AMENDMENT TO ESCROW AGREEMENT
This Amendment to the Escrow Agreement (this "Amendment") is made and
entered into as of this 26th day of March, 1999, between The Pacific Lumber
Company ("PL"), Salmon Creek Corporation ("Salmon Creek") and Citibank,
N.A., as Escrow Agent (the "Escrow Agent", and, together with PL and Salmon
Creek, the "Parties").
WITNESSETH
WHEREAS, the Parties are all of the parties to that certain Escrow
Agreement dated as of March 1, 1999 (the "Escrow Agreement"); and
WHEREAS, the Parties now desire to amend the Escrow Agreement to
provide for separate escrow sub-accounts for the Escrowed Funds for each
Investment Manager (as such capitalized terms are defined in the Escrow
Agreement); and
WHEREAS, the Parties have agreed to amend the Escrow Agreement to
reflect such intent.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Amendment. The Escrow Agreement shall be amended as follows:
(a) Section 1 of the Escrow Agreement shall be amended to read
as follows:
2. Deposit of Cash. Upon the execution and delivery of this
Agreement, Salmon Creek will deliver to the Escrow Agent, all but
$15 million of the Cash (such delivery shall be accomplished by
depositing such Cash into the account of Salmon Creek at the
Escrow Agent, such account a restricted account subject to this
Agreement) (the amount of the Cash deposited by Salmon Creek is
hereinafter referred to as the "Escrowed Funds"). The Escrow
Agent shall acknowledge receipt of the actual amount of the
Escrowed Funds deposited by Salmon Creek when such Escrowed Funds
have been received by the Escrow Agent. The Escrowed Funds shall
be deposited initially into an escrow account in the custody of
the Escrow Agent (the "Escrow Account"). In the event that it
shall be determined by PL that the Expenses are less than $15
million, PL shall cause Salmon Creek to make an additional
deposit (the "Additional Deposit") under this Escrow Agreement in
an amount equal to the amount by which $15 million exceeds the
actual amount of the Expenses. In the event that all or a
portion of that certain property known as the Grizzly Creek grove
is sold while this Agreement remains in effect, then PL shall
make an Additional Deposit hereunder equal to the net proceeds of
such sale. Any Additional Deposit shall be made to the Escrow
Account and shall become part of the Escrowed Funds for all
purposes of this Agreement.
When the amount of the uninvested cash in the Escrow Account
or in any Sub-Escrow Account (as hereinafter defined) exceeds
$25,000 in immediately available funds prior to 1:00 p.m., New
York Time, on any date, such cash shall be invested on such date
in the AIM Prime Portfolio Private Class Fund, until such time as
the Escrow Agent has received written direction from ScoPac to
liquidate such investment or has been otherwise directed in
writing by Salmon Creek pursuant to Section 2.
The Escrowed Funds shall remain the property of Salmon Creek
(or PL, in the case of the Grizzly Creek deposit) unless and
until disbursed pursuant to Section 3 hereof.
(b) Section 2(a) of the Escrow Agreement shall be amended to
read as follows:
2. Investment of Escrowed Funds.
(a) Investment by Investment Managers. From time to time, Salmon
Creek may direct that the investment of a portion of the Escrowed
Funds (up to a maximum amount equal to the difference between the
total amount of the Escrowed Funds minus the Escrowed Funds
invested directly by the Escrow Agent pursuant to Section 2(b)),
be made in Eligible Investments by one of the investment
management institutions listed on Schedule A hereto
(collectively, the "Investment Managers") by delivery to the
Escrow Agent of a certificate, in the form attached hereto as
Annex 1 (an "Investment Request"), signed by Salmon Creek.
Investment Requests must be received by the Escrow Agent by 12:15
p.m., New York time. Any Investment Request received by the
Escrow Agent after 12:15 p.m., New York time will be deemed to
have been received on the next business day. The Escrow Agent
shall establish a separate escrow account in the custody of the
Escrow Agent in respect of each Investment Manager (each, an
"Escrow Sub-Account") and the Escrow Agent shall, upon
presentment of a valid Investment Request indicating the specific
Escrow Sub-Account, deliver the funds requested in such
Investment Request (which shall not be an amount in excess of the
purchase price of the securities to be acquired plus customary
fees and expenses) out of the Escrowed Funds to the applicable
Escrow Sub-Account, and such Escrowed Funds shall only be
released from such Escrow Sub-Account by the Escrow Agent against
confirmed delivery by such Investment Manager to, and receipt by
the Escrow Agent of, certificates or instruments evidencing
ownership of the Eligible Investments purchased by such
Investment Manager, together with any other required documents.
Such securities, certificates, instruments and other documents
referred to in the foregoing sentence shall be delivered to and
shall be held by the Escrow Agent either directly or through the
Federal Reserve/Treasury Book-Entry System for United States and
federal agency securities, The Depository Trust Company, a
clearing agency registered with the Securities and Exchange
Commission, or through any other clearing agency or similar
depository, and shall be held in respect of the applicable Escrow
Sub-Account. The Escrow Agent shall have no duty to determine
whether, or to verify that, any investment made pursuant to an
Investment Request constitutes an Eligible Investment, except to
verify the due execution of the Investment Request.
2. Miscellaneous.
(a) On and after the date this Amendment is executed by the
parties hereto each reference in the Escrow Agreement to "this Agreement",
"hereunder", "hereof" or words of like import, and each reference to the
Escrow Agreement by the words "thereunder", "thereof" or words of like
import in any document executed in connection with the Escrow Agreement,
shall mean and be a reference to the Escrow Agreement, as amended or
otherwise modified by this Amendment. The Escrow Agreement (as amended or
otherwise modified by this Amendment) shall continue to be in full force
and effect and is hereby ratified and confirmed in all respects.
(b) This Amendment is governed by, and shall be construed in
accordance with, the laws of the State of New York, United States of
America, without giving effect to the principles thereof relating to
conflicts of laws.
(c) This Amendment may be executed by the parties hereto in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same agreement.
IN WITNESS WHEREOF, the Parties have executed this Amendment effective
as of the date first set forth above.
THE PACIFIC LUMBER COMPANY
By: /S/ XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Vice President
SALMON CREEK CORPORATION
By: /S/ XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Vice President
CITIBANK, N.A., as Escrow Agent
By: /S/ XXXXXX XXXXXXX
Name: Xxxxxx XxXxxxx
Title: Assistant Vice President
