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EXHIBIT 4C.2
AMENDMENT TO MORTGAGE NOTE AGREEMENT
PLUM CREEK MANUFACTURING, L.P.
000 XXXXX XXXXXX
XXXXXXX, XXXXXXXXXX 00000
Dated as of June 15, 1995
To each of the Purchasers
listed on the attached
Purchaser Schedule
Dear Noteholder:
Plum Creek Manufacturing, L.P., a Delaware limited partnership (the
"Company"), and Plum Creek Timber Company, L.P., a Delaware limited partnership
(the "Partnership"), hereby agree with you as follows:
SECTION 1. AUTHORIZATION OF NOTES
The Company issued and sold $160,000,000 aggregate principal amount of its
111/8% First Mortgage Notes due June 8, 2007 (the "Notes"), pursuant to separate
Mortgage Note Agreements, each dated as of May 31, 1989 (as the same has been
and may from time to time be amended, the "Note Agreements"), between the
Company and you and the other Purchasers. The payment of the Notes is guaranteed
by the Partnership pursuant to Paragraph 7 of the Note Agreements. Capitalized
terms used herein without definition have the respected meanings specified in
the Note Agreements.
SECTION 2. AMENDMENTS TO THE NOTE AGREEMENTS
Upon execution and delivery of this Amendment to Mortgage Note Agreement
(this "Amendment Agreement") by the holders of at least a majority in aggregate
principal amount of the Notes, all the Note Agreements shall thereupon be
amended as follows:
2.1 PARAGRAPH 5A OF THE NOTE AGREEMENTS
Paragraph 5A of the Note Agreements is amended by deleting the word "and"
following the semicolon appearing at the end of clause (iv) thereof, changing
clause
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"(v)" thereof to clause "(vi)" and by adding the following new clause "(v)"
immediately preceding such clause "(vi"):
"(v) within three (3) Business Days after the same shall have been
provided to the Trustee, a copy of the certificate and accompanying
exhibits specified in Section 20(i) of the Trust Agreement with
respect to a release permitted by paragraph 6B(5)(vi); and"
Paragraph 5a of the Note Agreements is further amended by adding to the
twelfth line in the first full paragraph after cause(vi) of said paragraph 5a,
immediately after the word "thereto" appearing in such line and immediately
before the period, the following words:
", together with a copy of any certificates and accompanying
exhibits specified in Section 20(i) of the Trust Agreement with
respect to any releases permitted by paragraph 6b(5)(v) that were
delivered to the Trustee during such accounting period".
2.2 EXHIBIT D TO THE NOTE AGREEMENTS
Exhibit D attached to the Note Agreements is further amended by appending
thereto the form of the Second Amendment to Trust Agreement in the form attached
hereto as Appendix A and accordingly the Trustee is hereby authorized to execute
and deliver such Second Amendment to Trust Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to you that:
3.1 AUTHORIZATION
This Amendment Agreement has been duly authorized, executed and delivered
by all necessary action on the part of the Company.
3.2 NO DEFAULTS
No Event of Default or Default exists on the date hereof.
3.3 CHANGES, ETC.
Except as contemplated by this Amendment Agreement, since March 31, 1995,
the date of the most recent consolidated financial statements of the
Partnership, (i) neither the Company nor the Partnership has incurred any
material liabilities or
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obligations, direct or contingent, or entered into any material transactions not
in the ordinary course of business, and (ii) there has not been any material
adverse change in the financial condition or operations of the Company or the
Partnership.
3.4 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 Amendment Agreement, or
any action taken or to be taken pursuant to this Amendment Agreement, which
would be reasonably likely to result in any material adverse change in the
business, properties or assets, condition (financial or otherwise) or operations
of the Company, or in the inability of the Company to perform its obligations
under this Amendment Agreement, the Note Agreements or the Notes, following the
effectuation of the transactions described herein.
