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Exhibit 4.C.1
SENIOR NOTE AGREEMENT AMENDMENT
PLUM CREEK TIMBER COMPANY, L.P.
999 THIRD AVENUE
SEATTLE, WASHINGTON 98104
As of September 1, 1993
To each of the Purchasers
listed on the attached
Purchaser Schedule
Dear Purchaser:
RECITALS
WHEREAS, you and Plum Creek Timber Company, L.P., a Delaware limited
partnership (the "Company"), have entered into Senior Note Agreements dated as
of May 31, 1989 and as amended to the date hereof (the "Senior Note
Agreements") pursuant to which the Company issued its 11-1/8% Senior Notes due
June 8, 2007 (the "Senior Notes");
WHEREAS, Plum Creek Manufacturing, L.P., a Delaware limited
partnership ("Manufacturing"), is the obligor with respect to certain 11-1/8%
First Mortgage Notes due June 8, 2007 (the "Mortgage Notes"), pursuant to
certain Mortgage Note Agreements, dated May 31, 1989 and as amended to the date
hereof, among Manufacturing, the Company and the several holders of the
Mortgage Notes identified on the Purchaser Schedule attached thereto ("Mortgage
Note Agreements");
WHEREAS, the Company desires to purchase certain timberlands in the
State of Montana ("Champion Timberlands") from Champion International
Corporation;
WHEREAS, the Company, in order to finance the purchase of the Champion
Timberlands, proposes to enter into a Revolving Credit Agreement with Bank of
America National Trust and Savings Association and the other lenders parties to
such facility ("Bank of America Revolving Credit Agreement");
WHEREAS, concurrently with the execution and delivery of this
Agreement, Manufacturing is executing and delivering a Mortgage Note Agreement
Amendment ("Mortgage Note Amendment Agreement") with the Required Holders (as
defined in the Mortgage Note Agreement) of the Mortgage Notes;
WHEREAS, consummation of certain of the foregoing transactions
requires certain amendments to the Senior Note Agreements;
NOW, THEREFORE, the Company hereby agrees with you that this Agreement
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shall become effective as of the date on which the Bank of America Revolving
Credit Agreement become effective (the "Effective Time") and that thereafter,
all references to, and actions taken in connection with, the Senior Note
Agreements shall incorporate this Agreement in its entirety. All capitalized
terms used in this Agreement and not otherwise defined have the meanings
ascribed to them in the Senior Note Agreements.
1. CERTAIN AMENDMENTS
A. DEFINITIONS
(1) The definition of "Designated Acres" in Paragraph 10B
of the Senior Note Agreements shall be amended by replacing the numeral
"150,000" in the second line thereof with "200,000."
(2) The following definitions shall be added to Paragraph
10B of the Senior Note Agreements:
"Bank of America Revolving Credit Agreement" shall
mean the credit agreement to be entered into between the
Company, Bank of America National Trust and Savings
Association, as Administrative Agent, and certain other
lenders pursuant to which the lenders thereunder shall provide
credit facilities to the Company in an aggregate principal
amount not to exceed $260,000,000.
"Qualified Debt" shall mean, as to the Company, as of
any date of determination, without duplication, all
outstanding indebtedness of the Company for borrowed money,
including, without limitation, Debt represented by the Notes
and the Bank of America Revolving Credit Agreement.
"Actual Percentage" shall mean, at any date of
determination, the percentage determined by dividing the
aggregate outstanding principal balance of the Notes by the
aggregate outstanding principal balance of all Qualified Debt,
including the Notes.
"Desired Percentage" shall mean thirty-eight percent
(38%), the percentage determined by dividing the aggregate
outstanding principal balance of the Notes on September 1,
1993 by the aggregate outstanding principal balance of all
Qualified Debt outstanding upon the drawdown of the Bank of
America Revolving Credit Agreement.
