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Exhibit 4.C.3
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CREDIT AGREEMENT
Dated as of October 28, 1993
among
PLUM CREEK TIMBER COMPANY, L.P.,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
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PLUM CREEK TIMBER COMPANY CREDIT AGREEMENT
DESK SET INDEX
Document
Number:
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1. Credit Agreement dated as of October 28, 1993 (the "Credit
Agreement"), among Plum Creek Timber Company, L.P., the financial
institutions party thereto (the "Banks") and Bank of America National
Trust and Savings Association, as agent for the Banks
2. Schedules to the Credit Agreement:
o Schedule 1.01: Investment Policy
o Schedule 2.01: Commitments
o Schedule 5.05: Litigation
o Schedule 5.07: ERISA
o Schedule 5.12: Environmental Matters
o Schedule 5.18: Subsidiaries of PCTC
o Schedule 7.01: Permitted Liens
o Schedule 7.04: Permitted Investments
3. Exhibits to the Credit Agreement:
o Exhibit A: Notice of Borrowing
o Exhibit B: Notice of Conversion/Continuation
o Exhibit C-1: Form of Legal Opinion of Company Counsel
o Exhibit C-2: Form of Legal Opinion of Perkins Coie
o Exhibit D: Compliance Certificate
o Exhibit E: Form of Cash Collateral Agreement
o Exhibit F: Form of Assignment and Acceptance
4. Closing Documents List
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS ................. 1
1.01 Defined Terms ............................... 1
1.02 Other Interpretive Provisions ............... 30
(a) Defined Terms .......................... 30
(b) The Agreement .......................... 30
(c) Certain Common Terms ................... 30
(d) Performance; Time ...................... 30
(e) Contracts .............................. 31
(f) Laws ................................... 31
(g) Captions ............................... 31
(h) Independence of Provisions ............. 31
(i) Interpretation ......................... 31
1.03 Accounting Principles ....................... 31
ARTICLE II
THE CREDITS ................. 32
2.01 Amounts and Terms of Commitments ............ 32
2.02 Loan Accounts ............................... 32
2.03 Procedure for Borrowing ..................... 32
2.04 Conversion and Continuation Elections ....... 33
2.05 Voluntary Termination or Reduction of
Commitments ................................. 35
2.06 Optional Prepayments ........................ 36
2.07 Mandatory Prepayments of Loans; Mandatory
Commitment Reductions ....................... 36
(a) Asset Dispositions ..................... 36
(b) Mandatory Commitment Reductions ........ 36
(c) General ................................ 37
(d) Reduction of Commitment ................ 37
2.08 Repayment ................................... 38
2.09 Interest .................................... 38
2.10 Fees ........................................ 40
(a) Agency and Participation Fees .......... 40
(b) Commitment Fees. ....................... 40
2.11 Computation of Fees and Interest ............ 40
2.12 Payments by the Company ..................... 41
2.13 Payments by the Banks to the Agent .......... 42
2.14 Sharing of Payments, Etc .................... 43
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Section Page
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY ... 43
3.01 Taxes ....................................... 43
3.02 Illegality .................................. 47
3.03 Increased Costs and Reduction of Return ..... 47
3.04 Funding Losses .............................. 48
3.05 Inability to Determine Rates ................ 49
3.06 Certificate of Bank ......................... 49
3.07 Survival .................................... 49
ARTICLE IV
CONDITIONS PRECEDENT ............ 50
4.01 Conditions of Initial Loans ................. 50
(a) Credit Agreement ....................... 50
(b) Resolutions; Incumbency ................ 50
(c) Articles of Incorporation; By-laws;
Partnership Documents and Good Standing 50
(d) Legal Opinion .......................... 51
(e) Payment of Fees ........................ 51
(f) Certificate ............................ 51
(g) Financial Statements ................... 52
(h) Credit Agreements ...................... 52
(i) Other Documents ........................ 52
4.02 Conditions to All Borrowings. ............... 52
(a) Notice of Borrowing or
Continuation/Conversion ................ 52
(b) Continuation of Representations and
Warranties ............................. 52
(c) No Existing Default .................... 53
ARTICLE V
REPRESENTATIONS AND WARRANTIES ....... 53
5.01 Corporate Existence and Power ............... 53
5.02 Authorization; No Contravention ............. 54
5.03 Governmental Authorization .................. 54
5.04 Binding Effect .............................. 54
5.05 Litigation .................................. 54
5.06 No Default .................................. 55
5.07 ERISA Compliance ............................ 55
5.08 Use of Proceeds; Margin Regulations ......... 57
5.09 Title to Properties ......................... 57
5.10 Taxes ....................................... 57
5.11 Financial Condition ......................... 58
5.12 Environmental Matters ....................... 58
5.13 Regulated Entities .......................... 59
5.14 No Burdensome Restrictions .................. 59
5.15 Solvency .................................... 59
5.16 Labor Relations ............................. 60
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Section Page
5.17 Copyrights, Patents, Trademarks and Licenses,
etc. ........................................ 60
5.18 Subsidiaries ................................ 60
5.19 Partnership Interests ....................... 60
5.20 Broker's; Transaction Fees .................. 61
5.21 Insurance ................................... 61
5.22 Timber Harvest .............................. 61
5.23 Full Disclosure ............................. 61
ARTICLE VI
AFFIRMATIVE COVENANTS ............ 61
6.01 Financial Statements ........................ 61
6.02 Certificates; Other Information ............. 63
6.03 Notices ..................................... 63
6.04 Preservation of Corporate Existence, Etc. ... 66
6.05 Maintenance of Property ..................... 66
6.06 Insurance ................................... 66
6.07 Payment of Obligations ...................... 66
6.08 Compliance with Laws ........................ 67
6.09 Inspection of Property and Books and Records 67
6.10 Environmental Laws .......................... 67
6.11 Use of Proceeds ............................. 68
6.12 Solvency .................................... 68
ARTICLE VII
NEGATIVE COVENANTS ............. 68
7.01 Limitation on Liens ......................... 68
7.02 Merger; Disposition of Assets ............... 70
7.03 Harvesting Restrictions ..................... 74
7.04 Loans and Investments ....................... 74
7.05 Limitation on Indebtedness .................. 76
7.06 Transactions with Affiliates ................ 79
7.07 Use of Proceeds ............................. 79
7.08 Sale of Stock and Debt of Subsidiaries ...... 79
7.09 Certain Contracts ........................... 80
7.10 Joint Ventures .............................. 81
7.11 Compliance with ERISA ....................... 81
7.12 Sale and Leaseback .......................... 81
7.13 Restricted Payments ......................... 82
7.14 Change in Business .......................... 83
7.15 Issuance of Stock by Subsidiaries ........... 83
7.16 Amendments .................................. 83
7.17 Available Cash............................... 83
ARTICLE VIII
EVENTS OF DEFAULT .............. 84
8.01 Event of Default ............................ 84
(a) Non-Payment ............................ 84
(b) Representation or Warranty ............. 84
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Section Page
(c) Specific Defaults ...................... 85
(d) Other Defaults ......................... 85
(e) Cross-Default .......................... 85
(f) Insolvency; Voluntary Proceedings ...... 85
(g) Involuntary Proceedings ................ 85
(h) ERISA .................................. 86
(i) Monetary Judgments ..................... 87
(j) Non-Monetary Judgments ................. 87
(k) Montana Timberlands .................... 87
(1) Adverse Change ......................... 87
8.02 Remedies .................................... 88
8.03 Rights Not Exclusive ........................ 88
ARTICLE IX
THE AGENT .................. 88
9.01 Appointment and Authorization ............... 88
9.02 Delegation of Duties ........................ 89
9.03 Liability of Agent .......................... 89
9.04 Reliance by Agent ........................... 89
9.05 Notice of Default ........................... 90
9.06 Credit Decision ............................. 91
9.07 Indemnification ............................. 91
9.08 Agent in Individual Capacity ................ 92
9.09 Successor Agent ............................. 93
ARTICLE X
MISCELLANEOUS ................ 94
10.01 Amendments and Waivers ...................... 94
10.02 Notices ..................................... 95
10.03 No Waiver; Cumulative Remedies .............. 96
10.04 Costs and Expenses .......................... 96
10.05 Indemnity ................................... 97
10.06 Marshalling; Payments Set Aside ............. 97
10.07 Successors and Assigns ...................... 97
10.08 Assignments, Participations, etc ............ 98
10.09 Set-off ..................................... 101
10.10 Automatic Debits of Fees .................... 101
10.11 Notification of Addresses, Lending Offices,
Etc. ........................................ 101
10.12 Counterparts ................................ 101
10.13 Severability ................................ 102
10.14 No Third Parties Benefited .................. 102
10.15 Time ........................................ 102
10.16 Governing Law and Jurisdiction .............. 102
10.17 Arbitration; Reference ...................... 102
10.18 Entire Agreement ............................ 103
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SCHEDULES
Schedule 1.01 Corporate Investment Policy
Schedule 2.01 Commitments
Schedule 5.05 Litigation
Schedule 5.07 ERISA
Schedule 5.12 Environmental Matters
Schedule 5.18 Subsidiaries and Equity Investments
Schedule 7.01 Permitted Liens
Schedule 7.04 Permitted Investments
EXHIBITS
Exhibit A Notice of Borrowing
Exhibit B Notice of Conversion/Continuation
Exhibit C-1 Legal Opinion of Counsel for the Company
Exhibit C-2 Legal Opinion of Perkins Coie
Exhibit D Compliance Certificate
Exhibit E Form of Cash Collateral Account Agreement
Exhibit F Form of Assignment and Acceptance
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of October 28,
1993, among Plum Creek Timber Company, L.P., a Delaware
limited partnership (the "Company"), the several financial
institutions from time to time party to this Agreement
(collectively, the "Banks"; individually, a "Bank"), and
Bank of America National Trust and Savings Association as
agent for the Banks.
WHEREAS, the Banks have agreed to make available to the
Company a revolving credit facility upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual
agreements, provisions and covenants contained herein, the
parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Defined Terms. In addition to the terms defined
elsewhere in this Agreement, the following terms have the
following meanings:
"Actual Percentage" means, 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.
"Affiliate" means, as to any Person, any other
Person which, directly or indirectly, is in control of,
is controlled by, or is under common control with, such
Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction
of the management and policies of the other Person,
whether through the ownership of voting securities, by
contract or otherwise. Without limitation, any
director, executive officer or beneficial owner of 5% or
more of the equity of a Person shall for the purposes of
this Agreement, be deemed to control the other Person.
Notwithstanding the foregoing, no Bank shall be deemed
an "Affiliate" of the Company or of any Subsidiary of
the Company.
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Agent" means BofA in its capacity as agent for the
Banks hereunder, and any successor agent.
"Agent's Payment Office" means the address for
payments set forth on the signature page hereto in
relation to the Agent or such other address as the Agent
may from time to time specify in accordance with
Section 10.02.
"Agent-Related Persons" means BofA and any
successor agent arising under Section 9.09, together
with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of
such Persons and Affiliates.
"Aggregate Commitment" means the combined
Commitments of the Banks, in the initial amount of two
hundred seventy-five million dollars ($275,000,000), as
such amount may be reduced from time to time pursuant to
this Agreement.
"Agreement" means this Credit Agreement, as amended
from time to time in accordance with the terms hereof.
"Applicable Margin" means
(i) with respect to Base Rate Loans, 0.000%;
(ii) with respect to CD Rate Loans, 1.250%;
and
(iii) with respect to Offshore Rate Loans,
1.125%.
"Assignee" has the meaning specified in
subsection 10.08(a).
"Assignment and Acceptance" has the meaning
specified in subsection 10.08(a).
"Attorney Costs" means and includes all fees and
disbursements of any law firm or other external counsel,
the allocated cost of internal legal services and all
disbursements of internal counsel.
"Available Cash" means, with respect to any
calendar quarter, (i) the sum of:
(a) the Company's net income (or net loss)
(excluding gain on the sale of any Capital Asset) for
such quarter,
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(b) the amount of depletion, depreciation,
amortization and other noncash charges utilized in
determining net income of the Company for such quarter,
(c) the amount of any reduction in reserves of the
Company of the types referred to in clause (ii)(d)
below,
(d) proceeds received by the Company from the sale
of Designated Acres, and
(e) 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
Indebtedness of the type specified in clause (ii)(a)
below which was made in either of the two immediately
preceding quarters,
less (ii) the sum of:
(a) all payments of principal on Indebtedness made
by the Company in such quarter (excluding any payments
of principal on Indebtedness 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),
(b) 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),
(c) 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,
(d) the amount of any reserves of the Company
established during such quarter which are necessary or
appropriate (1) to provide funds for the future payment
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of items of the types specified in clauses (ii)(a) and
(ii)(b) above, (2) to provide additional working
capital, (3) to provide funds for cash distributions
with respect to any one or more of the next four
quarters, or (4) to provide funds for the future payment
of interest in an amount equal to the interest to be
accrued in the next quarter,
(e) the amount of any noncash items of income
utilized in determining net income of the Company for
such quarter,
(f) 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 during such quarter pursuant to
subsections 7.04(a), (h) or (i) (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 or
payments on principal on Indebtedness made by the
Company during such quarter (excluding 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
(g) 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
subsections 7.04(a), (h) or (i) (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,
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provided, however, (1) net proceeds to the Company from
the issuance of SPUs (as such term is defined in the
Partnership Agreement) shall be deemed to be Available
Cash, and shall be deemed to be received, for purposes
of determining Available Cash, during the quarter in
respect of which such SPUs are issued, even if such cash
is received by the Company after the last day of such
quarter, and (2) any disbursements made of the types
described in clauses (ii)(a), (b), (c), (f) and (g) or
reserves established, in accordance with clause (ii)(d),
within 45 days after the end of any quarter as to which
SPUs were purchased in respect of such quarter in
accordance with the Distribution Support Agreement shall
be deemed to be made or established, for purposes of
determining Available Cash, within such quarter if the
General Partner so determines, provided that the
aggregate amount of such disbursements made or reserves
established which are so determined as being made within
such quarter shall not exceed the aggregate dollar
amount of SPUs purchased in respect of such quarter.
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 (i)(a), (b), (c), (d) and (e) above and
all items under clauses (ii)(a), (b), (c), (d), (e), (f)
and (g) above shall be calculated on a combined basis
with any Subsidiary of the Company whose income is
accounted for on a consolidated or combined basis with
the Company and, in accordance therewith, "Available
Cash" shall include a percentage of each such item of
each such Subsidiary equal to the Company's percentage
ownership interest in such Subsidiary, provided,
however, that the items under clauses (i)(a), (b), (c),
(d) and (e) 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 by 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
principals and, with respect to any Subsidiary, by its
Board of Directors (or by such other body or person
which has the ultimate management authority of such
Subsidiary) in accordance with generally accepted
accounting principles; (iii) the net income of any
Subsidiary shall be determined on an after-tax basis;
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(iv) the amount of any reductions in, or additions to,
reserves for purposes of clauses (i)(c) and (ii)(d)
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, by its
Board of Directors (or by such other body or person
which has the ultimate management authority of such
Subsidiary) 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 (ii)(b) or (ii)(f) 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, by its Board of Directors (or
by such other body or person which has the ultimate
management authority of such Subsidiary) in its
reasonable good faith judgment.
"Bank" has the meaning specified in the
introductory clause hereto.
"Bankruptcy Code" means the Federal Bankruptcy
Reform Act of 1978 (11 U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of:
(a) the rate of interest in effect for such
day as publicly announced from time to time by BofA
in San Francisco, California, as its "reference
rate." It is a rate set by BofA based upon various
factors including BofA's costs and desired return,
general economic conditions and other factors, and
is used as a reference point for pricing some
loans, which may be priced at, above, or below such
announced rate; and
(b) 0.50% per annum above the latest Federal
Funds Rate.
Any change in the reference rate announced by BofA
shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Base Rate Loan" means a Loan that bears interest
based on the Base Rate.
"BofA" means Bank of America National Trust and
Savings Association, a national banking association.
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"Board Foot" means a unit of measurement one foot
square and one inch thick.
"Borrowing" means a borrowing hereunder consisting
of Loans made to the Company on the same day by the
Banks pursuant to Article II.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in New
York City or San Francisco are authorized or required by
law to close and, if the applicable Business Day relates
to any Offshore Rate Loan, means such a day on which
dealings are carried on in the applicable offshore
dollar interbank market.
"Capital Adequacy Regulation" means any guideline,
request or directive of any central bank or other
Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in
each case, regarding capital adequacy of any bank or of
any corporation controlling a bank.
"Capital Asset" means any asset on the Company's or
any Subsidiary's balance sheet, as the case may be,
other than inventory, accounts receivable or any other
current asset and assets disposed of in connection with
normal retirements or replacements.
"Capital Lease" has the meaning specified in the
definition of "Capital Lease Obligations."
"Capital Lease Obligations" means all monetary
obligations of the Company or any of its Subsidiaries
under any leasing or similar arrangement which, in
accordance with GAAP, is classified as a capital lease
("Capital Lease").
"Capital Transaction" means (i) borrowings and
sales of debt securities (other than for working capital
purposes and other than for items purchased on open
account in the ordinary course of business) by the
Company, (ii) sales of equity interests by the Company
(other than sales of SPUs) and (iii) sales or other
voluntary or involuntary dispositions of any assets of
the Company (other than (x) sales or other dispositions
of inventory in the ordinary course of business, (y)
sales or other dispositions of other current assets
including receivables and accounts and (z) sales or
other dispositions of assets as a part of normal
retirements or replacements), in each case prior to the
commencement of the dissolution and liquidation of the
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Company provided, that in determining Cash from Capital
Transactions, items (i), (ii) and (iii) above shall
include, with respect to each Subsidiary of the Company
whose income is accounted for on a consolidated or
combined basis with the Company, a percentage of each
such item of such Subsidiary equal to the Company's
percentage ownership interest in such Subsidiary.
"Cash Collateral Account Agreement" means an
agreement or agreements entered into between the Company
and the Agent pursuant to subsection 7.02(i)
substantially in the form of Exhibit E.
"Cash from Capital Transactions" means at any date,
such amounts of cash as are determined by the General
Partner to be cash made available to the Company from or
by reason of a Capital Transaction.
"CD Rate" means, for each Interest Period in
respect of CD Rate Loans comprising a part of the same
Borrowing, the rate of interest (rounded upward to the
nearest 1/100th of 1%) determined pursuant to the
following formula:
CD Rate = Certificate of Deposit Rate + Assessment
--------------------------- Rate
1.00 - Reserve Percentage
Where:
"Assessment Rate" means for any day of any
Interest Period for CD Rate Loans, the rate
determined by the Agent as equal to the annual
assessment rate in effect on such day that is
payable to the FDIC by a member of the Bank
Insurance Fund that is classified as adequately
capitalized and within supervisory subgroup "A" (or
a comparable successor assessment risk
classification within the meaning of 12 C.F.R.
Section 327.3(d)) for insuring time deposits at offices
of such member in the United States, or, in the
event that the FDIC shall at any time hereafter
cease to assess time deposits based upon such
classifications or successor classifications, equal
to the maximum annual assessment rate in effect on
such day that is payable to the FDIC by commercial
banks for insuring time deposits at offices of such
banks in the United States.
"Certificate of Deposit Rate" means for any
Interest Period for CD Rate Loans the rate of
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interest per annum determined by the Agent to be
the arithmetic mean (rounded upward to the nearest
1/100th of 1%) of the rates notified to the Agent
as the rates of interest bid by two or more
certificate of deposit dealers of recognized
standing selected by the Agent for the purchase at
face value of dollar certificates of deposit issued
by major United States banks, for a maturity
comparable to such Interest Period and in the
approximate amount of the CD Rate Loans to be made,
at the time selected by the Agent on the first day
of such Interest Period.
"Reserve Percentage" means for any day for any
Interest Period for CD Rate Loans the reserve
percentage (expressed as a decimal, rounded upward
to the nearest 1/100th of 1%), as determined by the
Agent, in effect on such day (including any
ordinary, marginal, emergency, supplemental,
special and other reserve percentages) prescribed
by the Federal Reserve Board for determining the
reserves to be maintained by member banks of the
Federal Reserve System with deposits exceeding
$1,000,000,000 for new non-personal time deposits
for a period comparable to such Interest Period and
in an amount of $100,000 or more. The CD Rate
shall be adjusted automatically as of the effective
date of any change in the Reserve Percentage.
"CD Rate Loan" means a Loan that bears interest
based on the CD Rate.
"CERCLA" has the meaning specified in the
definition of "Environmental Laws."
"Closing Date" means the date on which all
conditions precedent set forth in Section 4.01 are
satisfied or waived by all Banks.
"Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"Columbia River Unit" means those certain
approximately 63,000 acres located in southwest
Washington and generally referred to on the date hereof
as the Company's "Columbia River Unit."
"Commitment", with respect to each Bank, has the
meaning specified in Section 2.01.
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"Commitment Percentage" means, as to any Bank, the
percentage equivalent of such Bank's Commitment divided
by the Aggregate Commitment.
"Contractual Obligations" means, as to any Person,
any provision of any security issued by such Person or
of any agreement, undertaking, contract, indenture,
mortgage, deed of trust or other instrument, document or
agreement to which such Person is a party or by which it
or any of its property is bound.
"Controlled Group" means the Company and all
Persons (whether or not incorporated) under common
control or treated as a single employer with the Company
pursuant to Section 414(b), (c), (m) or (o) of the Code.
"Conversion Date" means any date on which the
Company converts a Base Rate Loan to an Offshore Rate
Loan or a CD Rate Loan; a CD Rate Loan to an Offshore
Rate Loan or a Base Rate Loan; or an Offshore Rate Loan
to a CD Rate Loan or a Base Rate Loan.
"Default" means any event or circumstance which,
with the giving of notice, the lapse of time, or both,
would (if not cured or otherwise remedied during such
time) constitute an Event of Default.
"Designated Acres" means up to an aggregate of
200,000 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 the
Note Agreements).
"Designated Immaterial Subsidiary" means any entity
which would otherwise be a Restricted Subsidiary and
which at any time is designated by the Company as a
Designated Immaterial Subsidiary, provided that no such
designation of any entity as a Designated Immaterial
Subsidiary shall be effective unless (i) at the time of
such designation, such entity does not own any shares of
stock or Indebtedness of any Restricted Subsidiary which
is not simultaneously being designated as a Designated
Immaterial Subsidiary, (ii) immediately after giving
effect to such designation, (a) the Company could incur
at least $1 of additional Funded Debt pursuant to
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18
subsection 7.05(j), and (b) no condition or event shall
exist which constitutes an Event of Default or Material
Default, (iii) the Company is permitted to make the
Investment in such entity resulting from such
designation pursuant to, and within the limitations
specified in, subsection 7.04(i), treating the aggregate
book value (including equity in retained earnings) of
the Investments of the Company and its Subsidiaries in
such entity immediately prior to such designation as the
cost of such Investment, and provided, further, that if
at any time all Designated Immaterial Subsidiaries on a
combined basis would be a "significant subsidiary"
(assuming the Company is the registrant) within the
meaning of Regulation S-X (17 CFR Part 210) the Company
shall designate one or more Designated Immaterial
Subsidiaries which are directly owned by the Company and
its Restricted Subsidiaries as Restricted Subsidiaries
such that the condition in this proviso is no longer
applicable and the entities so designated shall no
longer be Designated Immaterial Subsidiaries. Any
entity which has been designated a Designated Immaterial
Subsidiary shall not thereafter become a Restricted
Subsidiary except pursuant to a designation required by
the last proviso in the preceding sentence, and any
Designated Immaterial Subsidiary which has been
designated a Restricted Subsidiary pursuant to the last
proviso of the preceding sentence shall not thereafter
be redesignated as a Designated Immaterial Subsidiary.
"Designated Repurchases" means and includes
purchases, redemptions or other acquisitions, in each
case at a price not to exceed fair market value, of the
publicly traded limited partnership interests in the
Company, which are retired by the Company within six
months of such purchase, redemption or other
acquisition.
"Desired Percentage" means 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 Loans.
"Distribution Support Agreement" means the
Distribution Support Agreement, dated as of June 8, 1989
between the Company and Burlington Resources Inc.
"Dollars", "dollars" and "$" each mean lawful money
of the United States.
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19
"Domestic Lending Office" means, with respect to
each Bank, the office of that Bank designated as such in
the signature pages hereto or such other office of the
Bank as it may from time to time specify to the Company
and the Agent.
"DPI Borrower" has the meaning specified in
Section 9.08.
"EBITDA" means, for any period, for the Company and
its Subsidiaries on a combined basis, determined in
accordance with GAAP, the sum of (a) the net income (or
net loss) for such period, plus (b) all amounts treated
as expenses for depreciation, depletion and interest and
the amortization of intangibles of any kind to the
extent included in the determination of such net income
(or loss), plus (c) all adjustments arising by virtue of
the conversion from average cost accounting to a LIFO
basis with respect to inventory to the extent included
in the determination of such net income, plus (d) all
accrued taxes on or measured by income to the extent
included in the determination of such net income (or
loss); provided, however, that net income (or loss)
shall be computed for these purposes without giving
effect to extraordinary losses or extraordinary gains.
"Effective Date" means the later to occur of the
Closing Date or November 1, 1993.
"Eligible Assignee" means (i) a commercial bank
organized under the laws of the United States, or any
state thereof, and having a combined capital and surplus
of at least $250,000,000; (ii) a commercial bank
organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of
any such country, and having a combined capital and
surplus of at least $250,000,000, provided that such
bank is acting through a branch or agency located in the
United States; and (iii) a Person that is primarily
engaged in the business of commercial banking and that
is (A) a Subsidiary of a Bank, (B) a Subsidiary of a
Person of which a Bank is a Subsidiary, or (C) a Person
of which a Bank is a Subsidiary.
"Environmental Claims" means all claims, however
asserted, by any Governmental Authority or other Person
alleging potential liability or responsibility for
violation of any Environmental Law, or for release or
injury to the environment or threat to public health,
personal injury (including sickness, disease or death),
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20
property damage, natural resources damage, or otherwise
alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or
response costs, restitution, civil or criminal
penalties, injunctive relief, or other type of relief,
resulting from or based upon (a) the presence,
placement, discharge, emission or release (including
intentional and unintentional, negligent and non-
negligent, sudden or non-sudden, accidental or non-
accidental placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in,
or from Property, whether or not owned by such person,
or (b) any other circumstances forming the basis of any
violation, or alleged violation, of any Environmental
Law.
"Environmental Laws" means all federal, state or
local laws, statutes, common law duties, rules,
regulations, ordinances and codes, together with all
administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements
with, any Governmental Authorities, in each case
relating to environmental, health, safety, land use,
conservation, and timber harvesting matters; including,
but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980
("CERCLA"), the Clean Air Act, the Federal Water
Pollution Control Act of 1972, the Solid Waste Disposal
Act, the Federal Resource Conservation and Recovery Act,
the Toxic Substances Control Act, the Emergency Planning
and Community Right-to-Know Act.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and
regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business
(whether or not incorporated) under common control with
the Company within the meaning of Section 414(b) or
414(c) of the Code.
