EXHIBIT 4.1
PLUM CREEK TIMBERLANDS, L.P.
999 Third Avenue, Suite 2300
Seattle, Washington 98104
As of December 19, 2002
To each of the Noteholders listed on the signature pages attached hereto
Dear Noteholder:
Plum Creek Timberlands, L.P., (together with any Person who succeeds to
all or substantially all of Plum Creek Timberlands, L.P.'s assets and business,
herein called the "Company"), a Delaware limited partnership has heretofore
entered into that certain Senior Note Agreement, dated as of October 9, 2001
(the "Senior Note Agreements"), pursuant to which the Company issued its senior
notes in the aggregate principal amount of $500,000,000 ($55,000,000 of 6.96%
Series H Senior Notes due 2006, $75,000,000 of 7.25% Series I Senior Notes due
2008, $295,000,000 of 7.66% Series J Senior Notes due 2011 and $75,000,000 of
7.76% Series K Senior Notes due 2013, all of which remain outstanding and are
held by the institutions (individually a "Noteholder" and collectively the
"Noteholders") listed on the signature pages attached hereto (the "Notes").
Terms used herein which are not otherwise defined herein have the meanings
ascribed to them in the Senior Note Agreements, as amended by this Agreement.
The Company and the Noteholders wish to enter into this agreement (this
"Agreement") in order to amend certain provisions of the Senior Note Agreements.
Accordingly, the Company hereby agrees with the Noteholder as follows:
1. AMENDMENTS TO SENIOR NOTE AGREEMENTS.
(a) Clause (ix) of paragraph 6B(3) of the Senior
Note Agreements is hereby amended to read in its entirety as follows:
(ix) make Investments not otherwise permitted by
this paragraph 6B(3) in entities engaged solely in a Permitted
Business or Permitted Ancillary Business, provided that the
cumulative aggregate amount of such Investments, (calculated
at original cost and including (A) the fair market value of
property (other than cash invested as of the date of the
Investment) as reasonably determined in good faith by the
Responsible Representatives at the time such Investment was
made and (B) 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 $300,000,000 or 60% of the average annual Pro Forma Free
Cash Flow for the two fiscal years preceding such date;
(b) A new clause (x) is added at the end of
paragraph 6B(3) of the Senior Note Agreements as follows:
Amendment to Series H,I,J & K
Senior Note Agreements
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and; (x) make contributions of property to the
capital of Persons in which the Company directly or indirectly
holds an equity or other ownership interest to the extent that
such contributions constitute Investments that are permitted
by the provisions of clause (ix) above;
(c) Clause (iii) of paragraph 6B(5) of the
Senior Note Agreements is hereby amended by adding the phrase "or a
Permitted Ancillary Business" after the phrase "Permitted Business" in
the seventh line thereof.
(d) Clause (iv) of paragraph 6B(5) of the Senior
Note Agreements is hereby amended by adding the phrase "or a Permitted
Ancillary Business" after the phrase "Permitted Business" in the
eighteenth line thereof.
(e) Clause (viii) of paragraph 6B(5) of the
Senior Note Agreements is hereby amended to read in its entirety 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) not less than 50% of the Net Proceeds of
any such sale (x) are applied, within one year after such
sale, to the repayment of Qualified Debt selected by the
Company, which, in the case of the Notes, shall be a
prepayment pursuant to paragraph 4B, or (y) are applied,
within one year 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 or Current Debt pursuant to paragraph 6B(2)(ix);
provided that, if any such sale constitutes a sale of more
than 15% of the Company's Tangible Assets as of the end of the
Company's most recently ended fiscal quarter, all the
unapplied Net Proceeds of such sale less the amount, if any,
of such Net Proceeds to be included in clause (a)(vii) of the
definition of "Available Cash" in the calculation thereof for
the calendar quarter of the Company in which the sale occurs
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 50% of the outstanding principal amount of
Qualified Debt (which escrow agreement or agreements shall
provide for a release from escrow of an amount equal to any
additions to Available Cash pursuant to clause (a)(vii) of the
definition of "Available Cash" with respect to such sale in
calendar quarters of the Company subsequent to the calendar
quarter in which such sale occurs), for the purpose of
application in accordance with clause (b) above, and
(f) Paragraph 6C of the Senior Note Agreements
is hereby amended by adding the phrase "or Permitted Ancillary
Businesses" at the end of the first sentence thereof.
