISHI, LTD., SEATTLE
BRANCH
By:
[/s/ David M. Purcell
Name: David M. PurcellTitle: Vice
President] \Name:
Title:\
UNION BANK OF CALIFORNIA, N.A.
By:
[/s/ Kevin Sullivan
Name: Kevin SullivanTitle: Vice
President] \Name:
Title:\
CREDIT LYONNAIS NEW YORK BRANCH
By:
[/s/ Rod Hurst
Name: Rod HurstTitle: Vice
President] \Name:
Title:\
THE SUMITOMO BANK, LIMITED
By:
\Name:
Title:\[/s/ Tatsuo Ueda
Name: Tatsuo UedaTitle: General
Manager]
[TATSUO UEDA TITLE: GENERAL MANAGER SCHEDULE]
SCHEDULE 1.1
CORPORATE INVESTMENT POLICY
SCHEDULE 2.1
COMMITMENTS
\(as of Effective Date of First Amendment)\
BANK COMMITMENT COMMITMENT
---- ---------- PERCENTAGE
----------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION [30,000,000
13.33333334%] \40,000,000 17.77777778%\
NATIONSBANK, N.A. 35,000,000 15.55555556%
ABN AMRO BANK N.V. SEATTLE BRANCH 32,500,000 14.44444444%
[UNITED STATES] \U.S. BANK\ NATIONAL [BANK
OF OREGON] \ASSOCIATION\ 32,500,000 14.44444444%
THE BANK OF TOKYO-MITSUBISHI, LTD.
SEATTLE BRANCH 22,500,000 10.00000000%
CREDIT LYONNAIS NEW YORK BRANCH 22,500,000 10.00000000%
THE SUMITOMO BANK, LIMITED 20,000,000 8.88888889%
UNION BANK OF CALIFORNIA, \N.A.\ 20,000,000 8.88888889%
[BANK OF AMERICA NW, DBA SEAFIRST BANK
10,000,000 4.44444444%]
=========== =============
225,000,000 100.00000000%
SCHEDULE 6.7
PLANS
\(as of date of First Amendment)\
SCHEDULE 6.12
ENVIRONMENTAL MATTERS
\(as of date of First Amendment)\
SCHEDULE 6.18
SUBSIDIARIES
\(as of Effective Date of First Amendment)\
SCHEDULE 8.1
PERMITTED LIENS
None
SCHEDULE 8.4
PERMITTED INVESTMENTS
SCHEDULE 11.2
ADDRESSES FOR NOTICES,
DOMESTIC AND OFFSHORE LENDING OFFICES
\(as of Effective Date of First Amendment)\
PLUM CREEK [TIMBER COMPANY,] \ACQUISITION
PARTNERS,\ L.P.
Address for notices:
999 Third Avenue, Suite 2300
Seattle, WA 98104
Attn: Chief Financial Officer
Facsimile: (206) 467-3797
Tel: (206) 467-3600
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as agent
Address for funding
notices:
[1455 Market Street, 13th Floor] \1850
Gateway Blvd.\
[San Francisco, CA 94103Agency]
\Concord, CA 94520
Agency\ Administrative Services #5596
[Annie Cuenco Fax: (415) 436-2700
Tel: (415) 436-2775] \Alix Bax Fax:
(925) 675-8500
Tel: (925) 675-
8435\
Address for all other
notices:
555 California Street, 41st Floor
San Francisco, CA 94127
Credit Products #3838
Michael Balok Fax: (415) 622-4585
Tel: (415) 622-2018
Address for payments:
Bank of America NT&SA
1850 Gateway Boulevard
Concord, CA 94520
ABA: 121-000-358
For Acc: 1233-6-14205
Att: Agency Administrative Services
#5596
Ref: Plum Creek [Timber Company]
\Acquisition Partners\
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as a Bank, as the Swingline Bank and as
an Issuing Bank
Address for notices
(BofA as a Bank):
555 California Street, 41st Floor
San Francisco, CA 94127
Credit Products #3838
Michael Balok Fax: (415) 622-4585
Tel: (415) 622-2018
Address for payments:
Bank of America NT&SA
Global Payment Operations
Customer Service Americas (#5693)
1850 Gateway Boulevard
Concord, California 94520
[Lee Ann Debow] \Karen Matthews\
Fax: [(510)]\(925)\ 603-[8264]
\7209\
Tel: [(510)]\(925)\
675-[7040] \7389\
ABA: 121-000-358 SF
For Acc: 1233-1-83980
Att: Account Administration #5693
Ref: Plum Creek [Timber Company]
\Acquisition Partners\
Domestic and Offshore
Lending Office:
Same as notice address above.
Address for Notices
(BofA as an Issuing Bank):
Trade Operations Center (#2264)
333 South Beaudry Avenue, 19th Floor
Los Angeles, California 90017
Sandra Leon Fax: (213) 345-6694
Tel: (213) 345-5231
NATIONSBANK, N.A.
Address for notices:
[One Independence CenterNC1-001-15-06]
\555 California Street, 41st Floor
San Francisco, CA 94127
Credit Products #3838\
[101 North Tryon StreetCharlotte,
NC 28255-0001
Credit Matters:
Mike Short Fax: (704) 386-9835 Tel:
(704) 386-6274] \Michael Balok Fax:
(415) 622-4585
Tel: (415) 622-2018\
Administration/Operations:
Karen Withrow Fax: (704) 386-8694
Tel: (704) 388-1114
Address for payments:
NationsBank, N.A., Charlotte, North
Carolina
ABA: 053-000-196
For Acc.: Corporate Credit Support
Acc. No.: 13662122506
Ref.: Plum Creek [Timber Company,]
\Acquisition Partners,\ L.P.
Domestic and Offshore
Lending Offices:
Same as notice address above.
ABN AMRO BANK N.V. [Seattle Branch]
\
\Address for notices:
One Union Square
600 University Street, Suite 2323
Seattle, WA 98101-2070
SWIFT: ABNAUS6S
Telex: 277164 ABNS UR
Credit Matters:
David McGinnis Fax: (206) 682-5641
(Primary) Tel: (206) 587-0342
Leif H. Olsson Fax: (206) 682-5641
(Back-Up) Tel: (206) 587-3768
Operations:
[Suzanne Smith Fax: (206) 682-5641
(Primary) Tel: (206) 587-0281 Joanne
Koonce Fax: (206) 682-5641 (Back-Up)
Tel: (206) 654-0365] \Loan
Administration
Fax: (312) 992-5158
Tel: (312) 992-5153\
Address for payments:
ABN AMRO Bank N.V., New York, NY
ABA: 026009580
For Acc.: ABN AMRO Bank N.V Seattle
Branch
Acc. No.: 651001085541
Ref.: Plum Creek Timber Company[,
L.P]
Domestic and Offshore
Lending Offices:
Same as notice address above.