"ERISA Event" means (a) a Reportable Event with
respect to a Qualified Plan or a Multiemployer Plan;
(b) a withdrawal by the Company or any ERISA Affiliate
from a Qualified Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA);
(c) a complete or partial withdrawal by the Company or
any ERISA Affiliate from a Multiemployer Plan; (d) the
filing of a notice of intent to terminate, the treatment
of a plan amendment as a termination under Section 4041
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21
or 4041A of ERISA or the commencement of proceedings by
the PBGC to terminate a Qualified Plan or Multiemployer
Plan subject to Title IV of ERISA; (e) a failure by the
Company or any ERISA Affiliate to make required
contributions to a Qualified Plan or Multiemployer Plan;
(f) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a
trustee to administer, any Qualified Plan or
Multiemployer Plan; (g) the imposition of any liability
under Title IV of ERISA, other than PBGC premiums due
but not delinquent under Section 4007 of ERISA, upon the
Company or any ERISA Affiliate; (h) an application for a
funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code with respect
to any Plan; (i) a non-exempt prohibited transaction
occurs with respect to any Plan for which the Company
may be directly or indirectly liable; or (j) a violation
of the applicable requirements of Section 404 or 405 of
ERISA or the exclusive benefit rule under Section 401(a)
of the Code by any fiduciary or disqualified person with
respect to any Plan for which the Company may be
directly or indirectly liable.
"Eurodollar Reserve Percentage" has the meaning
specified in the definition of "Offshore Rate".
"Event of Default" means any of the events or
circumstances specified in Section 8.01.
"Event of Loss" means, with respect to any
Property, any of the following: (a) any loss,
destruction or damage of such Property; (b) any pending
or threatened institution of any proceedings for the
condemnation or seizure of such Property or for the
exercise of any right of eminent domain; or (c) any
actual condemnation, seizure or taking, by exercise of
the power of eminent domain or otherwise, of such
Property, or confiscation of such Property or the
requisition of the use of such Property.
"Exchange Act" means the Securities and Exchange
Act of 1934, as amended, and regulations promulgated
thereunder.
"Facilities Subsidiary" means, collectively, Plum
Creek Manufacturing, L.P., a Delaware limited
partnership, and Plum Creek Marketing, Inc., a Delaware
corporation,
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22
"Facilities Subsidiary's Facility" means any
facility pursuant to which the Facilities Subsidiary may
incur Indebtedness for purposes of making capital
improvements, additions to, or expansions of, property,
plant and equipment of the Facilities Subsidiary or its
Subsidiaries.
"Facilities Subsidiary's Revolving Credit Facility"
means any facility pursuant to which the Facilities
Subsidiary may obtain revolving credit, take-down
credit, the issuance of standby and payment letters of
credit and backup for the issuance of commercial paper.
"FDIC" means the Federal Deposit Insurance
Corporation, or any entity succeeding to any of its
principal functions.
"Federal Funds Rate" means, for any period, the
rate set forth in the weekly statistical release
designated as H.15(519), or any successor publication,
published by the Federal Reserve Board (including any
such successor, "H.15(519)") for such day opposite the
caption "Federal Funds (Effective)". If on any relevant
day such rate is not yet published in H.15(519), the
rate for such day will be the rate set forth in the
daily statistical release designated as the Composite
3:30 p.m. Quotations for U.S. Government Securities, or
any successor publication, published by the Federal
Reserve Bank of New York (including any such successor,
the "Composite 3:30 p.m. Quotation") for such day under
the caption "Federal Funds Effective Rate". If on any
relevant day the appropriate rate for such previous day
is not yet published in either H.15(519) or the
Composite 3:30 p.m. Quotations, the rate for such day
will be the arithmetic mean as determined by the Agent
of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York
time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by
the Agent.
"Federal Reserve Board" means the Board of
Governors of the Federal Reserve System, or any entity
succeeding to any of its principal functions.
"Form 1001" has the meaning specified in
subsection 3.01(f).
"Form 4224" has the meaning specified in
subsection 3.01(f).
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23
"Funded Debt" means, without duplication, any
Indebtedness payable more than one year from the date of
the creation thereof.
"Funds Flow" means, for any period, (a) EBITDA for
the period less (b) the sum of (i) taxes paid in cash
during the period by the Company and its combined
Subsidiaries that are not already excluded in the
calculation of EBITDA, plus (ii) capital expenditures of
the Company and its combined Subsidiaries for the
period.
"Funds Flow Ratio" means, as of the date of
determination, the ratio of (a) Funds Flow to
(b) combined Indebtedness of the Company and its
Subsidiaries.
"GAAP" means generally accepted accounting
principles set forth from time to time in the opinions
and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public
Accountants and statements and pronouncements of the
Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority
within the accounting profession), or in such other
statements by such other entity as may be in general use
by significant segments of the U.S. accounting
profession, which are applicable to the circumstances as
of the date of determination.
"General Partner" means Plum Creek Management
Company, L.P., a Delaware limited partnership, the
managing general partner of the Company, and any
successor managing general partner of the Company.
"Governmental Authority" means any nation or
government, any state or other political subdivision
thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled,
through stock or capital ownership or otherwise, by any
of the foregoing.
"GP Borrower" has the meaning specified in
Section 9.08.
"Guarantee" means the guarantee in paragraph 7 of
the Mortgage Note Agreements.
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24
"Hazardous Materials" means all those substances
which are regulated by, or which may form the basis of
liability under, any Environmental Law, including all
substances identified under any Environmental Law as a
pollutant, contaminant, hazardous waste, hazardous
constituent, special waste, hazardous substance,
hazardous material, or toxic substance, or petroleum or
petroleum derived substance or waste.
"Indebtedness" of any Person means, as of any date
of determination, without duplication, (a) all
indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services,
(b) all amounts owed by such Person to banks or other
Persons in respect of reimbursement obligations under
letters of credit, surety bonds, banker's acceptances
and other similar instruments guaranteeing payment or
other performance of obligations by such Person, (c) all
indebtedness for borrowed money or for the deferred
purchase price of property or services secured by any
Lien on any property owned by such Person, to the extent
attributable to such Person's interest in such property,
even though such Person has not assumed or become liable
for the payment thereof, (d) lease obligations of such
Person which, in accordance with GAAP, should be
capitalized, (e) lease obligations of such Person under
leases which have a term (including any option to renew
exercisable at the discretion of the lessee thereunder)
longer than 10 years or under leases under which the
lessor, pursuant to an agreement with such Person, has
acquired the property specifically for the purpose of
leasing it to such Person, (f) obligations payable out
of the proceeds of production from property of such
Person, even though such Person has not assumed or
become liable for the payment thereof, (g) all net
obligations with respect to Rate Contracts, and (h) any
obligations of any other Person of the type described in
the above clauses (a) through (g), inclusive, which are
guaranteed or in effect guaranteed by such Person
through any agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds
for the payment or discharge of such obligation (whether
in the form of loans, advances, stock purchases, capital
contributions or otherwise), or to maintain the solvency
or any balance sheet or other financial condition of the
obligor of such obligation, or to make payment for any
property, securities, products, materials or supplies or
for any transportation or services regardless of the
non-delivery or nonfurnishing thereof, in any such case
if the purpose or intent of such agreement is to provide
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25
assurance that such obligation will be paid or
discharged, or that any agreements relating thereto will
be complied with, or that the holders of such obligation
will be protected against loss in respect thereof or to
otherwise assure or hold harmless the holder of any
primary obligation against loss in respect thereof. The
amount of any obligations of the type described in
clause (h) of this definition shall be deemed equal to
the stated or determinable amount of the primary
obligation in respect of which such obligation is made
or, if not stated or if not determinable, the maximum
reasonably anticipated liability in respect thereof.
The amount of any obligations of the type described in
clause (g) of this definition shall be marked to market
on a current basis in accordance with GAAP.
"Indemnified Person" has the meaning specified in
subsection 10.05.
"Indemnified Liabilities" has the meaning specified
in subsection 10.05.
"Insolvency Proceeding" means (a) any case, action
or proceeding before any court or other Governmental
Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general
assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any
substantial portion of its creditors; in each case
(a) and (b) undertaken under U.S. Federal, State or
foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, with respect to any
CD Rate Loan or Offshore Rate Loan, the last day of each
Interest Period applicable to such Loan and, with
respect to Base Rate Loans, the last Business Day of
each calendar quarter and each date a Base Rate Loan is
converted into an Offshore Rate Loan or a CD Rate Loan,
provided, however, that if any Interest Period for a CD
Rate Loan or Offshore Rate Loan exceeds 90 days or three
months, respectively, the date which falls 90 days or
three months (as the case may be) after the beginning of
such Interest Period and after each Interest Payment
Date thereafter shall also be an Interest Payment Date.
"Interest Period" means, (a) with respect to any
Offshore Rate Loan, the period commencing on the
Business Day the Loan is disbursed or continued or on
the Conversion Date on which the Loan is converted to
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26
the Offshore Rate Loan and ending on the date one, two,
three or six months thereafter, as selected by the
Company in its Notice of Borrowing or Notice of
Conversion/Continuation; and (b) with respect to any CD
Rate Loan, the period commencing on the Business Day the
CD Rate Loan is disbursed or continued or on the
Conversion Date on which a Loan is converted to the CD
Rate Loan and ending 30, 60, 90 or 180 days thereafter,
as selected by the Company in its Notice of Borrowing or
Notice of Conversion/Continuation;
provided that:
(i) if any Interest Period pertaining to an
Offshore Rate Loan or CD Rate Loan would otherwise
end on a day which is not a Business Day, that
Interest Period shall be extended to the next
succeeding Business Day unless, in the case of an
Offshore Rate Loan, the result of such extension
would be to carry such Interest Period into another
calendar month, in which event such Interest Period
shall end on the immediately preceding Business
Day;
(ii) any Interest Period pertaining to an
Offshore Rate Loan that begins on the last Business
Day of a calendar month (or on a day for which
there is no numerically corresponding day in the
calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar
month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall
extend beyond the Maturity Date.
"Investment Policy" means the Corporate Investment
Policy of the Company, as it existed on April 5, 1993
and as attached hereto as Schedule 1.01 (without giving
effect to any later amendments thereto).
"Investments" has the meaning specified in
Section 7.04.
"Joint Venture" means a partnership, joint venture
or other similar legal arrangement (whether created
pursuant to contract or conducted through a separate
legal entity) now or hereafter formed by the Company or
any of its Restricted Subsidiaries with another Person
in order to conduct a common venture or enterprise with
such Person.
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27
"Lending Office" means, with respect to any Bank,
the office or offices of the Bank specified as its
"Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, opposite
its name on the applicable signature page hereto, or
such other office or offices of the Bank as it may from
time to time notify the Company and the Agent.
"Lien" means any mortgage, pledge, security
interest, encumbrance, lien, preference or priority or
charge of any kind (including any agreement to give any
of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature thereof,
and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any
jurisdiction).
"Loan" means an extension of credit by a Bank to
the Company pursuant to Article II, and may be a Base
Rate Loan, CD Rate Loan or an Offshore Rate Loan.
"Loan Documents" means this Agreement and all
documents delivered to the Agent pursuant to this
Agreement.
"Majority Banks" means at any time Banks then
holding at least 66-2/3% of the then aggregate unpaid
principal amount of the Loans, or, if no such principal
amount is then outstanding, Banks then having at least
66-2/3% of the Commitments.
"Mandatory Commitment Reduction" has the meaning
specified in Section 2.07.
"Mandatory Commitment Reduction Date" has the
meaning specified in Section 2.07.
"Margin Reduction Discount" has the meaning
specified in Section 2.09.
"Margin Stock" means "margin stock" as such term is
defined in Regulation G, T, U or X of the Federal
Reserve Board.
"Material Adverse Effect" means (a) a material
adverse change in, or a material adverse effect upon,
any of the operations, business, properties, condition
(financial or otherwise) or prospects of the Company or
the Company and its Subsidiaries taken as a whole or as
to any Restricted Subsidiary; (b) a material impairment
of the ability of the Company to perform under any Loan
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Document and avoid any Event of Default; or (c) a
material adverse effect upon the legality, validity,
binding effect or enforceability of any Loan Document.
"Material Default" means any continuing Default as
to which a written notice of such Default (which notice
has not been rescinded) shall have been received by the
Company or the General Partner from the Agent or any
Bank, or any continuing Event of Default.
"Maturity Date" means November 1, 2001.
"Maximum Pro Forma Annual Interest Charges" means,
as of any date, the highest total amount payable during
any period of four consecutive fiscal quarters,
commencing with the fiscal quarter in which such date
occurs and ending with the fiscal quarter in which the
Maturity Date occurs, by the Company and its Restricted
Subsidiaries on a combined basis, after eliminating all
intercompany transactions, in respect of interest
charges ((a) including amortization of debt discount and
expense and imputed interest on Capital Lease
Obligations and on other obligations included in
Indebtedness which do not have stated interest,
(b) assuming, in the case of fluctuating interest rates
which cannot be determined in advance, that the rate in
effect on such date will remain in effect throughout
such period, and (c) treating the principal amount of
all Indebtedness outstanding as of such date under a
revolving credit or similar agreement as maturing and
becoming due and payable on the scheduled maturity date
thereof, without regard to any provision permitting such
maturity date to be extended) on all Indebtedness of the
Company and its Restricted Subsidiaries outstanding on
such date (excluding the Guarantee and the guarantees of
the Facilities Subsidiary's Facility and the Facilities
Subsidiary's Revolving Credit Facility but including, to
the extent not already included, all other Indebtedness
outstanding on such date which is guaranteed or in
effect guaranteed by the Company or any Restricted
Subsidiaries), after giving effect to any Indebtedness
proposed to be created on such date and to the
concurrent retirement of any other Indebtedness.
"MMBF" means one million Board Feet.
"Montana Timberlands" means those certain
approximately 870,000 acres of timberlands located in
Montana together with certain personal properties, owned
by Champion International Corporation, and to be
acquired by the Company.
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"Mortgage Note Agreements" means the Note
Agreements, dated as of May 31, 1989, providing for the
issuance and sale by the Facilities Subsidiary of its
11 1/8% First Mortgage Notes to the purchasers listed in
the schedule of purchasers attached thereto, as amended
by (a) those certain Mortgage Note Agreement Amendment,
Consent and Waivers dated as of January 1, 1991,
(b) that certain letter agreement dated April 22, 1993,
and (c) that certain Mortgage Note Agreement Amendment
dated as of September 1, 1993.
"Mortgage Notes" means the 11 1/8% First Mortgage
Notes of the Facilities Subsidiary issued and sold
pursuant to the Mortgage Note Agreements.
"Multiemployer Plan" means a "multiemployer plan"
(within the meaning of Section 4001(a)(3) of ERISA) and
to which any ERISA Affiliate makes, is making, or is
obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to
make, contributions.
"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 or any Affiliate of the
Company, (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 Indebtedness
secured by a Lien on the asset which is the subject of
such disposition.
"Notes" means those certain senior promissory notes
in the aggregate principal amount of $165,000,000 issued
and pursuant to the Note Agreements.
"Note Agreements" means those certain Note
Agreements dated as of May 31, 1989, providing for the
issuance and sale by the Company of the Notes to the
purchasers listed in the schedule of purchasers attached
thereto, as amended by (a) those certain Senior Note
Agreement Amendment, Consent and Waivers dated as of
January 1, 1991, (b) that certain letter agreement dated
April 22, 1993, and (c) that certain Senior Note
Agreement Amendment dated as of September 1, 1993.
"Notice of Borrowing" means a notice given by the
Company to the Agent pursuant to Section 2.03, in
substantially the form of Exhibit A.
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"Notice of Conversion/Continuation" means a notice
given by the Company to the Agent pursuant to
Section 2.04, in substantially the form of Exhibit B.
"Notice of Lien" means any "notice of lien" or
similar document intended to be filed or recorded with
any court, registry, recorder's office, central filing
office or other Governmental Authority for the purpose
of evidencing, creating, perfecting or preserving the
priority of a Lien securing obligations owing to a
Governmental Authority.
"Obligations" means all Loans, and other
Indebtedness, advances, debts, liabilities, obligations,
covenants and duties owing by the Company to any Bank,
the Agent, or any other Person required to be
indemnified, that arises under any Loan Document,
whether or not for the payment of money, whether arising
by reason of an extension of credit, loan, guaranty,
indemnification or in any other manner, whether direct
or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired.
"Offshore Lending Office" means with respect to
each Bank, the office of such Bank designated as such in
the signature pages hereto or such other office of such
Bank as such Bank may from time to time specify to the
Company and the Agent.
"Offshore Rate" means, for each Interest Period in
respect of Offshore Rate Loans comprising part of the
same Borrowing, an interest rate per annum (rounded
upward to the nearest 1/16th of 1%) determined pursuant
to the following formula:
Offshore Rate = IBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any
day for any Interest Period the reserve percentage
(expressed as a decimal, rounded upward to the
nearest 1/100th of 1%) in effect for such day under
regulations issued from time to time by the Federal
Reserve Board for determining the reserve
requirement (including any emergency, supplemental
or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as
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"Eurocurrency liabilities") having a term
comparable to such Interest Period; and
"IBOR" means the rate of interest per annum
determined by the Agent as the rate at which dollar
deposits in the approximate amount of BofA's
Offshore Rate Loan and having a maturity comparable
to such Interest Period would be offered by BofA's
Grand Cayman Branch, Grand Cayman B.W.I. (or such
other office as may be designated for such purpose
by BofA), to major banks in the offshore dollar
interbank market upon request of such banks at
approximately 11:00 a.m. (New York City time) two
Business Days prior to the commencement of such
Interest Period.
The Offshore Rate shall be adjusted
automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears
interest based on the Offshore Rate.
"Operating Lease" means, as applied to any Person,
any lease of Property which is not a Capital Lease.
"Ordinary Course of Business" means, in respect of
any transaction involving the Company or any Subsidiary
of the Company, the ordinary course of such Person's
business, as conducted by any such Person in accordance
with past practice and undertaken by such Person in good
faith and not for purposes of evading any covenant or
restriction in any Loan Document.
"Organization Documents" means, for any
corporation, the certificate or articles of
incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of
preferred shareholders of such corporation, any
shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee
thereof) of such corporation; and, for any limited
partnership, the certificate of limited partnership, the
limited partnership agreement, and all applicable
partnership resolutions.
"Other Taxes" has the meaning specified in
subsection 3.01(b).
"Participant" has the meaning specified in
subsection 10.08(d).
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"Partnership Agreement" means the Amended and
Restated Agreement of Limited Partnership of the
Company, as in effect on the Closing Date, and as the
same may, from time to time, be amended, modified or
supplemented in accordance with the terms thereof.
"Partner Entities" means the General Partner, the
PCMC General Partner and the PC Advisory General
Partner.
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any of its
principal functions under ERISA.
"PC Advisory General Partner" means PC Advisory
Corp. I, a Delaware corporation, the managing general
partner of the PCMC General Partner, and any successor
managing general partner of the PCMC General Partner.
"PCMC General Partner" means PC Advisory Partners
I, L.P., a Delaware limited partnership, the managing
general partner of the General Partner, and any
successor managing general partner of the General
Partner.
"Permitted Business" means any business engaged in
by the Company or the Facilities Subsidiary on the
Closing Date, and any business substantially similar or
related to any such business, which shall not include
pulp or paper manufacturing.
"Permitted Liens" has the meaning specified in
Section 7.01.
"Person" means an individual, partnership,
corporation, business trust, joint stock company, trust,
unincorporated association, joint venture or
Governmental Authority.
"Plan" means an employee benefit plan (as defined
in Section 3(3) of ERISA) which the Company or any ERISA
Affiliate sponsors or maintains or to which the Company
or any ERISA Affiliate makes, is making or is obligated
to make contributions, and includes any Multiemployer
Plan or Qualified Plan.
"Pro Forma Free Cash Flow" as of any date means
(i) net income of the Company and its Restricted
Subsidiaries on a pro forma combined basis (excluding
(a) gain on the sale of any Capital Asset, (b) non-cash
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33
items of income, and (c) any distributions or other
income received from, or equity of the Company or any
Restricted Subsidiary in the earnings of, any entity
which is not a Restricted Subsidiary) for the period of
four consecutive fiscal quarters immediately prior to
such date determined in accordance with GAAP plus
depreciation, depletion, amortization and other noncash
charges, interest expense on Indebtedness and provision
for income taxes, minus (ii) capital expenditures made
by the Company and its Restricted Subsidiaries during
such period of four consecutive fiscal quarters to
maintain their respective operations.
"Property" means any estate or interest in any kind
of property or asset, whether real, personal or mixed,
and whether tangible or intangible.
"Qualified Debt" means, as to the Company, as of
any date of determination, without duplication, all
outstanding indebtedness of the Company for borrowed
money, including, without limitation, Indebtedness
represented by the Notes and this Agreement.
"Qualified Plan" means a pension plan (as defined
in Section 3(2) of ERISA) intended to be tax-qualified
under Section 401(a) of the Code and which any ERISA
Affiliate sponsors, maintains, or to which it makes, is
making or is obligated to make contributions, or in the
case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any
time during the immediately preceding period covering at
least five (5) plan years, but excluding any
Multiemployer Plan.
"Rate Contracts" means swap agreements (as such
term is defined in Section 101 of the Bankruptcy Code)
and any other agreements or arrangements designed to
provide protection against fluctuations in interest or
currency exchange rates.
"Reportable Event" means, as to any Plan, (a) any
of the events set forth in Section 4043(b) of ERISA or
the regulations thereunder, other than any such event
for which the 30-day notice requirement under ERISA has
been waived in regulations issued by the PBGC, (b) a
withdrawal from a Plan described in Section 4063 of
ERISA, or (c) a cessation of operations described in
Section 4062(e) of ERISA.
"Requirement of Law" means, as to any Person, any
law (statutory or common), treaty, rule or regulation or
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34
determination of an arbitrator or of a Governmental
Authority, in each case applicable to or binding upon
the Person or any of its property or to which the Person
or any of its property is subject.
"Responsible Officer" means the chief executive
officer, the president or any vice president of the
General Partner, or any other officer having
substantially the same authority and responsibility; or,
with respect to compliance with financial covenants, the
chief financial officer or the treasurer of the General
Partner, or any other officer having substantially the
same authority and responsibility.
"Responsible Representatives" means (a) in the case
of any transaction in which the value of any assets
disposed of or received have a value of less than
$5,000,000 or in which payments made are less than
$5,000,000, the chief executive officer, chief financial
officer or chief operating officer of the Company, and
(b) in the case of any other transaction, the Board of
Directors of the PC Advisory General Partner.
"Restricted Payment" means (a) any payment or other
distribution, direct or indirect, in respect of any
partnership interest in the Company, except a
distribution payable solely in additional partnership
interests in the Company, and (b) any payment, direct or
indirect, on account of the redemption, retirement,
purchase or other acquisition of any partnership
interest in the Company including, without limitation,
any Designated Repurchases; or, if the Company is at any
time reorganized as or changed (by merger, sale of
assets or otherwise) into a corporation, (i) any
dividend or other distribution, direct or indirect, on
account of any shares of any class of stock of the
Company now or hereafter outstanding, except a dividend
payable solely in shares of stock of the Company, and
(ii) any redemption, retirement, purchase or other
acquisition, direct or indirect, of any shares of any
class of stock of the Company, now or hereafter
outstanding, or of any warrants, rights or options to
acquire any such shares, except to the extent that the
consideration therefor consists of shares of stock of
the Company.
"Restricted Subsidiary" means any Wholly-Owned
Subsidiary other than (a) any Designated Immaterial
Subsidiary and (b) the Facilities Subsidiary or any
Subsidiary directly or indirectly owned by the
Facilities Subsidiary, provided that after the Mortgage
Notes shall have been paid in full and retired, the
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35
Facilities Subsidiary and its Subsidiaries shall become
and be Restricted Subsidiaries.
"Revolving Credit Facility" means any facility
pursuant to which the Company may obtain revolving
credit, take-down credit, the issuance of standby and
payment letters of credit and back-up for the issuance
of commercial paper, other than that established
pursuant to this Agreement.
"Revolving Termination Date" means the earlier to
occur of:
(a) the Maturity Date; and
(b) the date on which the Aggregate
Commitment shall terminate in accordance with the
provisions of this Agreement.
"SEC" means the Securities and Exchange Commission,
or any entity succeeding to any of its principal
functions.
"Solvent" means, as to any Person at any time, that
(a) the fair value of the Property of such Person is
greater than the amount of such Person's liabilities
(including disputed, contingent and unliquidated
liabilities) as such value is established and
liabilities evaluated for purposes of Section 101(31) of
the Bankruptcy Code and, in the alternative, for
purposes of the Uniform Fraudulent Transfer Act; (b) the
present fair saleable value of the Property of such
Person is not less than the amount that will be required
to pay the probable liability of such Person on its
debts as they become absolute and matured; (c) such
Person is able to realize upon its Property and pay its
debts and other liabilities (including disputed,
contingent and unliquidated liabilities) as they mature
in the normal course of business; (d) such Person does
not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay
as such debts and liabilities mature; and (e) such
Person is not engaged in business or a transaction, and
is not about to engage in business or a transaction, for
which such Person's property would constitute
unreasonably small capital.
"SPUs" has the meaning specified in the Partnership
Agreement.
"Subsidiary" of a Person means any corporation,
partnership or other entity a majority of (i) the total
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36
combined voting power of all classes of Voting Stock of
which or (ii) the outstanding equity interests of which
shall, at the time of which any determination is being
made, be owned by the Company either directly or through
Subsidiaries.
"Taxes" has the meaning specified in
subsection 3.01(a).
"Timber" means standing trees not yet harvested.
"Timberlands" means the timberlands owned by the
Company as of the Closing Date and any timberlands
acquired by the Company or any Subsidiary after the
Closing Date.
"Transferee" has the meaning specified in
subsection 10.08(e).
"UCC" means the Uniform Commercial Code as in
effect in the State of California.
"Unfunded Pension Liabilities" means the excess of
a Plan's benefit liabilities under Section 4001(a)(16)
of ERISA, over the current value of that Plan's assets,
determined in accordance with the assumptions used by
the Plan's actuaries for funding the Plan pursuant to
section 412 for the applicable plan year.
"United States" and "U.S." each means the United
States of America.
"Voting Stock" means, with respect to any
corporation or other entity, any shares of stock or
other ownership interests of such corporation or entity
whose holders are entitled under ordinary circumstances
to vote for the election of directors of such
corporation or to manage any such other entity
(irrespective of whether at the time stock or ownership
interests of any other class or classes shall have or
might have voting power by reason of the happening of
any contingency).
"Western Europe" means Austria, Belgium, Denmark,
Finland, France, Great Britain, Greece, Iceland,
Ireland, Italy, the Netherlands, Norway, Portugal,
Spain, Sweden, Switzerland and Germany.
"Wholly-Owned Subsidiary" means any Subsidiary
organized under the laws of any state of the United
States which conducts the major portion of its business
in the United States, and all of the stock or other
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37
ownership interests of every class of which, except
director's qualifying shares, and except in the case of
the Facilities Subsidiary not more than 5% of the
outstanding Voting Stock shall, at the time as of which
any determination is being made, be owned by the Company
either directly or through Wholly-Owned Subsidiaries.