Amendment to Series H,I,J & K
Senior Note Agreements
2
(g) The following definitions set forth in
paragraph 10B of the Senior Note Agreements are hereby amended to read
in their entirety as follows:
"Assumption Agreements" shall mean those certain Assumption
Agreements, dated as of October 9, 2001, executed as contemplated by
(and in substantially the form designated as Exhibit 3H to) this
Agreement, together with any Future Southern Timber Assumption
Agreements or any Assumption Agreements executed by the Mississippi
Subsidiary or any other Restricted Subsidiary in substantially the form
of Exhibit 3H attached hereto.
"Available Cash" shall mean, with respect to any calendar
quarter
(a) the sum of:
(i) the Company's net income (or net
loss) (excluding gain on the sale of any Capital
Asset) for such quarter,
(ii) the amount of depletion,
depreciation, amortization and other noncash charges
utilized in determining net income of the Company for
such quarter,
(iii) the amount of any reduction in
reserves of the Company of the types referred to in
clause (b)(iv) below,
(iv) proceeds received by the Company
from the sale of Designated Acres,
(v) any Cash from Capital Transactions
received by the Company during such quarter in
specific contemplation that such Cash from Capital
Transactions will be used to refund or refinance any
payment of Debt of the type specified in clause
(b)(i) below which was made in either of the two
immediately preceding quarters,
(vi) (A) with respect to the calendar
quarter ended September 30, 2001 only, $140,000,000
and (B) other Cash from Capital Transactions received
by the Company during the relevant quarter up to an
aggregate amount equal to $200,000,000 for all
calendar quarters, commencing with the calendar
quarter that ended March 31, 2002, less the aggregate
of other amounts of such $200,000,000 utilized in the
calculation of Available Cash for previous calendar
quarters, and
(vii) without duplication in respect of
clauses (a)(v) and (a)(vi) above, in the event of any
Asset Sale, an amount equal to that portion of the
Net Proceeds received from such sale that was applied
to the repayment of the Qualified Debt in accordance
with paragraph 6B(5)(viii) but not to exceed an
amount equal to 50% of the Net Proceeds received from
such sale; provided, that, the cumulative increase to
Available Cash pursuant to this clause (a)(vii)
(after giving effect to any current increase
Amendment to Series H,I,J & K
Senior Note Agreements
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in respect thereof) with respect to any Asset Sale
shall not exceed, in any event, an amount equal to
the Net Proceeds from such Asset Sale less the
cumulative amount of such Net Proceeds applied to the
repayment of Qualified Debt and to the purchase of
productive assets in accordance with paragraph
6B(5)(viii);
less (b) the sum of:
(i) all payments of principal on Debt made by
the Company in such quarter (excluding any payments of
principal on Debt made with Cash from Capital Transactions
received by the Company during such quarter or, to the extent
such Cash from Capital Transactions remains available,
received by the Company during the four immediately preceding
quarters),
(ii) capital expenditures made by the Company
during such quarter (excluding any capital expenditures for
such quarter made with Cash from Capital Transactions received
by the Company during such quarter or, to the extent such Cash
from Capital Transactions remains available, received by the
Company during the four immediately preceding quarters, and
capital expenditures which the General Partner reasonably
anticipates will be financed with Cash from Capital
Transactions within 90 days from the end of such quarter),
(iii) the amount of any capital expenditures made
by the Company in a prior quarter which was anticipated would
be financed from Cash from Capital Transactions but which have
not been financed from such source within 90 days from the end
of such quarter,
(iv) the amount of any reserves of the Company
established during such quarter which are necessary or
appropriate (A) to provide funds for the future payment of
items of the types specified in clauses (b)(i) and (b)(ii)
above, (B) to provide additional working capital, (C) to
provide funds for cash distributions with respect to any one
or more of the next four quarters, or (D) to provide funds for
the future payment of interest in an amount equal to the
interest to be accrued in the next quarter,
(v) the amount of any noncash items of income
utilized in determining net income of the Company for such
quarter,
(vi) the amount of any Investments in the form of
cash or cash equivalents (other than guarantees, contingent
liabilities or endorsements, except to the extent payments are
actually made under such guarantees, contingent liabilities or
endorsements) made by the Company during such quarter pursuant
to clause (i), (viii) or (ix) of paragraph 6B(3) (or in the
case of any Subsidiary, Investments in the form of cash or
cash equivalents (other than guarantees, contingent
liabilities or endorsements, except to the extent payments are
actually made under such guarantees, contingent liabilities or