U.S. BANK NATIONAL ASSOCIATION
Address for Notices:
1420 Fifth Avenue, WWH276
Seattle, WA 98101
Credit Matters:
[Wade Black] \Peter Bentley\ Fax:
(206) [587-5259] \344-3654\
(Primary) Tel: (206) 587-
[5234] \5237\
Administrative/Operations:
[Pamela Cardone Fax: (206) 587-5259
Tel: (206) 344-2214] \Faye Gown Fax:
(503) 275-4600
Tel: (503) 275-6559\
Address for payments:
[United States] \U.S. BANK\ NATIONAL
[Bank of Oregon] \ASSOCIATION\
ABA: 125000105
For Acc.: Oregon Commercial Loan
Servicing
Acc. No: 4703-1111061
Ref: Plum Creek [Timber Company,]
\Acquisition Partners,\ L.P
Marsha Cyrus Fax: (503) 275-6558
Tel: (503) 275-4600
[ Domestic and Offshore Lending Office:
Same as notice address above.
Seattle First National Bank Address
for notices: 701 Fifth Avenue, 12th
FloorSeattle, WA 98104
Credit Matters:
Paul R. Rollins Fax: (206) 358-3113
Tel: (206) 358-3782
Administrative/Operations:
Alice K. Stokke Fax: (206) 358-3113
Tel: (206) 358-8009 Address for
payments: Seafirst Bank
P.O. Box 8448
800 Fifth Avenue, FAB-13
Seattle, WA 98124-8448
ABA: 125-000-024
For Acc.: CLSC-WAcc. No: R/C 94680Ref:
Plum Creek Timber Company, L.P
]
Domestic and Offshore
Lending Office:
Same as notice address above.
THE BANK OF TOKYO-MITSUBISHI, LTD., [SEATTLE]
\PORTLAND\ BRANCH
Address for notices:
1201 Third Avenue, Suite 1100
Seattle, WA 98101
Credit Matters:
David M. Purcell Fax:
(206) 382-6067
Tel: (206) 382-6049
Administrative/Operations:
[Nick Kokkonis] \Paul Murphy\ Fax:
(206) 382-6067
Tel: (206) 382-6021
Address for payments:
The Federal Reserve Bank of San
Francisco, Seattle Branch
ABA: 1250-0182-9
For Acc.: The Bank of Tokyo-Mitsubishi,
Ltd.,
Seattle Branch
Acc. No.:
Ref.: Plum Creek [Timber Company,]
\Acquisition Partners,\ L.P.
Domestic and Lending
Offices:
Same as notice address above.
UNION BANK OF CALIFORNIA, N.A.
Address for notices:
[400] \350\ California Street,
[17th FloorSan] \6th Floor
San\ Francisco, CA 94104
Credit Matters:
Kevin Sullivan Fax: (415) [765-
3146] \705-7566\
Tel: (415) [765-
3148] \705-7460\
Administrative/Operations:
[Evelyn Trasmer Fax: (415) 765-3146
Tel: (415) 765-2995] \Maria Flores Fax:
(323) 724-6198
Tel: (323) 724-2679\
Address for payments:
Union Bank of California, N.A.
ABA: 122 000496
For Acc.: Corporate Note Department
Acc. No.: 0012060232
Ref.: Plum Creek [Timber Company,]
\Acquisition Partners,\ L.P.
Domestic and Offshore
Lending Offices:
See as notice address above.
CREDIT LYONNAIS NEW YORK BRANCH
Address for notices:
1301 Avenue of the Americas, 18th Floor
New York, New York 10019
Telex: 62410/423494
Credit Matters:
Rod Hurst Fax: (212) 459-3179
Tel: (212) 261-7362
Administrative/Operations:
[K. Daniele-Otero] \Joyce Eng\ Fax:
(212) [459-3179] \261-7969\
Tel: (212) 261-
[7341] \7637\
Address for payments:
Federal Reserve Bank
ABA: 026-008-073
For Acc.: Credit Lyonnais New York
Ref.: Plum Creek [Timber Company,]
\Acquisition Partners,\ L.P
Attn.: Loan Servicing
Domestic and Offshore
Lending Offices:
Same as notice address above.
THE SUMITOMO BANK, LIMITED
Address for notices:
New York Branch
277 Park Avenue, 6th Floor
New York, New York 10172
Credit Matters:
Bruce Kendrex Fax: (206) 623-8551
(Seattle) Tel: (206) 223-4051
Andrew Lee Fax: (213) 623-6832
(Los Angeles) Tel: (213) 955-3915
Administrative/Operations:
Kevin Saulnier Fax: (212) 224-4537
[(New York)]\(Los Angeles)\ Tel:
(212) 224-4090
Address for payments:
Citibank, N.A.
ABA: 021\-\000089
For Acc.: The Sumitomo Bank, Limited,
New York Branch
Acc.: 36023837
Ref.: Plum Creek \Acquisition
Partners, L.P.\
Domestic and Offshore
Lending Offices:
Same as notice address above.
EXHIBIT A
NOTICE OF BORROWING
Date:---------------
To: Bank of America National Trust and Savings Association, as Agent
for the Banks parties to the Amended and Restated Revolving Credit
Agreement dated as of [December 13] \December 13\, 1996 (as extended,
renewed, amended or restated from time to time, the "Credit
Agreement") among Plum Creek [Timber Company,] \Acquisition
Partners,\ L.P., certain Banks that are signatories thereto,
NationsBank, N.A., as Senior Co-Agent, and Bank of America National
Trust and Savings Association, as Agent.
[If applicable] With a copy to Bank of America National Trust and Savings
Association, as the Swingline Bank.
Ladies and Gentlemen:
The undersigned, Plum Creek [Timber Company,] \Acquisition
Partners,\ L.P. (the "Company"), refers to the Credit Agreement, the
terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section [2.4]
[2.12(b)] of the Credit Agreement, of the Borrowing specified herein:
1. The proposed Borrowing comprises [Revolving Loans] [a
Swingline Loan].
2. The aggregate amount of the proposed Borrowing is
$------------.
3. The Business Day of the proposed Borrowing is------------, 19--.
4. [If not a Swingline Loan:] The Borrowing is to comprise
$------------ of [Offshore Rate] [Base Rate] Loans.]
5. [If applicable] The duration of the Interest Period for the
Offshore Rate Loans included in the Borrowing shall be [one week]
[--------- months].
6. [If applicable] The Borrowing shall be allocated to the
[Revolving Facility Tranche] [Capital Expenditure Tranche].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the
proposed Borrowing, before and after giving effect thereto and to the
application of the proceeds therefrom:
(a) the representations and warranties of the Company contained
in Article VI of the Credit Agreement are true and correct as though
made on and as of such date (except to the extent such
representations and warranties specifically relate to an earlier
date, in which case they were true and correct as of such earlier
date);
(b) no Default or Event of Default exists; and
(c) the proposed Borrowing [if Revolving Loans or a Swingline
Loan:]will not cause the Effective Amount of all Revolving Loans,
Swingline Loans, and L/C Obligations to exceed the Aggregate
Commitment, [if a Swingline Loan:] and will not cause the Effective
Amount of all Swingline Loans to exceed the Swingline Commitment.
\PLUM CREEK ACQUISITION PARTNERS, L.P.
By:\ Plum Creek Timber Company, [L.P.By: Plum Creek Management Company, L.P]
\Inc\., its general partner
By:-------------------------
Title:----------------------
EXHIBIT B
NOTICE OF CONVERSION/CONTINUATION
Date:--------------
To: Bank of America National Trust and Savings Association, as Agent
for the Banks parties to the Amended and Restated Revolving Credit
Agreement dated as of December 13, 1996 (as extended, renewed,
amended or restated from time to time, the "Credit Agreement") among
Plum Creek [Timber Company,] \Acquisition Partners,\ L.P., certain
Banks that are signatories thereto, NationsBank, N.A., as Senior Co-
Agent, and Bank of America National Trust and Savings Association, as
Agent.
