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EXHIBIT 10A.1
FIRST AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "First
Amendment"), dated as of October 27, 1995, is entered into by and among Plum
Creek Timber Company, L.P. (the "Company"), the several financial institutions
from time to time party to the Credit Agreement referred to below
(collectively, the "Banks"), and Bank of America National Trust and Savings
Association, as agent for the Banks (in such capacity, the "Agent").
R E C I T A L S
A. The Company, the Banks and the Agent are parties to an Amended
and Restated Credit Agreement dated as of November 15, 1994 (the "Amended and
Restated Credit Agreement"), pursuant to which the Banks and the Agent have
extended certain credit facilities to the Company.
B. The Company has requested that the Banks agree to certain
amendments to the Amended and Restated Credit Agreement.
C. The Banks are willing to amend the Amended and Restated Credit
Agreement, subject to the terms and conditions of this First Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings assigned to them in the Amended and
Restated Credit Agreement.
2. Amendments to Amended and Restated Credit Agreement.
(a) Section 1.01 of the Amended and Restated Credit
Agreement shall be amended as follows:
(i) The definition of "Applicable Margin" shall
be amended by:
(1) deleting the percentage numbers in
the table and replacing them such
that the table in its
entirety reads as follows:
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FIXED CHARGE COVERAGE RATIO
AT END OF FISCAL QUARTER APPLICABLE MARGIN
OFFSHORE RATE CD RATE BASE RATE
Greater than or equal to 3:25 to 1:00 0.4000% 0.5250% 0.0000%
Less than 3:25 to 1:00 but greater than or equal to 0.4500% 0.5750% 0.0000%
2:75 to 1:00
Less than 2:75 to 1:00 but greater than or equal to 0.5500% 0.6750% 0.0000%
2:00 to 1:00
Less than 2:00 to 1:00 0.8750% 1.0000% 0.0000%
(2) deleting all percentage numbers in the
sentence starting with the words "If the Company
fails to deliver" and by inserting in their stead the
numbers "0.4500%," "0.5750%," "0.0000%," "0.5500%,"
"0.6750%," and "0.0000%," such that the second half
of the sentence reads as follows:
"thus if the Applicable Margin had
previously been 0.4500% for Offshore Rate
Committed Loans and 0.5750% for CD Rate
Committed Loans and 0.0000% for Base Rate
Committed Loans, a failure to deliver
quarterly financials by the first day of the
next fiscal quarter would cause the
Applicable Margin to be 0.5500%, 0.6750% and
0.0000%, respectively, for the duration of
that quarter."
(ii) The definition of "Commitment Fee Percentage"
shall be amended by deleting the table and replacing it in its
entirety to read as follows:
FIXED CHARGE COVERAGE RATIO
AT END OF FISCAL QUARTER COMMITMENT FEE
Greater than or equal to 3:25 to 1:00 .1500%
Less than 3:25 to 1:00 but greater than or equal to 2:75 to 1:00 .1750%
Less than 2:75 to 1:00 but greater than or equal to 2:00 to 1:00 .2000%
Less than 2:00 to 1:00 .2250%
(iii) The definition of "Maturity Date" shall be
amended by deleting the date "October 31, 1999" and by
inserting in its stead the date "October 31, 2000."
(iv) The definition of "Permitted Business" shall
be amended by:
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(1) adding immediately after the words
"Closing Date," the words "pulp and
paper manufacturing"; and
(2) deleting the words ", which shall
not include pulp or paper
manufacturing".
(b) Subsection 8.02(c)(iii) of the Amended and Restated
Credit Agreement shall be amended by adding after the words "Permitted
Business" as they appear at the end of such subsection, the following:
"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."
(c) Subsection 8.02(d)(ii)(z) of the Amended and Restated
Credit Agreement shall be amended by adding after the words "Permitted
Business" as they appear at the end of such subsection the following: "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."
(d) Subsection 8.04(i) of the Amended and Restated Credit
Agreement shall be amended in its entirety to read as follows:
"make Investments not otherwise permitted by this
Section 8.04 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 8.04) 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".
3. Representations and Warranties. The Company hereby represents
and warrants to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is
continuing.
