Senior Note Agreements Amendment
PLUM CREEK TIMBER COMPANY, L.P.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Dated as of April 15, 1997
To each of the Noteholders listed on Schedule 1
attached hereto
Dear Noteholder:
WHEREAS, each of the purchasers of the Senior Notes and Plum Creek
Timber Company, L.P., a Delaware limited partnership (the "Company"),
entered into Senior Note Agreements dated as of May 31, 1989 (the
"Original Senior Note Agreements") pursuant to which the Company issued
$165,000,000 aggregate principal amount of its 11 1/8% Notes due June 8,
2007 (the "Senior Notes");
WHEREAS, the Original Senior Note Agreements were amended and affected
by (i) the Senior Note Agreement Amendment, Consent and Waiver dated as
of January 1, 1991, (ii) a letter amendment dated Xxxxx 00, 0000,
(xxx) a Senior Note Agreement Amendment dated as of September 1, 1993,
(iv) a Senior Note Agreement Amendment dated as of May 20, 1994, and
(v) a Senior Note Agreements Amendment dated as of May 31, 1996
(collectively the "Amendments," the Original Senior Note Agreement, as
amended by the Amendments, the "Senior Note Agreements");
WHEREAS, Senior Notes in the aggregate principal amount of $138,600,000
remain outstanding and are held by the holders thereof (individually a
"Noteholder," and collectively the "Noteholders") in the aggregate
principal amount for each Noteholder shown opposite the name of such
Noteholder on Schedule 1;
WHEREAS, the Company and the Noteholders wish to enter into this
agreement (this "Agreement") in order to further amend certain
provisions of the Senior Note Agreements;
NOW, THEREFORE, the Company hereby agrees with each Noteholder as
follows:
Section 1. Definitions
All capitalized terms used in this Agreement and not otherwise defined
herein have the meanings ascribed to them in the Senior Note Agreements.
Section 2. Amendments to the Senior Note Agreements
2.1 Amendment to Xxxxxxxxx 0X
Xxxxxxxxx 0X shall be amended by deleting the period at the end thereof
and by adding the following:
; provided, that satisfaction of the foregoing requirements with
respect to any such Lien shall not remedy the Event of Default
resulting from such Lien.2.2 Amendment to Paragraph 6A
Subclause (x) of clause (i) of paragraph 6A shall be amended to read as
follows:
(x) 50% of the aggregate amount of all interest in respect of the
Notes, the 1994 Senior Notes and the 1996 Senior Notes to be paid
on the interest payment date immediately following such immediately
preceding calendar quarter and
2.3 Amendment to Paragraph 6B(1)
Paragraphs 6B(1)(ix) and 6B(1)(x) shall be renumbered 6B(1)(x) and
6B(1)(xi), respectively, and a new paragraph 6B(1)(ix) shall be added to
read as follows:
(ix) from and after the time that the Facilities Subsidiary becomes
a Restricted Subsidiary, 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 Facilities
Subsidiary's inventory and on the proceeds (as defined in the
Uniform Commercial Code in any applicable jurisdiction) thereof
securing the obligations of the Facilities Subsidiary under the
Facilities Subsidiary's Revolving Credit Facility (and any
extension, renewal, refunding or refinancing thereof) permitted by
paragraph 6B(2)(x),
2.4 Amendment to Paragraph 6B(2)
Paragraph 6B(2)(iv) shall be amended to read as follows:
(iv) Debt incurred by the Company pursuant to (a) 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), or (b) a bank credit facility which is
unsecured or is secured by Liens permitted by
paragraph 6B(1)(viii), provided that the aggregate outstanding
principal amount of all Debt permitted by this clause (iv) shall at
no time exceed $15,000,000, and, provided, further, that the
Company shall not suffer to exist any Debt permitted by this
clause (iv) on any day after June 8, 1990 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 Debt permitted by this clause (iv),
Paragraph 6B(2)(x) shall be amended to read as follows:
(x) from and after the time that the Facilities Subsidiary becomes
a Restricted Subsidiary, Debt incurred by the Facilities Subsidiary
pursuant to (a) 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 (b) a bank
credit facility which is unsecured or is secured by Liens permitted
by paragraph 6B(1)(ix), provided that the aggregate outstanding
principal amount of all Debt permitted by this clause (x) shall at
no time exceed $20,000,000, and, provided, further, that to the
extent that the Facilities Subsidiary is a Restricted Subsidiary,
the Facilities Subsidiary shall not suffer to exist any Debt
permitted by this clause (x) on any day after June 8, 1990 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 Debt
permitted by this clause (x), and
2.5 Amendment to Paragraph 6B(3)(ix)
Paragraph 6B(3)(ix) shall be amended to read as follows:
(ix) make Investments not otherwise permitted by this
paragraph 6B(3) in entities engaged solely in a Permitted Business,
provided that the cumulative aggregate amount of such Investments
(calculated at original cost and including the principal amount of
any obligations guaranteed to the extent such guarantees are not
otherwise permitted by this paragraph 6B(3)) outstanding from time
to time made pursuant to this clause (ix) between the date of
closing 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;
2.6 Amendments to Paragraph 6B(5)
Paragraph 6B(5)(vii) shall be amended to read as follows:
(vii) the Company and its Restricted Subsidiaries may sell
properties 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 an amount equal to one percent (1%) of Consolidated Total
Assets, determined as of the last day of the immediately preceding
calendar year, and
Paragraph 6B(5)(viii) shall be deleted in its entirety.