Ladies and Gentlemen:
The undersigned, Plum Creek [Timber Company,] \Acquisition
Partners,\ L.P. (the "Company"), refers to the Credit Agreement, the
terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 2.4 of the
Credit Agreement, of the [conversion] [continuation] of the Loans
specified herein, that:
1. The date of the [conversion] [continuation] is -----------, 19--.
2. The aggregate amount of the Loans [converted] [continued] is
$----------------.
3. The Loans are to be [converted into] [continued as] [Offshore
Rate] [Base Rate] Loans.
4. [If applicable] The duration of the Interest Period for the
Loans included in the [conversion] [continuation] shall be [one week]
[----------- months].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the
proposed [conversion] [continuation], before and after giving effect
thereto and to the application of the proceeds therefrom:
(a) the representations and warranties of the Company contained
in Article VI of the Credit Agreement are true and correct as though
made on and as of such date (except to the extent such
representations and warranties specifically relate to an earlier
date, in which case they were true and correct as of such earlier
date); and
(b) no Default or Event of Default exists.
\PLUM CREEK ACQUISITION PARTNERS, L.P.
By:\ Plum Creek Timber Company, [L.P.By: Plum Creek Management Company, L.P]
\Inc\., its general partner.
By:----------------------
Title:-------------------
EXHIBIT C-1
LEGAL OPINION OF COUNSEL FOR THE COMPANY
[Unless otherwise defined herein, capitalized terms used in this
Exhibit C-1 have the meanings assigned to them in the Agreement.]
(a) Each of the Company, the General Partner, PCMC General
Partner and Plum Creek Manufacturing, L.P. is a limited partnership
duly formed under the laws of the State of Delaware, with a stated
term beyond the term of the Loan Documents (in those cases where the
Loan Documents have a fixed term) and is duly qualified and in good
standing in each state in which the failure to so qualify would have
a Material Adverse Effect.
(b) Each of PC Advisory General Partner and Plum Creek Marketing,
Inc. is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is duly
qualified and in good standing in each state in which the failure to
so qualify would have a Material Adverse Effect.
(c) The Company has the power and authority to execute and
deliver, and to perform and observe the provisions of, the Agreement.
(d) The execution, delivery and performance by the Company of the
Loan Documents have been duly authorized by all necessary corporate
and partnership action on behalf of PC Advisory General Partner, as
general partner of PCMC General Partner, as general partner of the
General Partner, as general partner of the Company.
(e) The Agreement has been duly executed and delivered to the
Banks on the date hereof by the Company.
(f) The Company and each of its Subsidiaries has the power and
authority and all governmental licenses, authorizations, consents and
approvals to own its assets and carry on its business, except for
such governmental licenses, authorizations, consents and approvals,
the lack thereof would not have a Material Adverse Effect.
(g) No registration with, consent or approval of, notice to, or
other action by, any Governmental Authority is required on the part
of the Company or the Partner Entities or any of their Subsidiaries
for the execution, delivery or performance by the Company of the Loan
Documents, or if required, such registration has been made, such
consent or approval has been obtained, such notice has been given or
such other appropriate action has been taken.
(h) The execution, delivery and performance of the Loan Documents
by the Company are not in violation of the partnership documents of
the Company, the General Partner or the PCMC General Partner or the
Articles of Incorporation and Bylaws of the PC Advisory General
Partner.
(i) The execution, delivery and performance of the Loan Documents
by the Company will not violate or result in a breach of any of the
terms of or constitute a default under or result in a creation of any
Lien on any property or assets of the Company or any of the Partner
Entities, pursuant to the terms of any indenture, mortgage, deed of
trust or other agreement to which such Person is a party or any
order, injunction, writ or decree of any Governmental Authority to
which such Person or its property is subject.
(j) The execution, delivery and performance of the Loan Documents
will not conflict with or contravene any of Regulations G, T, U and X
promulgated by the Federal Reserve Board.
(k) Neither the Company, the Partner Entities, any Person
controlling the Company or the Partner Entities, or any Subsidiary of
the Company or the Partner Entities, is an "Investment Company"
within the meaning of the Investment Company Act of 1940, as amended,
or subject to regulation under the Public Utility Holding Company Act
of 1935, as amended.
(l) There are no actions, suits, proceedings, claims or disputes
pending or, to the best of my knowledge, threatened against the
Company, the Partner Entities or any of their Subsidiaries or any of
their respective properties before any court, regulatory body,
administrative agency, at law, in equity, in arbitration or before
any Governmental Authority which (a) purport to affect or pertain to
the Loan Documents, or any of the transactions contemplated thereby,
(b) have a reasonable probability of success on the merits and which,
if determined adversely to the Company, the Partner Entities or their
Subsidiaries, would reasonably be expected to have a Material Adverse
Effect.
EXHIBIT C-2
LEGAL OPINION OF PERKINS COIE
[Unless otherwise defined herein, capitalized terms used in this
Exhibit C-2 have the meanings assigned to them in the Agreement.]
(a) The Agreement constitutes the valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms.
EXHIBIT D
PLUM CREEK [TIMBER COMPANY,] \ACQUISITION PARTNERS,\ L.P.
COMPLIANCE CERTIFICATE
DATE:-------------
Reference is made to that certain Amended and Restated Revolving
Credit Agreement dated as of December 13, 1996 (the "Credit
Agreement") among Plum Creek [Timber Company,] \Acquisition
Partners,\ L.P., a Delaware limited partnership (the "Company"),
certain financial institutions from time to time parties to the
Credit Agreement (the "Banks"), NationsBank, N.A., as Senior Co-
Agent, and Bank of America National Trust and Savings Association, as
agent for the Banks (in such capacity, the "Agent"). Unless
otherwise defined herein, capitalized terms used herein have the
respective meanings assigned to them in the Credit Agreement.
The undersigned Responsible Officer of the Company, hereby
certifies as of the date hereof that he/she is the ------------------
of the Company, and that, as such, he/she is authorized to execute
and deliver this Certificate to the Banks and the Agent on the behalf
of the Company and its Subsidiaries and not as an individual, and that:
[Use the following paragraph if this Certificate is delivered in
connection with the financial statements required by
subsection 7.1(a) of the Credit Agreement.]
1. Attached as Schedule 1 hereto are (a) a true and correct copy
of the audited combined balance sheet of the Company as at the end of
the fiscal year ended December 31, ---- and (b) the related combined
statements of income and statement of cash flows for such fiscal
year, setting forth in each case in comparative form the figures for
the previous fiscal year, and accompanied by the opinion of Coopers &
Lybrand or another nationally-recognized certified independent public
accounting firm. Such opinion is not qualified or limited because of
a restricted or limited examination by such accountant of any
material portion of the Company's or any Subsidiary's records and is
delivered to the Agent pursuant to a reliance agreement between the
Agent and Banks and such accounting firm which you have advised us is
in form and substance satisfactory to the Agent and the Majority
Banks;
or
[Use the following paragraph if this Certificate is delivered in connection
with the financial statements required by subsection 7.1(b) of the
Credit Agreement.]