"Withdrawal Liabilities" means, as of any
determination date, the aggregate amount of the
liabilities, if any, pursuant to Section 4201 of ERISA
if the Controlled Group made a complete withdrawal from
all Multiemployer Plans and any increase in
contributions pursuant to Section 4243 of ERISA.
1.02 Other Interpretive Provisions.
(a) Defined Terms. Unless otherwise specified
herein or therein, all terms defined in this Agreement shall
have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto. The
meaning of defined terms shall be equally applicable to the
singular and plural forms of the defined terms. Terms
(including uncapitalized terms) not otherwise defined herein
and that are defined in the UCC shall have the meanings
therein described.
(b) The Agreement. The words "hereof", "herein",
"hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement; and
subsection, section, schedule and exhibit references are to
this Agreement unless otherwise specified.
(c) Certain Common Terms.
(i) The term "documents" includes any and
all instruments, documents, agreements, certificates,
indentures, notices and other writings, however
evidenced.
(ii) The term "including" is not limiting and
means "including without limitation."
(d) Performance; Time. Whenever any performance
obligation hereunder (other than a payment obligation) shall
be stated to be due or required to be satisfied on a day
other than a Business Day, such performance shall be made or
satisfied on the next succeeding Business Day. In the
computation of periods of time from a specified date to a
later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and including".
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38
If any provision of this Agreement refers to any action
taken or to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be interpreted
to encompass any and all means, direct or indirect, of
taking, or not taking, such action.
(e) Contracts. Unless otherwise expressly
provided herein, references to agreements and other
contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications
are not prohibited by the terms of any Loan Document.
(f) Laws. References to any statute or regulation
are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation.
(g) Captions. The captions and headings of this
Agreement are for convenience of reference only and shall
not affect the interpretation of this Agreement.
(h) Independence of Provisions. The parties
acknowledge that this Agreement and other Loan Documents may
use several different limitations, tests or measurements to
regulate the same or similar matters, and that such
limitations, tests and measurements are cumulative and must
each be performed, except as expressly stated to the
contrary in this Agreement.
(i) Interpretation. This Agreement is the result
of negotiations among and has been reviewed by counsel to
the Agent, the Company and other parties, and is the product
of all parties hereto. Accordingly, this Agreement and the
other Loan Documents shall not be construed against the
Banks or the Agent merely because of the Agent's or Banks'
involvement in the preparation of such documents and
agreements.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires,
all accounting terms not expressly defined herein shall be
construed, and all financial computations required under
this Agreement shall be made, in accordance with GAAP,
consistently applied.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of the Company.
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39
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. Each Bank
severally agrees, on the terms and conditions hereinafter
set forth, to make loans to the Company from time to time on
any Business Day during the period from the Effective Date
to the Revolving Termination Date, in an aggregate amount
not to exceed at any time outstanding the amount set forth
opposite the Bank's name in Schedule 2.01 under the heading
"Commitment" (such amount as the same may be reduced
pursuant to Section 2.05 or Section 2.07), or as a result of
one or more assignments pursuant to Section 10.08, the
Bank's "Commitment"); provided, however, that, after giving
effect to any Borrowing of Loans, the aggregate principal
amount of all outstanding Loans shall not exceed the
Aggregate Commitment. Within the limits of each Bank's
Commitment, and subject to the other terms and conditions
hereof, the Company may borrow under this Section 2.01,
prepay pursuant to Section 2.06 and reborrow pursuant to
this Section 2.01.
2.02 Loan Accounts. The Loans made by each Bank shall
be evidenced by one or more loan accounts maintained by such
Bank in the ordinary course of business. The loan accounts
or records maintained by the Agent and each Bank shall be
conclusive absent manifest error of the amount of the Loans
made by the Banks to the Company and the interest and
payments thereon. Any failure so to record or any error in
doing so shall not, however, limit or otherwise affect the
obligation of the Company hereunder to pay any amount owing
with respect to the Loans.
2.03 Procedure for Borrowing.
(a) Each Borrowing shall be made upon the
Company's irrevocable written notice delivered to the Agent
in accordance with Section 10.02 in the form of a Notice of
Borrowing (which notice must be received by the Agent prior
to 9:00 a.m. (San Francisco time) (i) three Business Days
prior to the requested Borrowing date, in the case of
Offshore Rate Loans; (ii) three Business Days prior to the
requested Borrowing date, in the case of CD Rate Loans, and
(iii) on the requested Borrowing date, in the case of Base
Rate Loans, specifying:
(A) the amount of the Borrowing, which
shall be in an aggregate minimum principal amount
of five million dollars ($5,000,000) or any
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40
multiple of one million dollars ($1,000,000) in
excess thereof;
(B) the requested Borrowing date, which
shall be a Business Day;
(C) whether the Borrowing is to be
comprised of Offshore Rate Loans, CD Rate Loans or
Base Rate Loans;
(D) the duration of the Interest Period
applicable to such Loans included in such notice.
If the Notice of Borrowing shall fail to specify
the duration of the Interest Period for any
Borrowing comprised of CD Rate Loans or Offshore
Rate Loans, such Interest Period shall be 90 days
or three months, respectively.
(b) Upon receipt of the Notice of Borrowing, the
Agent will promptly notify each Bank thereof and of the
amount of such Bank's Commitment Percentage of the
Borrowing.
(c) Each Bank will make the amount of its
Commitment Percentage of the Borrowing available to the
Agent for the account of the Company at the Agent's Payment
Office by 12:00 noon (San Francisco time) on the Borrowing
date requested by the Company in funds immediately available
to the Agent. The proceeds of all such Loans will then be
made available to the Company by the Agent at such office by
crediting the account of the Company on the books of BofA
with the aggregate of the amounts made available to the
Agent by the Banks and in like funds as received by the
Agent.
(d) Unless the Majority Banks shall otherwise
agree, during the existence of a Default or Event of
Default, the Company may not elect to have a Loan be made
as, or converted into or continued as, an Offshore Rate Loan
or a CD Rate Loan.
(e) After giving effect to any Borrowing, there
shall not be more than five different Interest Periods in
effect.
2.04 Conversion and Continuation Elections.
(a) The Company may upon irrevocable written
notice to the Agent in accordance with subsection 2.04(b):
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(i) elect to convert on any Business Day,
any Base Rate Loans (or any part thereof in an amount
not less than $5,000,000, or that is in an integral
multiple of $1,000,000 in excess thereof) into Offshore
Rate Loans or CD Rate Loans or;
(ii) elect to convert on the last day of the
applicable Interest Period any Offshore Rate Loans
having Interest Periods maturing on such day (or any
part thereof in an amount not less than $5,000,000, or
that is in an integral multiple of $1,000,000 in excess
thereof) into CD Rate Loans or Base Rate Loans;
(iii) elect to convert on the last day of the
applicable Interest Period any CD Rate Loans having
Interest Periods maturing on such day (or any part
thereof in an amount not less than $5,000,000, or that
is in an integral multiple of $1,000,000 in excess
thereof) into Offshore Rate Loans or Base Rate Loans; or
(iv) elect to renew on the last day of the
applicable Interest Period any Offshore Rate Loans or CD
Rate Loans having Interest Periods maturing on such day
(or any part thereof in an amount not less than
$5,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof);
provided, that if the aggregate amount of CD Rate Loans or
Offshore Rate Loans in respect of any Borrowing shall have been
reduced, by payment, prepayment, or conversion of part thereof
to be less than $1,000,000, such CD Rate Loans or Offshore Rate
Loans shall automatically convert into Base Rate Loans, and on
and after such date the right of the Company to continue such
Loans as, and convert such Loans into, Offshore Rate Loans or CD
Rate Loans, as the case may be, shall terminate.
(b) The Company shall deliver a Notice of Conversion/
Continuation in accordance with Section 10.02 to be received by
the Agent not later than 9:00 a.m. (San Francisco time) (i) at
least three Business Days in advance of the Conversion Date or
continuation date, if the Loans are to be converted into or
continued as Offshore Rate Loans; (ii) at least three Business
Days in advance of the Conversion Date or continuation date, if
the Loans are to be converted into or continued as CD Rate
Loans; and (iii) on the Conversion Date, if the Loans are to be
converted into Base Rate Loans, specifying:
(A) the proposed Conversion Date or
continuation date;
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(B) the aggregate amount of Loans to be
converted or renewed;
(C) the nature of the proposed
conversion or continuation; and
(D) the duration of the requested
Interest Period.
(c) If upon the expiration of any Interest Period
applicable to CD Rate Loans or Offshore Rate Loans, the
Company has failed to select timely a new Interest Period to
be applicable to such CD Rate Loans or Offshore Rate Loans,
as the case may be, or if any Default or Event of Default
shall then exist, the Company shall be deemed to have
elected to convert such CD Rate Loans or Offshore Rate Loans
into Base Rate Loans effective as of the expiration date of
such current Interest Period.
(d) Upon receipt of a Notice of Conversion/
Continuation, the Agent will promptly notify each Bank
thereof, or, if no timely notice is provided by the Company,
the Agent will promptly notify each Bank of the details of
any automatic conversion. All conversions and continuations
shall be made pro rata according to the respective
outstanding principal amounts of the Loans with respect to
which the notice was given held by each Bank.
(e) Unless the Majority Banks shall otherwise
agree, during the existence of a Default or Event of
Default, the Company may not elect to have a Loan converted
into or continued as an Offshore Rate Loan or a CD Rate
Loan.
(f) Notwithstanding any other provision contained
in this Agreement, after giving effect to any conversion or
continuation of any Loans, there shall not be more than five
different Interest Periods in effect.
2.05 Voluntary Termination or Reduction of Commitments.
The Company may, upon not less than five Business Days'
prior notice to the Agent, terminate the Aggregate
Commitments or permanently reduce the Aggregate Commitment
by an aggregate minimum amount of $5,000,000 or any multiple
of $5,000,000 in excess thereof; provided that no such
reduction or termination shall be permitted if, after giving
effect thereto and to any prepayments of the Loans made on
the effective date thereof, the then outstanding principal
amount of the Loans would exceed the amount of the Aggregate
Commitment then in effect and, provided, further, that once
reduced in accordance with this Section 2.05, the Aggregate
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Commitment may not be increased. Any reduction of the
Aggregate Commitment shall be applied to each Bank's
Commitment in accordance with such Bank's Commitment
Percentage. All accrued commitment fees to, but not
including the effective date of any reduction or termination
of Commitments, shall be paid on the effective date of such
reduction or termination.
2.06 Optional Prepayments. Subject to Section 3.04,
the Company may, at any time or from time to time, upon at
least three Business Days' notice to the Agent, ratably
prepay Loans in whole or in part, in amounts of $5,000,000
or any multiple of $1,000,000 in excess thereof. Such notice
of prepayment shall specify the date and amount of such
prepayment and whether such prepayment is of Base Rate
Loans, CD Rate Loans or Offshore Rate Loans, or any
combination thereof. Such notice shall not thereafter be
revocable by the Company and the Agent will promptly notify
each Bank thereof and of such Bank's Commitment Percentage
of such prepayment. If such notice is given by the Company,
the Company shall make such prepayment and the payment
amount specified in such notice shall be due and payable on
the date specified therein, together with accrued interest
to each such date on the amount prepaid and any amounts
required pursuant to Section 3.04.
2.07 Mandatory Prepayments of Loans; Mandatory
Commitment Reductions.
(a) Asset Dispositions. If the Company or any of
its Restricted Subsidiaries shall at any time or from time
to time make or agree to make a sale of Properties permitted
by subsection 7.02(i) or 7.02(j), or harvest excess Timber
permitted by Section 7.03, then (i) the Net Proceeds of such
sale shall either be paid by the Company as a prepayment of
Loans or reinvested in accordance with the provisions of
subsection 7.02(i), (ii) the Net Proceeds of such sale shall
either be paid pro-rata by the Company as a prepayment of
Loans or reinvested in accordance with the provisions of
subsection 7.02(j), or (iii) the Net Proceeds from such
excess harvest shall either be paid pro-rata by the Company
as a prepayment of Loans or reinvested in accordance with
the provisions of subsection 7.03, each as applicable.
(b) Mandatory Commitment Reductions.
(i) The Aggregate Commitment shall be
reduced by equal decrements of $13,750,000 each (such
amount, as the same may be reduced pursuant to
clause (ii) of this subsection, the "Mandatory
Commitment Reduction"), commencing on the last day of
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the six month period commencing on the Effective Date
and on the last day of each successive six month period
thereafter until the Revolving Termination Date. On
each such day (each, a "Mandatory Commitment Reduction
Date"), the Company shall prepay Loans in an amount
equal to the excess of (x) the aggregate principal
amount of all outstanding Loans, over (y) the Aggregate
Commitment after giving effect to the Mandatory
Commitment Reduction on such Mandatory Commitment
Reduction Date.
(ii) Upon any reduction in the Aggregate
Commitment pursuant to Section 2.05 or clause (i) of
subsection 2.07(d), there shall be no decrease in the
Mandatory Commitment Reduction, unless and until the
Aggregate Commitment is or has been reduced by a
cumulative amount (pursuant to Section 2.05, clause (i)
of subsection 2.07(d), or this subsection 2.07(b)) such
that the remaining Mandatory Commitment Reductions would
decrease the Aggregate Commitment to zero as of or prior
to the Maturity Date. Once the Aggregate Commitment has
been so decreased to zero, on any reduction in the
Aggregate Commitment pursuant to Section 2.05 or
clause (i) of subsection 2.07(d), each remaining
Mandatory Commitment Reduction shall be adjusted pro-
rata to equal an amount which would reduce the Aggregate
Commitment to zero as of the Maturity Date based on the
remaining semi-annual reduction periods.
(c) General. Any prepayments pursuant to this
Section 2.07 shall be applied first to any Base Rate Loans
then outstanding and then to CD Rate Loans and Offshore Rate
Loans with the shortest Interest Periods remaining. The
Company shall pay, together with each prepayment under this
Section 2.07, accrued interest on the amount prepaid and any
amounts required pursuant to Section 3.04.
(d) Reduction of Commitment. Upon (i) the making
of any mandatory prepayment under subsection 2.07(a), and
(ii) each Mandatory Commitment Reduction Date, the
Commitment of each Bank shall automatically be reduced by an
amount equal to such Bank's ratable share of the aggregate
of principal repaid, effective as of the earlier of the date
that such prepayment is made or the date by which such
prepayment is due and payable hereunder, or of the Mandatory
Commitment Reduction, as the case may be. All accrued
commitment fees to, but not including the effective date of
any reduction or termination of Commitments, shall be paid
on the effective date of such reduction or termination.
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2.08 Repayment. The Company shall repay to the Banks
in full on the Revolving Termination Date the aggregate
principal amount of the Loans outstanding on the Revolving
Termination Date.
2.09 Interest.
(a) Subject to subsection 2.09(d), each Loan shall
bear interest on the outstanding principal amount thereof
from the date when made until it becomes due at a rate per
annum equal to the CD Rate, the Offshore Rate or the Base
Rate, as the case may be, plus the Applicable Margin, as the
same may be adjusted pursuant to the provisions of
subsection 2.09(b).
(b) The Applicable Margin for Offshore Rate Loans
and CD Rate Loans shall be adjusted by deducting therefrom
the applicable Margin Reduction Discount, if any. The
applicable "Margin Reduction Discount" shall be determined
as of the end of each fiscal quarter and shall be effective
on the third Business Day after the Agent shall have
received from the Company the financial reports required to
be delivered pursuant to the provisions of
subsection 6.01(c) and the certificate required to be
delivered pursuant to the provisions of subsection 6.02(b)
for such fiscal quarter (each such date, a "margin
determination date"). If any such financial reports and
certificate are delivered to the Agent after the date
required in subsections 6.01(c) and 6.02(b) and such
financial reports and certificate shall give rise to a
reduction in the applicable Margin Reduction Discount, then
the Company shall pay on the date of delivery of such
financial reports and certificate, an amount sufficient to
compensate the Banks for the Company's failure to deliver
the financial report and certificate on a timely basis. The
Margin Reduction Discount shall mean the percentage, if any,
specified below opposite the Funds Flow Ratio (which shall
be calculated as of the end of the fiscal quarter
immediately preceding the margin determination date for the
12 months ended on such fiscal quarter) in effect on the
last margin determination date; provided, however, that as
long as any Default or Event of Default exists no Margin
Reduction Discount shall be effective or remain in effect
(and the Offshore Rate Loans and CD Rate Loans shall bear
interest without any reduction of the Applicable Margin from
the date of the Default or Event of Default until the same
has been cured):
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Funds Flow Ratio Margin Reduction
at End of Fiscal Quarter Discount
------------------------ ------------------------
Offshore Rate CD Rate
Loans Loans
----- -----
Less than 40.00% 0.00% 0.00%
Greater than or equal to 0.25% 0.25%
40.00% and less than 50.00%
Greater than or equal to 0.375% 0.375%
50.00%
Subject to the proviso of the preceding paragraph, the
applicable Margin Reduction Discount shall remain in effect
so long as such Funds Flow Ratio is applicable; provided,
however, that if, as of the day of delivery of any report
delivered pursuant to subsection 6.01(c) and certificate
delivered pursuant to subsection 6.02(b), such Margin
Reduction Discount shall cease to be effective, the
applicable Margin Reduction Discount, if any, shall be
readjusted on the third day after delivery of such report
and certificate.
(c) Interest on each Loan shall be paid in arrears
on each Interest Payment Date. Interest shall also be paid
on the date of any prepayment of Loans pursuant to
Section 2.06 and 2.07 for the portion of the Loans so
prepaid and upon payment (including prepayment) in full
thereof and, during the existence of any Event of Default,
interest shall be paid on demand.
(d) While any Event of Default exists or after
acceleration, the Company shall pay interest (after as well
as before entry of judgment thereon to the extent permitted
by law) on the principal amount of all Loans due and unpaid,
at a rate per annum equal to the Base Rate plus 2%.
(e) Anything herein to the contrary
notwithstanding, the obligations of the Company hereunder
shall be subject to the limitation that payments of interest
shall not be required, for any period for which interest is
computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by the
respective Bank would be contrary to the provisions of any
law applicable to such Bank limiting the highest rate of
interest which may be lawfully contracted for, charged or
received by such Bank, and in such event the Company shall
pay such Bank interest at the highest rate permitted by
applicable law.
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2.10 Fees.
(a) Agency and Participation Fees. The Company
shall pay to BofA for BofA's own account fees in the amounts
and at the times set forth in a letter agreement between the
Company and BofA dated June 21, 1993 and the term sheet
attached thereto. The Company shall pay to the Agent on the
Closing Date for the account of each Bank a participation
fee in an amount equal to the product of (i) 0.25% times
(ii) such Bank's Commitment as set forth in Schedule 2.01
hereof. The foregoing fees shall be non-refundable.
(b) Commitment Fees. The Company shall pay to the
Agent for the account of each Bank a commitment fee on the
average daily unused portion of such Bank's Commitment,
computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based upon the daily
utilization for that quarter as calculated by the Agent,
equal to 0.25 % per annum. Such commitment fee shall accrue
from the Effective Date to the Revolving Termination Date
and shall be due and payable quarterly in arrears on the
last Business Day of each calendar quarter, commencing on
the first such day after this Agreement is executed by the
Company through the Revolving Termination Date, with the
final payment to be made on the Revolving Termination Date;
provided that, in connection with any reduction or
termination of Commitments pursuant to Section 2.05 or
Section 2.07, the accrued commitment fee calculated for the
period ending on such date shall also be paid on the date of
such reduction or termination, with the next succeeding
quarterly payment being calculated on the basis of the
period from the reduction or termination date to such
quarterly payment date. The commitment fees provided in
this subsection shall accrue at all times after the above-
mentioned commencement date, including at any time during
which one or more conditions in Article IV are not met.
2.11 Computation of Fees and Interest.
(a) All computations of interest payable in
respect of Base Rate Loans at all times as the Base Rate is
determined by BofA's "reference rate" shall be made on the
basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and
interest under this Agreement shall be made on the basis of
a 360-day year and actual days elapsed, which results in
more interest being paid than if computed on the basis of a
365-day year. Interest and fees shall accrue during each
period during which interest or such fees are computed from
the first day thereof to the last day thereof.
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(b) The Agent will, with reasonable promptness,
notify the Company and the Banks of each determination of an
Offshore Rate or of a CD Rate; provided that any failure to
do so shall not relieve the Company of any liability
hereunder or provide the basis for any claim against the
Agent. Any change in the interest rate on a Loan resulting
from a change in the Applicable Margin, Reserve Percentage,
Eurocurrency Reserve Percentage, or the Assessment Rate
shall become effective as of the opening of business on the
day on which such change in the Applicable Margin, Reserve
Percentage, Eurocurrency Reserve Percentage, or the
Assessment Rate becomes effective. The Agent will with
reasonable promptness notify the Company and the Banks of
the effective date and the amount of each such change,
provided that any failure to do so shall not relieve the
Company of any liability hereunder or provide the basis for
any claim against the Agent.
(c) Each determination of an interest rate by the
Agent pursuant hereto shall be conclusive and binding on the
Company and the Banks in the absence of manifest error.
2.12 Payments by the Company.
(a) All payments (including prepayments) to be
made by the Company on account of principal, interest, fees
and other amounts required hereunder shall be made without
set-off, recoupment or counterclaim; shall, except as
otherwise expressly provided herein, be made to the Agent
for the ratable account of the Banks at the Agent's Payment
Office, and shall be made in dollars and in immediately
available funds, no later than 10:00 a.m. (San Francisco
time) on the date specified herein. The Agent will promptly
distribute to each Bank its Commitment Percentage (or other
applicable share as expressly provided herein) of such
principal, interest, fees or other amounts, in like funds as
received. Any payment which is received by the Agent later
than 10:00 a.m. (San Francisco time) shall be deemed to have
been received on the immediately succeeding Business Day and
any applicable interest or fee shall continue to accrue.
(b) Whenever any payment hereunder shall be stated
to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the
computation of interest or fees, as the case may be; subject
to the provisions set forth in the definition of "Interest
Period" herein.
(c) Unless the Agent shall have received notice
from the Company prior to the date on which any payment is
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due to the Banks hereunder that the Company will not make
such payment in full as and when required hereunder, the
Agent may assume that the Company has made such payment in
full to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required), in
reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount
then due such Bank. If and to the extent the Company shall
not have made such payment in full to the Agent, each Bank
shall repay to the Agent on demand such amount distributed
to such Bank, together with interest thereon for each day
from the date such amount is distributed to such Bank until
the date such Bank repays such amount to the Agent, at the
Federal Funds Rate as in effect for each such day.
2.13 Payments by the Banks to the Agent.
(a) Unless the Agent shall have received notice
from a Bank on the Closing Date or, with respect to each
Borrowing after the Closing Date, at least one Business Day
prior to the date of any proposed Borrowing, that such Bank
will not make available to the Agent as and when required
hereunder for the account of the Company the amount of that
Bank's Commitment Percentage of the Borrowing, the Agent may
assume that each Bank has made such amount available to the
Agent in immediately available funds on the Borrowing date
and the Agent may (but shall not be so required), in
reliance upon such assumption, make available to the Company
on such date a corresponding amount. If and to the extent
any Bank shall not have made its full amount available to
the Agent in immediately available funds and the Agent in
such circumstances has made available to the Company such
amount, that Bank shall on the next Business Day following
the date of such Borrowing make such amount available to the
Agent, together with interest at the Federal Funds Rate for
and determined as of each day during such period. A notice
of the Agent submitted to any Bank with respect to amounts
owing under this subsection 2.13(a) shall be conclusive,
absent manifest error. If such amount is so made available,
such payment to the Agent shall constitute such Bank's Loan
on the date of Borrowing for all purposes of this Agreement.
If such amount is not made available to the Agent on the
next Business Day following the date of such Borrowing, the
Agent shall notify the Company of such failure to fund and,
upon demand by the Agent, the Company shall pay such amount
to the Agent for the Agent's account, together with interest
thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such
Borrowing.
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(b) The failure of any Bank to make any Loan on
any date of borrowing shall not relieve any other Bank of
any obligation hereunder to make a Loan on the date of such
borrowing, but no Bank shall be responsible for the failure
of any other Bank to make the Loan to be made by such other
Bank on the date of any borrowing.
2.14 Sharing of Payments, Etc. If, other than as
expressly provided elsewhere herein, any Bank shall obtain
on account of the Loans made by it any payment (whether
voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Commitment
Percentage of payments on account of the Loans obtained by
all the Banks, such Bank shall forthwith (a) notify the
Agent of such fact, and (b) purchase from the other Banks
such participations in the Loans made by them as shall be
necessary to cause such purchasing Bank to share the excess
payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter
recovered from the purchasing Bank, such purchase shall to
that extent be rescinded and each other Bank shall repay to
the purchasing Bank the purchase price paid therefor,
together with an amount equal to such paying Bank's
Commitment Percentage (according to the proportion of
(i) the amount of such paying Bank's required repayment to
(ii) the total amount so recovered from the purchasing Bank)
of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered.
The Company agrees that any Bank so purchasing a
participation from another Bank pursuant to this
Section 2.14 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of
set-off, but subject to Section 10.09) with respect to such
participation as fully as if such Bank were the direct
creditor of the Company in the amount of such participation.
The Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations
purchased pursuant to this Section 2.14 and will in each
case notify the Banks following any such purchases or
repayments.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Subject to subsection 3.01(g), any and all
payments by the Company to each Bank or the Agent under this
Agreement shall be made free and clear of, and without
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deduction or withholding for, any and all present or future
taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding, in the
case of each Bank and the Agent, such taxes (including
income taxes or franchise taxes) as are imposed on or
measured by each Bank's net income by the jurisdiction under
the laws of which such Bank or the Agent, as the case may
be, is organized or maintains a Lending Office or any
political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes").
(b) In addition, the Company shall pay any present
or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies which arise from
any payment made hereunder or from the execution, delivery
or registration of, or otherwise with respect to, this
Agreement or any other Loan Documents (hereinafter referred
to as "Other Taxes").
(c) Subject to subsection 3.01(g), the Company
shall indemnify and hold harmless each Bank and the Agent
for the full amount of Taxes or Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 3.01) paid by the Bank or the
Agent and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days from the date
the Bank or the Agent makes written demand therefor.
(d) If the Company shall be required by law to
deduct or withhold any Taxes or Other Taxes from or in
respect of any sum payable hereunder to any Bank or the
Agent, then, subject to subsection 3.01(g):
(i) the sum payable shall be increased as
necessary so that after making all required deductions
(including deductions applicable to additional sums
payable under this Section 3.01) such Bank or the Agent,
as the case may be, receives an amount equal to the sum
it would have received had no such deductions been made;
(ii) the Company shall make such deductions;
and
(iii) the Company shall pay the full amount
deducted to the relevant taxation authority or other
authority in accordance with applicable law.
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(e) Within 30 days after the date of any payment
by the Company of Taxes or Other Taxes, the Company shall
furnish to the Agent the original or a certified copy of a
receipt evidencing payment thereof, or other evidence of
payment satisfactory to the Agent.