Paragraph 6B(5)(ix) shall be renumbered as 6B(5)(viii) and shall be
amended to read as follows:
(viii) the Company and its Restricted Subsidiaries may otherwise
sell for cash properties in an amount not less than the fair value
thereof as determined in good faith by the Responsible
Representatives if and only if (a) immediately after giving effect
to such proposed sale, no condition or event shall exist which
constitutes an Event of Default or Material Default, (b) the net
proceeds of any such sale (x) are applied, within 180 days after
such sale, to the repayment of Qualified Debt pro rata based upon
outstanding principal balances at the time of such repayment,
which, in the case of the Notes, shall be a prepayment pursuant to
paragraph 4A or 4B, as the case may be, or (y) are applied, within
180 days after such sale, to the purchase of productive assets in
the same line of business, and (c) immediately after giving effect
to such sale (giving effect on a pro forma basis to any proposed
retirement of Qualified Debt out of the proceeds thereof), the
Company could incur $1 of additional Funded Debt pursuant to
paragraph 6B(2)(ix); provided that, if (I) the net proceeds of any
such sale exceed $50,000,000 (and such proceeds are not immediately
applied in accordance with clause (b) above), or (II) the unapplied
net proceeds of all such sales exceed $100,000,000 in the aggregate
at any time, all the net proceeds of any such sale described in
clause (I) and/or all the unapplied net proceeds of such sales
described in clause (II), as the case may be, shall be placed
immediately in an escrow or cash collateral account or accounts,
pursuant to an agreement or agreements in form and substance
reasonably satisfactory to the holders of greater than 66 2/3% of
the outstanding principal amount of Qualified Debt, for the purpose
of application in accordance with clause (b) above;
2.7 Amendments to Paragraph 6B(6)
Paragraph 6B(6) shall be amended to read as follows:
6B(6) Harvesting Restrictions. In any calendar year, harvest
Timber on the Timberlands then owned 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
1996 1,470 MCCF
1997 through 2000 1,970 MCCF
2001 and each calendar year thereafter 1,910 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) 2,130 MCCF, exceeds (b) the
cumulative amount actually harvested in such years preceding such year
of determination;unless the net cash proceeds from such excess harvest
are either (i) applied, within 180 days after any such excess harvest,
to the repayment of Qualified Debt pro rata based upon outstanding
principal balances at the time of such repayment, which, in the case of
the Notes, shall be a prepayment pursuant to paragraph 4A or 4B, as the
case may be, 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, if the net proceeds of any such
excess harvest exceed $50,000,000 (and such proceeds are not immediately
applied in accordance with clause (i) or (ii) above), all the net
proceeds of such excess harvest shall be placed immediately in an escrow
or cash collateral account or accounts, pursuant to an agreement or
agreements in form and substance reasonably satisfactory to the holders
of greater than 66-2/3% of the outstanding principal amount of Qualified
Debt, for the purpose of application in accordance with clause (i) or
(ii) above;
2.8 Amendments to Xxxxxxxxx 00X
Xxxxxxxxx 00X xxxxx xx amended by adding or substituting, as
appropriate, the following definitions:
"Consolidated Total Assets" shall mean the total amount of all the
assets of the Company and its Restricted Subsidiaries, determined on a
combined basis in accordance with generally accepted accounting
principles. "Cunit" shall mean 100 cubic feet of wood. For purposes of
conversion of Timber in the Company's northwest region, one MMBF shall
equal 2.1 MCCF.