Attached as Schedule 1 hereto are (a) a true and correct copy of
the audited combining balance sheets of the Company and each of its
Subsidiaries as at the end of the fiscal year ended December 31, ----
and (b) the related combining statements of income and statement of
cash flows for such fiscal year; which financial statements were used
in connection with the preparation of the audited combined balance
sheet of the Company as of the end of such fiscal year and the
related combined statements of income and statement of cash flows for
such fiscal year.
or
[Use the following paragraph if this Certificate is delivered in
connection with the financial statements required by
subsections 7.1(c) and (d) of the Credit Agreement.]
(a) Attached as Schedule 1A hereto is (i) a true and correct
copy of the unaudited combined balance sheet of the Company and its
combined Subsidiaries as of the end of the fiscal quarter ended
- ---------------------------, ---- and (ii) the related combined
statements of income and statement of cash flows of the Company and
its combined Subsidiaries for the period commencing on the first day
and ending on the last day of such quarter, setting forth in each
case in comparative form the figures for the previous year (subject
to normal year-end audit adjustments).
(b) Attach as Schedule 1B hereto is (i) a true and correct
copy of the unaudited combining balance sheets of the Company and
each of its Subsidiaries as of the end of the fiscal quarter ended
- ---------------------------, ---- and (ii) the related combining
statements of income and statement of cash flows for such quarter,
which financial statements were used in connection with the
preparation of the financial statements referred to in paragraph 1(a)
above of this Certificate.
2. The undersigned has reviewed and is familiar with the terms
of the Credit Agreement and has made, or has caused to be made under
his/her supervision, a detailed review of the transactions and
conditions (financial or otherwise) of the Company during the
accounting period covered by the attached financial statements.
3. The attached financial statements are complete and correct,
and have been prepared in accordance with GAAP on a basis consistent
with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
4. The attached financial statements are certified by a
Responsible Officer of the Company and fairly state the financial
position and results of operations of the Company and its combined
Subsidiaries.
5. To the best of the undersigned's knowledge, the Company,
during such period, has observed, performed or satisfied all of its
covenants and other agreements, and satisfied every condition in the
Credit Agreement to be observed, performed or satisfied by the
Company, and the undersigned has no knowledge of any Default or Event
of Default.
6. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the
date of this Certificate.
7. For the fiscal quarter commencing ---------------------,
the Applicable Margin is (i) -------% in the case of Offshore Rate
Loans, and (ii) 0.0000% in the case of Base Rate Loans.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of -------------------------, ----.
\PLUM CREEK ACQUISITION PARTNERS, L.P.
By:\ Plum Creek Timber Company, [L.P.By: Plum Creek Management Company, L.P]
\Inc\., its general partner.
By: ---------------------------
Title: ------------------------
SCHEDULE 1
TO THE COMPLIANCE CERTIFICATE
[FINANCIALS]
SCHEDULE 2
TO THE COMPLIANCE CERTIFICATE
($ IN 000'S)
Plum Creek [Timber Company,] \Acquisition Partners,\ L.P.
Schedule 2
Compliance Certificate Computation Statement
($ in Thousands)
Interest Coverage Ratio
I. EBITDA
A. Net Income or Loss ------
B. DD&A ------
C. Interest Expense ------
D. LIFO Adjustments ------
E. Accrued Income Taxes ------
F. Adjustments to A through E based upon Timber
acquisition (detailed certificate attached) ------
G. Sum of A through F ------
II. Interest Expense
A. 4 Otrs. Combined Interest Expense ------
B. Additions to A based upon Indebtedness Incurred to
acquire Timber (detailed certificate attached) ------
C. Sum of A and B ------
D. I.G divided by II.C ------
Negative Covenants
V. Section 8.2 (f): Sale of Designated Acres
A. Designated Acres 200,000
B. Aggregate Sales as of ------- ------
II. Section 8.2 (h): Asset Sales
A. Maximum Allowed $20,000
B. Sales as of ------- ------
III. Section 8.3: Harvesting Restrictions (MCCF)
A. Maximum Allowable Harvest
1996 (1996 harvest of 1,470 MCCF plus carryover of
2,130 MCCF) 3,600 MCCF
1997 - 2000 1,970 MCCF
2001 - 2009 1,910 MCCF
199_ Maximum Allowable Harvest ----- MCCF
Add: Prior Year Cumulative Carryover Harvest ----- MCCF
Resulting 199_ Maximum Allowable Harvest ----- MCCF
B. Actual 199_ Harvest ----- MCCF
IV. Section 8.4(i): Investments Not Otherwise Permitted
A. Maximum Pulp and Paper Investments $50,000
B. Actual Cumulative Pulp and Paper Investments
through -------- ------
C. 60% of the average annual Pro Form Free Cash Flow
for preceding two fiscal years ------
D. Greater of $30 million or IV.C. ------
E. Outstanding 8.4(i) Investments
1. Cumulative Investments through -------- ------
2. Repayment of Principal of such Investments
through -------- ------
3. IV.E.1 minus IV.E.2 ------
V. Section 8.5(b): Funded Debt Incurred to Finance
Capital Improvements
A. Maximum Allowed $20,000
B. Outstanding at ------------ ------
VI. Section 8.5(d): Indebtedness Pursuant to a
Bank Credit Facility
A. Maximum Allowed $15,000
B. Outstanding at ------------ ------
VII. Section 8.5 (f): Guarantee of Facilities
Subsidiary Revolving Credit Facility
A. Maximum Allowed $20,000
B. Outstanding at ------------- ------
VIII. Section 8.5 (g): Guarantee of Facility
Subsidiary Capital Improvement Funded Debt
A. Maximum Allowed $20,000
B. Outstanding at ------------- ------
IX. Section 8.5(h): Aggregate Principal Amount of
Indebtedness Secured by Liens
A. Maximum Allowed June 30, 1996 to June 8, 1999: $25,000
June 9, 1999 to Revolving Termination Date $50,000
B. Outstanding at ----------- ------
X. Section 8. 5 (i): Additional Funded Debt
A. Pro Forma Free Cash Flow ------
to
Maximum Pro Forma Annual Interest Charges ------
Ratio: ------
(Not to be less than 2.25 to 1:00)
B. Aggregate Outstanding Principal Amount not to exceed: $300,000
C. Aggregate Outstanding Principal Amount at ------ ------
XI. Section 8.13 (a): Restricted Payments
Available Cash
(i)(a)Net Income or Loss ------
(a) Excluding Gain on sale of any Capital Assets ------
Plus:
(b) DD&A ------
(b) Other non-cash charges ------
(c) Reduction in reserves of the types referred to in clause
(ii)(d) below,
Interest ------
Principal ------
(d) Proceeds received from the sale of Designated Acres ------
(e) Cash from Capital Transactions used to refinance or refund
Indebtedness ------
Less (ii) the sum of:
(a) All payments of principal on Indebtedness ------
(b) Capital expenditures ------
(c) Capital expenditures made in prior quarter, anticipated to
financed, but have not been refinanced ------
(d) Reserve for future principal payments (per Section 8.13) ------
(d) Reserve for future capital expenditures ------
(d) Reserve for additional working capital ------
(d) Reserve for future distributions ------
(d) Reserve for future interest payments (per Section 8.13) ------
(e) Other noncash credits ------
(f) The amount of any Investments ------
(g) Any Investments made in prior quarter anticipated to be
financed, but have not been refinanced ------
Available Cash ========
General Partner 2% Interest ------
General Partner Incentive Distribution ------
Allocable to Unitholders - net ------
Total Distribution ========
EXHIBIT E
FORM OF CASH COLLATERAL ACCOUNT AGREEMENT
This CASH COLLATERAL ACCOUNT AGREEMENT ("Agreement") dated as of
- --------------, 199- is entered into by and between PLUM CREEK [TIMBER
COMPANY,] \ACQUISITION PARTNERS,\ L.P., a Delaware limited partnership (the
"Company"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as agent (solely in such capacity, "Agent") for the financial institutions
from time to time parties to the Credit Agreement referred to below
(such entities, together with their respective successors and
assigns, being collectively referred to as the "Banks").