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B. PARAGRAPH 6B(5)(VIII)--MERGER AND SALE OF ASSETS
(1) The existing Paragraph 6B(5)(viii) of the Senior Note
Agreements shall be replaced by the following new subparagraphs (viii)
and (ix):
(viii) the Company and its Restricted Subsidiaries
may otherwise sell for cash properties that constitute the
Company's Columbia River Unit 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 are
either (x) subject to subclause (e) of this Paragraph
6B(5)(viii), distributed immediately upon receipt thereof to
holders of Qualified Debt other than the Notes for application
(either immediately or within 180 days) to prepayment of such
Qualified Debt, or (y) applied, within 180 days after such
sale, to the purchase of productive assets in the same line of
business, (c) in the event net proceeds of any such sale are
in excess of $25,000,000 and if not applied immediately as
provided in subclause (b) above, placed immediately upon
receipt thereof in an escrow or cash collateral account or
accounts, pursuant to an agreement or agreements in form and
substance satisfactory to holders of 66-2/3% of the
outstanding principal amount balance of the Qualified Debt
other than the Notes, for the purpose of application in
accordance with subclause (b) above, (d) 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), and (e) the
aggregate net proceeds of all sales pursuant to this paragraph
(viii) during the year from the funding of the first loan
under the Bank of America Revolving Credit Agreement to the
first anniversary thereof that are applied in repayment of
Qualified Debt other than the Notes do not exceed
$150,000,000, and
(ix) the Company and its Restricted Subsidiaries may
otherwise sell for cash properties (other than properties
described in Paragraph 6B(5)(viii) above) 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 first, if any net proceeds
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have been used to repay Qualified Debt other than the Notes in
accordance with paragraph 6B(5)(viii), to the prepayment of
the Notes pursuant to Paragraphs 4A or 4B, as the case may be,
to the extent necessary to cause their Actual Percentage to
equal the Desired Percentage, and second, pro rata (based on
the current outstanding principal of all Qualified Debt) to
the holders of all Qualified Debt, or (y) are applied, within
180 days after such sale, to the purchase of productive assets
in the same line of business, (c) the net proceeds of any such
sale are either (x) distributed immediately upon receipt
thereof to holders of Qualified Debt in accordance with
subclause (b)(x) above for application (either immediately or
within 180 days, which, in the case of the Notes, shall be
pursuant to an escrow agreement satisfactory in form and
substance to the Required Holder(s)) to repayment of such
Qualified Debt, or (y) if in excess of $25,000,000, placed
immediately upon receipt thereof in an escrow or cash
collateral account or accounts, pursuant to an agreement or
agreements in form and substance reasonably satisfactory to
holders of 66-2/3% of the outstanding principal balance of the
Qualified Debt, for the purpose of application in accordance
with subclause (b) above, and (d) 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).
C. PARAGRAPH 6B(6)--HARVESTING RESTRICTIONS
Paragraph 6B(6) of the Senior Note Agreements shall be amended
in its entirety 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:
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Maximum MMBF
Calendar Year to be Harvested
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1989 (including harvest by
predecessor prior to the
closing) through 1991
675 MMBF
1992 and 1993 650 MMBF
1994 through 1996 700 MMBF
1997 through 2000 675 MMBF
2001 through 2007 625 MMBF
plus, in each year, the amount, if any, by which the
cumulative amount set forth in the table above for the
preceding years exceeds the cumulative amount actually
harvested in such years; unless the net cash proceeds from
such excess harvest are either (i) distributed to all holders
of Qualified Debt pro rata based upon outstanding principal
balances at the time of such distribution for application
(either immediately or within 180 days after such excess
harvest) to the repayment of such Qualified Debt, which, in
the case of the Notes, shall be a prepayment pursuant to
Paragraph 4A or 4B, as the case may be, and shall be pursuant
to an escrow agreement satisfactory in form and substance to
the Required Holder(s), 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.
2. CONDITIONS TO EFFECTIVENESS
The amendments to the Senior Note Agreements and the other agreements
set forth herein shall become effective, subject to the fulfillment of the
following conditions to your satisfaction or waiver by you thereof (as
evidenced by your execution and delivery of this Agreement) on or prior to the
Effective Time.