(f) Each Bank which is a foreign person (i.e., a
person other than a United States person for United States
Federal income tax purposes) agrees that:
(i) it shall, no later than the Closing Date
(or, in the case of a Bank which becomes a party hereto
pursuant to Section 10.08 after the Closing Date, the
date upon which the Bank becomes a party hereto) deliver
to the Company through the Agent two accurate and
complete signed originals of Internal Revenue Service
Form 4224 or any successor thereto ("Form 4224"), or two
accurate and complete signed originals of Internal
Revenue Service Form 1001 or any successor thereto
("Form 1001"), as appropriate, in each case indicating
that the Bank is on the date of delivery thereof
entitled to receive payments of principal, interest and
fees under this Agreement free from withholding of
United States Federal income tax;
(ii) if at any time the Bank makes any
changes necessitating a new Form 4224 or Form 1001, it
shall with reasonable promptness deliver to the Company
through the Agent in replacement for, or in addition to,
the forms previously delivered by it hereunder, two
accurate and complete signed originals of Form 4224; or
two accurate and complete signed originals of Form 1001,
as appropriate, in each case indicating that the Bank is
on the date of delivery thereof entitled to receive
payments of principal, interest and fees under this
Agreement free from withholding of United States Federal
income tax;
(iii) it shall, before or promptly after the
occurrence of any event (including the passing of time
but excluding any event mentioned in (ii) above)
requiring a change in or renewal of the most recent
Form 4224 or Form 1001 previously delivered by such
Bank, deliver to the Company through the Agent two
accurate and complete original signed copies of
Form 4224 or Form 1001 in replacement for the forms
previously delivered by the Bank; and
(iv) it shall, promptly upon the Company's or
the Agent's reasonable request to that effect, deliver
to the Company or the Agent (as the case may be) such
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other forms or similar documentation as may be required
from time to time by any applicable law, treaty, rule or
regulation in order to establish such Bank's tax status
for withholding purposes.
(g) The Company will not be required to pay any
additional amounts in respect of United States Federal
income tax pursuant to subsection 3.01(d) to any Bank for
the account of any Lending Office of such Bank:
(i) if the obligation to pay such additional
amounts would not have arisen but for a failure by such
Bank to comply with its obligations under
subsection 3.01(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the
Company a Form 4224 in respect of such Lending Office
pursuant to subsection 3.01(f), and such Bank shall not
at any time be entitled to exemption from deduction or
withholding of United States Federal income tax in
respect of payments by the Company hereunder for the
account of such Lending Office for any reason other than
a change in United States law or regulations or in the
official interpretation of such law or regulations by
any governmental authority charged with the
interpretation or administration thereof (whether or not
having the force of law) after the date of delivery of
such Form 4224; or
(iii) if the Bank shall have delivered to the
Company a Form 1001 in respect of such Lending Office
pursuant to subsection 3.01(f), and such Bank shall not
at any time be entitled to exemption from deduction or
withholding of United States Federal income tax in
respect of payments by the Company hereunder for the
account of such Lending Office for any reason other than
a change in United States law or regulations or any
applicable tax treaty or regulations or in the official
interpretation of any such law, treaty or regulations by
any governmental authority charged with the
interpretation or administration thereof (whether or not
having the force of law) after the date of delivery of
such Form 1001.
(h) If, at any time, the Company requests any Bank
to deliver any forms or other documentation pursuant to
subsection 3.01(f)(iv), then the Company shall, on demand of
such Bank through the Agent, reimburse such Bank for any
costs and expenses (including Attorney Costs) reasonably
incurred by such Bank in the preparation or delivery of such
forms or other documentation.
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(i) If the Company is required to pay additional
amounts to any Bank or the Agent pursuant to
subsection 3.01(d), then such Bank shall use its reasonable
best efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending
Office so as to eliminate any such additional payment by the
Company which may thereafter accrue if such change in the
judgment of such Bank is not otherwise disadvantageous to
such Bank.
3.02 Illegality.
(a) If any Bank shall determine that the
introduction of any Requirement of Law, or any change in any
Requirement of Law or in the interpretation or
administration thereof, has made it unlawful, or that any
central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its Lending Office to
make Offshore Rate Loans, then, on notice thereof by the
Bank to the Company through the Agent, the obligation of
that Bank to make Offshore Rate Loans shall be suspended
until the Bank shall have notified the Agent and the Company
that the circumstances giving rise to such determination no
longer exists.
(b) If a Bank shall determine that it is unlawful
to maintain any Offshore Rate Loan, the Company shall prepay
in full all Offshore Rate Loans of that Bank then
outstanding, together with interest accrued thereon, either
on the last day of the Interest Period thereof if the Bank
may lawfully continue to maintain such Offshore Rate Loans
to such day, or immediately, if the Bank may not lawfully
continue to maintain such Offshore Rate Loans, together with
any amounts required to be paid in connection therewith
pursuant to Section 3.04.
3.03 Increased Costs and Reduction of Return.
(a) If any Bank shall determine that, due to
either (i) the introduction of or any change after the date
hereof (other than any change by way of imposition of or
increase in reserve requirements included in the calculation
of the CD Rate or the Offshore Rate or in respect of the
assessment rate payable by any Bank to the FDIC for insuring
U.S. deposits) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or
request from any central bank or other Governmental
Authority (whether or not having the force of law), there
shall be any increase in the cost to such Bank of agreeing
to make or making, funding or maintaining any Offshore Rate
Loans or CD Rate Loans, then the Company shall be liable
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for, and shall from time to time, upon demand therefor by
such Bank (with a copy of such demand to the Agent), pay to
the Agent for the account of such Bank, additional amounts
as are sufficient to compensate such Bank for such increased
costs.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation after the
date hereof, (ii) any change in any Capital Adequacy
Regulation after the date hereof, (iii) any change in the
interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration
thereof after the date hereof, or (iv) compliance by the
Bank (or its Lending Office) or any corporation controlling
the Bank, with any Capital Adequacy Regulation; affects or
would affect the amount of capital required or expected to
be maintained by the Bank or any corporation controlling the
Bank and (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy and
such Bank's desired return on capital) determines that the
amount of such capital is increased as a consequence of its
Commitment, loans, credits or obligations under this
Agreement, then, upon demand of such Bank (with a copy to
the Agent), the Company shall upon demand pay to the Bank,
from time to time as specified by the Bank, additional
amounts sufficient to compensate the Bank for such increase.
3.04 Funding Losses. The Company agrees to reimburse
each Bank and to hold each Bank harmless from any loss or
expense which the Bank may sustain or incur as a consequence
of:
(a) the failure of the Company to make any payment
or mandatory prepayment of principal of any Offshore Rate
Loan or CD Rate Loan (including payments made after any
acceleration thereof);
(b) the failure of the Company to borrow, continue
or convert a Loan after the Company has given (or is deemed
to have given) a Notice of Borrowing or a Notice of
Conversion/Continuation;
(c) the failure of the Company to make any
prepayment after the Company has given a notice in
accordance with Section 2.06;
(d) the prepayment (including pursuant to
Section 2.07) of an Offshore Rate Loan or a CD Rate Loan on
a day which is not the last day of the Interest Period with
respect thereto; or
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(e) the conversion pursuant to Section 2.04 of
(i) any Offshore Rate Loan to a CD Rate Loan or a Base Rate
Loan, or (ii) any CD Rate Loan to an Offshore Rate Loan or
Base Rate Loan, on a day that is not the last day of the
respective Interest Period;
including any such loss or expense arising from the
liquidation or reemployment of funds obtained by it to
maintain its Offshore Rate Loans or CD Rate Loans hereunder
or from fees payable to terminate the deposits from which
such funds were obtained.
3.05 Inability to Determine Rates. If the Majority
Banks shall have determined that for any reason adequate and
reasonable means do not exist for ascertaining the Offshore
Rate or the CD Rate for any requested Interest Period with
respect to a proposed Offshore Rate Loan or CD Rate Loan or
that the Offshore Rate or the CD Rate applicable pursuant to
subsection 2.09(a) for any requested Interest Period with
respect to a proposed Offshore Rate Loan or CD Rate Loan
does not adequately and fairly reflect the cost to such
Banks of funding such Loan, the Agent will forthwith give
notice of such determination to the Company and each Bank.
Thereafter, the obligation of the Banks to make or maintain
CD Rate Loans or Offshore Rate Loans, as the case may be,
hereunder shall be suspended until the Agent upon the
instruction of the Majority Banks revokes such notice in
writing. Upon receipt of such notice, the Company may
revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the
Company does not revoke such notice, the Banks shall make,
convert or continue the Loans, as proposed by the Company,
in the amount specified in the applicable notice submitted
by the Company, but such Loans shall be made, converted or
continued as Base Rate Loans instead of CD Rate Loans or
Offshore Rate Loans, as the case may be.
3.06 Certificate of Bank. Each Bank, if claiming
reimbursement or compensation pursuant to this Article III,
shall deliver to the Company, a certificate setting forth in
reasonable detail the amount payable to such Bank hereunder
and such certificate shall be conclusive and binding on the
Company in the absence of manifest error.
3.07 Survival. The covenants, agreements and
obligations of the Company in this Article III shall survive
the payment of all other Obligations.
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ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The obligation of
each Bank to make its initial Loan hereunder is subject to
the condition that the Agent shall have received on or
before the Closing Date all of the following, in form and
substance satisfactory to the Agent and, as to the items
referenced in subsection 4.01(h) and (i), the Majority
Banks, and in sufficient copies for each Bank:
(a) Credit Agreement. This Agreement executed by
the Company, the Agent and each of the Banks;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board
of directors of the PC Advisory General Partner, as
general partner of the PCMC General Partner, as general
partner of the General Partner, as general partner of
the Company, approving and authorizing the execution,
delivery and performance by such entities on behalf of
the Company of this Agreement and the other Loan
Documents to be delivered hereunder, and authorizing the
borrowing of the Loans, certified as of the Closing Date
by the Secretary or an Assistant Secretary of the PC
Advisory General Partner; and
(ii) A certificate of the Secretary or
Assistant Secretary of the PC Advisory General Partner
certifying the names and true signatures of the duly
authorized officers of the General Partner, as general
partner of the Company, authorized to execute, deliver
and perform, as applicable, this Agreement on behalf of
the Company, and all other Loan Documents to be
delivered hereunder;
(c) Articles of Incorporation; By-laws;
Partnership Documents and Good Standing. Each of the
following documents:
(i) the partnership certificate of each of
the Company, the General Partner, and the PCMC General
Partner as in effect on the Closing Date, certified by
the Secretary of State (or similar, applicable
Governmental Authority) of the state of formation of
such entities as of a recent date and by the Secretary
or Assistant Secretary of the PC Advisory General
Partner as of the Closing Date, and the partnership
agreement of each of the Company, the General Partner,
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and the PCMC General Partner as in effect on the Closing
Date, certified by the Secretary or Assistant Secretary
of the PC Advisory General Partner as of the Closing
Date;
(ii) the articles or certificate of
incorporation of the PC Advisory General Partner as in
effect on the Closing Date, certified by the Secretary
of State (or similar, applicable Governmental Authority)
of the state of incorporation of the PC Advisory General
Partner as of a recent date and by the Secretary or
Assistant Secretary of the PC Advisory General Partner
as of the Closing Date, and the bylaws of the PC
Advisory General Partner as in effect on the Closing
Date, certified by the Secretary or Assistant Secretary
of the PC Advisory General Partner as of the Closing
Date; and
(iii) a good standing certificate for each of
the Company, the General Partner, the PCMC General
Partner, and the PC Advisory General Partner from the
Secretary of State (or similar, applicable Governmental
Authority) of its state of incorporation or formation,
as applicable and each state where the Company is
qualified to do business as a foreign corporation or
limited partnership, as applicable, as of a recent date,
together with a bring down certificate by facsimile,
dated the Closing Date;
(d) Legal Opinions. An opinion of (i) James A.
Kraft, Vice President, Law and Corporate Affairs of the
Company and (ii) Perkins Coie, counsel to the Company, each
addressed to the Agent and the Banks and substantially in
the form of Exhibits C-1 and C-2, respectively;
(e) Payment of Fees. The Company shall have paid
all accrued and unpaid fees, costs and expenses to the
extent then due and payable on the Closing Date, together
with Attorney Costs of BofA to the extent invoiced prior to
or on the Closing Date, together with such additional
amounts of Attorney Costs as shall constitute BofA's
reasonable estimate of Attorney Costs incurred or to be
incurred through the closing proceedings, provided that such
estimate shall not thereafter preclude final settling of
accounts between the Company and BofA; including any such
costs, fees and expenses arising under or referenced in
Sections 2.10, 3.01 and 10.04;
(f) Certificate. A certificate signed by a
Responsible Officer, dated as of the Closing Date, stating
that:
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(i) the representations and warranties
contained in Article V are true and correct on and as of
such date, as though made on and as of such date;
(ii) no Default or Event of Default exists or
would result from the initial Borrowing; and
(iii) there has occurred since December 31,
1992, no event or circumstance that has resulted or
could reasonably be expected to result in a Material
Adverse Effect;
(g) Financial Statements. A copy certified by the
chief financial officer of the Company of the financial
statements of the Company and its Subsidiaries referred to
in Section 5.11;
(h) Credit Agreements. Copies certified by a
Responsible Officer of (i) the Note Agreements, as amended
(ii) the Mortgage Note Agreements, as amended, and
(iii) that certain $15,000,000 Revolving Credit Agreement
dated as of May 1, 1993 between the Company, ABN AMRO Bank
N.V., as agent, and the banks parties thereto, as amended;
(i) Other Documents. Such other approvals,
opinions, documents or materials as the Agent or the
Majority Bank may request.
4.02 Conditions to All Borrowings. The obligation of
each Bank to make any Loan to be made by it hereunder
(including its initial Loan) or to continue or convert any
Loan pursuant to Section 2.04 is subject to the satisfaction
of the following conditions precedent on the relevant
borrowing, continuation or conversion date:
(a) Notice of Borrowing or Continuation/
Conversion. The Agent shall have received (with, in the
case of the initial Loan only, a copy for each Bank) a
Notice of Borrowing or a Notice of Continuation/Conversion,
as applicable;
(b) Continuation of Representations and
Warranties. The representations and warranties made by the
Company contained in Article V shall be true and correct on
and as of such borrowing, continuation or conversion date
with the same effect as if made on and as of such borrowing,
continuation or conversion date (except to the extent such
representations and warranties specifically relate to an
earlier date, in which case they shall be true and correct
as of such earlier date); and
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(c) No Existing Default. No Default or Event of
Default shall exist or shall result from such Borrowing or
continuation or conversion.
Each Notice of Borrowing and Notice of Continuation/
Conversion submitted by the Company hereunder shall
constitute a representation and warranty by the Company
hereunder, as of the date of each such notice or application
and as of the date of each Borrowing, continuation or
conversion, as applicable, that the conditions in
Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and
each Bank that:
5.01 Corporate Existence and Power.
(a) The Company, each of its Subsidiaries, and
each of the Partner Entities:
(i) is a limited partnership or corporation,
duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation;
(ii) is duly qualified as a foreign
partnership or corporation, as applicable, and licensed
and in good standing, under the laws of each
jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such
qualification or license; and
(iii) is in compliance with all Requirements
of Law except where failure to so comply would not
reasonably be expected to have a Material Adverse
Effect.
(b) The Company and each of its Subsidiaries has
the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets and
carry on its business; and the Company and each of the
Partner Entities has the power and authority and all
governmental licenses, authorizations, consents and
approvals to execute, deliver, and perform its obligations
under, the Loan Documents.
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5.02 Authorization; No Contravention. The execution,
delivery and performance by the Company of this Agreement,
and any other Loan Document to which the Company is party,
have been duly authorized by all necessary corporate and
partnership action on behalf of the PC Advisory General
Partner, as general partner of the PCMC General Partner, as
general partner of the General Partner, as general partner
of the Company, and by all necessary partnership action on
behalf of the Company, and do not and will not:
(a) contravene the terms of the Organization
Documents of any of the Company or the Partner Entities;
(b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any
document evidencing any Contractual Obligation to which such
Person is a party or any order, injunction, writ or decree
of any Governmental Authority to which such Person or its
Property is subject; or
(c) violate any Requirement of Law.
5.03 Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority is necessary or
required in connection with the execution, delivery or
performance by, or enforcement against, the Company, the
Partner Entities or any of their Subsidiaries of the
Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement and each other
Loan Document to which the Company is a party constitute the
legal, valid and binding obligations of the Company and the
Partner Entities, enforceable against the Company and the
Partner Entities in accordance with their respective terms
except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the
enforcement of creditor's rights generally or by equitable
principles relating to enforceability.
5.05 Litigation. There are no actions, suits,
proceedings, claims or disputes pending, or to the best
knowledge of the Company and the Partner Entities,
threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against
the Company, the Partner Entities or their Subsidiaries or
any of their respective Properties which:
(a) purport to affect or pertain to this Agreement
or any other Loan Document, or any of the transactions
contemplated hereby or thereby; or
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(b) have a reasonable probability of success on
the merits and which, if determined adversely to the
Company, the Partner Entities or their Subsidiaries, would
reasonably be expected to have a Material Adverse Effect. No
injunction, writ, temporary restraining order or any order
of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any
other Loan Document, or directing that the transactions
provided for herein or therein not be consummated as herein
or therein provided.
5.06 No Default. No Default or Event of Default exists
or would result from the incurring of any Obligations by the
Company. Neither the Company, the Partner Entities, nor any
of their Subsidiaries is in default under or with respect to
any Contractual Obligation in any respect which,
individually or together with all such defaults, would
reasonably be expected to have a Material Adverse Effect or
that would, if such default had occurred after the Closing
date, create an Event of Default under subsection 8.01(e).
5.07 ERISA Compliance.
(a) Schedule 5.07 lists all Plans and separately
identifies Plans intended to be Qualified Plans and
Multiemployer Plans. All written descriptions thereof
provided to the Agent are true and complete in all material
respects.
(b) Each Plan is in compliance in all material
respects with the applicable provisions of ERISA, the Code
and other Federal or state law, including all requirements
under the Code or ERISA for filing reports (which are true
and correct in all material respects as of the date filed),
and benefits have been paid in accordance with the
provisions of the Plan.
(c) Except as specifically disclosed in
Schedule 5.07, each Qualified Plan has been determined by
the IRS to qualify under Section 401 of the Code, and the
trusts created thereunder have been determined to be exempt
from tax under the provisions of Section 501 of the Code,
and to the best knowledge of the Company nothing has
occurred which would cause the loss of such qualification or
tax-exempt status.
(d) Except as specifically disclosed in
Schedule 5.07, there is no outstanding liability under Title
IV of ERISA with respect to any Plan maintained or sponsored
by the Company or any ERISA Affiliate, nor with respect to
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any Plan to which the Company or any ERISA Affiliate
contributes or is obligated to contribute.
(e) Except as specifically disclosed in
Schedule 5.07, no Plan subject to Title IV of ERISA has any
Unfunded Pension Liability.
(f) Except as specifically disclosed in
Schedule 5.07, no member of the Controlled Group has ever
represented, promised or contracted (whether in oral or
written form) to any current or former employee (either
individually or to employees as a group) that such current
or former employee(s) would be provided, at any cost to any
member of the Controlled Group, with life insurance or
employee welfare plan benefits (within the meaning of
section 3(1) of ERISA) following retirement or termination
of employment. To the extent that any member of the
Controlled Group has made any such representation, promise
or contract, such member has expressly reserved the right to
amend or terminate such life insurance or employee welfare
plan benefits with respect to claims not yet incurred.
(g) Members of the Controlled Group have complied
in all material respects with the notice and continuation
coverage requirements of Section 4980B of the Code.
(h) Except as specifically disclosed in
Schedule 5.07, no ERISA Event has occurred or, to the best
knowledge of the Company is reasonably expected to occur
with respect to any Plan.
(i) There are no pending or, to the best knowledge
of the Company, threatened claims, actions or lawsuits,
other than routine claims for benefits in the usual and
ordinary course, asserted or instituted against (i) any Plan
maintained or sponsored by the Company or its assets,
(ii) any member of the Controlled Group with respect to any
Qualified Plan, or (iii) any fiduciary with respect to any
Plan for which the Company may be directly or indirectly
liable, through indemnification obligations or otherwise.
This representation is not made with respect to any
Multiemployer Plan.
(j) Except as specifically disclosed in
Schedule 5.07, neither the Company nor any ERISA Affiliate
has incurred nor, to the best knowledge of the Company,
reasonably expects to incur (i) any liability (and no event
has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan or (ii) any liability under Title IV of
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ERISA (other than premiums due and not delinquent under
Section 4007 of ERISA) with respect to a Plan.
(k) Except as specifically disclosed in
Schedule 5.07, neither the Company nor any ERISA Affiliate
has transferred any Unfunded Pension Liability to a Person
other than the Company or an ERISA Affiliate or otherwise
engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA.
(l) The Company has not engaged, directly or
indirectly, in a non-exempt prohibited transaction (as
defined in Section 4975 of the Code or Section 406 of ERISA)
in connection with any Plan which would reasonably be
expected to have a Material Adverse Effect.
5.08 Use of Proceeds; Margin Regulations. The proceeds
of the Loans are intended to be and shall be used solely for
the purposes set forth in and permitted by Section 6.11, and
are intended to be and shall be used in compliance with
Section 7.07. Neither the Company, the Partner Entities,
nor any of their Subsidiaries is generally engaged in the
business of purchasing or selling Margin Stock or extending
credit for the purpose of purchasing or carrying Margin
Stock.
5.09 Title to Properties. The Company and each of its
Subsidiaries have good record and marketable title in fee
simple to, or valid leasehold interests in, all real
Property necessary or used in the ordinary conduct of their
respective businesses, except for such defects in title as
would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. As of the
Closing Date, the Property of the Company and its
Subsidiaries is subject to no Liens, other than Permitted
Liens.
5.10 Taxes. The Company, the Partner Entities and
their Subsidiaries have filed all Federal and other material
tax returns and reports required to be filed, and have paid
all Federal and other material taxes, assessments, fees and
other governmental charges levied or imposed upon them or
their Properties, income or assets otherwise due and
payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP and no
Notice of Lien has been filed or recorded. There is no
proposed tax assessment against the Company, the Partner
Entities or any of their Subsidiaries which would, if the
assessment were made, have a Material Adverse Effect.
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5.11 Financial Condition.
(a) The audited combined financial statements of
financial condition of the Company and its Subsidiaries
dated December 31, 1992, and the related combined statements
of income and combined statement of cash flows for the
fiscal year ended on that date:
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein;
(ii) fairly present the financial condition
of the Company and its Subsidiaries as of the date
thereof and results of operations for the period covered
thereby; and
(iii) show all material Indebtedness and other
liabilities, direct or contingent of the Company and its
combined Subsidiaries as of the date thereof, including
liabilities for taxes and material commitments.
(b) Since December 31, 1992, there has been no
Material Adverse Effect.
5.12 Environmental Matters.
(a) Except as specifically disclosed in
Schedule 5.12, the on-going operations of the Company, the
Partner Entities and each of their Subsidiaries comply in
all respects with all Environmental Laws, except such non-
compliance which would not (if enforced in accordance with
applicable law) result in liability in excess of $25,000,000
in the aggregate.
(b) Except as specifically disclosed in
Schedule 5.12, the Company, the Partner Entities and each of
their Subsidiaries have obtained all licenses, permits,
authorizations and registrations required under any
Environmental Law ("Environmental Permits") and necessary
for their respective ordinary course operations, all such
Environmental Permits are in good standing, and the Company,
the Partner Entities and each of their Subsidiaries are in
compliance with all terms and conditions of such
Environmental Permits except where the failure to obtain,
maintain in good standing or comply with such Environmental
Permits would not reasonably be expected to have a Material
Adverse Effect.
(c) Except as specifically disclosed in
Schedule 5.12, none of the Company, the Partner Entities,
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any of their Subsidiaries or any of their respective present
Property or operations, is subject to any outstanding
written order from or agreement with any Governmental
Authority, nor subject to any judicial or docketed
administrative proceeding, respecting any Environmental Law,
Environmental Claim or Hazardous Material arising out of a
violation or alleged violation of any Environmental Law.
(d) Except as specifically disclosed in
Schedule 5.12, there are no Hazardous Materials or other
conditions or circumstances existing with respect to any
Property, or arising from operations prior to the Closing
Date, of the Company, the Partner Entities, or any of their
Subsidiaries that would reasonably be expected to give rise
to Environmental Claims with a potential liability of the
Company and its Subsidiaries in excess of $25,000,000 in the
aggregate for any such condition, circumstance or Property.
In addition, (i) neither the Company, the Partner Entities
nor any of their Subsidiaries has any underground storage
tanks (x) that are not properly registered or permitted
under applicable Environmental Laws, or (y) that are leaking
or disposing of Hazardous Materials off-site, and (ii) the
Company, the Partner Entities and their Subsidiaries have
notified all of their employees of the existence, if any, of
any health hazard arising from the conditions of their
employment and have met all notification requirements under
Title III of CERCLA and all other Environmental Laws.
5.13 Regulated Entities. None of the Company, the
Partner Entities, any Person controlling the Company or the
Partner Entities, or any Subsidiary of the Company or the
Partner Entities, is (a) an "Investment Company" within the
meaning of the Investment Company Act of 1940; or
(b) subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, any state public utilities code, or any other
Federal or state statute or regulation limiting its ability
to incur Indebtedness.
5.14 No Burdensome Restrictions. Neither the Company
nor any of its Subsidiaries is a party to or bound by any
Contractual Obligation, or subject to any charter or
corporate restriction, or any Requirement of Law, which
would reasonably be expected to have a Material Adverse
Effect.
5.15 Solvency. The Company, the General Partner, the
Facilities Subsidiary, and the Restricted Subsidiaries are
each Solvent.
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5.16 Labor Relations. There are no material strikes,
lockouts or other labor disputes against the Company or any
of its Subsidiaries, or, to the best of the Company's
knowledge, threatened against or affecting the Company or
any of its Subsidiaries, and no significant unfair labor
practice complaint is pending against the Company or any of
its Subsidiaries or, to the best knowledge of the Company,
threatened against any of them before any Governmental
Authority.
5.17 Copyrights, Patents, Trademarks and Licenses, etc.
The Company or its Subsidiaries own or are licensed or
otherwise have the right to use all of the patents,
trademarks, service marks, trade names, copyrights,
contractual franchises, authorizations and other rights that
are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of
any other Person. To the best knowledge of the Company, no
slogan or other advertising device, product, process,
method, substance, part or other material now employed, or
now contemplated to be employed, by the Company or any of
its Subsidiaries infringes upon any rights held by any other
Person; except as specifically disclosed in Schedule 5.05,
no claim or litigation regarding any of the foregoing is
pending or, to the knowledge of the Company, threatened, and
no patent, invention, device, application, principle or any
statute, law, rule, regulation, standard or code is pending
or, to the knowledge of the Company, proposed, which, in
either case, would reasonably be expected to have a Material
Adverse Effect.