endorsements) of similar
Amendment to Series H,I,J & K
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type) to the extent not included in capital expenditures or
payments on principal on Debt made by the Company during such
quarter (excluding (A) any such Investments for such quarter
made with Cash from Capital Transactions received by the
Company during such quarter or, to the extent such Cash from
Capital Transactions remains available, received by the
Company during the four immediately preceding quarters, and
Investments which the General Partner reasonably anticipates
will be financed with Cash from Capital Transactions within 90
days from the end of such quarter and (B) the Investments made
pursuant to the Merger-Related Contributions), and
(vii) the amount of any Investments (other than
guarantees, contingent liabilities or endorsements, except to
the extent payments are actually made under such guarantees,
contingent liabilities or endorsements) made by the Company in
a prior quarter pursuant to clause (i), (viii) or (ix) of
paragraph 6B(3) (or in the case of any Subsidiary, Investments
(other than guarantees, contingent liabilities or
endorsements, except to the extent payments are actually made
under such guarantees, contingent liabilities or endorsements)
of similar type) to the extent not included in capital
expenditures made by the Company during such quarter which was
anticipated would be financed from Cash from Capital
Transactions but which have not been financed from such source
within 90 days from the end of such quarter, other than any
Investments made pursuant to the Merger-Related Contributions.
Notwithstanding the foregoing, "Available Cash" shall
not take into account any reductions in reserves or
disbursements made or reserves established after commencement
of the dissolution and liquidation of the Company. In
determining "Available Cash", (i) all items under clauses
(a)(i), (ii), (iii), (iv), (v), (vi) and (vii) above and all
items under clauses (b)(i), (ii), (iii), (iv), (v), (vi) and
(vii) above shall be (A) calculated on a consolidated basis
with any Subsidiary of the Company whose income is accounted
for on a consolidated basis with the Company and (B)
calculated on a consolidated basis with any other Person in
which the Company directly or indirectly holds an equity or
other ownership interest, and, in accordance therewith,
"Available Cash" shall include a percentage of each such item
of each such Subsidiary or such other Person equal to the
Company's percentage ownership interest in such Subsidiary or
such other Person, provided, however, that the items under
clauses (a)(i), (ii), (iii), (iv), (v), (vi) and (vii) above
shall only be included in Available Cash to the extent that
the General Partner determines such amount to be legally
available for dividends or distributions to the Company or a
Subsidiary by such Subsidiary, and with respect to dividends
or distributions to the Company or a Subsidiary by such other
Person, that such dividends or distributions have been paid to
the Company or such Subsidiary; (ii) the amount of net income
and the amount of depletion, depreciation, amortization and
other noncash charges, utilized in determining net income
shall be determined, with respect to the Company, by the
General Partner in accordance with generally accepted
accounting principles and, with respect to any Subsidiary or
such other Person in which the Company directly or indirectly
holds an equity or other ownership interest, by its Board of
Directors (or by such
Amendment to Series H,I,J & K
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other body or Person which has the ultimate management
authority of such Subsidiary or such other Person) in
accordance with generally accepted accounting principles;
(iii) the net income of any Subsidiary or other Person in
which the Company directly or indirectly holds an equity or
other ownership interest shall be determined on an after-tax
basis; (iv) the amount of any reductions in, or additions to,
reserves for purposes of clauses (a)(iii) and (b)(iv) above
shall be determined, with respect to the Company, by the
General Partner in its reasonable good faith judgment and,
with respect to any Subsidiary or other Person in which the
Company directly or indirectly holds an equity or other
ownership interest, by its Board of Directors (or by such
other body or Person which has the ultimate management
authority of such Subsidiary or such Person) in its reasonable
good faith judgment; and (v) any determination of whether any
capital expenditures or investments are financed, or
anticipated to be financed, with Cash from Capital
Transactions for purposes of clause (b)(ii) or (b)(vi) above
shall be made, with respect to the Company, by the General
Partner in its reasonable good faith judgment and, with
respect to any Subsidiary or other Person in which the Company
directly or indirectly holds an equity or other ownership
interest, by its Board of Directors (or by such other body or
Person which has the ultimate management authority of such
Subsidiary or such Person) in its reasonable good faith
judgment.