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(b) The execution, delivery and performance by the
Company of this First Amendment have been duly authorized by all necessary
partnership and 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 Amended and Restated Credit Agreement as amended by this
First Amendment constitutes the legal, valid and binding obligations of the
Company, enforceable against it in accordance with its respective terms,
without defense, counterclaim or offset.
(c) All representations and warranties of the Company
contained in the Amended and Restated 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).
(d) The Company is entering into this First Amendment on
the basis of its own investigation and for its own reasons, without reliance
upon the Agent and the Banks or any other Person.
4. Effective Date. This First Amendment will become effective on
October 30, 1995 (the "Effective Date"), provided that each of the following
conditions precedent is satisfied:
(a) the Agent has received from the Company and each of
the Banks a duly executed original (or, if elected by the
Agent, an executed facsimile copy) of this First Amendment;
and
(b) the Agent has received, with sufficient copies for
each of the Banks, an opinion of Xxxxx X. Xxxxx, Vice
President, Law, of the Company, addressed to the Agent and the
Banks, as to the due authorization of the execution, delivery
and performance of this First Amendment.
5. Reservation of Rights. The Company acknowledges and agrees
that the execution and delivery by the Agent and the Banks of this First
Amendment shall not be deemed to create a course of dealing or otherwise
obligate the Agent or the Banks to forbear or execute similar amendments under
the same or similar circumstances in the future.
6. Miscellaneous.
(a) Except as herein expressly amended by this First
Amendment, all terms, covenants and provisions of the Amended and Restated
Credit Agreement are and shall remain in full force and effect and all
references therein and in the other Loan Documents to such Amended and Restated
Credit Agreement shall henceforth refer to the Amended and Restated Credit
Agreement as amended by this First Amendment. This First Amendment shall be
deemed incorporated into, and a part of, the Amended and Restated Credit
Agreement.
(b) This First Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
First Amendment.
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(c) This First Amendment shall be governed by and
construed in accordance with the law of the State of California (without regard
to principles of conflicts of laws).
(d) This First Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original, and
all such counterparts taken together shall be deemed to constitute but one and
the same instrument.
(e) This First Amendment, together with the Amended and
Restated Credit Agreement, contains the entire and exclusive agreement of the
parties hereto with reference to the matters discussed herein and therein.
This First Amendment supersedes all prior drafts and communications with
respect thereto. This First Amendment may not be amended except in accordance
with the provisions of Section 11.01 of the Amended and Restated Credit
Agreement.
(f) If any term or provision of this First Amendment
shall be deemed prohibited by or invalid under any applicable law, such
provision shall be invalidated without affecting the remaining provisions of
this First Amendment or the Amended and Restated Credit Agreement,
respectively.
(g) The Company covenants to pay to or reimburse the
Agent within five Business Days after demand for all costs and expenses
(including Attorney Costs) incurred in connection with the development,
preparation, negotiation, execution and delivery of this First Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and delivered by their duly authorized officers
as of the date first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company,L.P.,
its general partner
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President & CFO
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as a Bank and as an Issuing Bank
By: /s/ Xxxxxxx X. Xxxxx
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Title: Managing Director
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ABN AMRO BANK N.V.,
as a Bank and as an Issuing Bank
By: /s/ Xxxxx XxXxxxxx
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Title: Vice President
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By: /s/ Xxxx X. Xxxxxx
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Title: Group Vice President
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NATIONSBANK OF NORTH CAROLINA, N.A.
By: /s/ Xxxxxxx Xxxxxx
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Title: Sr. Vice President
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U. S. BANK OF WASHINGTON, N.A.
By: /s/ Xxxx Xxxxx
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Title: Assistant Vice President
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XXXXX FARGO BANK, N.A.
By: /s/ Xxxx Xxxxx
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Title: Vice President
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SEATTLE FIRST NATIONAL BANK
By: /s/ Xxxx Xxxxxx
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Title: Vice President
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THE BANK OF TOKYO, LTD.
By: /s/ Xxxxxxx Xxxxx
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Title: Vice President
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THE BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Vice President
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Acknowledged by:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: /s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
Vice President
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