5.18 Subsidiaries. The Company has no Subsidiaries
other than those specifically disclosed in part (a) of
Schedule 5.18 hereto and has no equity investments in any
other corporation or entity other than those specifically
disclosed in part (b) of Schedule 5.18. Except as disclosed
in part (a) of Schedule 5.18, the Company owns 100% of the
ownership interests of its Subsidiaries. The Facilities
Subsidiary has issued no rights, warrants or options to
acquire or instruments convertible into or exchangeable for
any equity interest in the Facilities Subsidiary.
5.19 Partnership Interests. The only general partner
of the Company is the General Partner, which on the Closing
Date will own a 2% interest in the Company. The only
general partners of the General Partner are (i) the PCMC
General Partner, which is the managing general partner of
the General Partner, and (ii) Sub Advisory Corp. I, a
Delaware corporation. The only general partner of the PCMC
General Partner is the PC Advisory General Partner.
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5.20 Broker's; Transaction Fees. Neither the Company
nor any of its Subsidiaries has any obligation to any Person
in respect of any finder's, broker's or investment banker's
fee in connection with the transactions contemplated hereby.
5.21 Insurance. The Properties of the Company and its
Subsidiaries are insured with financially sound and
reputable insurance companies not Affiliates of the Company,
in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in
similar businesses and owning similar Properties in
localities where the Company or such Subsidiary operates.
5.22 Timber Harvest. The Company and its Restricted
Subsidiaries harvested 1,663 MMBF of its fee Timber during
the calendar years 1989 (including harvest by the Company's
predecessor prior to closing under the Note Agreements)
through 1991, and 469 MMBF of its fee Timber during calendar
year 1992.
5.23 Full Disclosure. None of the representations or
warranties made by the Company, the General Partners, or any
of their Subsidiaries in the Loan Documents as of the date
such representations and warranties are made or deemed made,
and none of the statements contained in each exhibit,
report, written statement or certificate furnished by or on
behalf of the Company or any of its Subsidiaries in
connection with the Loan Documents, contains any untrue
statement of a material fact or omits any material fact
required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under
which they are made, not misleading as of the time when made
or delivered.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, so long as any
Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless
the Majority Banks waive compliance in writing:
6.01 Financial Statements. The Company shall deliver
to the Agent in form and detail satisfactory to the Agent
and the Majority Banks, with sufficient copies for each
Bank:
(a) as soon as available, but not later than 90
days after the end of each fiscal year, a copy of the
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audited combined balance sheet of the Company as at the end
of such year and the related combined statements of income
and statements of cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the
previous fiscal year, and accompanied by the opinion of
Coopers & Lybrand, or another nationally-recognized
independent public accounting firm which report shall state
that such combined financial statements present fairly the
financial position for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years.
Such opinion shall not be qualified or limited because of a
restricted or limited examination by such accountant of any
material portion of the Company's or any Subsidiary's
records and shall be delivered to the Agent pursuant to a
reliance agreement in favor of the Agent and Banks by such
accounting firm in form and substance satisfactory to the
Agent and the Majority Banks;
(b) as soon as available, but not later than 120
days after the end of each fiscal year, a copy of an audited
combining balance sheet of the Company and each of its
Subsidiaries as at the end of such fiscal year and the
related combining statements of income and statement of cash
flows for such fiscal year, all in reasonable detail
certified by an appropriate Responsible Officer as having
been used in connection with the preparation of the
financial statements referred to in subsection (a) of this
Section 6.01;
(c) as soon as available, but not later than 45
days after the end of each fiscal quarter of each year, a
copy of the unaudited combined balance sheet of the Company
and its combined Subsidiaries as of the end of such quarter
and the related combined statements of income and statement
of cash flows for the period commencing on the first day and
ending on the last day of such quarter, and certified by an
appropriate Responsible Officer as being complete and
correct and fairly presenting, in accordance with GAAP, the
financial position and the results of operations of the
Company and the Subsidiaries;
(d) as soon as available, but not later than 45
days after the end of each fiscal quarter of each year, a
copy of the unaudited combining balance sheets of the
Company and each of its Subsidiaries, and the related
combining statements of income and statement of cash flows
for such quarter, all certified by an appropriate
Responsible Officer of the Company as having been used in
connection with the preparation of the financial statements
referred to in subsection (c) of this Section 6.01;
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(e) as soon as available, but not later than
September 30 of each year, a business plan which shall
include five years' pro-forma projections of the Company
accompanied by appropriate assumptions on which such
projections are based.
6.02 Certificates; Other Information. The Company
shall furnish to the Agent, with sufficient copies for each
Bank:
(a) concurrently with the delivery of the
financial statements referred to in subsection 6.01(a)
above, a certificate of the independent certified public
accountants reporting on such financial statements stating
that in making the examination necessary therefor no
knowledge was obtained of any Default or Event of Default,
except as specified in such certificate;
(b) concurrently with the delivery of the
financial statements referred to in subsections 6.01(a)
through (d) above, a certificate of a Responsible Officer
substantially in the form of Exhibit D (i) stating that, to
the best of such officer's knowledge, the Company, during
such period, has observed and performed all of its covenants
and other agreements, and satisfied every condition
contained in this Agreement to be observed, performed or
satisfied by it, and that such officer has obtained no
knowledge of any Default or Event of Default except as
specified (by applicable subsection reference) in such
certificate, (ii) stating if an applicable Margin Reduction
Discount should be implemented or changed, and (iii) showing
in detail the calculations supporting such statement in
respect of Section 7.03, subsection 7.04(i), Section 7.05
and Section 7.13, and supporting the computation of the
Funds Flow Ratio;
(c) promptly after the same are sent, copies of
all financial statements and reports which the Company sends
to its limited partners (excluding the Form K-1s); and
promptly after the same are filed, copies of all financial
statements and regular, periodical or special reports which
the Company may make to, or file with, the SEC or any
successor or similar Governmental Authority; and
(d) promptly, such additional business, financial,
corporate affairs and other information as the Agent, at the
request of any Bank, may from time to time reasonably
request.
6.03 Notices. The Company shall promptly upon becoming
aware thereof notify the Agent and each Bank:
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(a) (i) of the occurrence of any Default or Event
of Default, (ii) of the occurrence or existence of any event
or circumstance that foreseeably will become a Default or
Event of Default, and (iii) of the occurrence or existence
of any event or circumstance that would cause the condition
to Borrowing set forth in subsection 4.02(b) not to be
satisfied if a Borrowing were requested on or after the date
of such event or circumstance;
(b) of (i) any breach or non-performance of, or
any default under, any Contractual Obligation of the
Company, the Partner Entities, or any of their Subsidiaries
which could result in a Material Adverse Effect; and
(ii) any dispute, litigation, investigation, proceeding or
suspension which may exist at any time between the Company,
the Partner Entities, or any of their Subsidiaries and any
Governmental Authority which, if adversely determined, could
reasonably be expected to result in a Material Adverse
Effect;
(c) of the commencement of, or any material
development in, any litigation or proceeding affecting the
Company or any Subsidiary (i) which, if adversely
determined, would reasonably be expected to have a Material
Adverse Effect, or (ii) in which the relief sought is an
injunction or other stay of the performance of this
Agreement or any Loan Document;
(d) upon, but in no event later than 10 days
after, becoming aware of (i) any and all enforcement,
cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened against the Company or
any of its Subsidiaries or any of their respective
Properties pursuant to any applicable Environmental Laws
where, if adversely determined, the potential liability or
expense relating thereto could exceed $25,000,000 or the
potential remedy with respect thereto would otherwise
reasonably be expected to have a Material Adverse Effect,
(ii) all other Environmental Claims which allege liability
in excess of $25,000,000 or have the possibility of remedies
that would, if adversely determined, otherwise reasonably be
expected to constitute a Material Adverse Effect, and
(iii) any environmental or similar condition on any real
property adjoining or in the vicinity of the property of the
Company or any Subsidiary that would reasonably be
anticipated to cause such property or any part thereof to be
subject to any restrictions on the ownership, occupancy,
transferability or use of such property under any
Environmental Laws where the net book value of such property
exceeds $25,000,000;
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(e) of any other litigation or proceeding
affecting the Company or any of its Subsidiaries which the
Company would be required to report to the SEC pursuant to
the Exchange Act, within four days after reporting the same
to the SEC;
(f) of any of the following ERISA events affecting
the Company or any member of its Controlled Group (but in no
event more than 10 days after such event), together with a
copy of any notice with respect to such event that may be
required to be filed with a Governmental Authority and any
notice delivered by a Governmental Authority to the Company
or any member or its Controlled Group with respect to such
event:
(i) an ERISA Event;
(ii) the adoption of any new Plan that is
subject to Title IV of ERISA or section 412 of the Code
by any member of the Controlled Group;
(iii) the adoption of any amendment to a Plan
that is subject to Title IV of ERISA or section 412 of
the Code, if such amendment results in a material
increase in benefits or unfunded liabilities; or
(iv) the commencement of contributions by any
member of the Controlled Group to any Plan that is
subject to Title IV of ERISA or section 412 of the Code;
(g) any Material Adverse Effect subsequent to the
date of the most recent audited financial statements of the
Company delivered to the Banks pursuant to subsection 6.01(a)
or 4.01(g);
(h) of any material labor controversy resulting in
or threatening to result in any strike, work stoppage,
boycott, shutdown or other labor disruption against or
involving the Company or any of its Subsidiaries.
Each notice pursuant to this Section shall be
accompanied by a written statement by a Responsible Officer
of the Company setting forth details of the occurrence
referred to therein, and stating what action the Company
proposes to take with respect thereto and at what time. Each
notice under subsection 6.03(a) shall describe with
particularity any and all clauses or provisions of this
Agreement or other Loan Document that have been breached or
violated.
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6.04 Preservation of Corporate Existence, Etc. The
Company shall, except as permitted by Section 7.02, and
shall cause each of its Subsidiaries to:
(a) preserve and maintain in full force and effect
its partnership or corporate existence and good standing
under the laws of its state or jurisdiction of formation or
incorporation;
(b) preserve and maintain in full force and effect
all rights, privileges, qualifications, permits, licenses
and franchises necessary in the normal conduct of its
business;
(c) use its reasonable efforts, in the Ordinary
Course of Business, to preserve its business organization
and preserve the goodwill and business of the customers,
suppliers and others having material business relations with
it; and
(d) preserve or renew all of its registered
trademarks, trade names and service marks, the non-
preservation of which would reasonably be expected to have a
Material Adverse Effect.
6.05 Maintenance of Property. The Company shall
maintain, and shall cause each of its Subsidiaries to
maintain, and preserve all its Property which is used or
useful in its business in good working order and condition,
ordinary wear and tear excepted.
6.06 Insurance. The Company shall maintain, and shall
cause each of its Subsidiaries to maintain, with financially
sound and reputable independent insurers, insurance with
respect to its Properties and business against loss or
damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and
in such amounts as are customarily carried under similar
circumstances by such other Persons.
6.07 Payment of Obligations. The Company shall, and
shall cause its Subsidiaries to, pay and discharge as the
same shall become due and payable, all their respective
obligations and liabilities, including:
(a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Company or such
Subsidiary;
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(b) all Indebtedness, as and when due and payable,
but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.
6.08 Compliance with Laws. The Company shall comply,
and shall cause each of its Subsidiaries to comply with all
Requirements of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal
Fair Labor Standards Act) the non-compliance with which
would reasonably be expected to have a Material Adverse
Effect, except such as may be contested in good faith or as
to which a bona fide dispute may exist.
6.09 Inspection of Property and Books and Records. The
Company shall maintain and shall cause each of its
Subsidiaries to maintain proper books of record and account,
in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business
of the Company and such Subsidiaries. The Company shall
permit, and shall cause each of its Subsidiaries to permit,
representatives and independent contractors of the Agent or
any Bank to visit and inspect any of their respective
Properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances
and accounts with their respective directors, officers, and
independent public accountants, all at the expense of the
Company and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company; provided, however,
when an Event of Default exists the Agent or any Bank may do
any of the foregoing at the expense of the Company such
Properties at any time during normal business hours and
without advance notice.
6.10 Environmental Laws.
(a) The Company shall, and shall cause each of its
Subsidiaries to, conduct its operations and keep and
maintain its Property in compliance with all Environmental
Laws, the non-compliance with which would reasonably be
expected to have a Material Adverse Effect.
(b) Upon the written request of the Agent or any
Bank, the Company shall submit and cause each of its
Subsidiaries to submit, to the Agent and with sufficient
copies for each Bank, at the Company's sole cost and
expense, at reasonable intervals, a report providing an
update of the status of any environmental, health or safety
compliance, hazard or liability issue identified in any
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notice or report required pursuant to subsection 6.03(d),
that could, individually or in the aggregate, result in
liability in excess of $25,000,000.
6.11 Use of Proceeds. The Company shall use the
proceeds of the Loans solely as follows: (a) in connection
with the acquisition of the Montana Timberlands, (b) other
capital expenditures, (c) repayment of Indebtedness, and
(d) for working capital purposes not in contravention of any
Requirement of Law.
6.12 Solvency. The Company shall at all times be, and
shall cause each of its Restricted Subsidiaries to be,
Solvent.
ARTICLE VII
NEGATIVE COVENANTS
The Company hereby covenants and agrees that, so long as
any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless
the Majority Banks waive compliance in writing:
7.01 Limitation on Liens. The Company shall not, and
shall not suffer or permit any of its Restricted
Subsidiaries to, directly or indirectly, make, create,
incur, assume or suffer to exist any Lien upon or with
respect to any part of its Property, whether now owned or
hereafter acquired, other than the following ("Permitted
Liens"):
(a) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain
payable without penalty, or to the extent that non-payment
thereof is permitted by Section 6.07, provided that no
Notice of Lien has been filed or recorded under the Code;
(b) carriers', warehousemen's, mechanics',
landlords', materialmen's, repairmen's or other similar
Liens arising in the Ordinary Course of Business which are
not delinquent or remain payable without penalty or unless
such lien is being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and
if such accrual or other appropriate provision, if any, as
shall be required by GAAP shall have been made therefor;
(c) Liens (other than any Lien imposed by ERISA)
incurred or deposits made incidental to the conduct of its
business or the ownership of its Property including
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(i) pledges or deposits in connection with worker's
compensation, unemployment insurance and other social
security legislation, (ii) deposits to secure insurance, the
performance of bids, tenders, contracts, leases, licenses,
franchises and statutory obligations, each in the Ordinary
Course of Business, and (iii) other obligations which were
not incurred or made in connection with the borrowing of
money, the obtaining of advances or credit or the payment of
the deferred purchase price of property and which do not in
the aggregate materially detract from the value of its
Property or materially impair the use of such Property in
the operation of its business;
(d) any attachment or judgment Lien, unless the
judgment it secures shall not, within 45 days after the
entry thereof, have been discharged or execution thereof
stayed pending appeal, or shall not have been discharged
within 45 days after expiration of any such stay;
(e) easements, rights-of-way, restrictions and
other similar charges or encumbrances incurred in the
Ordinary Course of Business which, in each case, and in the
aggregate, do not materially interfere with the ordinary
conduct of the business of the Company or any Restricted
Subsidiary;
(f) Liens on Property of any Restricted Subsidiary
securing obligations of such Restricted Subsidiary owing to
the Company or another Restricted Subsidiary;
(g) any Lien existing prior to the time of
acquisition upon any Property acquired by the Company or any
Restricted Subsidiary after the Closing Date through
purchase, merger or consolidation or otherwise, whether or
not assumed by the Company or such Subsidiary, or placed
upon Property at (or within 30 days after) the later of the
time of acquisition or the completion of construction by the
Company or any Restricted Subsidiary to secure all or a
portion of (or to secure Indebtedness incurred to pay all or
a portion of) the purchase price thereof, provided that
(i) any such Lien does not encumber any other property of
the Company or such Restricted Subsidiary, (ii) the
Indebtedness secured by such Lien is not prohibited by the
provisions of Section 7.05, (iii) the aggregate principal
amount of the Indebtedness secured by such Lien at no time
exceeds 80% of the cost to the Company and its Restricted
Subsidiaries of the Property subject to such Lien, and
(iv) the aggregate outstanding principal amount (without
duplication) of the Indebtedness secured by all such Liens
and the Indebtedness of all Restricted Subsidiaries at no
time (a) during the period commencing on May 31, 1989 (the
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"Senior Note Closing") and ending on the fifth anniversary
of the Senior Note Closing exceeds $12,000,000, (b) during
the period commencing on the fifth anniversary of the Senior
Note Closing and ending on the tenth anniversary of the
Senior Note Closing exceeds $25,000,000, and (c) during the
period commencing on the tenth anniversary of the Senior
Note Closing and ending on the Revolving Termination Date
exceeds $50,000,000;
(h) Liens on the accounts, rights to payment for
goods sold or services rendered that are evidenced by
chattel paper or instruments, and rights against persons who
guarantee payment or collection of the foregoing, and on the
Company's inventory and on the proceeds (as defined in the
UCC in any applicable jurisdiction) thereof securing the
obligations of the Company under the Revolving Credit
Facility (and any extension, renewal, refunding or
refinancing thereof) permitted by subsection 7.05(e);
(i) any Lien existing on the Property of the
Company or its Subsidiaries on the Closing Date and set
forth in Schedule 7.01 securing Indebtedness outstanding on
such date; and
(j) any Lien renewing, extending, refunding or
refinancing any Lien permitted by subsection (i) of this
Section, provided that the principal amount secured is not
increased and the Lien is not extended to other Property and
further provided, that the maturity of the Lien is not
extended beyond the maturity date of the Indebtedness which,
at the time the Lien was initially placed upon the Property
secured thereby, Responsible Representatives declare would
have been the maturity date of Indebtedness customary for
the type of Property being financed.
7.02 Merger; Disposition of Assets. The Company shall
not, and shall not suffer or permit any of its Restricted
Subsidiaries to, merge or consolidate with any Person or,
directly or indirectly, sell, lease or transfer or otherwise
dispose of (whether in one or a series of transactions) any
Property (including accounts and notes receivable, with or
without recourse) or enter into any agreement to do any of
the foregoing, except that:
(a) any Restricted Subsidiary of the Company may
merge with the Company (provided that the Company shall be
the continuing or surviving corporation) or with any one or
more other Restricted Subsidiaries;
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(b) any Restricted Subsidiary of the Company may
sell, lease, transfer or otherwise dispose of any of its
assets to the Company or a Restricted Subsidiary;
(c) any Restricted Subsidiary may merge or
consolidate with any other entity, provided that,
immediately after giving effect to such merger or
consolidation (i) the continuing or surviving entity of such
merger or consolidation shall constitute a Restricted
Subsidiary, (ii) no Event of Default or Material Default
shall exist, and (iii) following the merger, the entity
surviving the merger is not engaged in any business other
than a Permitted Business;
(d) the Company may merge or consolidate with, or
sell or dispose of all or substantially all of its assets
to, any other entity, provided that (i) either (x) the
Company shall be the continuing or surviving entity (in the
case of such merger) or (y) the successor or acquiring
entity shall be a solvent corporation or partnership
organized under the laws of the United States and shall
expressly assume in writing all of the obligations of the
Company under this Agreement, the Note Agreements and the
Mortgage Note Agreements, including all covenants herein and
therein contained, and such successor or acquiring
corporation or partnership shall succeed to and be
substituted for the Company with the same effect as if it
had been named herein as a party hereto, provided, however,
that no such sale shall release the Company from any of its
obligations and liabilities under this Agreement, the Note
Agreements and the Mortgage Note Agreements unless such sale
is followed by the complete liquidation of the Company and
substantially all the assets of the Company immediately
following such sale are distributed in such liquidation, and
(ii) immediately after such merger or consolidation or such
sale or other disposition, (x) no Event of Default or
Material Default shall exist, (y) the Company could incur at
least $1 of additional Funded Debt pursuant to
subsection 7.05(j), and (z) the entity surviving the merger
or consolidation or to which such assets have been
transferred is not engaged in any business other than a
Permitted Business;
(e) the Company or any Restricted Subsidiary may
make dispositions of inventory in the Ordinary Course of
Business;
(f) the Company or any Restricted Subsidiary may
sell Designated Acres (or notes receivable arising from the
sale of Designated Acres) for the fair value thereof as
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reasonably determined in good faith by Responsible
Representatives;
(g) the Company and its Restricted Subsidiaries
may exchange Timberlands with other Persons in the Ordinary
Course of Business, provided that (i) the fair value of the
Timberlands plus any Net Proceeds received in such exchange
is, in the good faith judgment of the Responsible
Representatives, not less than the fair value of Timberlands
exchanged plus any other consideration paid, (ii) such
exchange would not materially and adversely affect the
business, Property, condition or results of operations of
the Company and its Restricted Subsidiaries on a combined
basis or of the Facilities Subsidiary or impair the ability
of the Company to perform its obligations hereunder and the
Note Agreements and the Mortgage Note Agreements, and
(iii) any Properties shall be deemed sold to the extent of
Net Proceeds received and such sales shall be allowed only
to the extent otherwise permitted by this Section 7.02;
(h) the Company and its Restricted Subsidiaries
may sell Properties for cash for not less than the fair
value thereof as determined in good faith by the Responsible
Representatives, provided that the aggregate Net Proceeds of
such sales in any calendar year do not exceed an amount (the
"Permitted Amount") equal to (i) in calendar year 1989 and
1990, $3,000,000 and (ii) in each calendar year thereafter,
the sum of (x) the Permitted Amount for the preceding
calendar year plus (y) an increase equal to the percentage
increase, if any, in the consumer price index for goods and
services in the United States, as published by the U.S.
Bureau of Labor Statistics, or successor publication, for
such preceding calendar year, times such permitted amount;
(i) 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 (i) immediately
after giving effect to such proposed sale, no condition or
event shall exist which constitutes an Event of Default or
Material Default, (ii) the Net Proceeds of any such sale are
either (x) subject to clause (v) of this subsection 7.02(i),
paid immediately to the Agent on behalf of the Banks for
prepayment of the Loans in accordance with the provisions of
Section 2.07, or (y) are applied, within 180 days after such
sale, to the purchase of productive assets in the same line
of business, provided, that the Company shall have notified
the Agent promptly after its determination to so apply the
Net Proceeds, (iii) if the Net Proceeds are in excess of
$25,000,000 and if not paid immediately as provided in
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clause (ii) above, placed immediately upon receipt thereof
in a cash collateral account or accounts at BofA, pursuant
to a Cash Collateral Account Agreement, for the purpose of
application in accordance with subclause (ii)(y) above,
(iv) immediately after giving effect to such sale (giving
effect on a pro forma basis to any proposed retirement of
Indebtedness out of proceeds thereof), the Company could
incur $1 of additional Funded Debt pursuant to
subsection 7.05(j), and (v) the aggregate Net Proceeds of
all sales pursuant to this subsection 7.02(i) during the
year from the funding of the first Loan hereunder to the
first anniversary thereof that are applied in repayment of
the Loans is less than or equal to $150,000,000; and
(j) the Company and its Restricted Subsidiaries
may otherwise sell Properties for cash (other than
properties described in subsection 7.02(i) above) in an
amount not less than the fair value thereof as determined in
good faith by the Responsible Representatives, if and only
if (i) immediately after giving effect to such proposed
sale, no condition or event shall exist which constitutes an
Event of Default or Material Default, (ii) the Net Proceeds
of any such sale (x) are applied first, if any Net Proceeds
have been used to repay the Loans in accordance with
subsection 7.02(i), to the holders of the Notes to the
extent necessary to cause their Actual Percentage to equal
the Desired Percentage, and second, pro rata (based on the
then 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, provided, that the
Company shall have notified the Agent promptly after its
determination to so apply the Net Proceeds, (iii) the net
proceeds of any such sale are either (x) distributed
immediately upon receipt thereof to holders of Qualified
Debt in accordance with subclause (ii)(x) above for
application (either immediately or within 180 days) to
repayment of such Qualified Debt, provided that, such
proceeds to be paid to the Agent on behalf of the Banks
shall be paid and applied immediately in accordance with the
provisions of Section 2.07, 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 clause (ii) above, and
(iv) immediately after giving effect to such sale (giving
effect on a pro forma basis to any proposed retirement of
Qualified Debt out of proceeds thereof), the Company could
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incur $1 of additional Funded Debt pursuant to
subsection 7.05(j).
7.03 Harvesting Restrictions. The Company shall not,
and shall not suffer or permit any of its Restricted
Subsidiaries to, 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:
Maximum MMBF
to be
Calendar Year Harvested
------------------------- ------------
1989 (including harvest
by predecessor prior
to closing under the
Note Agreements)
through 1991 675 MMBF
1992 and 1993 650 MMBF
1994 through 1996 700 MMBF
1997 through 2000 675 MMBF
2001 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 Proceeds from such excess harvest are either
(i) distributed to all holders of Qualified Debt pro rata
based upon the outstanding principal balance 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, provided that, such proceeds to be
paid to the Agent on behalf of the Banks shall be paid and
applied immediately in accordance with the provisions of
Section 2.07, or (ii) applied, within 180 days after any
such excess harvest, to purchase Timber (including Timber on
Timberlands purchased) having a fair value (in the good
faith judgment of the Responsible Representatives) not less
than the fair value of the Timber subject to such excess
harvest, provided, that the Company shall have notified the
Agent promptly after its determination to so apply the Net
Proceeds.
7.04 Loans and Investments. The Company shall not
suffer or permit any of its Restricted Subsidiaries to make
or commit to make or permit to remain outstanding any loan
or advance to, or guarantee, endorse or otherwise be or
become contingently liable, directly or indirectly, in
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connection with the obligations, stock or dividends of, or
own, purchase or acquire (or commit to own, purchase or
acquire) any stock, obligations or securities of, or any
other interest in (including, without limitation, the
acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person), or make
or commit to make any capital contribution to, any Person
(all of the foregoing (but excluding any Designated
Repurchases permitted by Section 7.13 hereof) being referred
to herein as "Investments"), except that the Company or any
Restricted Subsidiary may:
(a) make Investments in the Facilities Subsidiary,
provided that the Company will not make or permit any
Restricted Subsidiary to make any such Investment (including
any guaranty of obligations of the Facilities Subsidiary
otherwise permitted by this Section 7.04) unless
(i) immediately after giving effect to such Investment, no
Event of Default or Default, or "Default" or "Event of
Default" as defined in the Mortgage Note Agreements, shall
exist, (ii) immediately prior to giving effect to such
Investment, no Default or Event of Default (other than an
"Event of Default" as defined in the Mortgage Note
Agreements) shall exist, and (iii) immediately after giving
effect to such Investment, the ratio of Pro Forma Free Cash
Flow to Maximum Pro Forma Annual Interest Charges is not
less than 2.5 to 1.0.