Subject to the immediately succeeding sentence, any
increase to Available Cash pursuant to clause (a)(vii) above
shall be made in the calendar quarter in which Qualified Debt
is repaid in accordance with such clause (irrespective of the
calendar quarter in which the Asset Sale occurred).
Notwithstanding the foregoing, the item under clause (a)(vii)
above shall only be included in the calculation of Available
Cash if (A) the Company has delivered to the Noteholders an
Officers' Certificate demonstrating (with computations in
reasonable detail) compliance by the Company with the
provisions of clause (B) below for the calendar quarter in
which the payment of Qualified Debt in accordance with clause
(a)(vii) above is made, and (B) the ratio of Pro Forma Free
Cash Flow to Maximum Pro Forma Annual Interest Charges as of
the last day of such calendar quarter is not less than
2.50:1.0.
"Designated Acres" shall mean up to an aggregate
800,000 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 over the term of
existence of this Agreement). The maximum number of Designated
Acres as set forth above shall be adjusted from time to time
as follows: (i) upon any acquisition of Timberlands made after
September 30, 2002, the maximum number of Designated Acres
shall be increased by an amount equal to five percent (5%) of
the aggregate acreage of Timberlands so acquired, and (ii)
upon any disposition or sale of Timberlands (other than a sale
of Designated Acres) made after September 30, 2002, the
Amendment to Series H,I,J & K
Senior Note Agreements
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maximum number of Designated Acres shall be decreased by an
amount equal to five percent (5%) of the aggregate acreage of
Timberlands so disposed or sold, provided, however, in no
event may the number of Designated Acres be decreased below
the number of Designated Acres previously sold as Designated
Acres.
"Other Senior Notes" shall mean the following
outstanding Senior Notes of the Company (other than the
"Notes" as defined herein) (a) 8.73% Senior Notes due August
1, 2009, (b) 11-1/8% Senior Notes due June 8, 2007, (c) Senior
Notes, Series A, B, C and D due November 13, 2006, 2008, 2011
and 2016, respectively, (d) Senior Notes, Series E, F and G
due February 12, 2007, 2009 and 2011, respectively, (e)
$20,000,000 Floating Rate Notes Series L due 2008, $47,000,000
4.96% Notes Series M due 2008, $55,000,000 5.48% Notes Series
N due 2010 and $178,000,000 6.18% Notes Series O due 2013 and
(f) 5.31% Senior Notes.
(h) The following new defined terms are hereby
added to paragraph 10B of the Senior Note Agreements in the proper
alphabetical order:
"Asset Sales" means any sale or disposition of
properties (other than inventory in the ordinary course of
business) of the Company, any of its Subsidiaries or any other
Person in which the Company holds an equity or other ownership
interest, by the Company, such Subsidiary or such other
Person.
"5.31% Senior Notes" shall mean the Company's 5.31%
Senior Notes due September 17, 2007, in the original principal
amount of $25,000,000.
"Net Proceeds" means proceeds in cash as and when
received by the Person making a sale of property, net of: (a)
the direct costs relating to such sale excluding amounts
payable to the Company, any Affiliate of the Company or any
other Person in which the Company holds an equity or other
ownership interest, (b) sale, use or other transaction taxes
paid or payable as a result thereof, and (c) amounts required
to be applied to repay principal, interest and prepayment
premiums and penalties on Debt secured by a Lien on the asset
which is the subject of such disposition.
"Permitted Ancillary Business" means the ownership,
development, management and sale of property owned or
previously owned by the Company or a Restricted Subsidiary
that, based on the good faith determination of the Responsible
Representatives at the time of determination, has a higher
value as recreational, residential, grazing or agricultural
property than for timber production.
(i) All references in the Senior Note Agreements
to "net proceeds" shall be deemed to be references to "Net Proceeds."
2. CONDITIONS TO EFFECTIVENESS.
Amendment to Series H,I,J & K
Senior Note Agreements
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The amendments set forth in paragraph 1 shall become effective (the
"EFFECTIVE DATE") concurrently with the issuance of the Company's $20,000,000
Floating Rate Notes Series L due 2008, $47,000,000 4.96% Notes Series M due
2008, $55,000,000 5.48% Notes Series N due 2010 and $178,000,000 6.18% Notes
Series O due 2013 (collectively, the "NEW NOTES"), subject to the satisfaction
(or waiver) by the Required Holders of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES; NO DEFAULT.