"Designated Acres" shall mean up to an aggregate of 150,000 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 from November 13, 1996 through the remaining term of
this Agreement).
"MCCF" shall mean one thousand Cunits.
"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 and
April 15, 1997, 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.
"1994 Senior Note Agreements" shall mean the Note Agreements, dated
as of August 1, 1994 and amended as of October 15, 1995, May 31, 1996
and April 15, 1997, providing for the issuance and sale by the Company
of its 8.73% Senior Notes to the purchasers listed in the schedule of
purchasers attached thereto.
"1994 Senior Notes" shall mean the 8.73% Senior Notes Due August 1,
2009 of the Company issued and sold pursuant to the 1994 Senior Note
Agreements.
"1996 Senior Note Agreement" shall mean the Note Agreement, dated
as of November 13, 1996, providing for the issuance and sale by the
Company of its Series A 7.74% Senior Notes, Series B 7.87% Senior Notes,
Series C 7.97% Senior Notes and Series D 8.05% Senior Notes to the
purchasers listed in the schedule of purchasers attached thereto.
"1996 Senior Notes" shall mean the Series A 7.74% Senior Notes Due
November 13, 2006, the Series B 7.87% Senior Notes Due November 13,
2008, the Series C 7.97% Senior Notes Due November 13, 2011 and the
Series D 8.05% Senior Notes Due November 13, 2016 of the Company issued
and sold pursuant to the 1996 Senior Note Agreement.
Paragraph 10B shall be further amended by deleting the definitions of
"Actual Percentage" and "Desired Percentage."
Section 3. Representations and Warranties
The Company represents and warrants as follows:
3.1 No Default
No Default or Event of Default has occurred and is continuing, and,
after giving effect to the amendments contemplated hereby, no Default or
Event of Default will exist.
3.2 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 this Agreement.
3.3 Qualification
The Company is duly qualified or registered for transaction of business
and in good standing as a foreign limited partnership 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 or operations of the Company, or on the ability of the Company
to perform its obligations under this Agreement, or, after giving effect
to the transactions contemplated hereby, the Senior Note Agreements or
the Senior Notes.
3.4 Changes, etc.
Except as described in this section 3.4 and except as contemplated by
this Agreement, since December 31, 1996, the date of the most recent
combined financial statements of the Company, (a) the Company has not
incurred any material liabilities or obligations, direct or contingent,
or entered into any material transactions not in the ordinary course of
business, and (b) there has not been any material adverse change in the
business, properties or assets, condition (financial or otherwise) or
operations of the Company. On January 21, 1997, the Board of Directors
of the General Partner authorized the Partnership to make a distribution
of $0.51 per Unit for the fourth quarter of 1996, payable on
February 28, 1997 to Unitholders of record on February 14, 1997. On
April 15, 1997, the Board of Directors of the General Partner authorized
the Partnership to make a distribution of $0.55 per Unit for the first
quarter of 1997, payable on May 29, 1997 to Unitholders of record on
May 16, 1997.
3.5 Actions Pending
There is no action, suit, investigation or proceeding pending or, to the
knowledge of the Company, threatened against the Company, or any
properties or rights of the Company, by or before any court, arbitrator
or administrative or governmental body which questions the validity of
this Agreement, or any action taken or to be taken pursuant to this
Agreement, which would be reasonably likely to result in any material
adverse change in the business, properties or assets, condition or
operations of the Company, or in the inability of the Company to perform
its obligations under this Agreement, the Senior Note Agreements or the
Senior Notes, following the effectuation of the transactions
contemplated herein.
3.6 Compliance with Other Instruments, etc.
The Company is not in violation of any provision of its Partnership
Agreement or of any term of any agreement or instrument to which it is a
party or by which it or any of 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
otherwise) or operations or on the ability of the Company to perform its
obligations under this Agreement, or, after giving effect to the
transactions contemplated hereby, the performance of the Senior Note
Agreements or the Senior Notes, and the execution, delivery and
performance by the Company of this Agreement, or, after giving effect to
the transactions contemplated hereby, the Senior Note Agreements or the
Senior Notes will not 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 to create) any Lien upon any of
the properties or assets of the Company, pursuant to any such term
except for Liens permitted by paragraph 6B(1) of the Senior Note
Agreements; and there is no such term which materially adversely affects
or in the future would be likely to materially adversely affect the
business, properties or assets, condition or operations of the Company
or the ability of the Company to perform its obligations under this
Agreement, or, after giving effect to the transactions contemplated
hereby, the Senior Note Agreements or the Senior Notes.