RECITALS
A. The Company, Agent, NationsBank, N.A., as Senior Co-Agent,
and the Banks have entered into an Amended and Restated Revolving
Credit Agreement dated as of December 13, 1996 (as the same may from
time to time be amended, amended and restated, modified, supplemented
or renewed, the "Credit Agreement"). Capitalized terms used herein
without definition shall have the meanings given to them in the
Credit Agreement.
B. [Pursuant to Section 3.7 or subsection 2.7(a)(ii) of the
Credit Agreement, Agent has required that the Company immediately
Cash Collateralize all or a portion of the L/C Obligations as
provided in that Section or subsection in a cash collateral account
at Bank of America National Trust and Savings Association ("BofA")].
or
[In accordance with subsection 2.7(c) of the Credit Agreement,
the Company is required to prepay or Cash Collateralize Offshore Rate
Loans in an amount equal to $--------------- in a cash collateral
account at Bank of America National Trust and Savings Association
("BofA"). The Company has elected to Cash Collateralize such Loans
which cash collateral amount shall be applied to repay Offshore Rate
Loans at maturity thereof.]
or
[In accordance with subsection 2.7(c) of the Credit Agreement,
the Swingline Bank has required the Company to Cash Collateralize
Swingline Loans in an amount equal to $------------- in a cash
collateral account at Bank of America National Trust and Savings
Association ("BofA"), which cash collateral amount shall be applied
to repay Swingline Loans at maturity thereof.]
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the Company and Agent hereby agree as
follows:
1. Cash Collateral Account.
(a) Cash Collateral Account. For purposes of [Section 3.7]
[subsection 2.7(a)(ii)] [subsection 2.7(c)] of the Credit Agreement,
the Company has established with BofA, for the benefit of Agent on
behalf of itself [IF WITH RESPECT TO SUBSECTION 2.7(C) AND NOT RELATING TO
SWINGLINE LOANS: and the Banks] [IF WITH RESPECT TO SUBSECTION 2.5(C) RELATING
TO SWINGLINE LOANS: the Swingline Bank and the Banks] [IF WITH RESPECT TO
SECTION 3.7 OR SUBSECTION 2.7(a)(ii): the Issuing Banks and the Banks],
a special purpose restricted deposit account in the name of the
Company, deposit account # (together
with any successor account(s) that may be established from time to
time in replacement thereof, the "Cash Collateral Account"). Agent
shall have exclusive control over the Cash Collateral Account and the
sole right of withdrawal therefrom, except as expressly provided in
Section 1(b) below. The Company agrees that the Cash Collateral
Account shall be a blocked account, and upon the deposit of funds
into the Cash Collateral Account by or at the direction of the
Company, such deposit shall become (except as expressly provided in
such Section 1(b) hereof) irrevocable and the Company shall have no
right to withdraw amounts contained therein or interest accrued
thereon except as provided in Section 1(b) hereof or upon the
indefeasible payment in full of the Obligations; and until such
indefeasible payment in full of the Obligations the Company waives
(i) the right to make withdrawals from the Cash Collateral Account
and (ii) the right to instruct BofA to honor drafts drawn against the
Cash Collateral Account, except in each case as expressly provided in
Section 1(b) hereof.
[IF WITH RESPECT TO SECTION 3.7 AND SUBSECTION 2.7(a)(ii)]
(b) Application to Letters of Credit. Subject to the prior
application by Agent of amounts held hereunder pursuant to Section 2,
on the Honor Date of a Letter of Credit, Agent shall promptly apply
any amounts remaining in the Cash Collateral Account to reimburse the
Issuing Bank which issued such Letter of Credit, for the drawing on
such Letter of Credit, and the Company irrevocably directs Agent to
apply such funds at such time to reimburse such Issuing Bank in
accordance with subsection 3.3(c) of the Credit Agreement. At any
time that there are no outstanding L/C Obligations and so long as no
Default or Event of Default shall then exist, Agent shall release and
transfer to the Company any amounts remaining in the Cash Collateral
Account.]
[IF WITH RESPECT TO SUBSECTION 2.7(C) AND NOT RELATING TO SWINGLINE LOANS]
Application to Loans. Subject to the prior application by
Agent of amounts held hereunder pursuant to Section 2, on the
maturity date of any Interest Period with respect to an Offshore Rate
Loan, Agent shall apply any amounts remaining in the Cash Collateral
Account to repay such Offshore Rate Loan, and the Company irrevocably
directs Agent to apply such funds at such time to repay Offshore Rate
Loans.
[IF WITH RESPECT TO SUBSECTION 2.7(C) RELATING TO SWINGLINE LOANS]
Application to Swingline Loans. Subject to the prior
application by Agent of amounts held hereunder pursuant to Section 2,
on the maturity date of any Swingline Loan or on any Clean-Up Day,
Agent shall apply any amounts remaining in the Cash Collateral
Account to repay such Swingline Loans and the Company irrevocably
directs Agent to apply such funds at such time to repay Swingline
Loans.
2. Lien. The Cash Collateral Account, all funds and investments
contained therein, all interest accrued thereon, and all proceeds
thereof shall be held by BofA for the benefit of Agent on behalf of
itself [IF RESPECT TO SUBSECTION 2.7(C) AND NOT RELATING TO SWINGLINE LOANS:
and the Banks] [IF WITH RESPECT TO SUBSECTION 2.7(C) RELATING TO SWINGLINE
LOANS: the Swingline Bank and the Banks] [IF WITH RESPECT TO SECTION 3.7 OR
SUBSECTION 2.7(a)(ii): the Issuing Banks and the Banks] as cash
collateral to secure the Company's Obligations. As security for the
payment and performance of all obligations of the Company hereunder
and under the Credit Agreement, the Company hereby grants to Agent on
behalf of itself [IF WITH RESPECT TO SUBSECTION 2.7(C) AND NOT RELATING TO
SWINGLINE LOANS: and the Banks] [IF WITH RESPECT TO SUBSECTION 2.7(C) RELATING
TO SWINGLINE LOANS: the Swingline Bank and the Banks] [IF WITH RESPECT TO
SECTION 3.7 OR SUBSECTION 2.7(a)(ii): the Issuing Banks and the Banks] a
first priority perfected security interest in all of its rights,
title and interest now existing or hereafter arising in and to the
Cash Collateral Account and any proceeds or products thereof. Agent
and the Company hereby notify BofA of the foregoing lien, and BofA,
by its signature below, acknowledges receipt of such notice.