3.5 COMPLIANCE WITH OTHER INSTRUMENTS, ETC.
The Company is not in violation of any provision of the 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 (collectively, "term"), 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 Amendment
Agreement, or, after giving effect to the transactions contemplated hereby, the
performance of the Note Agreements or the Notes, and the execution, delivery and
performance by the Company of this Amendment Agreement, or, after giving effect
to the transactions contemplated hereby, the Note Agreements or the 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 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 Amendment
Agreement, or, after giving effect to the transactions contemplated hereby, the
Note Agreements or the Notes.
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3.6 GOVERNMENTAL AND OTHER CONSENTS
No consent, approval or authorization of, or declaration or filing with,
any governmental authority, and no consent, approval, waiver or similar action
by any holder of Debt or other creditor of the Company or the Partnership is
required for the valid execution, delivery and performance by the Company of
this Amendment Agreement, or, after giving effect to the transactions
contemplated hereby, the Note Agreements or the Notes other than those which
have been obtained on or prior to the Effective Time.
3.7 AUTHORIZATION; ENFORCEABILITY
This Amendment Agreement has been duly authorized by all requisite action
and duly executed and delivered by authorized officers of the Company and the
General Partner, and the Note Agreements, as amended by this Amendment
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).
3.8 DISCLOSURE
Neither this Amendment Agreement nor any other document, certificate or
statement furnished 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 businesses, property or assets, condition
(financial or otherwise) or results of operations of the Company and which has
not been set forth in this Amendment Agreement, or in the other documents,
certificates and statements furnished to you by or on behalf of the Company,
prior to the date hereof in connection with the transactions contemplated
hereby.
SECTION 4. AFFIRMATION OF GUARANTEE
The Partnership hereby agrees that its Guarantee in respect of the Notes,
as set forth in Paragraph 7 of the Note Agreements, shall continue in full force
and effect from and after the Effective Time.
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SECTION 5. RATIFICATION AND CONDITIONS PRECEDENT
All of the terms and provisions of the Note Agreements, as amended as set
forth in Section 2 hereof, are in all respects ratified and confirmed by the
Company.
If you are in agreement with the amendments to the Note Agreements set
forth in Section 2 of this Amendment Agreement, please sign the form of
acceptance on the enclosed counterpart of this Amendment Agreement and return
the same to the undersigned.
The effectiveness of this Amendment Agreement is conditioned upon the
satisfaction by July 15, 1995 of the following conditions precedent: (a) the
prior due authorization, execution and delivery by the Company of this Amendment
Agreement and the Second Amendment to Trust Agreement (in the form attached
hereto as Appendix a) and (b) the Company's obtaining the prior written consent
to so amend the Trust Agreement and the Note Agreements from a majority in
aggregate principal amount of all the Notes.
SECTION 6. MISCELLANEOUS
All representations and warranties contained herein shall survive the
execution and delivery of this Amendment Agreement, the consummation of the
transactions contemplated hereby and the transfer of any Note by a holder of
Notes. Such representations and warranties may be relied upon by any transferee
of a Note from a holder of Notes.
All covenants and agreements in this Amendment 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.
The descriptive headings of the several paragraphs of this Amendment
Agreement are inserted for convenience only and do not constitute a part of this
Amendment Agreement.
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This Amendment 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.
Very truly yours,
PLUM CREEK MANUFACTURING, L.P.
By PLUM CREEK MANAGEMENT
COMPANY, L.P., its general partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Vice President and
-----------------------------
Chief Financial Officer
PLUM CREEK MARKETING, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Vice President and
-----------------------------
Chief Financial Officer
PLUM CREEK TIMBER COMPANY, L.P.
By PLUM CREEK MANAGEMENT
COMPANY, L.P., its general partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Vice President and
-----------------------------
Chief Financial Officer
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Accepted and Agreed to
this 14 day of July, 1995:
---- -----
CENTURY LIFE OF AMERICA
By: /s/ Xxxxxx & Co.