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 date of closing, except
to the extent of changes caused by the transactions herein contemplated; and
there shall exist on the date of closing no Event of Default or Default.
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B. CERTAIN AGREEMENTS
Each of (i) this Agreement, (ii) Bank of America Revolving Credit
Agreement, and (iii) the Mortgage Note Amendment Agreement shall have been duly
authorized, executed and delivered by the parties thereto (other than you) and
shall be in full force and effect.
C. 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.
3. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants as follows:
A. 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.
B. 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.
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C. SUBSIDIARIES
As of the Effective Time the General Partner owns a 2% general
partner's interest and the Company owns a 98% limited partner's interest in
Manufacturing, which interests have been duly authorized and validly issued,
fully paid and non-assessable and are owned free and clear of any Liens.
Manufacturing has issued no warrants or options to acquire, or instruments
convertible into or exchangeable for any equity interest in Manufacturing. As
of the Effective Time the General Partner owns 4% of the capital stock and the
Company owns 96% of the capital stock of Marketing, which capital stock has
been duly authorized and validly issued, fully paid and non-assessable and are
owned free and clear of any liens. Marketing has issued no warrants or options
to acquire or interests convertible into or exchangeable for any equity
interest in Marketing. As of the Effective Time the Company has no
Subsidiaries other than Manufacturing and Marketing. As of the Effective Time
Manufacturing has no Subsidiaries.
D. CHANGES, ETC.
Except as contemplated by this Agreement, since June 30, 1993, the
date of the most recent consolidated 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 (except for the commitment to purchase the Champion
Timberlands), and (b) there has not been any material adverse change in the
financial condition or operations of the Company.
E. 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 described herein.
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F. 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 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 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.
G. 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 other than those which have been obtained on or prior to the Effective
Time.
H. FOREIGN ASSETS CONTROL REGULATIONS, ETC.
The execution and delivery of this Agreement by the Company and the
consummation of the transactions contemplated hereby will not violate the
Foreign Assets Control Regulations, the Transaction Control Regulations, the
Cuban Assets Control Regulations, the Foreign Funds Control Regulations, the
Iranian Assets Control Regulations, the Nicaraguan Trade Control Regulations,
the South African Transactions Regulations, the Libyan Sanctions Regulations,
the Soviet Gold Coin Regulations or the Panamanian Transactions Regulations of
the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as
amended) or (i) Executive Orders 12722 and 12724 (55 Fed. Reg. 31803 and 55 Fed
Reg. 33089), Blocking Iraqi Government Property and Prohibiting Transactions
with Iraq, and (ii) Executive Orders 12723 and 12725 (55 Fed. Reg. 31805 and
55 Fed. Reg. 33091), Blocking Kuwaiti Government Property and Prohibiting
Transactions with Kuwait.
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I. DISCLOSURE
Neither this 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 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 to you by or on behalf of the Company, prior to the date
hereof in connection with the transactions contemplated hereby.
4. EXPENSES; INDEMNIFICATION
The Company shall, whether or not the transactions contemplated hereby
are consummated, save each holder of Senior Notes harmless for all
out-of-pocket expenses arising in connection with the execution and delivery or
performance of this Agreement, including the reasonable fees and expenses of
special counsel for the holders of Senior Notes. The Company shall also
indemnify and save each holder of Senior 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 Senior 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 Senior Note or portion thereof or interest
therein by a holder of Senior Notes or any transferee and the payment of any
Senior Note.
5. MISCELLANEOUS.
A. CONTINUITY AND INTEGRATION OF AGREEMENTS.
The Senior Note Agreements, as affected 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 are
construed as a single agreement.
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 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.
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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.
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. THIS AGREEMENT SHALL BE BINDING UPON THE COMPANY AND THE HOLDERS OF
SENIOR NOTES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
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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., General Partner
By: . . . . . . . . . . . . . . .
Name: Rick R. Holley
Title: Vice President and
Chief Financial Officer
The foregoing is accepted and agreed to:
By: . . . . . . . . . . . . . . . . .
Name:
Title:
Company:
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