The Company shall be deemed in default under this Agreement upon
the occurrence of an Event of Default, as that term is defined in the
Credit Agreement. Upon the occurrence of any such Event of Default,
Agent may, at its option, and without notice to or demand on the
Company and in addition to all rights and remedies available to Agent
under the Credit Agreement, do any one or more of the following:
(a) foreclose or otherwise enforce Agent's security interest in any
manner permitted by law, or provided for in this Agreement;
(b) dispose of the Cash Collateral Account on such terms and in such
manner as Agent may determine; and (c) recover from the Company all
costs and expenses, including, without limitation, Attorneys Costs,
incurred or paid by Agent in exercising any right, power or remedy
provided by this Agreement, the Loan Documents, or by law.
3. Investments. Upon the Company's written instructions as
provided in Section 4 below, if no Default or Event of Default
exists, Agent shall invest the funds on deposit in the Cash
Collateral Account in any of the permitted investments described in
the Investment Policy attached as Schedule 1.1 to the Credit
Agreement; provided that with respect to any instruction to invest
funds in any investment that does not constitute a "deposit account"
(as defined in Division 9 of the California Uniform Commercial Code)
maintained with BofA, Agent shall take no action to effect such
instructions to invest funds unless and until the Company has duly
executed and delivered such documents and instruments and caused to
be delivered such opinions of counsel as the Majority [Lenders]
\Banks\ may reasonably deem necessary or appropriate to perfect or to
confirm the perfection and first priority status of Agent's security
interest in such investments.
4. Investment Direction. With respect to the investment of
funds on deposit in the Cash Collateral Account pursuant to Section 3
above, Agent shall be entitled to rely upon the written instructions
of those individuals whose signatures appear in the spaces provided
below, or such other individuals as may hereafter be designated in
writing by the Company:
----
--------------------------------------
--------------------------------------
--------------------------------------
5. Compensation. BofA shall be entitled to compensation from
the Company for the maintenance of and investment of funds contained
in the Cash Collateral Account in accordance with its standard fees
for such services in effect from time to time. Such compensation
shall be payable upon demand.
6. Notices, Etc. Any notice or other communication herein
required or permitted to be given shall be in writing and may be
delivered in person, with receipt acknowledged, or sent by telex,
telecopy or by United States mail, registered or certified, return
receipt requested, postage prepaid and addressed as set forth on
Schedule I to this Agreement or at such other address as may be
substituted by notice given as herein provided. The giving of any
notice required hereunder may be waived in writing by the party
entitled to receive such notice. All such notices and communications
shall be effective upon receipt. Failure or delay in delivering
copies of any notice, demand, request, consent, approval, declaration
or other communication to the persons designated above to receive
copies shall in no way adversely affect the effectiveness of such
notice, demand, request, consent, approval, declaration or other
communication.
7. Termination. This Agreement shall terminate when transfers
of amounts in the Cash Collateral Account pursuant to Section 1
hereof shall have reduced the balance of the Cash Collateral Account
to zero.
8. Successors and Assigns; Governing Law. This Agreement shall
be binding upon and inure to the benefit of the Company, Agent and
the Banks and their respective successors and assigns, except that
the Company shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of Agent and
each Bank. Except as otherwise expressly provided herein or in any
of the other Loan Documents, in all respects, including all matters
of construction, validity and performance, this Agreement shall be
governed by, and construed and enforced in accordance with, the laws
of the State of California applicable to contracts made and performed
in such state, without regard to the principles thereof regarding
conflict of laws, and any applicable laws of the United States of
America.
9. Entire Agreement; Construction; Amendments and Waivers.
(a) Entire Agreement. This Agreement, the Credit Agreement
and the other Loan Documents, taken together, constitute and contain
the entire agreement among the parties and supersede any and all
prior agreements, negotiations, correspondence, understandings and
communications among the parties, whether written or oral, respecting
the subject matter hereof.
(b) Construction. This Agreement is the result of
negotiations between and has been reviewed by each of the Company,
Agent and the Banks and their respective counsel; accordingly, this
Agreement shall be deemed to be the product of the parties hereto,
and no ambiguity shall be construed in favor of or against the
Company, Agent or the Banks. The Company, Agent and the Banks agree
that they intend the literal words of this Agreement and that no
parole evidence shall be necessary or appropriate to establish the
Company's, Agent's or any Bank's actual intentions.
(c) Interpretation. The terms of this Agreement shall be
interpreted in accordance with the provisions of Article I of the
Credit Agreement, provided, however, that (a) any reference to a
"Section" shall refer to the relevant Section to this Agreement,
unless specifically indicated to the contrary and (b) the words
"herein," "hereof" and "hereunder" and other words of similar import
(including, without limitation, in Article I of the Credit Agreement)
shall refer to this Agreement as a whole, as the same may from time
to time be amended, amended and restated, modified or supplemented,
and not to any particular section, subsection or clause contained in
this Agreement.
(d) Amendments; Waivers. No amendment, modification,
discharge or waiver of, or consent to any departure by the Company
from, any provision of this Agreement shall be effective unless the
same shall be in writing and signed by the Agent with the written
consent of the Majority Banks [and the Swingline Bank], and then such
waiver shall be effective only in the specific instance and for the
specific purpose for which given.
10. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be valid, legal
and enforceable under the applicable law of any jurisdiction.
Without limiting the generality of the foregoing sentence, in case
any provision of this Agreement shall be invalid, illegal or
unenforceable under the applicable law of any jurisdiction, the
validity, legality and enforceability of the remaining provisions, or
of such provision in any other jurisdiction, shall not in any way be
affected or impaired thereby.
11. Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any
substantive effect.
12. No Third Parties Benefited. This Agreement is made and
entered into for the sole protection and legal benefit of the
Company, Agent, the Banks, and their permitted successors and
assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or
claim in connection with this Agreement. Neither Agent nor any Bank
shall have any obligation to any Person not a party to this
Agreement.
13. Counterparts. This Agreement and any amendments, waivers,
consents or supplements hereto may be executed in any number of
counterparts, and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first above written.
\PLUM CREEK ACQUISITION PARTNERS, L.P.
By:\ Plum Creek Timber Company, [L.P.By: Plum Creek Management Company, L.P]
\Inc\., its general partner.
By: -------------------------------
Title: ----------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as Agent
By: ---------------------------------
Title: ------------------------------
Notice of security interest acknowledged:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as depository
By: ---------------------------------
Title: ------------------------------
CASH COLLATERAL ACCOUNT AGREEMENT
SCHEDULE I
NOTICE ADDRESSES
Notice to be sent to:
PLUM CREEK [TIMBER COMPANY,] \ACQUISITION
PARTNERS,\ L.P.
999 Third Avenue, Suite 2300
Seattle, WA 98104
Attn: Chief Financial Officer
Facsimile: (206) 467-3797
Tel: (206) 467-3600
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent
[1455 Market Street, 12th FloorSan
Francisco, CA 94103Attn] \1850 Gateway
Blvd.
Concord, CA 94520
Attn\: Agency Administrative Services
#5596
Facsimile: [(415) 436-2700Tel: (415)
436-2775Attention: Annie Cuenco]\(925)
675-8500
Tel: (925) 675-8435
Attention: Alix Bax\
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Depository
[1455 Market Street, 12th FloorSan
Francisco, CA 94103Attn] \1850 Gateway
Blvd.