-------------------------
Name: Xxxxxx Xxxxxxx
-----------------------
Title:
----------------------
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Accepted and Agreed to
this 30th day of June, 1995:
------ -----
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
------------------------
Title: Second Vice President
-----------------------
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Accepted and Agreed to
this 10th day of July, 1995:
---- -----
TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF
AMERICA
By: /s/ XX Xxxx
------------------------------------------
Name: Xxxxxx Xxxxx-Xxxx
----------------------------------------
Title: Associate Director-Private Placements
---------------------------------------
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SECOND AMENDMENT TO TRUST AGREEMENT
THIS SECOND AMENDMENT TO TRUST AGREEMENT, dated as of June 15, 1995, is
made by PLUM CREEK MARKETING, INC., a Delaware corporation (the "Company")
(formerly Plum Creek Manufacturing, Inc.), PLUM CREEK MANUFACTURING, L.P., a
Delaware limited partnership (the "Operations Partnership"), and FIRST
INTERSTATE BANK OF WASHINGTON, N.A., a national banking association, as trustee
(the "Trustee") under the Trust Agreement, dated as of June 8, 1989, as amended
by that certain Amendment to Trust Agreement, dated as of January 1, 1991 (as
amended, the "Trust Agreement"), among the Company, the Operations Partnership
and the Trustee. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Trust Agreement.
RECITALS
WHEREAS, the Trustee and the Company entered into that certain Trust
Agreement dated as of June 8, 1989;
WHEREAS, as of January 1, 1991, the Trustee, the Company and the Operations
Partnership entered into that certain Amendment to Trust Agreement pursuant to
which, among other things, the Operations Partnership became a party to the
Trust Agreement;
WHEREAS, the Trustee is, under the Trust Agreement, the trustee for holders
of the Notes and the Parity Debt, if any, of the Operations Partnership. As
such, the Trustee is the mortgagee or beneficiary under the Security Documents
that secure the Notes and the Parity Debt;
WHEREAS, the Operations Partnership owns or has rights to, or interests in,
certain real property that the Operations Partnership is permitted to sell
pursuant to the terms of the Mortgage Note Agreements, dated as of May 31, 1989,
as amended, among the Operations Partnership, Plum Creek Timber Company, L.P.
and the Purchasers of the Notes (the "Mortgage Note Agreements"). From time to
time the Operations Partnership may wish to dispose of certain portions of such
real property as permitted by the Mortgage Note Agreements (the "Property");
WHEREAS, the Property is subject to liens created by the Security Documents
and accordingly the release of the liens created by the Security Documents on
the Property is necessary to effect a release or transfer of the Property; and
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WHEREAS, the Trustee is willing, upon the terms and conditions stated
below, to release from time to time the liens of the relevant Security Documents
applicable to the Property;
NOW, THEREFORE, the parties agree that the Trust Agreement is hereby
amended as follows:
1. Addition of Section 20. The Trust Agreement is amended by inserting the
following as Section 20 of the Trust Agreement immediately after Section 19 of
the Trust Agreement:
"20. Release of Security by Trustee. The Operations Partnership may
from time to time request the Trustee to release its lien under a Security
Document with respect to rights to or interests in certain real property
that the Company or Operations Partnership is permitted to transfer or
otherwise dispose of under the Note Agreements (the "Property") and that
the Operations Partnership proposes to release or transfer. Such request
shall be accompanied by:
(i) a certificate in the form of Exhibit A attached hereto, complete
with exhibits, duly authorized and executed by the Operations Partnership;
(ii) a Partial Release of Mortgage (the "Mortgage Release")
substantially in the form of Exhibit B attached hereto or a Request for
Partial Reconveyance of Deed of Trust (the "Request for Deed of Trust
Release") substantially in the form of Exhibit C attached hereto (the "Deed
of Trust Release");
(iii) a copy of the release, partial release, conveyance, assignment
or other instrument executed by the Company or Operations Partnership that
releases or transfers the Property; and
(iv) in the case of the sale or other transfer of Property, the
proceeds of which are required by paragraph 6B(5)(vi) of the Note
Agreements to be escrowed in a security account with the Trustee for the
benefit of the holders of the Notes, a copy of the letter from the Company
irrevocably directing payment of such proceeds directly into such security
account.