(b) own, purchase or acquire real or personal
property to be used in the Ordinary Course of Business;
(c) own, purchase or acquire investments of the
type specified in, and in accordance with the requirements
and limitations of, the Investment Policy;
(d) continue to own Investments owned on the
Closing Date as set forth on Schedule 7.04;
(e) endorse negotiable instruments for collection
in the Ordinary Course of Business;
(f) become and be obligated under the Guarantee
and under the guarantees permitted by subsections 7.05(g)
and (h), and acquire and own subordinated subrogation rights
upon performance of such guarantees;
(g) make advances in the Ordinary Course of
Business of the Company or any Restricted Subsidiary,
including deposits permitted under subsection 7.01(c),
advances to employees for travel, relocation and other
employment related expenses, advances to contractors
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performing services for the Company or such Restricted
Subsidiary, advances to owners of timber or timber
properties to acquire rights to harvest timber and other
similar advances;
(h) make Investments in Restricted Subsidiaries,
or any entity which immediately after such Investment will
be a Restricted Subsidiary; and
(i) make Investments not otherwise permitted by
this Section 7.04 in entities engaged solely in a Permitted
Business, provided that the cumulative aggregate amount of
such Investments at original cost (including the principal
amount of any obligations guaranteed to the extent such
guarantees are not otherwise permitted by this Section 7.04)
made pursuant to this subsection (i) between the closing
date of the Note Agreements and any date thereafter shall
not exceed the greater of $30,000,000 or 60% of the average
annual Pro Forma Free Cash Flow for the two fiscal years
preceding such date.
7.05 Limitation on Indebtedness. The Company shall
not, and shall not suffer or permit any of its Restricted
Subsidiaries to, create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable
with respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this
Agreement;
(b) Funded Debt represented by the Notes and any
refinancing thereof so long as such refinancing does not
increase the principal amount thereof and is on terms no
less favorable to the Company, and to the rights of the
Agent and the Banks hereunder, than those contained on the
Closing Date in the Notes and the documentation relating
thereto;
(c) Funded Debt which is unsecured and is incurred
by the Company to finance the making of capital
improvements, expansions and additions to the Company's
property (including Timberlands), plant and equipment,
provided that the aggregate outstanding principal amount of
such Funded Debt shall at no time exceed $20,000,000;
(d) Indebtedness of any Restricted Subsidiary
owing to the Company or to a Restricted Subsidiary;
(e) Indebtedness incurred by the Company pursuant
to the Revolving Credit Facility (and any extension,
renewal, refunding or refinancing thereof, including any
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refunding or refinancing in an amount in excess of the
principal amount then outstanding under the Revolving Credit
Facility), or any other Indebtedness pursuant to a bank
credit facility which is unsecured or is secured by Liens
permitted by subsection 7.01(h), not in excess of an
aggregate principal amount of $15,000,000 at any time
outstanding, provided that the Company shall not suffer to
exist any Indebtedness permitted by this subsection (e) on
any day unless there shall have been a period of at least 45
consecutive days within the 12 months immediately preceding
such day during which the Company shall have been free from
all Indebtedness permitted by this subsection (e);
(f) Indebtedness represented by the Guarantee and
any refinancing thereof so long as such refinancing does not
increase the principal amount thereof and is on terms no
less favorable to the Company, and to the rights of the
Agent and the Banks hereunder, than those contained on the
Closing Date in the Guarantee and the documentation relating
thereto;
(g) the Company's guarantee of obligations
incurred by the Facilities Subsidiary pursuant to the
Facilities Subsidiary's Revolving Credit Facility (and any
extension, renewal, refunding or refinancing thereof
permitted by clause (iv) of paragraph 6B(2) of the Mortgage
Note Agreements), provided that the aggregate outstanding
principal amount of such Indebtedness shall at no time
exceed $20,000,000, and provided further that such guarantee
shall be subordinated to the Notes by subordination
provisions substantially the same as those contained in
paragraph 7I of the Mortgage Note Agreements;
(h) the Company's guarantee of Funded Debt (and
related obligations not constituting Indebtedness) incurred
by the Facilities Subsidiary to finance the making of
capital improvements, expansions and additions to the
Facilities Subsidiaries' Properties pursuant to the
Facilities Subsidiary's Facility, provided that such
guarantee shall be subordinated to the Notes by
subordination provisions substantially the same as those
contained in paragraph 7I of the Mortgage Note Agreements,
and provided, further, that the aggregate outstanding
principal amount of such Funded Debt shall at no time exceed
$20,000,000;
(i) Funded Debt of the Company or any Restricted
Subsidiary secured by a Lien permitted by
subsection 7.01(g), provided that immediately after the
acquisition of the Property subject to such Lien or upon
which such Lien is placed (or, if later, the incurrence of
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the Indebtedness secured by such Lien), the Company could
incur at least $1 of additional Funded Debt pursuant to
clause (j) below;
(j) Funded Debt of the Company (other than Funded
Debt owing to a Restricted Subsidiary) in addition to that
otherwise permitted by the foregoing subsections of this
Section 7.05, including guarantees of Indebtedness to the
extent permitted by Section 7.04 and not otherwise permitted
by the foregoing subsections of this Section 7.05, provided
that, on the date the Company becomes liable with respect to
any such additional Funded Debt and immediately after giving
effect thereto and to the concurrent retirement of any other
Funded Debt, the ratio of Pro Forma Free Cash Flow to
Maximum Pro Forma Annual Interest Charges is not less than
2.25 to 1.00; and provided, further, that the aggregate
outstanding principal amount of such additional Funded Debt
shall not exceed $400,000,000;
(k) from and after the time that the Facilities
Subsidiary becomes a Restricted Subsidiary, Indebtedness
incurred by the Facilities Subsidiary pursuant to the
Facilities Subsidiary's Revolving Credit Facility (and any
extension, renewal, refunding or refinancing thereof,
including any refunding or refinancing in an amount in
excess of the principal amount then outstanding under the
Facilities Subsidiary's Revolving Credit Facility) or any
other Indebtedness incurred by the Facilities Subsidiary
pursuant to a bank credit facility which is unsecured or is
secured by Liens permitted by subsection 7.01(h), not in
excess of an aggregate principal amount of $20,000,000 at
any time outstanding, provided that to the extent that the
Facilities Subsidiary is a Restricted Subsidiary, the
Facilities Subsidiary shall not suffer to exist any
Indebtedness permitted by this subsection (k) on any day
unless there shall have been a period of at least 45
consecutive days within the 12 months immediately preceding
such day during which the Facilities Subsidiary shall have
been free from all Indebtedness permitted by this
subsection (k); and
(l) from and after the time that the Facilities
Subsidiary or any Designated Immaterial Subsidiary becomes a
Restricted Subsidiary, Indebtedness of the Facilities
Subsidiary or any such Designated Immaterial Subsidiary
outstanding at the time the Facilities Subsidiary or such
Designated Immaterial Subsidiary becomes a Restricted
Subsidiary, provided that (i) immediately after the
Facilities Subsidiary or any such Designated Immaterial
Subsidiary becomes a Restricted Subsidiary, the Company
could incur at least $1 of additional Funded Debt pursuant
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to subsection (j) above (the Facilities Subsidiary or any
such Designated Immaterial Subsidiary shall be deemed to be
a Restricted Subsidiary for the four consecutive fiscal
quarters immediately prior to its becoming a Restricted
Subsidiary for purposes of determining Pro Forma Free Cash
Flow), and (ii) the aggregate amount (without duplication)
of such Indebtedness and all other Indebtedness, in each
case, secured by Liens permitted by subsection 7.01(g) does
not violate subclause (iv) to the proviso to such
subsection (g).
7.06 Transactions with Affiliates. The Company shall
not, and shall not suffer or permit any of its Restricted
Subsidiaries to directly or indirectly engage in any
transaction (including, without limitation, the purchase,
sale or exchange of assets or the rendering of any service),
with any Affiliate of the Company or of any such Restricted
Subsidiary, except in the Ordinary Course of Business and
pursuant to the reasonable requirements of the business of
the Company or such Restricted Subsidiary and upon fair and
reasonable terms that are no less favorable to the Company
or such Restricted Subsidiary, as the case may be, than
those which might be obtained in an arm's-length transaction
at the time from Persons not an Affiliate of the Company or
such Restricted Subsidiary.
7.07 Use of Proceeds. The Company shall not and shall
not suffer or permit any of its Subsidiaries to use any
portion of the Loan proceeds, directly or indirectly, (i) to
purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to
purchase or carry Margin Stock, (iii) to extend credit for
the purpose of purchasing or carrying any Margin Stock, or
(iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
7.08 Sale of Stock and Indebtedness of Subsidiaries.
The Company shall not, and shall not suffer or permit any of
its Restricted Subsidiaries to, sell or otherwise dispose
of, or part with control of, any shares of stock or
Indebtedness of any Subsidiary, except to the Company or a
Restricted Subsidiary, and except that all shares of stock
and Indebtedness of any Subsidiary (other than the
Facilities Subsidiary) at the time owned by or owed to the
Company and its Restricted Subsidiaries may be sold as an
entirety for a cash consideration which represents the fair
value (as determined in good faith by the Responsible
Representatives of the PC Advisory General Partner) at the
time of sale of the shares of stock and Indebtedness so
sold, provide that the assets of such Subsidiary do not
include any assets which could not be disposed of pursuant
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to the provisions of Section 7.02 unless the conditions to
the sale of such assets set forth in Section 7.02 are
complied with, and further provided that, at the time of
such sale, such Subsidiary shall not own, directly or
indirectly, any shares of stock or Indebtedness of any other
Subsidiary (unless all of the shares of stock and
Indebtedness of such other Subsidiary owned, directly or
indirectly, by the Company and its Subsidiaries are
simultaneously being sold as permitted by this
Section 7.08).
7.09 Certain Contracts. The Company shall not, and
shall not suffer or permit any of its Restricted
Subsidiaries to enter into or be a party to:
(a) any contract providing for the making of
loans, advances or capital contributions to any Person, or
for the purchase of any Property from any Person, in each
case in order primarily to enable such Person to maintain
working capital, net worth or any other balance sheet
condition or to pay debts, dividends or expenses; or
(b) any contract for the purchase of materials,
supplies or other property or services if such contract (or
any related document) requires that payment for such
materials, supplies or other property or services shall be
made regardless of whether or not delivery of such
materials, supplies or other property or services is ever
made or tendered, provided that nothing in this
subsection (b) shall prevent the Company from (i) entering
into take-or-pay contracts in the Ordinary Course of
Business with the United States Forest Service, the Bureau
of Land Management, the Bureau of Indian Affairs, the
Washington Department of Natural Resources or similar state
or federal governmental agencies, or (ii) making payments in
satisfaction of contracts with such Persons which contracts
are deemed by the Responsible Representatives to be
disadvantageous to perform; or
(c) any contract to rent or lease (as lessee) any
real or personal property if such contract (or any related
document) provides that the obligation to make payments
thereunder is absolute and unconditional under conditions
not customarily found in commercial leases then in general
use or requires that the lessee purchase or otherwise
acquire securities or obligations of the lessor; or
(d) any contract for the sale or use of materials,
supplies or other property, or the rendering of services, if
such contract (or any related document) requires that
payment for such materials, supplies or other property, or
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the use thereof, or payment for such services, shall be
subordinated to any indebtedness (of the purchaser or user
of such materials, supplies or other property or the Person
entitled to the benefit of such services) owed or to be owed
to any Person; or
(e) any other contract which in economic effect,
is substantially equivalent to a guarantee,
except as permitted by the provisions of subsection 7.04(a),
(e), (f), (g), (h) or (i).
7.10 Joint Ventures. The Company shall not, and shall
not suffer or permit any of its Restricted Subsidiaries to
enter into any Joint Venture, other than in Permitted
Businesses and so long as any such Joint Venture is not
entered into for the purposes of evading any covenant or
restriction in any Loan Documents.
7.11 Compliance with ERISA. The Company shall not, and
shall not suffer or permit any of its Subsidiaries to,
without the consent of the Majority Banks, (i) terminate any
Plan subject to Title IV of ERISA so as to result in any
material (in the opinion of the Majority Banks) liability to
the Company or any ERISA Affiliate, (ii) permit to exist any
ERISA Event or any other event or condition with respect to
any Plan other than a Multiemployer Plan, which presents the
risk of a material (in the opinion of the Majority Banks)
liability to the Company, (iii) make a complete or partial
withdrawal (within the meaning of ERISA Section 4201) from
any Multiemployer Plan so as to result in any material (in
the opinion of the Majority Banks) liability to the Company
or any ERISA Affiliate, (iv) enter into any new Plan or
modify any existing Plan so as to increase its obligations
thereunder which could result in any material (in the
opinion of the Majority Banks) liability to any member of
the Controlled Group, or (v) permit the present value of all
nonforfeitable accrued benefits under any Plan (using the
actuarial assumptions utilized by the PBGC upon termination
of a Plan) materially (in the opinion of the Majority Banks)
to exceed the fair market value of Plan assets allocable to
such benefits, all determined as of the most recent
valuation date for each such Plan.
7.12 Sale and Leaseback. The Company shall not, and
shall not suffer or permit any of its Restricted
Subsidiaries to, enter into any arrangement with any lender
or investor or to which such lender or investor is a party
providing for the leasing by the Company or any Restricted
Subsidiary of real or personal property which has been or is
to be sold or transferred by the Company or any Restricted
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Subsidiary to such lender or investor or to any Person to
whom funds have been or are to be advanced by such lender or
investor on the security of such property or rental
obligations of the Company or any Restricted Subsidiary,
provided that this Section 7.12 shall not apply to any
property sold pursuant to subsection 7.02(h).
7.13 Restricted Payments. The Company shall not and
shall not permit or suffer any Subsidiary to directly or
indirectly pay, declare, order, make or set apart any sum
for any Restricted Payment, except that the Company may
make, pay or set apart during each calendar quarter one or
more Restricted Payments if:
(a) such Restricted Payments are in an aggregate
amount not exceeding the amount by which Available Cash with
respect to the immediately preceding calendar quarter
exceeds any amount contributed to Available Cash with
respect to such immediately preceding calendar quarter by
any Subsidiary if and to the extent that the payment of such
amount as a dividend or distribution to the Company has not
been made and is not at the time permitted by the terms of
such Subsidiary's charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental
regulation applicable to such Subsidiary, provided that in
determining Available Cash with respect to such immediately
preceding calendar quarter, the Company will include in the
amount of reserves established during such quarter pursuant
to clause (ii)(d) of the definition of Available Cash an
amount not less than (i) 50% of the aggregate amount of all
interest in respect of the Notes to be paid on the interest
date immediately following such immediately preceding
calendar quarter, (ii) 100% of the aggregate amount of all
interest in respect of the Loans to be paid on the
respective Interest Payment Dates for such Loans immediately
following such immediately preceding calendar quarter,
(iii) 25% of the aggregate amount of all principal in
respect of the Notes scheduled to be paid during the 12
calendar months immediately following such immediately
preceding calendar quarter, and (iv) 25% of the aggregate
amount of payments required to be made on account of
Mandatory Commitment Reductions scheduled during the
12 calendar months immediately following such immediately
preceding calendar quarter, and the Company will not reduce
the amount of the reserves so included, in determining
Available Cash for any calendar quarter subsequent to such
immediately preceding calendar quarter pursuant to
clause (i)(c) of the definition of Available Cash, unless
and until (A) the amount of interest or principal in respect
of which such amount has been reserved has in fact been paid
and (B) in the case of clause (iv) of this
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subsection 7.13(a), the amount of the reserves so included
exceeds fifty percent (50%) of the aggregate amount of
payments required to be made on account of the Mandatory
Commitment Reductions scheduled during the 12 calendar
months immediately following such immediately preceding
calendar quarter; and
(b) immediately after giving effect to any such
proposed action no condition or event shall exist which
constitutes an Event of Default or Material Default.
The Company will not, in any event, directly or indirectly
declare, order, pay or make any Restricted Payment except in
cash.
7.14 Change in Business. The Company shall not, and
shall not permit any of its Subsidiaries to, engage in any
business other than a Permitted Business.
7.15 Issuance of Stock by Subsidiaries. The Company
covenants that it will not permit any Subsidiary to (either
directly, or indirectly by the issuance of rights or options
for, or securities convertible into, such shares) issue,
sell or otherwise dispose of any shares of any class of its
stock or partnership or other ownership interests (other
than directors' qualifying shares) except to the Company or
a Restricted Subsidiary, and except to the extent that
holders of minority interests may be entitled to purchase
stock by reason of preemptive rights.
7.16 Amendments. The Company shall not, and shall not
suffer or permit any of its Subsidiaries to amend, modify,
supplement, waive or otherwise modify any provision of any
agreement evidencing funded Debt in excess of $35,000,000
which amendment, modification, supplement or waiver would
reasonably be expected to affect the Agent's or the Banks'
rights hereunder (including the right to be repaid pursuant
to subsection 7.02(i)) or the ability of the Company to
perform its obligations under any Loan Document.
7.17 Available Cash. The Company shall not at any time
permit Available Cash to be less than zero. For purposes of
this Section 7.17, in determining Available Cash with
respect to the immediately preceding calendar quarter, the
Company will include in the amount of reserves established
during such quarter pursuant to clause (ii)(d)(1) (with
respect to principal on Indebtedness) and clause (ii)(d)(4)
of the definition of "Available Cash" an amount not less
than (a) 50% of the aggregate amount of all interest in
respect of the Notes to be paid on the interest date
immediately following such immediately preceding calendar
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quarter, (b) 100% of the aggregate amount of all interest in
respect of the Loans to be paid on the respective Interest
Payment Dates for such Loans immediately following such
immediately preceding calendar quarter, (c) 25% of the
aggregate amount of all principal in respect of the Notes
scheduled to be paid during the 12 calendar months
immediately following such immediately preceding calendar
quarter, and (d) 25% of the aggregate amount of payments
required to be made on account of Mandatory Commitment
Reductions scheduled during the 12 calendar months
immediately following such immediately preceding calendar
quarter, and the Company will not reduce the amount of the
reserves so included in determining Available Cash for any
calendar quarter subsequent to such immediately preceding
calendar quarter pursuant to clause (i)(c) of the definition
of Available Cash, unless and until (i) the amount of
interest or principal in respect of which such amount has
been reserved has in fact been paid and (ii) in the case of
clause (d) of this Section 7.17, the amount of the reserves
so included exceeds fifty percent (50%) of the aggregate
amount of payments required to be made on account of the
Mandatory Commitment Reductions scheduled during the
12 calendar months immediately following such immediately
preceding calendar quarter.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. The Company fails to pay,
(i) when and as required to be paid herein, any amount of
principal of any Loan, or (ii) within 5 days after the same
shall become due, any interest, fee or any other amount
payable hereunder or pursuant to any other Loan Document; or
(b) Representation or Warranty. Any
representation or warranty by the Company or any of its
Subsidiaries made or deemed made herein, in any Loan
Document, or which is contained in any certificate, document
or financial or other statement by the Company, its
Responsible Representatives, any of its Subsidiaries, or
their respective Responsible Officers, furnished at any time
under this Agreement, or in or under any Loan Document,
shall prove to have been incorrect in any material respect
on or as of the date made or deemed made; or
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(c) Specific Defaults. The Company fails to
perform or observe any term, covenant or agreement contained
in Sections 6.01, 6.02, 6.03 and 6.09 or Article VII; or
(d) Other Defaults. The Company fails to perform
or observe any other term or covenant contained in this
Agreement or any Loan Document, and such default shall
continue unremedied for a period of 20 days after the
earlier of (i) the date upon which a Responsible Officer or
Responsible Representative of the Company knew or should
have known of such failure or (ii) the date upon which
written notice thereof is given to the Company by the Agent
or any Bank; or
(e) Cross-Default. The Company or any of its
Subsidiaries (i) fails to make any payment in respect of any
Indebtedness having an aggregate principal amount (including
undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated
credit arrangement) of more than $5,000,000 when due
(whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise); or (ii) fails to
perform or observe any other condition or covenant, or any
other event shall occur or condition exist, under any
agreement or instrument relating to any such Indebtedness,
if the effect of such failure, event or condition is to
cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to
its stated maturity, or with respect to any contingent
obligations, to become payable or cash collateral in respect
thereof to be demanded; or
(f) Insolvency; Voluntary Proceedings. The
Company, any of its Subsidiaries, or any Partner Entity
(i) ceases or fails to be Solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as
they become due, subject to applicable grace periods, if
any, whether at stated maturity or otherwise;
(ii) voluntarily ceases to conduct its business in the
ordinary course; (iii) commences any Insolvency Proceeding
with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the
Company, the Facilities Subsidiary, any Restricted
Subsidiary of the Company, or any Partner Entity, or any
writ, judgment, warrant of attachment, execution or similar
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process, is issued or levied against a substantial part of
the Company's, any of its Restricted Subsidiaries', any
Partner Entities' or the Facilities Subsidiaries'
Properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated
or fully bonded within 60 days after commencement, filing or
levy; (ii) the Company, any Partner Entity, the Facilities
Subsidiary, or any of the Company's Restricted Subsidiaries
admits the material allegations of a petition against it in
any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) the Company, any Partner
Entity, any of the Company's Restricted Subsidiaries, or the
Facilities Subsidiary acquiesces in the appointment of a
receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its
Property or business; or
(h) ERISA. (i) A member of the Controlled Group
shall fail to pay when due, after the expiration of any
applicable grace period, any installment payment with
respect to its withdrawal liability under a Multiemployer
Plan; (ii) the Company or an ERISA Affiliate shall fail to
satisfy its contribution requirements under
Section 412(c)(11) of the Code, whether or not it has sought
a waiver under Section 412(d) of the Code; (iii) in the case
of an ERISA Event involving the withdrawal from a Plan of a
"substantial employer" (as defined in Section 4001(a)(2) or
Section 4062(e) of ERISA), the withdrawing employer's
proportionate share of that Plan's Unfunded Pension
Liabilities is more than $10,000,000; (iv) in the case of an
ERISA Event involving the complete or partial withdrawal
from a Multiemployer Plan, the withdrawing employer has
incurred a withdrawal liability in an aggregate amount
exceeding $10,000,000; (v) in the case of an ERISA Event not
described in clause (iii) or (iv), the Unfunded Pension
Liabilities of the relevant Plan or Plans exceed
$10,000,000; (vi) a Plan that is intended to be qualified
under Section 401(a) of the Code shall lose its
qualification, and the loss can reasonably be expected to
impose on members of the Controlled Group liability (for
additional taxes, to Plan participants, or otherwise) in the
aggregate amount of $10,000,000 or more; (vii) the
commencement or increase of contributions to, or the
adoption of or the amendment of a Plan by, a member of the
Controlled Group shall result in a net increase in unfunded
liabilities to the Controlled Group in excess of
$10,000,000; (viii) any member of the Controlled Group
engages in or otherwise becomes liable for a non-exempt
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prohibited transaction and the initial tax or additional tax
under section 4975 of the Code relating thereto might
reasonably be expected to exceed $10,000,000; (ix) a
violation of section 404 or 405 of ERISA or the exclusive
benefit rule under section 401(a) of the Code if such
violation might reasonably be expected to expose a member or
members of the Controlled Group to monetary liability in
excess of $10,000,000; (x) any member of the Controlled
Group is assessed a tax under section 4980B of the Code in
excess of $10,000,000; or (xi) the occurrence of any
combination of events listed in clauses (iii) through (x)
that involves a potential liability, net increase in
aggregate Unfunded Pension Liabilities, unfunded
liabilities, or any combination thereof, in excess of
$10,000,000; or
(i) Monetary Judgments. One or more non-
interlocutory judgments, orders or decrees shall be entered
against the Company or any of its Subsidiaries involving in
the aggregate a liability (not fully covered by independent
third-party insurance) as to any single or related series of
transactions, incidents or conditions, of $25,000,000 or
more, and the same shall remain unsatisfied, unvacated and
unstayed pending appeal for a period of 30 days after the
entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary
judgment, order or decree shall be rendered against the
Company or any of its Subsidiaries which does or would
reasonably be expected to have a Material Adverse Effect,
and there shall be any period of 10 consecutive days during
which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in
effect; or
(k) Montana Timberlands. The Company shall not
have acquired the Montana Timberlands on or before the date
that is 30 days after the Closing Date; or
(l) Adverse Change. There shall occur (i) a
material adverse change in, or a material adverse effect
upon, any of the operations, business, properties, or
condition (financial or otherwise) of the Company or the
Company and its Subsidiaries taken as a whole or as to any
Restricted Subsidiary which materially impairs the ability
of the Company to perform under any Loan Document and avoid
any Event of Default, or (ii) a material adverse effect upon
the legality, validity, binding effect or enforceability of
any Loan Document.
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8.02 Remedies. If any Event of Default occurs, the
Agent shall, at the request of, or may, with the consent of,
the Majority Banks,
(a) declare the Commitment of each Bank to make
Loans to be terminated, whereupon such Commitments shall
forthwith be terminated;
(b) declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon,
and all other amounts owing or payable hereunder or under
any other Loan Document to be immediately due and payable;
without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the
Company; and
(c) exercise on behalf of itself and the Banks all
rights and remedies available to it and the Banks under the
Loan Documents or applicable law;
provided, however, that upon the occurrence of any event
specified in paragraph (f) or (g) of Section 8.01 above (in
the case of clause (i) of paragraph (g) upon the expiration
of the 60-day period mentioned therein), the obligation of
each Bank to make Loans shall automatically terminate and
the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically
become due and payable without further act of the Agent or
any Bank.
8.03 Rights Not Exclusive. The rights provided for in
this Agreement and the other Loan Documents are cumulative
and are not exclusive of any other rights, powers,
privileges or remedies provided by law or in equity, or
under any other instrument, document or agreement now
existing or hereafter arising.
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization. Each Bank hereby
irrevocably appoints, designates and authorizes the Agent to
take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to
it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably
incidental thereto, including, without limitation, to enter
into Cash Collateral Account Agreements from time to time in
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accordance with subsection 7.02(i) of this Agreement, and to
release funds to the Company in accordance with Section 1(b)
of the Cash Collateral Agreement pursuant to an Officer's
Certificate substantially in the form attached thereto as
Exhibit A. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan
Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein,
nor shall the Agent have or be deemed to have any fiduciary
relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Agent.
9.02 Delegation of Duties. The Agent may execute any
of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-
fact and shall be entitled to advice of counsel concerning
all matters pertaining to such duties. The Agent shall not
be responsible for the negligence or misconduct of any agent
or attorney-in-fact that it selects with reasonable care.
9.03 Liability of Agent. None of the Agent-Related
Persons shall (i) be liable for any action taken or omitted
to be taken by any of them under or in connection with this
Agreement or any other Loan Document (except for its own
gross negligence or willful misconduct), or (ii) be
responsible in any manner to any of the Banks for any
recital, statement, representation or warranty made by the
Company or any Subsidiary or Affiliate of the Company, or
any officer thereof, contained in this Agreement or in any
other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this
Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document, or for any
failure of the Company or any other party to any Loan
Document to perform its obligations hereunder or thereunder.
No Agent-Related Person shall be under any obligation to any
Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or
to inspect the Properties, books or records of the Company
or any of the Company's Subsidiaries or Affiliates.
9.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram,
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facsimile, telex or telephone message, statement or other
document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Company), independent
accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or
concurrence of the Majority Banks as it deems appropriate
and, if it so requests, it shall first be indemnified to its
satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Majority Banks
and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with
the conditions specified in Section 4.01, each Bank that has
executed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with each
document or other matter either sent or made available by
the Agent to such Bank for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to the Bank,
unless an officer of the Agent responsible for the
transactions contemplated by the Loan Documents shall have
received notice from the Bank prior to the initial Borrowing
specifying its objection thereto and either such objection
shall not have been withdrawn by notice to the Agent to that
effect or the Bank shall not have made available to the
Agent the Bank's ratable portion of such Borrowing.