Concord, CA 94520
Attn\: Agency Administrative Services
#5596
Facsimile: [(415) 436-2700Tel: (415)
436-2775Attention: Annie Cuenco]\(925)
675-8500
Tel: (925) 675-8435
Attention: Alix Bax\
EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Agreement") dated as of
- ----------------------------, ---- is made between ---------------------
(the "Assignor") and ---------------------------- (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Amended and
Restated Revolving Credit Agreement dated as of December 13, 1996
among PLUM CREEK [TIMBER COMPANY,] \ACQUISITION PARTNERS,\ L.P., a Delaware
limited partnership (the "Company"), the several financial
institutions from time to time party thereto (including the Assignor,
the "Banks"), NATIONSBANK, N.A., as Senior Co-Agent, and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent (as from time to time
amended, amended and restated, modified, supplemented or renewed, the
"Credit Agreement"). Any terms defined in the Credit Agreement and
not defined in this Agreement are used herein as defined in the
Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor has
(A) committed to make revolving loans (the "Revolving Loans") to the
Company in an aggregate amount not to exceed $----------- (the
"Commitment"), (B) made Swingline Loans (the "Swingline Loans") to
the Company in an aggregate amount not to exceed $----------- (the
"Swingline Commitment")];
WHEREAS, [the Assignor has made Revolving Loans in the aggregate
principal amount of $----------- [and Swingline Loans in the
aggregate principal amount of $-----------] to the Company] [no
Loans are outstanding under the Credit Agreement] [no Swingline Loans
are outstanding under the Credit Agreement]; and
WHEREAS, [the Assignor has acquired a participation in an Issuing
Bank's liability under Letters of Credit in an aggregate principal
amount of $----------- (the "L/C Obligations")] [and a participation
in the Swingline Bank's liability under Swingline Loans in an
aggregate principal amount of $-----------] [No Letters of Credit
and no Swingline Loans are outstanding under the Credit Agreement];
and
WHEREAS, the Assignor wishes to assign to the Assignee [part of
the] [all] rights and obligations of the Assignor under the Credit
Agreement in respect of (i) its Commitment, [together with a
corresponding portion of each of its outstanding Revolving Loans and
its participation in Swingline Loans and L/C Obligations,] in an
amount equal to $----------- (the "Assigned Revolving Amount"),
[and] (ii) [the Swingline Commitment, [together with a corresponding
portion of its outstanding Swingline Loans,] in an amount equal to
$----------- ], in each case on the terms and subject to the
conditions set forth herein and the Assignee wishes to accept
assignment of such rights and to assume such obligations from the
Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this Agreement,
(i) the Assignor hereby sells, transfers and assigns to the Assignee,
and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty
(except as provided in this Agreement) (A) __% (the "Assignee's
Percentage Share") of each of the Assignor's Commitment [and the
Loans and L/C Obligations] [, the Swingline Commitment [and the
Swingline Loans]] of the Assignor, and (B) all related rights,
benefits, obligations, liabilities and indemnities of the Assignor
under and in connection with the Credit Agreement and the Loan
Documents.
[If appropriate, add paragraph specifying payment to Assignor by Assignee
of outstanding principal of, accrued interest on, and fees with
respect to, Loans, Swingline Loans and L/C Obligations assigned.]
(b) With effect on and after the Effective Date (as defined
herein), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the
obligations of a Bank [and the Swingline Bank] under the Credit
Agreement, including the requirements concerning confidentiality,
with a Commitment in an amount equal to the Assigned Revolving Amount
[and the Swingline Commitment]. The Assignee agrees that it will
perform in accordance with their terms all of the obligations which
by the terms of the Credit Agreement are required to be performed by
it as a Bank [and as the Swingline Bank]. It is the intent of the
parties hereto that the Commitment of the Assignor shall, as of the
Effective Date, be reduced by an amount equal to the Assigned
Revolving Amount [and the Swingline Commitment shall be entirely
assumed by the Assignee,] and the Assignor shall relinquish its
rights and be released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the
Assignee.
(c) After giving effect to the assignment and assumption, on
the Effective Date the Assignee's Commitment will be $-----------
[and Assignee's Swingline Commitment will be $-----------].
(d) After giving effect to the assignment and assumption, on
the Effective Date the Assignor's Commitment will be $-----------
[and Assignor's Swingline Commitment will be $0].
2. Payments.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1, the Assignee shall pay to the Assignor on
the Effective Date in immediately available funds an amount equal to
$-----------, representing [the principal amount of the Swingline
Loans and] the Assignee's Percentage Share of the principal amount of
all Loans previously made to the Company by the Assignor under the
Credit Agreement and outstanding on the Effective Date.
(b) The [Assignor] [Assignee] further agrees to pay to the
Agent a processing fee in the amount specified in Section 11.8(a) of
the Credit Agreement.
3. Reallocation of Payments. Any interest, fees and other
payments accrued to the Effective Date with respect to the Loans,
[Swingline Loans] and L/C Obligations and the Commitment [and
Swingline Commitment] shall be for the account of the Assignor. Any
interest, fees and other payments accrued on and after the Effective
Date with respect to the Assigned Revolving Amount [, the Swingline
Commitment and Swingline Loans] assigned hereunder shall be for the
account of the Assignee. Each of the Assignor and the Assignee
agrees that it will hold in trust for the other party any interest,
fees and other amounts which it may receive to which the other party
is entitled pursuant to the preceding sentence and pay to the other
party any such amounts which it may receive promptly upon receipt.
4. Independent Credit Decision. The Assignee (a) acknowledges
that it has received a copy of the Credit Agreement and the Schedules
and Exhibits thereto, together with copies of the most recent
financial statements referred to in Section 7.1 of the Credit
Agreement, and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to
enter into this Agreement; and (b) agrees that it will, independently
and without reliance upon the Assignor, the Agent or any other Bank
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit and legal
decisions in taking or not taking action under the Credit Agreement.
5. Effective Date; Notices. As between the Assignor and the
Assignee, the effective date for this Agreement shall be -------------,
- ---- (the "Effective Date"); provided that the following conditions
precedent have been satisfied on or before the Effective Date:
(a) this Agreement shall be executed and delivered by the
Assignor and the Assignee;
(b) the consent of the Company and the Agent required for an
effective assignment of the Assigned Revolving Amount [, the
Swingline Commitment and Swingline Loans] assigned hereunder by the
Assignor to the Assignee under Section 11.8(a) of the Credit
Agreement, if any, shall have been duly obtained and shall be in full
force and effect as of the Effective Date;
(c) the Assignee shall pay to the Assignor all amounts due to
the Assignor under this Agreement;
(d) the Assignee shall have complied with Section 4.1(f) of
the Credit Agreement (if applicable);
(e) the processing fee referred to in Section 2(b) hereof and
in Section 11.8(a) of the Credit Agreement shall have been paid to
the Agent; and
(f) Promptly following the execution of this Agreement, the
Assignor shall deliver to the Company and the Agent for
acknowledgment by the Agent, a Notice of Assignment in the form
attached hereto as Schedule 1.
6. Agent. [Include only if Assignor is Agent]
(a) The Assignee hereby appoints and authorizes the Assignor
to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement as are delegated to the Agent by
the Banks pursuant to the terms of the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held
by the Assignor in its capacity as Agent under the Credit Agreement.]