3.7 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 transactions contemplated hereby, the Senior Note
Agreements or the Senior Notes.
3.8 Authorization; Enforceability
This Agreement has been duly authorized by all requisite action and duly
executed and delivered by authorized officers of the General Partner of
the Company, and the Senior Note Agreements and the Senior Notes, as
amended and affected by this Agreement, are valid obligations of the
Company, legally binding upon and enforceable against the Company in
accordance with their terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, reorganization or other similar
law affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (regardless of whether such
enforceability is considered in proceeding in equity or at law).
3.9 Disclosure
Neither this Agreement nor any other document, certificate or statement
furnished in writing to you by or on behalf of 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 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 which has not been set forth in this
Agreement, or in the other documents, certificates and statements
furnished in writing to you by or on behalf of the Company, prior to the
date hereof in connection with the transactions contemplated hereby.
Section 4. Miscellaneous
4.1 Continuity and Integration of Agreements
Upon the effectiveness of this Agreement, the Senior Note Agreements and
the Senior Notes, as amended and affected by this Agreement, shall
remain in full force and effect and are hereby ratified and confirmed by
the parties hereto, and the Senior Note Agreements and this Agreement
shall be deemed to be and are construed as a single agreement.
4.2 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 Senior
Note by a holder thereof. Such representations and warranties may be
relied upon by any Transferee of a Senior Note from a holder thereof.
4.3 Effectiveness
This Agreement shall become effective upon its execution and delivery by
the Company and Noteholders holding not less than 55% of the aggregate
principal amount of Senior Notes outstanding as of April 15, 1997
according to Schedule 1 ($76,230,000).
4.4 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.
4.5 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.
4.6 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.
4.7 Governing Law
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective 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
Title: Vice President and Chief Financial Officer
ALLSTATE LIFE INSURANCE COMPANYBy:
/s/ Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx X. Xxxxxxx
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx X. Xxxxxxx
Title: Authorized Signatory
AMERICAN MUTUAL LIFE INSURANCE COMPANY (formerly Central Life Assurance
Company)
By:
Title:
FARM BUREAU LIFE INSURANCE COMPANY
By:
Title:
FBL INSURANCE COMPANY
By:
Title:
FIRST COLONY LIFE INSURANCE COMPANY
By:
Title:
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxx Xxxxx, Xx.
Title: Senior Investment Officer
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxx
Title: Second Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Title: Managing Director
MELLON BANK, N.A., solely in its capacity as Trustee for the AT&T MASTER
PENSION TRUST (as directed by Xxxx Xxxxxxx Mutual Life Insurance
Company), and not in its individual capacity
By: /s/ Xxxxx Xxxxxx
Title: Vice President
MELLON BANK, N.A., solely in its capacity as Trustee for the NYNEX
MASTER PENSION TRUST (as directed by Xxxx Xxxxxxx Mutual Life Insurance
Company), and not in its individual capacity
By: /s/ Xxxxx Xxxxxx
Title: Vice President
MODERN WOODMEN OF AMERICA
By:
Title:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Xxxx Xxxxxxx
Title: Vice President
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By: /s/ Xxxxxx Xxxxx-Xxxx
Title: Associate Director - Private Placements
WOODMEN ACCIDENT AND LIFE COMPANY
By: /s/ Xxxxx XxXxxx
Title: Vice President & Assistant Treasurer
SCHEDULE OF NOTEHOLDERS
Noteholder - 11 1/8% Senior Notes As of 4/15/97
Allstate Life Insurance Company $ 8,400,000
Allstate Life Insurance Company of New York 1,680,000
American Mutual Life Insurance Company (formerly Central Life Assurance
Company) 2,520,000
Farm Bureau Life Insurance Company 1,680,000
FBL Insurance Company 2,520,000
First Colony Life Insurance Company 4,200,000
Xxxx Xxxxxxx Mutual Life Insurance Company 26,460,000
Xxxx Xxxxxxx Variable Life Insurance Company 1,260,000
Massachusetts Mutual Life Insurance Company 8,400,000
Mellon Bank, N.A., as Trustee for AT&T Master Pension Trust 840,000
Mellon Bank, N.A., as Trustee for NYNEX Master Pension Trust 840,000
Modern Woodmen of America 2,100,000
The Prudential Insurance Company of America 66,360,000
Teachers Insurance and Annuity Association of America 10,500,000
Woodmen Accident and Life Company 840,000
Aggregate Principal Amount of Senior Notes $138,600,000