The representations and warranties contained in paragraph 3 hereof
shall be true in all material respects on and as of the Effective Date;
there shall exist on the Effective Date no Event of Default or Default;
and the Company shall have delivered to you an Officer's Certificate,
dated as of the Effective Date, to both such effects.
(b) PROCEEDINGS. All proceedings taken or to be
taken in connection with the transactions contemplated hereby and all
documents incident thereto shall be satisfactory in substance and form
to you, and you shall have received all such counterpart originals or
certified or other copies of such documents as you may reasonably
request.
(c) NOTEHOLDER CONSENT. The Company shall have
received executed counterparts of this Agreement from the Required
Holders.
(d) AMENDMENT OF AGREEMENTS. The amendment of
even date herewith of the agreements pursuant to which the Other Senior
Notes were issued and the amendment of even date herewith of the
Mortgage Note Agreements shall have been approved by the Required
Holders in each such agreement.
3. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants as follows:
(a) 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.
(b) 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 currently conducted, to enter
into this Agreement and to carry out the terms of this Agreement and
after giving effect to the amendments contemplated hereby, the Senior
Note Agreements and the Notes. The Restricted Subsidiaries,
Manufacturing and the Facilities Operating Subsidiaries are each a duly
organized and validly existing corporation, limited partnership or
limited liability company, as applicable, and in good standing under
its jurisdiction of incorporation or formation, as applicable, with all
requisite corporate, partnership or limited liability company power and
authority, as applicable, to own and operate its properties, to conduct
its business as proposed to be conducted.
Amendment to Series H,I,J & K
Senior Note Agreements
8
(c) GENERAL PARTNER NET WORTH. As of the
Effective Date, the General Partner will have a net worth (excluding
its interest in the Company and any notes receivable from or payable to
the Company) at least equal to the amount sufficient to meet the tax
requirements, if any, for a general partner of a Delaware limited
partnership (based on the fair market value of its assets).
(d) OWNERSHIP AND SUBSIDIARIES. The Corporation
owns 100% of the membership interests in the General Partner. The
General Partner owns the 1% general partnership interest in the Company
and the Corporation owns the 99% limited partnership interest in the
Company. The Company owns directly or indirectly, all of the issued and
outstanding equity interests of all of its Subsidiaries, which
interests will have been duly authorized and validly issued, fully paid
and non-assessable and be owned free and clear of any Liens. There are
no outstanding warrants or options to acquire, or instruments
convertible into or exchangeable for, any equity interest in any such
Subsidiary. As of the Effective Date, the Company will have no
Subsidiaries other than the Subsidiaries listed on Exhibit A. The only
general partner of the Company is the General Partner, which as of the
Effective Date owns a 1% interest in the Company.
(e) CORPORATION. The Corporation is a
corporation, duly formed, validly existing and in good standing under
the laws of Delaware and has all requisite corporate power and
authority to own and operate its properties, and to conduct its
business as currently conducted. The Corporation is organized in
conformity with the requirements for qualification as a real estate
investment trust under the Code and its ownership and method of
operation since July 1, 1999 has enabled it to meet the requirements
for taxation as a real estate investment trust under the Code.
(f) QUALIFICATION. The Company and each of its
Subsidiaries is duly qualified or registered for the transaction of
business and in good standing as a foreign partnership, corporation or
limited liability company, as the case may be, in each jurisdiction in
which the failure to so qualify or be registered would have a Material
Adverse Effect.
(g) BUSINESS; FINANCIAL STATEMENTS. The Company
and its Subsidiaries have not engaged in any business or activities
prior to the Effective Date other than (i) owning, acquiring and
disposing of Timber and Timberlands, and (ii) owning and operating
lumber mills, plywood and fiberboard manufacturing plants, wood chip
plants and natural resource assets. The Company and its Subsidiaries do
not have any significant assets other than Timber, Timberlands and the
facilities described in clause (ii) above, cash and cash equivalents
and general intangibles acquired, used or useful in connection with its
Permitted Business, and as of the Effective Date will not have any
significant liabilities other than the Notes, the Other Senior Notes,
the Guarantee, the Mortgage Notes, indebtedness under the Bank of
America Revolving Credit Agreement and the Company's 364-Day Revolving
Credit Agreement dated as of November 26, 2002, as it may be amended,
amended and restated, supplemented, modified, renewed or refinanced
from time to time, and liabilities incurred in the ordinary course of
business.