Unless, in the case of a release permitted by paragraph 6b(5)(vi) of the
Note Agreements, (a) within 20 days after the Trustee
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receives the materials set forth in clauses (i), (ii), (iii) and (iv)
above, the Trustee shall have received written notice from either (x) the
holders of more than 25% of the aggregate amount of the Notes then
outstanding or (y) the holders of more than 25% of the aggregate amount of
the Parity Debt then outstanding, that such release by the Trustee is not
permitted under the Note Agreements, or (b) the Trustee has knowledge of a
Material Default, the Trustee shall, upon expiration of such 20-day period,
execute the Mortgage Release or the Request for Deed of Trust Release and
have the same acknowledged and returned to the requesting party. In the
case of a release permitted by paragraph 6b(5)(v) of the Note Agreements,
unless the Trustee has knowledge of an Event of Default or Potential Event
of Default, and provided that all conditions precedent pursuant to
paragraph 6b(5)(v) of the Note Agreements have been satisfied, the Trustee
shall promptly execute the Mortgage Release or the Request for Deed of
Trust Release and have the same acknowledged and returned to the requesting
party."
2. Ratification. Except as herein expressly modified, the terms of the
Trust Agreement are hereby confirmed and ratified and remain in full force and
effect.
[This space intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective representatives hereunto duly
authorized as of the date first written.
PLUM CREEK MANUFACTURING, L.P.
By PLUM CREEK MANAGEMENT
COMPANY, L.P., its general partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
---------------------------
Title: Vice President &
--------------------------
Chief Financial Officer
PLUM CREEK MARKETING, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
---------------------------
Title: Vice President &
--------------------------
Chief Financial Officer
FIRST INTERSTATE BANK OF
WASHINGTON, N.A., as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Assistant Vice President
--------------------------
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EXHIBIT A
CERTIFICATE
Plum Creek Manufacturing, L.P. (the "Operations Partnership"), certifies to
[First Interstate Bank of Washington, N.A. or ____________________], as trustee
(the "Trustee") under the Trust Agreement, as amended, dated as of June 8, 1989,
among the Operations Partnership, Plum Creek Marketing, Inc. and the Trustee, as
follows:
1. Attached hereto is a copy of a [Partial Release of Mortgage (the
"Mortgage Release")] [Request for Partial Reconveyance of Deed of Trust (the
"Deed of Trust Release")], which is prepared for execution by the Trustee. An
original of the [Mortgage Release][Deed of Trust Release] is being delivered to
you concurrently herewith.
2. Attached hereto is a copy of an executed [partial release, release,
conveyance, assignment or other] instrument (the "Operations Partnership
Release"), which releases or transfers the Operations Partnership's rights to or
interest in the property covered by the [Mortgage Release/Deed of Trust
Release].
3. No Material Default (as defined in the Mortgage Note Agreements, as
amended, dated as of May 31, 1989, among the Operations Partnership, Plum Creek
Timber Company, L.P. and the institutional investors named therein (the
"Mortgage Note Agreements")) or similar event with respect to the Parity Debt,
if any, exists and is continuing, or will exist upon the consummation of the
transactions contemplated by this Certificate.
4. The real property described in the Operations Partnership Release and
the [Mortgage Release/Deed of Trust Release] is [description of nature, location
and approximate acreage of property] (the "Property"). The disposition of the
Property complies with the provisions of the Mortgage Note Agreements, and, if
the provisions of paragraph 6b(5)(vi) of the Mortgage Note Agreements are
applicable, all net proceeds received from the release or transfer of the
Property shall be applied in accordance therewith. [Indicate use of proceeds, if
then known.] In the case of dispositions made under paragraph 6b(5) (v) or (vi)
of the Mortgage Note Agreements, the consideration received for the release or
transfer of the Property is at least equal to its fair value.
5. The Operations Partnership has caused a copy of this Certificate to be
sent to each holder of a Note under and as defined in the Mortgage Note
Agreements
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and, if any Parity Debt is then outstanding, to each holder of Parity Debt, and
each such holder shall be entitled to rely hereon.
PLUM CREEK MANUFACTURING, L.P.
