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EXHIBIT 10A.2
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO 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 a Credit
Agreement dated as of November 15, 1994 (the "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 Credit Agreement.
C. The Banks are willing to amend the 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 Credit
Agreement.
2. Amendments to Credit Agreement.
(a) Section 1.01 of the 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 2:75 0.4500% 0.5750% 0.0000%
to 1:00
Less than 2:75 to 1:00 but greater than or equal to 2:00 0.5500% 0.6750% 0.0000%
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 .1000%
Less than 3:25 to 1:00 but greater than or equal to 2:75 to 1:00 .1250%
Less than 2:75 to 1:00 but greater than or equal to 2:00 to 1:00 .1500%
Less than 2:00 to 1:00 .1750%
(iii) The definition of "Permitted Business"
shall be amended by:
(1) adding immediately after the words
"Closing Date," the words "pulp and
paper manufacturing"; and
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(2) deleting the words ", which shall
not include pulp or paper
manufacturing."
(iv) The definition of "Revolving Termination
Date" shall be amended by deleting the date "October 30,
1995" and by inserting in its stead the date "October 28,
1996."
(b) Subsection 8.02(c)(iii) of the 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 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 Credit Agreement shall be
amended in its entirety to read as follows:
(i) "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 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 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 Credit Agreement are and
shall remain in full force and effect and all references therein and in the
other Loan Documents to such Credit Agreement shall henceforth refer to the
Credit Agreement as amended by this First Amendment. This First Amendment
shall be deemed incorporated into, and a part of, the 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 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 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 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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