Amendment to Series H,I,J & K
Senior Note Agreements
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(h) CHANGES, ETC. Except as contemplated by this
Agreement, subsequent to December 31, 2001, (a) neither the Company nor
the Facilities Subsidiary has incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business, except (i) the
Company's 364-Day Revolving Credit Agreement dated as of November 26,
2002, as it may be amended, amended and restated, supplemented,
modified, renewed or refinanced from time to time, (ii) the Purchase
and Sale Agreement dated as of September 17, 2002 governing the terms
of acquisition by the Company of approximately 309,000 acres of
Timberlands from Stora Enso North America Corp. for the purchase price
of $142,000,000 and (iii) the Company's 5.31% $25,000,000 Senior Notes
due September 17, 2007; and (b) there has not been (i) any material
adverse change in the condition (financial or other) or operations of
the Company or the Facilities Subsidiary or (ii) any Restricted Payment
of any kind declared, paid or made by the Company in violation of
paragraph 6A of the Senior Note Agreements.
(i) ACTIONS PENDING. Except as set forth in
Exhibit B attached hereto, there is no action, suit, investigation or
proceeding pending or, to the Company's Knowledge, 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, the Senior Note Agreements or
the Notes or any action taken or to be taken pursuant to this
Agreement, the Senior Note Agreements or the Notes or which would be
reasonably likely to result in any material adverse change in the
business, property or assets, condition (financial or other) or
operations of the Company, or in the inability of the Company to
perform its obligations hereunder, under the Senior Note Agreements or
under the Notes.
(j) COMPLIANCE WITH OTHER INSTRUMENTS, ETC.
Neither the Company nor any Subsidiary of the Company is in violation
of any term of the Partnership Agreement or of any term of any other
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, and the execution,
delivery and performance by the Company of this Agreement, the Senior
Note Agreements and 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 (other than the Liens contemplated by this Agreement) 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, property or assets, condition (financial or other) or
operations of the Company, or the ability of the Company to perform its
obligations under this Agreement, the Senior Note Agreements or the
Notes.
(k) 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.
Amendment to Series H,I,J & K
Senior Note Agreements
10
(l) DISCLOSURE. Neither this Agreement nor any
other document, certificate or statement furnished to the Noteholders
by or on behalf of the Company in writing, in connection herewith
contains any untrue statement of a material fact or omits to state a
material fact, in each case, as it relates to the Corporation, the
Company or its Subsidiaries, 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, the Corporation's periodic reports filed with the Securities
and Exchange Commission under the Securities Exchange Act of 1934, as
amended, or in the other documents, certificates and statements in
writing furnished to the holders of the Notes by or on behalf of the
Company prior to the date hereof in connection with the transactions
contemplated hereby.
(m) INCORPORATED REPRESENTATIONS AND WARRANTIES.
All of the representations and warranties made in the Amendment to
Mortgage Note Agreements dated of even date herewith are true and
correct and are incorporated herein by reference with the same effect
as if set forth at length herein.
4. EXPENSES; INDEMNIFICATION.
The Company shall, whether or not the transactions contemplated hereby
are consummated, save each holder of the Notes harmless for all out-of-pocket
expenses arising in connection with the execution and delivery or performance of
this Agreement or any Assumption Agreement, including the reasonable fees and
expenses of special counsel for the holders of the Notes but not any other legal
fees incurred by any holder of the Notes. The Company shall also indemnify and
save each holder of the Notes harmless from and against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever (including, without limitation,
any taxes, and any additional taxes imposed on any amounts payable pursuant to
this paragraph 4) which may at any time be imposed on, incurred by or asserted
against any holder of the Notes in any way arising out of, relating to or
resulting from this Agreement or the transactions contemplated hereby. The
obligations of the Company under this paragraph 4 shall survive the transfer of
any Note or portion thereof or interest therein by a holder of the Notes or any
transferee and the payment of any Note.
5. MISCELLANEOUS.
(a) CONTINUITY AND INTEGRATION OF AGREEMENTS.
