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) Xxxxx X. Xxxxx, General
Counsel of the Company, covering such matters incident to the
transactions described herein as Agent may reasonably request, and (B)
Skadden, Arps, Slate, Xxxxxxx & Xxxx, 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: ---------------------------