9.05 Notice of Default. The Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default
or Event of Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid
to the Agent for the account of the Banks, unless the Agent
shall have received written notice from a Bank or the
Company referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a
"notice of default". In the event that the Agent receives
such a notice, the Agent shall give prompt notice thereof to
the Banks. The Agent shall take such action with respect to
such Default or Event of Default as shall be requested by
the Majority Banks in accordance with Article VIII;
provided, however, that unless and until the Agent shall
have received any such request, the Agent may (but shall not
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be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest
of the Banks.
9.06 Credit Decision. Each Bank expressly acknowledges
that none of the Agent-Related Persons has made any
representation or warranty to it and that no act by the
Agent hereinafter taken, including any review of the affairs
of the Company and its Subsidiaries shall be deemed to
constitute any representation or warranty by the Agent to
any Bank. Each Bank represents to the Agent that it has,
independently and without reliance upon the Agent and based
on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation
into the business, prospects, operations, property,
financial and other condition and creditworthiness of the
Company and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated
thereby, and made its own decision to enter into this
Agreement and extend credit to the Company hereunder. Each
Bank also represents that it will, independently and without
reliance upon the Agent and based on such documents and
information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company. Except
for notices, reports and other documents expressly herein
required to be furnished to the Banks by the Agent, the
Agent shall not have any duty or responsibility to provide
any Bank with any credit or other information concerning the
business, prospects, operations, property, financial and
other condition or creditworthiness of the Company which may
come into the possession of any of the Agent-Related
Persons.
9.07 Indemnification. Whether or not the transactions
contemplated hereby shall be consummated, the Banks shall
indemnify upon demand the Agent-Related Persons (to the
extent not reimbursed by or on behalf of the Company and
without limiting the obligation of the Company to do so),
ratably from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements of any kind
whatsoever which may at any time (including at any time
following the repayment of the Loans and the termination or
resignation of the related Agent) be imposed on, incurred by
or asserted against any such Person in any way relating to
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or arising out of this Agreement or any document
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action
taken or omitted by any such Person under or in connection
with any of the foregoing; provided, however, that no Bank
shall be liable for the payment to the Agent-Related Persons
of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from such
Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank shall reimburse the
Agent upon demand for its ratable share of any costs or out-
of-pocket expenses (including reasonable Attorney Costs)
incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment
or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred
to herein to the extent that the Agent is not reimbursed for
such expenses by or on behalf of the Company. Without
limiting the generality of the foregoing, if the Internal
Revenue Service or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the
Agent did not properly withhold tax from amounts paid to or
for the account of any Bank (because the appropriate form
was not delivered, was not properly executed, or because
such Bank failed to notify the Agent of a change in
circumstances which rendered the exemption from, or
reduction of, withholding tax ineffective, or for any other
reason) such Bank shall indemnify the Agent fully for all
amounts paid, directly or indirectly, by the Agent as tax or
otherwise, including penalties and interest, and including
any taxes imposed by any jurisdiction on the amounts payable
to the Agent under this Section, together with all costs and
expenses and attorneys' fees (including reasonable Attorney
Costs). The obligation of the Banks in this Section shall
survive the payment of all Obligations hereunder.
9.08 Agent in Individual Capacity. BofA and its
Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking,
trust, financial advisory or other business with the Company
and its Subsidiaries and Affiliates as though BofA was not
the Agent hereunder and without notice to or consent of the
Banks. With respect to its Loans, BofA shall have the same
rights and powers under this Agreement as any other Bank and
may exercise the same as though it were not the Agent, and
the terms "Bank" and "Banks" shall include BofA in its
individual capacity. BofA has provided and may in the
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future provide credit facilities (which presently consist of
the issuance of a letter of credit in the amount of
$32,486,640 for the benefit of Burlington Resources Inc.)
for the account of or to PCMC Intermediate Holdings, a
Delaware limited partnership (the "GP Borrower"), and DPI
Intermediate Holdings, L.P., a Delaware limited partnership
(the "DPI Borrower"), in connection with or related to the
acquisition by the GP Borrower and the PCMC General Partner
of the limited and general partnership interests in the
General Partner, and the acquisition by the DPI Borrower and
PC Advisory Partners II, L.P. of the limited and general
partnership interests in DPI Sub L.P., a Delaware limited
partnership that owned the Deferred Participation Interests
(as defined in the Partnership Agreement). Those credit
facilities are secured by, among other things, security
interests in the general and limited partnership interests
in the General Partner and in DPI Sub L.P.; accordingly,
upon the exercise of remedies following a default under
those credit facilities, BofA could become the owner of (or
could transfer to a third person) those limited and general
partnership interests. Each Bank acknowledges that (i) it
has, independently and without reliance upon BofA and based
on such documents and information as it has deemed
appropriate, made its own investigation into those credit
facilities; (ii) BofA has responded satisfactorily to any
request by such Bank for information regarding such credit
facilities; (iii) BofA may manage its relationship with the
GP Borrower and the DPI Borrower, and deal with its
collateral for such credit facilities, as it sees fit as
though it were not the Agent hereunder; (iv) BofA's
liability under the letter of credit will be directly
related to, and the ability of the GP Borrower and the DPI
Borrower to pay sums due under such credit facilities may be
dependant in whole or part on, distributions received from
the Company; and (v) BofA shall have no obligation to
disclose to any Bank any information received by BofA in
connection with such credit facilities.
9.09 Successor Agent. The Agent may, and at the
request of the Majority Banks shall, resign as Agent upon 30
days' notice to the Banks. If an Agent shall resign as
Agent under this Agreement, the Majority Banks shall appoint
from among the Banks a successor agent for the Banks. If no
successor agent is appointed prior to the effective date of
the resignation of the Agent, the Agent may appoint, after
consulting with the Banks and the Company, a successor agent
from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of
the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's appointment, powers
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and duties as Agent shall be terminated. After any retiring
Agent's resignation hereunder as Agent, the provisions of
this Article IX and Sections 10.04 and 10.05 shall inure to
its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement. If no
successor agent has accepted appointment as Agent by the
date which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Banks shall
perform all of the duties of the Agent hereunder until such
time, if any, as the Majority Banks appoint a successor
agent as provided for above.
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver
of any provision of this Agreement or any other Loan
Document, and no consent with respect to any departure by
the Company therefrom, shall be effective unless the same
shall be in writing and signed by the Majority Banks, the
Company and acknowledged by the Agent, and then such waiver
shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no
such waiver, amendment, or consent shall, unless in writing
and signed by all the Banks, the Company and acknowledged by
the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank
(or reinstate any Commitment terminated pursuant to
subsection 8.02(a)) or subject any Bank to any additional
obligations;
(b) postpone or delay any date fixed for any
payment of principal, interest, fees or other amounts due to
the Banks (or any of them) hereunder or under any Loan
Document;
(c) reduce the principal of, or the rate of
interest specified herein on any Loan, or of any fees or
other amounts payable hereunder or under any Loan Document;
(d) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Loans which
shall be required for the Banks or any of them to take any
action hereunder; or
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(e) amend this Section 10.01 or Section 2.14 or
any provision providing for consent or other action by all
Banks;
and, provided further, that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition
to the Majority Banks or all the Banks, as the case may be,
affect the rights or duties of the Agent under this
Agreement or any other Loan Document.
10.02 Notices.
(a) All notices, requests and other communications
provided for hereunder shall be in writing (including,
unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted
by the Company by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number
specified on the applicable signature page hereof, and
(ii) shall be followed promptly by a hard copy original
thereof) and mailed, faxed or delivered, to the address or
facsimile number specified for notices on the applicable
signature page hereof; or, as directed to the Company or the
Agent, to such other address as shall be designated by such
party in a written notice to the other parties, and as
directed to each other party, at such other address as shall
be designated by such party in a written notice to the
Company and the Agent.
(b) All such notices, requests and communications
shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery,
or transmitted by facsimile machine, respectively, or if
mailed, upon the third Business Day after the date deposited
into the U.S. mail, or if delivered, upon delivery; except
that notices pursuant to Article II or IX shall not be
effective until actually received by the Agent.
(c) The Company acknowledges and agrees that any
agreement of the Agent and the Banks at Article II herein to
receive certain notices by telephone and facsimile is solely
for the convenience and at the request of the Company. The
Agent and the Banks shall be entitled to rely on the
authority of any Person purporting to be a Person authorized
by the Company to give such notice and the Agent and the
Banks shall not have any liability to the Company or other
Person on account of any action taken or not taken by the
Agent or the Banks in reliance upon such telephonic or
facsimile notice. The obligation of the Company to repay
the Loans shall not be affected in any way or to any extent
by any failure by the Agent and the Banks to receive written
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confirmation of any telephonic or facsimile notice or the
receipt by the Agent and the Banks of a confirmation which
is at variance with the terms understood by the Agent and
the Banks to be contained in the telephonic or facsimile
notice.
10.03 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the
Agent or any Bank, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or
privilege.
10.04 Costs and Expenses. The Company shall, whether
or not the transactions contemplated hereby shall be
consummated:
(a) pay or reimburse BofA (including in its
capacity as Agent) within five Business Days after demand
(subject to subsection 4.01(e)) for all reasonable costs and
expenses incurred by BofA (including in its capacity as
Agent) in connection with the development, preparation,
delivery, administration and execution of, and any
amendment, supplement, waiver or modification to (in each
case, whether or not consummated), this Agreement, any Loan
Document and any other documents prepared in connection
herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including the
reasonable Attorney Costs incurred by BofA (including in its
capacity as Agent) with respect thereto; provided, however,
that this subsection (a) shall not apply to any such costs
and expenses incurred by BofA after any date that BofA is no
longer the Agent hereunder and after any such date any
references in this subsection (a) to BofA shall be deemed a
reference to the successor Agent; and
(b) pay or reimburse each Bank and the Agent
within five Business Days after demand (subject to
subsection 4.01(e)) for all costs and expenses incurred by
them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies
(including in connection with any "workout" or restructuring
regarding the Loans, and including in any Insolvency
Proceeding or appellate proceeding) under this Agreement,
any other Loan Document, and any such other documents,
including Attorney Costs and appraisal (including the
allocated cost of internal appraisal services), audit,
environmental inspection and review (including the allocated
cost of such internal services), and search and filing
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costs, fees and expenses, incurred by the Agent and any
Bank.
10.05 Indemnity. Whether or not the transactions
contemplated hereby shall be consummated: The Company shall
pay, indemnify, and hold each Bank, the Agent and each of
their respective officers, directors, employees, counsel,
agents and attorneys-in-fact (each, an "Indemnified Person")
harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, charges, expenses or disbursements (including
Attorney Costs) of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance
and administration of this Agreement and any other Loan
Documents, or the transactions contemplated hereby and
thereby, and with respect to any investigation, litigation
or proceeding (including any Insolvency Proceeding or
appellate proceeding) related to this Agreement or the Loans
or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that
the Company shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities
arising from the gross negligence or willful misconduct of
such Indemnified Person. The agreements in this
Section shall survive payment of all other Obligations.
10.06 Marshalling; Payments Set Aside. Neither the
Agent nor the Banks shall be under any obligation to
marshall any assets in favor of the Company or any other
Person or against or in payment of any or all of the
Obligations. To the extent that the Company makes a payment
or payments to the Agent or the Banks, or the Agent or the
Banks enforce their Liens or exercise their rights of set-
off, and such payment or payments or the proceeds of such
enforcement or set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement
entered into by the Agent in its discretion) to be repaid to
a trustee, receiver or any other party in connection with
any Insolvency Proceeding, or otherwise, then (a) to the
extent of such recovery the obligation or part thereof
originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had
not been made or such enforcement or set-off had not
occurred, and (b) each Bank severally agrees to pay to the
Agent upon demand its ratable share of the total amount so
recovered from or repaid by the Agent.
10.07 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of
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the parties hereto and their respective successors and
assigns, except that the Company may not assign or transfer
any of its rights or obligations under this Agreement
without the prior written consent of the Agent and each
Bank.
10.08 Assignments, Participations, etc.
(a) Prior to the date that is one year after the
Closing Date, the Banks shall be prohibited from assigning
all or any part of the Loans, the Commitments, or any other
right or obligation hereunder. Thereafter, any Bank may,
with the written consent of the Company at all times other
than during the existence of an Event of Default and the
Agent, which consents of the Company and the Agent may be
given or withheld in each of their sole discretion, at any
time assign and delegate to one or more Eligible Assignees
(provided that no written consent of the Company or the
Agent shall be required in connection with any assignment
and delegation by a Bank to an Eligible Assignee that is an
Affiliate of such Bank) (each an "Assignee") all, or any
ratable part of all, of the Loans, the Commitments and the
other rights and obligations of such Bank hereunder;
provided that no assignment shall in any event be less than
$20,000,000 unless as a result of such assignment the
assigning Bank's rights and obligations hereunder shall be
reduced to zero; and provided further that if a Bank assigns
less than all of its rights and obligations hereunder, such
Bank's remaining Commitment, after giving effect to such
assignment, shall not be less than $20,000,000; provided,
however, that (i) the Company and the Agent may continue to
deal solely and directly with such Bank in connection with
the interest so assigned to an Assignee until (A) written
notice of such assignment, together with payment
instructions, addresses and related information with respect
to the Assignee, shall have been given to the Company and
the Agent by such Bank and the Assignee; (B) such Bank and
its Assignee shall have delivered to the Company and the
Agent an Assignment and Acceptance in the form of Exhibit F
("Assignment and Acceptance") and (C) the assignor Bank or
Assignee has paid to the Agent a processing fee in the
amount of $3,500.
(b) From and after the date that the Agent
notifies the assignor Bank that it has received (and
provided its consent with respect to) an executed Assignment
and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and
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obligations of a Bank under the Loan Documents, and (ii) the
assignor Bank shall, to the extent that rights and
obligations hereunder and under the other Loan Documents
have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its
obligations under the Loan Documents.
(c) Immediately upon each Assignee's making its
processing fee payment under the Assignment and Acceptance,
this Agreement, shall be deemed to be amended to the extent,
but only to the extent, necessary to reflect the addition of
the Assignee and the resulting adjustment of the Commitments
arising therefrom. The Commitment allocated to each Assignee
shall reduce such Commitments of the assigning Bank pro
tanto.
(d) Any Bank may at any time sell to one or more
commercial banks or other Persons not Affiliates of the
Company (a "Participant") participating interests in any
Loans, the Commitment of that Bank and the other interests
of that Bank (the "originating Bank") hereunder and under
the other Loan Documents; provided, however, that (i) the
originating Bank's obligations under this Agreement shall
remain unchanged, (ii) the originating Bank shall remain
solely responsible for the performance of such obligations,
(iii) the Company and the Agent shall continue to deal
solely and directly with the originating Bank in connection
with the originating Bank's rights and obligations under
this Agreement and the other Loan Documents, and (iv) no
Bank shall transfer or grant any participating interest
under which the Participant shall have rights to approve any
amendment to, or any consent or waiver with respect to, this
Agreement or any other Loan Document, except to the extent
such amendment, consent or waiver would require unanimous
consent of the Banks as described in the first proviso to
Section 10.01. In the case of any such participation, the
Participant shall be entitled to the benefit of Sections
3.01, 3.03 and 10.05 as though it were also a Bank
hereunder, and if amounts outstanding under this Agreement
are due and unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event
of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in
amounts owing under this Agreement to the same extent as if
the amount of its participating interest were owing directly
to it as a Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable
precautions and exercise due care to maintain the
confidentiality of all information identified as
"confidential" by the Company and provided to it by the
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Company or any Subsidiary of the Company, or by the Agent on
such Company's or Subsidiary's behalf, in connection with
this Agreement or any other Loan Document, and neither it
nor any of its Affiliates shall use any such information for
any purpose or in any manner other than pursuant to the
terms contemplated by this Agreement; provided, however,
that any Bank may disclose such information (A) to the
extent that such information was or becomes generally
available to the public other than as a result of a
disclosure by the Bank; (B) to the extent such information
was or becomes available to such Bank to whom it was
furnished on a non-confidential basis; (C) at the request or
pursuant to any requirement of any Governmental Authority to
which the Bank is subject or in connection with an
examination of such Bank by any such authority; (D) pursuant
to subpoena or other court process; (E) when required to do
so in accordance with the provisions of any applicable
Requirement of Law; (F) to the extent reasonably required in
connection with any litigation or proceeding to which the
Agent, any Bank or their respective Affiliates may be party;
(G) to the extent reasonably required in connection with the
exercise of any remedy hereunder or under any other Loan
Document; (H) to such Bank's independent auditors and other
professional advisors. Notwithstanding the foregoing, the
Company authorizes each Bank to disclose to any Participant
or Assignee (each, a "Transferee") and to any prospective
Transferee, such financial and other information in such
Bank's possession concerning the Company or its Subsidiaries
which has been delivered to the Agent or the Banks pursuant
to this Agreement or which has been delivered to the Agent
or the Banks by the Company in connection with the Banks'
credit evaluation of the Company prior to entering into this
Agreement; provided that, unless otherwise agreed by the
Company, such Transferee agrees in writing to such Bank to
keep such information confidential to the same extent
required of the Banks hereunder.
(f) Notwithstanding any other provision contained
in this Agreement or any other Loan Document to the
contrary, any Bank may assign all or any portion of the
Loans held by it to any Federal Reserve Bank or the United
States Treasury as collateral security pursuant to
Regulation A of the Federal Reserve Board and any Operating
Circular issued by such Federal Reserve Bank, provided that
any payment in respect of such assigned Loans made by the
Company to or for the account of the assigning or pledging
Bank in accordance with the terms of this Agreement shall
satisfy the Company's obligations hereunder in respect to
such assigned Loans to the extent of such payment. No such
assignment shall release the assigning Bank from its
obligations hereunder.
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10.09 Set-off. In addition to any rights and remedies
of the Banks provided by law, if an Event of Default exists,
each Bank is authorized at any time and from time to time,
without prior notice to the Company, any such notice being
waived by the Company to the fullest extent permitted by
law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing to, such
Bank to or for the credit or the account of the Company
against any and all Obligations owing to such Bank, now or
hereafter existing, irrespective of whether or not the Agent
or such Bank shall have made demand under this Agreement or
any Loan Document and although such Obligations may be
contingent or unmatured. Each Bank agrees promptly to
notify the Company and the Agent after any such set-off and
application made by such Bank; provided, however, that the
failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Bank under
this Section 10.09 are in addition to the other rights and
remedies (including other rights of set-off) which the Bank
may have.
10.10 Automatic Debits of Fees. With respect to any
commitment fee, facility fee, or other fee, or any other
cost or expense (including Attorney Costs) due and payable
to the Agent or BofA under the Loan Documents, the Company
hereby irrevocably authorizes BofA to debit any deposit
account of the Company with BofA in an amount such that the
aggregate amount debited from all such deposit accounts does
not exceed such fee or other cost or expense. If there are
insufficient funds in such deposit accounts to cover the
amount of the fee or other cost or expense then due, such
debits will be reversed (in whole or in part, in BofA's sole
discretion) and such amount not debited shall be deemed to
be unpaid. No such debit under this Section 10.10 shall be
deemed a setoff.
10.11 Notification of Addresses, Lending Offices, Etc.
Each Bank shall notify the Agent in writing of any changes
in the address to which notices to the Bank should be
directed, of addresses of its Offshore Lending Office, of
payment instructions in respect of all payments to be made
to it hereunder and of such other administrative information
as the Agent shall reasonably request.
10.12 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement in any number
of separate counterparts, each of which, when so executed,
shall be deemed an original, and all of said counterparts
taken together shall be deemed to constitute but one and the
same instrument. A set of the copies of this Agreement
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signed by all the parties shall be lodged with the Company
and the Agent.
10.13 Severability. The illegality or unenforceability
of any provision of this Agreement or any instrument or
agreement required hereunder shall not in any way affect or
impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement
required hereunder.
10.14 No Third Parties Benefited. This Agreement is
made and entered into for the sole protection and legal
benefit of the Company, the Banks and the Agent, and their
permitted successors and assigns, and no other Person shall
be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection
with, this Agreement or any of the other Loan Documents.
Neither the Agent nor any Bank shall have any obligation to
any Person not a party to this Agreement or other Loan
Documents.
10.15 Time. Time is of the essence as to each term or
provision of this Agreement and each of the other Loan
Documents.
10.16 Governing Law and Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE AGENT AND
THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
10.17 Arbitration; Reference.
(a) Mandatory Arbitration. Any controversy or claim
between or among the parties, including but not limited to
those arising out of or relating to this Agreement or any
agreements or instruments relating hereto or delivered in
connection herewith and any claim based on or arising from
an alleged tort, shall at the request of any party be
determined by arbitration. The arbitration shall be
conducted in accordance with the United States Arbitration
Act (Title 9, U.S. Code), notwithstanding any choice of law
provision in this Agreement, and under the Commercial Rules
of the American Arbitration Association ("AAA"). The
arbitrator(s) shall give effect to applicable statutes of
limitation in determining any claim. Any controversy
concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). Judgment upon the
arbitration award may be entered in any court having
jurisdiction. The institution and maintenance of an action
for judicial relief or pursuit of a provisional or ancillary
remedy shall not constitute a waiver of the right of any
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party, including the plaintiff, to submit the controversy or
claim to arbitration if any other party contests such action
for judicial relief.
(b) Judicial Reference. At the request of any party
a controversy or claim which is not submitted to arbitration
as provided and limited in subparagraph (a) shall be
determined by a reference in accordance with California Code
of Civil Procedure Section 638 et seq. If such an election
is made, the parties shall designate to the court a referee
or referees selected under the auspices of the AAA in the
same manner as arbitrators are selected in AAA-sponsored
proceedings. The presiding referee of the panel, or the
referee if there is a single referee, shall be an active
attorney or retired judge. Judgment upon the award rendered
by such referee or referees shall be entered in the court in
which such proceeding was commenced in accordance with
California Code of Civil Procedure Sections 644 and 645.
(c) Provisional Remedies, Self-Help and
Foreclosure. No provision of this paragraph shall limit the
right of any party to this Agreement to exercise self-help
remedies such as setoff, foreclosure against or sale of any
real or personal property collateral or security, or
obtaining provisional or ancillary remedies from a court of
competent jurisdiction before, after, or during the pendency
of any arbitration or other proceeding. The exercise of a
remedy does not waive the right of either party to resort to
arbitration or reference.
10.18 Entire Agreement. This Agreement, together with
the other Loan Documents, embodies the entire agreement and
understanding among the Company, the Banks and the Agent,
and supersedes all prior or contemporaneous Agreements and
understandings of such Persons, verbal or written, relating
to the subject matter hereof and thereof, except for the fee
letter referenced in subsection 2.10(a), and any prior
arrangements made with respect to the payment by the Company
of (or any indemnification for) any fees, costs or expenses
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payable to or incurred (or to be incurred) by or on behalf
of the Agent or the Banks.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in San
Francisco, California by their proper and duly authorized
officers as of the day and year first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By: ______________________________
Title: ___________________________
Address for notices:
999 Third Avenue, Suite 2300
Seattle, WA 98104
Attn: Chief Financial Officer
Facsimile: (206) 467-3797
Tel: (206) 467-3600
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112
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: ___________________________________
Title: ________________________________
Address for notices:
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn: Global Agency #5596
Facsimile: (415) 622-4894
Tel: (415) 953-0849
Attention: Daniel G. Farthing
Address for payments:
Bank of America NT&SA
ABA 121-000-358
Attention: Global Agency #5596
1850 Gateway Blvd.
Concord, CA 94520
for credit to Account
No. 1233-6-14205
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113
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
By: ___________________________________
Title: ________________________________
Address for notices:
San Francisco Credit Products
(#3838)
555 California Street,
41st Floor
San Francisco, CA 94104
Attention: Michael J. Balok
Facsimile: (415) 622-4585
Tel: (415) 622-2018
Address for payments:
Bank of America National Trust
and Savings Association
Global Payment Operations
Customer Service Americas
(#5693)
1850 Gateway Boulevard
Concord, CA 94520
Attention: Daryl L. Hurst
ABA 121-000-358 SF
Domestic and Offshore Lending Office:
Same as address for payments
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114
NATIONSBANK OF NORTH CAROLINA, N.A.
By: ___________________________________
Title: ________________________________
Address for notices:
1 NationsBank Plaza
NC1-002-06-19
Charlotte, NC 28255
Attention: William White
Facsimile: (704) 386-8694
Tel: (704) 386-7891
Address for payments:
NationsBank of North Carolina, N.A.
ABA 053-000-196
Specialized Loan Support
Account No. 13662122506
Domestic and Offshore Lending Office:
Forest Products
NationsBank Corporate Center,
8th Fl.
Charlotte, NC 28255
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UNITED STATES NATIONAL BANK OF OREGON
By: ___________________________________
Title: ________________________________
Address for Notices:
c/o U.S. Bank of Washington
1414 Fourth Avenue WWH276
Seattle, WA 98101
Attention: Peter G. Bentley,
Vice President
Facsimile: (206) 587-5259
Tel: (206) 587-5237
Address for payments:
United States National Bank of Oregon
Commercial Loan Department
Attention: Fran
Reference: Plum Creek
Domestic and Offshore Lending Office:
Same as notice address
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WELLS FARGO BANK, N.A.
By: ___________________________________
Title: ________________________________
Address for notices:
420 Montgomery St., 9th Floor
San Francisco, CA 94163
(for notices of Borrowings)
Attention: Joan Nitis
Facsimile: (415) 989-4319
Tel: (415) 396-4916
(for all other notices)
Attention: Ralph Turner
Facsimile: (415) 421-1352
Tel: (415) 396-4932
Address for payments:
Wells Fargo Bank, N.A.
ABA 121000248
Corporate Note Dept., SR 703
Account No. 2712-507201
Reference: Plum Creek Timber
Company, L.P.
Attention: Joan Nitis
Domestic and Offshore Lending Office:
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SEATTLE FIRST NATIONAL BANK
By: ___________________________________
Title: ________________________________
Address for notices:
701 Fifth Avenue, 12th Floor
Box 94010
Seattle, WA 98120-9410
Attention: John Wilson, Vice
President, Northwest National
Division
Facsimile: (206) 358-3113
Tel: (206) 358-8945
Address for payments:
Seattle First National Bank
ABA 125000024
CLSC Loans RC #94680
Reference: Plum Creek Timber
Company, L.P.,
AFS #7007143921
Domestic and Offshore Lending Office:
same as notice address
110 [signatures continue]
118
ABN AMRO BANK N.V.