The Senior Note Agreements, as supplemented and amended by this
Agreement, shall remain in full force and effect and are hereby
ratified and confirmed, and the Senior Note Agreements and this
Agreement shall be deemed to be and construed as a single agreement.
Without limitation of the foregoing, or any provision of the Senior
Note Agreements, all
Amendment to Series H,I,J & K
Senior Note Agreements
11
representations and warranties made herein or in any certificate or
document delivered in connection herewith shall for all purposes be
deemed made by the Company on, and delivered by the Company pursuant to
and in connection with, the Senior Note Agreements.
(b) 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 Note
by a holder thereof. Such representations and warranties may be relied
upon by any transferee of a Note from a holder thereof.
(c) 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.
(d) 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.
(e) 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.
(f) THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE
GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
[Signatures Appear on Next Page]
Amendment to Series H,I,J & K
Senior Note Agreements
12
If you are in agreement with the foregoing, please sign the form of acceptance
on the enclosed counterpart of this letter and return the same to the Company
whereupon this letter shall become a binding agreement among us.
Very truly yours,
PLUM CREEK TIMBERLANDS, L.P., a
Delaware limited partnership
By: Plum Creek Timber I, L.L.C., a Delaware
limited liability company,
its General Partner
By: Plum Creek Timber Company, Inc., a
Delaware corporation, its sole
member
By:________________________________
Name: William R. Brown
Title: Executive Vice President and
Chief Financial Officer
Amendment to Series H, I, J & K
Senior Note Agreements
S-1
The foregoing Agreement is accepted
as of the date first above written
MINNESOTA LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: _______________________________
Name: _______________________________
Title: _______________________________
AMERICAN FIDELITY ASSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: _______________________________
Name: _______________________________
Title: _______________________________
FARM BUREAU LIFE INSURANCE COMPANY
OF MICHIGAN
By: Advantus Capital Management, Inc.
By: _______________________________
Name: _______________________________
Title: _______________________________
MTL INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H, I, J & K
Senior Note Agreements
S-2
The foregoing Agreement is accepted
as of the date first above written
AIG LIFE INSURANCE COMPANY
By: AIG Global Investment Corp., as investment adviser
By: _____________________________
Name: Gerald F. Herman
SUNAMERICA LIFE INSURANCE COMPANY
By: _____________________________
Name: Gerald F. Herman
Title: Authorized Signatory
Amendment to Series H,I,J & K
Senior Note Agreements
S-3
The foregoing Agreement is accepted
as of the date first above written
ALLIANCE CAPITAL MANAGEMENT CORPORATION
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H, I, J & K
Senior Note Agreements
S-4
The foregoing Agreement is accepted
as of the date first above written
THE HANOVER INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H, I, J & K
Senior Note Agreements
S-5
The foregoing Agreement is accepted
as of the date first above written
ALLSTATE LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
By: _______________________________
Name: _______________________________
Title: _______________________________
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
By: _______________________________
Name: _______________________________
Title: _______________________________
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H, I, J & K
Senior Note Agreements
S-6
The foregoing Agreement is accepted
as of the date first above written
IDS LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H, I, J & K
Senior Note Agreements
S-7
The foregoing Agreement is accepted
as of the date first above written
THE CANADA LIFE ASSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H, I, J & K
Senior Note Agreements
S-8
The foregoing Agreement is accepted
as of the date first above written
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA Investments, Inc. (authorized agent)
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H, I, J & K
Senior Note Agreements
S-9
The foregoing Agreement is accepted
as of the date first above written
CLARICA LIFE INSURANCE COMPANY - U.S.
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H, I, J & K
Senior Note Agreements
S-10
The foregoing Agreement is accepted
as of the date first above written
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
GE EDISON LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
FIRST COLONY LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
GE LIFE AND ANNUITY ASSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
GE GROUP ADMINISTRATORS, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
GE GROUP LIFE ASSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H, I, J & K
Senior Note Agreements
S-11
The foregoing Agreement is accepted
as of the date first above written
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By: _______________________________
Name: _______________________________
Title: _______________________________
BERKSHIRE LIFE INSURANCE COMPANY OF AMERICA
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-12
The foregoing Agreement is accepted
as of the date first above written
GOLDEN AMERICA LIFE INSURANCE COMPANY
By: ING Investment Management LLC
By: _______________________________
Name: _______________________________
Title: _______________________________
NORTHERN LIFE INSURANCE COMPANY
By: ING Investment Management LLC
By: _______________________________
Name: _______________________________
Title: _______________________________
RELIASTAR LIFE INSURANCE COMPANY
By: ING Investment Management LLC
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-13
The foregoing Agreement is accepted
as of the date first above written
JEFFERSON PILOT FINANCIAL INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
JEFFERSON-PILOT LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-14
The foregoing Agreement is accepted
as of the date first above written
JOHN HANCOCK LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
INVESTORS PARTNER LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
SIGNATURE 5 L.P.