By PLUM CREEK MANAGEMENT
COMPANY, L.P., its general partner
By:______________________________
Name:____________________________
Title:___________________________
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EXHIBIT B
PARTIAL RELEASE OF MORTGAGE
WHEREAS, [First Interstate Bank of Washington, N.A., a national banking
association] or ____________________, acts as trustee (the "Trustee") under the
Trust Agreement, (the "Trust Agreement"), dated as of June 8, 1989, as amended,
among Plum Creek Marketing, Inc., a Delaware corporation (the "Company")
(formerly Plum Creek Manufacturing, Inc.), Plum Creek Manufacturing, L.P., a
Delaware limited partnership (the "Operations Partnership"), and Trustee;
WHEREAS, the Company executed a Mortgage, Security Agreement and Fixture
Filing (the "Mortgage"), dated as of June 8, 1989, which is recorded in the
records of __________ County, Montana, under volume ___, page ___, in favor of
the Trustee; and
WHEREAS, the Operations Partnership and the Company have requested a
partial release of the lien of the Mortgage pursuant to the terms of the Trust
Agreement;
NOW, THEREFORE, the Trustee, for and in consideration of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and pursuant to the terms of the Trust
Agreement, does hereby release and discharge from the lien of the Mortgage the
real property described on Schedule A attached hereto (the "Released Property").
This instrument is a partial release only, and it is expressly agreed that the
lien of the Mortgage shall not be affected except as to the Released Property,
and the Mortgage and the liens created thereby shall remain in full force and
effect as to all the remaining property not specifically released herein or
previously released.
FIRST INTERSTATE BANK OF
WASHINGTON, N.A., as Trustee
By:______________________________
Name:____________________________
Title:___________________________
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STATE OF___________________)
) ss.
COUNTY OF__________________)
On this _______ day of __________________, in the year ___________, before me,
__________________________________________________, personally appeared
_______________________________________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person who executed the within
and foregoing instrument as ______________________ on behalf of FIRST INTERSTATE
BANK OF WASHINGTON, N.A., a national banking association, and acknowledged to me
that ______________ executed it in its capacity as trustee, as described
therein.
__________________________ (Notary Seal)
Signature of Notary
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EXHIBIT C
REQUEST FOR PARTIAL RECONVEYANCE
TO: COMMONWEALTH LAND TITLE INSURANCE COMPANY
WHEREAS, [First Interstate Bank of Washington, N.A., a national banking
association] or ____________________, acts as trustee (the "Trustee") under the
Trust Agreement, (the "Trust Agreement"), dated as of June 8, 1989, as amended,
among Plum Creek Marketing, Inc., a Delaware corporation (the "Company")
(formerly Plum Creek Manufacturing, Inc.), and Plum Creek Manufacturing, L.P., a
Delaware limited partnership (the "Operations Partnership"), and the Trustee;
and
WHEREAS, the Company executed a Deed of Trust, Security Agreement and
Fixture Filing (the "Deed of Trust") dated as of June 8, 1989, and recorded in
the records of __________ County, Washington under Auditor's File Number
________, in favor of the Trustee, as beneficiary, and Commonwealth Land Title
Insurance Company, as deed of trust trustee; and
WHEREAS, the Operations Partnership requested a partial reconveyance of the
lien of the Deed of Trust pursuant to the terms of the Trust Agreement;
NOW, THEREFORE, in accordance with the terms of the Trust Agreement, you
are hereby requested and directed, on payment to you of any sums owing to you
under the terms of the Deed of Trust, to convey, without warranty, to Plum Creek
Manufacturing, L.P. the real property described on Schedule A attached hereto
(the "Released Property"). This instrument is a request for a partial
reconveyance only, and it is expressly agreed that the lien of the Deed of Trust
shall not be affected except as to the Released Property, and the Deed of Trust
and the liens created
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thereby shall remain in full force and effect as to all the remaining property
not specifically released hereby or previously released.
DATED this _____ day of ____________________, 19____.
FIRST INTERSTATE BANK OF
WASHINGTON, N.A., as Beneficiary
By:______________________________
Name:____________________________
Title:___________________________
Mail reconveyance to: Plum Creek Manufacturing, L.P.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
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