7. Withholding Tax. The Assignee agrees to comply with
Section 4.1(f) of the Credit Agreement (if applicable).
8. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any lien,
security interest or other adverse claim; (ii) it is duly organized
and existing and it has the full power and authority to take, and has
taken, all action necessary to execute and deliver this Agreement and
any other documents required or permitted to be executed or delivered
by it in connection with this Agreement and to fulfill its
obligations hereunder; (iii) no notices to, or consents,
authorizations or approvals of, any person are required (other than
any already given or obtained) for its due execution, delivery and
performance of this Agreement, and apart from any agreements or
undertakings or filings required by the Credit Agreement, no further
action by, or notice to, or filing with, any person is required of it
for such execution, delivery or performance; and (iv) this Agreement
has been duly executed and delivered by it and constitutes the legal,
valid and binding obligation of the Assignor, enforceable against the
Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization
and other laws of general application relating to or affecting
creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties
or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument
or document furnished pursuant thereto. The Assignor makes no
representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or
statements of the Company, or the performance or observance by the
Company, of any of its respective obligations under the Credit
Agreement or any other instrument or document furnished in connection
therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take,
and has taken, all action necessary to execute and deliver this
Agreement and any other documents required or permitted to be
executed or delivered by it in connection with this Agreement, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any person are required (other than
any already given or obtained) for its due execution, delivery and
performance of this Agreement; and apart from any agreements or
undertakings or filings required by the Credit Agreement, no further
action by, or notice to, or filing with, any person is required of it
for such execution, delivery or performance; (iii) this Agreement has
been duly executed and delivered by it and constitutes the legal,
valid and binding obligation of the Assignee, enforceable against the
Assignee in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization
and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; and (iv) it is
an Eligible Assignee.
9. Further Assurances. The Assignor and the Assignee each
hereby agrees to execute and deliver such other instruments, and take
such other action, as either party may reasonably request in
connection with the transactions contemplated by this Agreement,
including the delivery of any notices or other documents or
instruments to the Company or the Agent, which may be required in
connection with the assignment and assumption contemplated hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this
Agreement shall be in writing and signed by the parties hereto. No
failure or delay by either party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof and
any waiver of any breach of the provisions of this Agreement shall be
without prejudice to any rights with respect to any other or further
breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own
costs and expenses incurred in connection with the negotiation,
preparation, execution and performance of this Agreement.
(d) This Agreement may be executed in any number of
counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAW OF THE STATE OF CALIFORNIA. The Assignor and the Assignee each
irrevocably submits to the non-exclusive jurisdiction of any State or
Federal court sitting in California over any suit, action or
proceeding arising out of or relating to this Agreement and
irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such California State or
Federal court. Each party to this Agreement hereby irrevocably
waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or
proceeding.
(F) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS AGREEMENT, THE CREDIT AGREEMENT, ANY RELATED DOCUMENTS AND AGREEMENTS OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER ORAL OR
WRITTEN).
[Other provisions to be added as may be negotiated between the
Assignor and the Assignee, provided that such provisions are not
inconsistent with the Credit Agreement.]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance Agreement to be executed and delivered by
their duly authorized officers as of the date first above written.
ASSIGNOR: ------------------------
By: ------------------------------
Title: ---------------------------
ADDRESS:
ASSIGNEE: ------------------------
By: ------------------------------
Title: ---------------------------
ADDRESS:
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
-----------------, 19--
Bank of America National Trust
and Savings Association, as Agent
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn: Agency Administrative Services #5596
Plum Creek [Timber Company] \Acquisition Partners\, L.P.
999 Third Avenue, Suite 2300
Seattle, WA 98104
Attn: Chief Financial Officer
Ladies and Gentlemen:
We refer to the Amended and Restated Revolving Credit Agreement dated
as of December 13, 1996 (the "Credit Agreement") among Plum Creek
[Timber Company,] \Acquisition Partners,\ L.P. (the "Company"), the
Banks referred to therein, NationsBank, N.A., as Senior Co-Agent, and
Bank of America National Trust and Savings Association, as Agent.
Terms defined in the Credit Agreement are used herein as therein
defined.
1. We hereby give you notice of, and request the consent of the
Company to, the assignment by-------------------------------------
(the "Assignor") to------------------------------------- (the "Assignee")
of ----% of the right, title and interest of the Assignor in and to the
Credit Agreement (including, without limitation, the right, title and
interest of the Assignor in and to each of its Commitment [and the
Swingline Commitment] of the Assignor and all outstanding Revolving
Loans [and Swingline Loans] made by the Assignor and the Assignor's
participation in Letters of Credit and Swingline Loans). Before
giving effect to such assignment the Assignor's Commitment is
$----------, the aggregate principal balance of its outstanding
Revolving Loans is $----------, and its participation in L/C
Obligations is $---------- and in Swingline Loans is $----------.
2. The Assignee agrees that, upon receiving the consent of the
Company and the Agent to such assignment, the Assignee will be bound
by the terms of the Credit Agreement as fully and to the same extent
as if the Assignee were the Bank originally holding such interest in
the Credit Agreement.
3. The following administrative details apply to the Assignee:
(a) Notice Address:
Assignee name:
Address:
Attention:
Telephone:
Telecopier:
Telex (Answerback):
(b) Payment Instructions:
Account No.:
At:
Reference:
Attention:
(c) Domestic and Offshore Lending Office:
[same as notice address]
or
Assignee name:
Address:
Attention:
Telephone:
Telecopier:
Telex (Answerback):
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment Notice and Acceptance to be executed by their respective
duly authorized officials, officers or agents as of the date first
above mentioned.
Very truly yours,
[Name of Assignor]
By: ------------------------------
Title: ---------------------------
[Name of Assignee]
By: ------------------------------
Title: ---------------------------
ACKNOWLEDGED AND ASSIGNMENT CONSENTED TO:
\PLUM CREEK ACQUISITION PARTNERS, L.P.
By:\ Plum Creek Timber Company, [L.P.By: Plum Creek Management Company, L.P]
\Inc\., its general partner.
By: ------------------------------
Title: ---------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By: ------------------------------
Title: ---------------------------
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary information extracted from the Combined Financial
Statements of Plum Creek Timber Company, L.P. for the six months ended June 30,
1999 and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<CASH> 96,188
<SECURITIES> 0
<RECEIVABLES> 44,643
<ALLOWANCES> 1,376
<INVENTORY> 46,095
<CURRENT-ASSETS> 195,665
<PP&E> 1,363,153
<DEPRECIATION> 170,109
<TOTAL-ASSETS> 1,399,925
<CURRENT-LIABILITIES> 80,312
<BONDS> 933,853
0
0
<COMMON> 0
<OTHER-SE> 374,956
<TOTAL-LIABILITY-AND-EQUITY> 1,399,925
<SALES> 362,570
<TOTAL-REVENUES> 362,570
<CGS> 257,907
<TOTAL-COSTS> 279,454
<OTHER-EXPENSES> 242
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 37,049
<INCOME-PRETAX> 41,382
<INCOME-TAX> 985
<INCOME-CONTINUING> 40,397
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 40,397
<EPS-BASIC> 0.50
<EPS-DILUTED> 0
</TABLE>