By: John Hancock Life Insurance Company,
as Portfolio Advisor
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-15
The foregoing Agreement is accepted
as of the date first above written
THRIVENT FINANCIAL FOR LUTHERANS
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-16
The foregoing Agreement is accepted
as of the date first above written
METROPOLITAN LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
METROPOLITAN INSURANCE AND ANNUITY COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-17
The foregoing Agreement is accepted
as of the date first above written
MODERN WOODMEN OF AMERICA
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-18
The foregoing Agreement is accepted
as of the date first above written
MONY LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-19
The foregoing Agreement is accepted
as of the date first above written
NATIONAL LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
LIFE INSURANCE COMPANY OF THE SOUTHWEST
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-20
The foregoing Agreement is accepted
as of the date first above written
NATIONWIDE LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
NATIONWIDE MUTUAL INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-21
The foregoing Agreement is accepted
as of the date first above written
NEW YORK LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-22
The foregoing Agreement is accepted
as of the date first above written
THE OHIO NATIONAL LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-23
The foregoing Agreement is accepted
as of the date first above written
PACIFIC LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-24
The foregoing Agreement is accepted
as of the date first above written
PRINCIPAL LIFE INSURANCE COMPANY,
an Iowa corporation
By: Principal Capital Management, LLC
a Delaware limited liability company,
its authorized signatory
By: _______________________________
Name: _______________________________
Title: _______________________________
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-25
The foregoing Agreement is accepted
as of the date first above written
CGU LIFE INSURANCE COMPANY OF AMERICA,
a Delaware corporation
By: Principal Capital Management, LLC
a Delaware limited liability company,
its attorney in fact
By: _______________________________
Name: _______________________________
Title: _______________________________
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-26
The foregoing Agreement is accepted
as of the date first above written
PROVIDENT MUTUAL LIFE INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-27
The foregoing Agreement is accepted
as of the date first above written
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: _______________________________
Name: _______________________________
Title: Vice President
Amendment to Series H,I,J & K
Senior Note Agreements
S-28
The foregoing Agreement is accepted
as of the date first above written
SECURITY FINANCIAL LIFE INSURANCE CO.
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-29
The foregoing Agreement is accepted
as of the date first above written
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: Summit Investment Partners, LLC
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-30
The foregoing Agreement is accepted
as of the date first above written
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-31
The foregoing Agreement is accepted
as of the date first above written
THE TRAVELERS INSURANCE COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-32
The foregoing Agreement is accepted
as of the date first above written
UNUM LIFE INSURANCE COMPANY OF AMERICA
By: Provident Investment Management, LLC
Its: Agent
By: _______________________________
Name: _______________________________
Title: _______________________________
Amendment to Series H,I,J & K
Senior Note Agreements
S-33
EXHIBIT A
Subsidiaries
Plum Creek Timber II, L.L.C.
Plum Creek Maine Timberlands, L.L.C.
Plum Creek Southern Timber, L.L.C.
Plum Creek South Central Timberlands, L.L.C.
Plum Creek Manufacturing, L.P.
Plum Creek Manufacturing Holding Company, Inc.
Plum Creek Northwest Lumber, Inc.
Plum Creek Northwest Plywood, Inc.
Plum Creek MDF, Inc.
Plum Creek Southern Lumber, Inc.
Plum Creek Marketing, Inc.
Plum Creek Investment Company
Plum Creek Land Company
Plum Creek Maine Marketing, Inc.
Highland Resources Inc.
PC Timberland Investment Company
Amendment to Series H,I,J & K
Senior Note Agreements
Exhibit A-1
EXHIBIT B
Pending Actions
None.
Amendment to Series H,I,J & K
Senior Note Agreements
Exhibit B-1