By: ___________________________________
Title: ________________________________
By: ___________________________________
Title: ________________________________
Address for notices:
One Union Square, Suite 2323
Seattle, WA 98101
Attention: David McGinnis,
Vice President
Facsimile: (206) 682-5641
Tel: (206) 587-0342
Address for payments:
ABN AMRO Bank N.V., New York
ABA 026009580
for credit to ABN AMRO Seattle,
Account No. 651001085541
Reference: Plum Creek
Domestic and Offshore Lending Offices:
Same as notice address
111 [signatures continue]
119
CHEMICAL BANK
By: ___________________________________
Title: ________________________________
Address for notices:
270 Park Avenue, 9th Fl.
New York, NY 10017
Attention: Abigail L. Garcia
Facsimile: (212) 818-1456
Tel: (212) ________
Address for payments:
Chemical Bank
Commercial Loan Operations
52 Broadway, 3rd Fl.
Attention: John Gallagher
ABA 021000128
Reference: Plum Creek Timber Co.
Domestic and Offshore Lending Offices:
Chemical Bank
270 Park Avenue
New York, NY 10017
112 [signatures continue]
120
THE BANK OF TOKYO, LTD.
By: ___________________________________
Title: ________________________________
Address for notices:
1201 Third Avenue, Suite 1100
Seattle, WA 98101
Attention: Corey W.
Kalbfleisch, Corporate
Banking Officer
Facsimile: (206) 382-6067
Tel: (206) 382-6021
Address for payments:
The Bank of Tokyo, Ltd.,
Seattle Branch
ABA 1250-0162-9
Reference: Plum Creek Timber Co. (CBD)
Domestic and Lending Offices:
Seattle Branch
1201 Third Avenue, Suite 1100
Seattle, CA 98101
113 [signatures continue]
121
THE BANK OF CALIFORNIA, N.A.
By: ___________________________________
Title: ________________________________
Address for notices:
400 California Street, 17th Fl.
San Francisco, CA 94104
Attention: Katharyn Simien
Banking Assistant
Facsimile: (415) 765-3146
Tel: (415) 765-2722
Address for payments:
The Bank of California, N.A.
ABA 1210-000-15
for credit to Corporate Banking
Note Dept., Bancontrol
Acct. #001060235
Attention: E. DeLeon
Reference: Plum creek
Domestic and Offshore Lending Offices:
Same as notice address
114 [signatures continue]
122
SCHEDULE 1.01
APRIL 5, 1993
Page 1 of 2
CORPORATE INVESTMENT POLICY
I. OBJECTIVE
This policy provides guidelines for the management of the Company's
cash. It is essential that these assets be invested in a high quality
portfolio which:
. Preserves principal
. Meets liquidity needs
. Allows for appropriate diversification of investments
. Delivers good yield in relationship to the guidelines and market
conditions.
The Company is adverse to incurring market risk or credit risk, and will
generally sacrifice yield in the interest of safety. Care must always
be taken to insure that the Company's reported financial statements are
never materially affected by decreases in the market value of
securities held.
II. MATURITY OR PUT
Within the constraints provided throughout this document, or by addendum
to this document, the maximum maturity or put of any investment
instrument will be within two years from the purchase settlement date;
however, the total portfolio must have an average maturity of less than
12 months.
III. PERMISSIBLE INVESTMENTS
A. Investments will be made in U.S. dollars only.
B. The Company may own, purchase or acquire marketable direct
obligations in the following:
1. Obligations (fixed and floating rate) issued by, or
unconditionally guaranteed by the U.S. Treasury, or any
agency thereof, or issued by any political subdivision of
any state or public agency,
2. Commercial paper rated as A-1 or better by Standard &
Poor's, and P-1 or better by Moody's (or equivalent).
3. Floating rate and fixed rate obligations of corporations,
banks and agencies including: medium term notes and
bonds, deposit notes, and euro dollar/yankee notes and
bonds.
123
April 5, 1993
Page 2 of 2
4. Certificates of deposit, bankers acceptances and time deposits of
commercial banks, domestic or foreign, whose short term credit
ratings are A-1/P-1 (or equivalent).
5. Repurchase agreements collateralized by U.S. Treasury and agency
securities.
6. Insurance company Funding Agreements, Investment Contracts, or
similar obligations.
7. Asset backed and mortgage backed securities.
8. Master Notes.
9. Taxable money market preferreds.
10. Tax exempt securities including municipal bonds/notes, money
market preferreds, and variable rate demand notes.
C. Issuing institutions shall be Corporations, Trusts, Partnerships,
and Banks domiciled in the U.S., Canada, Japan and Western Europe,
or Insurance Companies domiciled in the U.S.
IV. CREDIT REQUIREMENTS
Safety shall always be a primary consideration in structuring the
Company's investment portfolio. Credit ratings should be tied to
duration as prescribed below in order to combine safety, liquidity
and acceptable market performance:
Minimum Credit Rating
---------------------
Duration S&P Moody's
-------- --- -------
6 months or less A- A3
6 - 18 months AA Aa2
18 months or more AAA Aaa
Original issue securities allowable under this policy with less than
twelve months to maturity may substitute the issuers short term credit
rating if that rating is A-1/P-1 or better.
V. DIVERSIFICATION
To diversify risk, no more than $2 million or 10% of the portfolio can be
invested with any one issuer. Exceptions are issues of the U.S. Treasury
or agency securities, insured or government collateralized issues and
daily money market funds.
124
SCHEDULE 2.01
COMMITMENTS
Bank Commitment
Bank of America National Trust
and Savings Association $50,000,000
NationsBank of North Carolina, N.A. $40,000,000
United States National Bank of Oregon $40,000,000
Wells Fargo Bank, N.A. $40,000,000
Seattle First National Bank $25,000,000
ABN AMRO Bank N.V. $20,000,000
Chemical Bank $20,000,000
The Bank of Tokyo, Ltd. $20,000,000
The Bank of California, N.A. $20,000,000
125036 (753/711)
125
PLUM CREEK TIMBER COMPANY, L.P.
SCHEDULE 5.05
Litigation
None.
126
PLUM CREEK TIMBER COMPANY, L.P.
SCHEDULE 5.07
5.07 (a)
QUALIFIED PLANS:
Plum Creek Pension Plan
Plum Creek Thrift and Profit Sharing Plan
Plum Creek Welfare Plan - Plan Number 505
- Component Documents listed in Appendix II, thereto
NON-QUALIFIED PLANS:
Plum Creek Management Company, L.P. Executive Incentive Sharing Plan
Plum Creek Management Company, L.P. Executive Incentive Compensation Plan
Plum Creek Management Company, L.P. Key Employee Unit Award Plan
Plum Creek Management Company, L.P. Executive and Key Employee Salary and
Incentive
Compensation Deferral Plan
Plum Creek Management Company, L.P. Executive Unit Award Plan
Plum Creek Supplemental Benefits Plan
PC Advisory Corp. I Deferred Compensation Plan for Directors
MULTI-EMPLOYER PLANS: None.
5.07 (c)
A favorable determination letter from the IRS has been received for the Plum
Creek Thrift and Profit Sharing Plan.
The Plum Creekk Pension Plan, adopted in March 1990, is intended to be a
qualified plan pursuant to Internal Revenue Service Code section 401(a) and the
Trust is intended to be tax exempt pursuant to Code section 501(a). The
current plan has not yet been submitted for a determination letter which will
confirm it is qualified. The Plum Creek Pension Plan will be submitted for a
favorable determination letter request no later than the last day of its plan
year commencing on or after January 1, 1994 and the Company will adopt any
appropriate amendments and take any action requested by the Internal Revenue
Service as a condition of issuing a favorable determination letter on the Plum
Creek Pension Plan.
5.07 (d) and (e) None.
127
5.07 (f)
Retiree Life Insurance:
- Insured plan
- $10,000 coverage per salaried retiree
- Approximately 47 retirees covered
- Plan continues to be available to salaried retirees
Retiree Medical:
- Liability to cover four retirees for life and five retirees to age 65
- Plan continues to be available to salaried retirees at a retiree pay
all basis
Both the Life and Retiree Medical Communications contain disclaimers regarding
the rights of the Company to modify, amend or terminate the Plans.
The Accumulated Post-retirement Benefit Obligation at December 31, 1992 was
$334,003.
5.07 (h), (j), and (k) None.
128
PLUM CREEK TIMBER COMPANY, L.P.
SCHEDULE 5.12
5.12 (a) None.
5.12 (b) Plum Creek Manufacturing, L.P. is in the process of applying
for groundwatear discharge permits at the Columbia Falls and
Evergreen complexes. It has not been determined yet whether a
Groundwater Discharge Permit will be required at the Pablo
facility.
5.12 (c) Resolved Consent Decrees:
Columbia Falls Veneer Dryers - May 21, 1990
Evergreen Veneer Dryers - May 26, 1991
Evergreen Boiler - May, 19, 1992
Environmental Claims related to:
EPA/North American Environmental Inc. (Clearfield, UT)
EPA/Evergreen Plywood glue pit
EPA/Somers site (Somers, MT)
DOE/Old Landsburg Mine Site (Ravensdale, WA)
Yakima Health District/Dump Site (Yakima, WA)
5.12 (d) None.
129
PLUM CREEK TIMBER COMPANY, L.P.
SCHEDULE 5.18
Subsidiaries
5.18 (a)
Plum Creek Timber Company, L.P. a Delaware limited partnership, (the "Company")
has direct ownership in two subsidiaries, and indirect ownership of two
additional subsidiaries.
The Company owns 98% of Plum Creek Manufacturing, L.P., a Delaware limited
partnership. The remaining 2% of Plum Creek Manufacturing, L.P., is owned by
Plum Creek Management Company, L.P., a Delaware limited partnership, general
partner of the Company.
The Company owns 96% of the issued and outstanding stock of Plum Creek
Marketing, Inc., a Delaware corporation. The remaining 4% of the issued and
outstanding stock of Plum Creek Marketing, Inc. is owned by Plum Creek
Management Company, L.P., general partner of the Company.
Plum Creek Marketing, Inc. owns 100% of the issued and outstanding stock of
Plum Creek Remanufacturing, Inc., a Washington corporation, and Plum Creek
Foreign Sales Corp., a Guam corporation. Plum Creek Foreign Sales Corp. is an
active corporation.
5.18 (b) None.
130
PLUM CREEK TIMBER COMPANY, L.P.
SCHEDULE 7.01
Permitted Liens
NONE.
131
PLUM CREEK TIMBER COMPANY, L.P.
SCHEDULE 7.04
Permitted Investments
1. 98% interest in Plum Creek Manufacturing, L.P.
2. 96% interest in Plum Creek Marketing, Inc.
132
EXHIBIT A
NOTICE OF BORROWING
Date: __________________
To: Bank of America National Trust and Savings Association,
as Agent for the Banks parties to the Credit Agreement
dated as of October 28, 1993 (as extended, renewed,
amended or restated from time to time, the "Credit
Agreement") among Plum Creek Timber Company, L.P.,
certain Banks which are signatories thereto and Bank of
America National Trust and Savings Association, as
Agent
Ladies and Gentlemen:
The undersigned, Plum Creek Timber Company, L.P,
(the "Company"), refers to the Credit Agreement, the terms
defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to
Section 2.03 of the Credit Agreement, of the Borrowing
specified herein:
1. The aggregate amount of the proposed Borrowing
is $_____________________.
2. The Business Day of the proposed Borrowing is
_____________________________, 19___.
3. The Borrowing is to be comprised of
$___________ of [CD Rate] [Offshore Rate] [Base Rate]
Loans.
4. The duration of the Interest Period for the [CD
Rate Loans] [Offshore Rate Loans] included in the
Borrowing shall be [____________ days] [_________
months].
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on
the date of the proposed Borrowing, before and after giving
effect thereto and to the application of the proceeds
therefrom:
1
133
(a) the representations and warranties of the
Company contained in Article V of the Credit Agreement
are true and correct as though made on and as of such
date (except to the extent such representations and
warranties specifically relate to an earlier date, in
which case they are true and correct as of such earlier
date);
(b) no Default or Event of Default has occurred
and is continuing, or would result from such proposed
Borrowing; and
(c) the proposed Borrowing will not cause the
aggregate principal amount of all outstanding Loans to
exceed the Aggregate Commitment.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By:_________________________________
Title:______________________________
2
123587 (753)(711)
134
EXHIBIT B
NOTICE OF CONVERSION/CONTINUATION
Date: __________________
To: Bank of America National Trust and Savings Association,
as Agent for the Banks parties to the Credit Agreement
dated as of October 28, 1993 (as extended, renewed,
amended or restated from time to time, the "Credit
Agreement") among Plum Creek Timber Company, L.P.,
certain Banks which are signatories thereto and Bank of
America National Trust and Savings Association, as
Agent
Ladies and Gentlemen:
The undersigned, Plum Creek Timber Company, L.P.
(the "Company"), refers to the Credit Agreement, the terms
defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to
Section 2.04 of the Credit Agreement, of the [conversion]
[continuation] of the Loans specified herein, that:
1. The date of the [conversion] [continuation] is
______________________, 19__.
2. The aggregate amount of the Loans [converted]
[continued] is $______________.
3. The Loans are to be [converted into]
[continued as] [CD Rate] [Offshore Rate] [Base Rate]
Loans.
4. [If applicable:] The duration of the Interest
Period for the Loans included in the [conversion]
[continuation] shall be [____ days] [____ months].
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on
the date of the proposed [conversion][continuation], before
and after giving effect thereto and to the application of
the proceeds therefrom:
1
135
(a) the representations and warranties of the
Company contained in Article V of the Credit Agreement
are true and correct as though made on and as of such
date (except to the extent such representations and
warranties specifically relate to an earlier date, in
which case they are true and correct as of such earlier
date);
(b) no Default or Event of Default has occurred
and is continuing, or would result from such proposed
[conversion] [continuation]; and
(c) the proposed [conversion] [continuation] will
not cause the aggregate principal amount of all
outstanding Loans to exceed the Aggregate Commitment.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By:_________________________________
Title:______________________________
2
123588 (753)(711)
136
EXHIBIT C-1
FORM OF OPINION OF PERKINS COIE
October ____, 1993
The Persons Named on
Attached Annex A
RE: THAT CERTAIN CREDIT AGREEMENT DATED AS OF OCTOBER ___, 1993 THE
("CREDIT AGREEMENT") AMONG PLUM CREEK TIMBER COMPANY, L.P. (THE
"COMPANY"), THE FINANCIAL INSTITUTIONS PARTY THERETO (THE
"BANKS") AND BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION AS AGENT (THE "AGENT") FOR THE BANKS
Ladies and Gentlemen:
We have acted as special counsel for the Company in connection
with the transactions contemplated by the Credit Agreement. This opinion is
furnished pursuant to Section 4.01(d) of the Credit Agreement.
For the purpose of rendering this opinion, we have examined
executed originals of the Credit Agreement and of the documents delivered to
the Agent on the date hereof pursuant to the Credit Agreement. We have also
examined the original or copies of such other partnership and corporate
records, documents, instruments or agreements as we deemed necessary to render
the opinion contained herein, subject to the limitations contained herein.
In rendering this opinion, we have relied on the following
assumptions, the accuracy of which we have not independently verified:
(i) Each party to the Credit Agreement (other than the
Company) is a corporation or other legally cognizable entity duly
organized and validly existing in good standing under the laws of its
jurisdiction of organization and has the full power, authority and
legal right to execute and deliver the Credit Agreement to which it is
a party and to perform its obligations thereunder; and each such party
has duly authorized the
137
Persons Named on the Attached Annex A
October , 1993
Page 2
execution, delivery and performance of the Credit Agreement and the
transactions contemplated thereunder.
(ii) The Credit Agreement constitutes the legal, valid and
binding obligation of each party thereto (other than the Company),
enforceable against such party in accordance with its terms.
(iii) All signatures on the Credit Agreement and the other
documents and materials examined by us are genuine, and, where any
such signature purports to have been made in a corporate, partnership,
governmental, fiduciary or other capacity, the person whose signature
so appears had the requisite legal capacity and authority to do so;
the factual matters contained in the documents examined by us are
accurate, true and correct; all documents and other materials
submitted to us as originals are authentic; and all documents and
other materials submitted to us as copies of the originals conform to
the originals.
(iv) The Agent and each Bank is exempt from the
application of the restrictions set forth in Article XV, Section 1, of
the California Constitution.
We have not conducted any independent investigation or
otherwise attempted to verify any factual matters which would have a bearing
upon this opinion.
Based upon the foregoing, and subject to the further
qualifications stated below, it is our opinion that the Credit Agreement
constitutes the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms.
The opinion set forth above is subject to the following
additional limitations:
(a) We express no opinion as to any laws other than the
laws of the State of California (including its choice of law principles) and
the federal laws of the United States.
(b) We express no opinion as to the validity, binding
effect or enforceability of any right or obligation to the extent that such
right or obligation (1) may be limited by (A) applicable bankruptcy,
insolvency, reorganization,
138
Persons Named on the Attached Annex A
October ____, 1993
Page 3
moratorium, fraudulent transfer or other laws relating to or affecting
creditors' rights generally or (B) general principles of equity (regardless of
whether considered in a proceeding in equity or at law), including those
relating to the availability of the remedy of specific performance, injunctive
relief or setoff or (2) purports to authorize or permit any person to act in a
manner which is not in good faith, diligent or commercially reasonable
(including, without limitation, exercising any rights without the giving of
reasonable notice) or purports to waive any rights of any person with respect
to such actions or (3) purports to require that provisions of the Credit
Agreement may only be modified in writing to the extent that an oral agreement
has been made modifying such provision.
(c) We express no opinion with respect to the need for
any consent or approval of, the giving of notice to, the registration with, or
the taking of any action with respect to, any governmental authority or agency
which may be required by reason of the business or activities of the Agent and
the Banks generally.
(d) We express no opinion as to the validity, priority or
perfection of any security interest or other lien which may be created by the
Credit Agreement or as to any provision purporting to (1) set evidentiary
standards or (2) require the payment of any amount to the extent that such
amount is deemed to constitute a penalty, forfeiture, late payment charge or an
increase in the applicable rate of interest upon delinquency.
(e) Notwithstanding any provision in the Credit Agreement
to the effect that such agreement, either in itself or together with any other
agreements, reflects the entire understanding of the parties with respect to
the matters described therein, the courts of the state of California may
consider extrinsic evidence of the circumstances surrounding the making of such
agreement or agreements to ascertain the intent of the parties in using the
language employed in such agreement or agreements, regardless of whether the
meaning of the language used in such agreement or agreements is plain and
unambiguous on its face, and may determine that additional or supplementary
terms can be incorporated into such agreement or agreements.
139
Persons Named on the Attached Annex A
October ____, 1993
Page 4
(f) We express no opinion as to the conclusive nature of
any certificate or determination which may be furnished or made by or on behalf
of any party pursuant to the Credit Agreement.
(g) Indemnity obligations imposed or undertaken pursuant
to the Credit Agreement may be unenforceable to the extent such obligations do
not satisfy the requirements of Sections 2773 through 2774 of the California
Civil Code, or which require the indemnifying party to indemnify another party
against an act which constitutes gross negligence on the part of the
indemnified party or its agent.
(h) The effect of California law which provides that
where a contract permits one party to the contract to recover attorneys' fees,
the prevailing party in any action to enforce any provision of the contract
shall be entitled to recover its reasonable attorneys' fees notwithstanding the
absence of a written agreement to such effect.
(i) Statutes and case law reflecting public policy may
render unenforceable a waiver or release of the benefits of statutory, common
law, or broadly or vaguely stated rights or unknown future rights.
(j) We express no opinion as to the enforceability of the
provisions in the Credit Agreement to the effect that failure to exercise, or
delay in exercising, rights or remedies will not operate as a waiver of any
such rights or remedies.
(k) We express no opinion as to the enforceability of any
provision relating to cumulation of remedies or the availability of remedies in
the event of a non-material default.
The opinion set forth above is given as of the date hereof,
and we disavow any undertaking or obligation to advise you of any changes in
law or any facts or circumstances that may hereafter occur or come to our
attention that could affect this opinion. This opinion is delivered to the
parties identified on Annex A hereto solely for use in connection with the
transactions referenced herein and may not be used by any such party for any
other purpose and may not be relied on by any person other than the parties
identified on Annex A hereto
140
Persons Named on the Attached Annex A
October ____, 1993
Page 5
and their permitted successors and assigns under the Credit Agreement, or
duplicated or disclosed, without our prior written consent.
Very truly yours,
141
ANNEX A
TO OPINION OF
PERKINS COIE DATED OCTOBER ____, 1993
Bank of America National Chemical Bank
Trust and Savings 9th Floor
Association, as Agent 270 Park Avenue
12th Floor New York, NY 10017
1455 Market Street
San Francisco, CA 94103 The Bank of Tokyo, Ltd.
Suite 1100
Bank of America National 1201 Third Avenue
Trust and Savings Seattle, WA 98101
Association, as a Bank
41st Floor The Bank of California, N.A,
555 California Street 17th Floor.
San Francisco, CA 94104 400 California Street
San Francisco, CA 94104
NationsBank of North
Carolina, N.A.
1 NationsBank Plaza
NC1-002-06-19
Charlotte, NC 28255
United States National Bank
of Oregon
c/o U.S. Bank of Washington
1414 Fourth Avenue WWH276
Seattle, WA 98101
Wells Fargo Bank, N.A.
9th Floor
420 Montgomery Street
San Francisco, CA 94163
Seattle First National Bank
12th Floor
701 Fifth Avenue
Box 94010
Seattle, WA 98120-9410
ABN Amro Bank N.V.
Suite 2323
One Union Square
Seattle, WA 98101
142
EXHIBIT C - 2
October 28, 1993
To the Banks and the Agent
Referred to Below
c/o Bank of America National Trust
and Savings Association
1455 Market Street, 12th Floor
San Francisco, CA 94103
Ladies and Gentlemen:
As Vice President Law and Corporate Affairs of Plum Creek Management
Company, L.P. (the "General Partner"), I have acted as counsel to Plum Creek
Timber Company, L.P., a Delaware limited partnership (the "Company") and its
subsidiaries in connection with that certain Credit Agreement, dated as of
October 28, 1993 (the "Credit Agreement"), among the Company, the banks listed
on the signature pages thereof (the "Banks"), and Bank of America National
Trust and Savings Association as agent for the Banks (the "Agent"). This
opinion is delivered to you pursuant to Section 4.01(d)(i) of the Credit
Agreement. All capitalized terms used herein that are defined in, or by
reference in, the Credit Agreement have the meanings assigned to such terms
therein, or by reference therein, unless otherwise defined herein.
In connection with this opinion, I have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records of
the Company, such certificates of public officials and such other documents,
and (iii) received such information from officers and representatives of the
Company, as I have deemed necessary or appropriate for the purposes of this
opinion. I have examined, among other documents, a copy of the Credit
Agreement.
In all such examinations, I have assumed the genuineness of all
signatures on original or certified, conformed or reproduction copies of
documents of all parties other than the Company, and the conformity to original
or certified copies of all copies submitted to me as conformed or reproduction
copies. As to various questions of fact relevant to the opinions expressed
herein, I have relied upon, and assume the accuracy of, certificates and oral
or written statements and other information of or from public officials,
representatives of the Company and others and assume compliance on the part of
all parties to the Credit Agreement with the covenants and agreements contained
therein.
To the extent it may be relevant to the opinions expressed herein, I
have assumed that the Agent and the Banks have the power to enter into and
perform such agreement and that such agreement has been duly authorized,
executed and delivered by, and constitutes the legal, valid and binding
obligation of, such parties.
143
Bank of America
October 28, 1993
Page 2
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions set forth herein, I am of the opinion that:
(a) Each of the Company, the General Partner, PCMC General Partner
and Plum Creek Manufacturing, L.P. is a limited partnership duly formed under
the laws of the State of Delaware, with a stated term beyond the term of the
Loan Documents (in those cases where the Loan Documents have a fixed term) and
is duly qualified and in good standing in each state in which the failure to so
qualify would have a Material Adverse Effect.
(b) Each of PC Advisory General Partner and Plum Creek Marketing,
Inc., is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and is duly qualified and in good
standing in each state in which the failure to so qualify would have a Material
Adverse Effect.
(c) The Company and each of the Partner Entities have the
partnership or corporate, as applicable, power and authority to execute and
deliver, and to perform and observe the provisions of, the Loan Documents.
(d) The execution, delivery and performance by the Company of the
Loan Documents have been duly authorized by all necessary corporate and
partnership action on behalf of PC Advisory General Partner, as general partner
of PCMC General Partner, as general partner of the General Partner, as general
partner of the Company.
(e) The Loan Documents have been duly executed and delivered by
the Company.
(f) The Company and each of its Subsidiaries has the power and
authority and all governmental licenses, authorizations, consents and approvals
to own its assets and carry on its business, except for such governmental
licenses, authorizations, consents and approvals, the lack thereof would not
have a Material Adverse Effect.
(g) No registration with, consent or approval of, notice to, or
other action by, any Governmental Authority is required on the part of the
Company or the Partner Entities or any of their Subsidiaries for the execution,
delivery or performance by the Company of the Loan Documents, or if required,
such registration has been made, such consent or approval has been obtained,
such notice has been given or such other appropriate action has been taken.
(h) The execution, delivery and performance of the Loan Documents
by the Company are not in violation of the partnership documents of the
Company, the General Partner or the PCMC General Partner or the Articles of
Incorporation and Bylaws of the PC Advisory General Partner.
(i) The execution, delivery and performance of the Loan Documents
by the Company
144
Bank of America
October 28, 1993
Page 3
(including, without limitation, the sale of the Columbia River Unit and the
application of the Net Proceeds thereof in accordance with Section 7.02 (i) of
the Credit Agreement) will not violate or result in a breach of any of the
terms of or constitute a default under or result in a creation of any Lien on
any property or assets of the Company or any of the Partner Entities, pursuant
to the terms of any indenture, mortgage, deed of trust or other agreement to
which such Person is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Person or its property is subject.
(j) The execution, delivery and performance of the Loan Documents
will not conflict with or contravene any of Regulations G, T, U and X
promulgated by the Federal Reserve Board.
(k) Neither the Company, the Partner Entities, any Person
controlling the Company or the Partner Entities, or any Subsidiary of the
Company or the Partner Entities, is an "Investment Company" within the meaning
of the Investment Company Act of 1940, as amended, or subject to regulation
under the Public Utility Holding Company Act of 1935, as amended.
(l) There are no actions, suits, proceedings, claims or disputes
pending or, to the best of my knowledge, threatened against the Company, the
Partner Entities or any of their Subsidiaries or any of their respective
properties before any court, regulatory body, administrative agency, at law, in
equity, in arbitration or before any Governmental Authority which (a) purport
to affect or pertain to the Loan Documents, or any of the transactions
contemplated thereby, (b) have a reasonable probability of success on the
merits and which, if determined adversely to the Company, the Partner Entities
or their Subsidiaries, would reasonably be expected to have a Material Adverse
Effect.
The opinions expressed herein are limited to the federal laws of the
United States of America and the laws of the State of Washington and, to the
extent relevant hereto, the General Corporation Law of the State of Delaware
and the Delaware Uniform Revised Limited Partnership Act.
The opinions expressed herein are solely for the benefit of the Agent
and the Banks and may not be relied on in any manner or for any purpose by any
person or entity other than the Agent and the Banks and their permitted
successors and assigns under the Credit Agreement.
Very truly yours,
James A. Kraft
Vice President, Law and
Corporate Affairs
/sw
145
EXHIBIT D
PLUM CREEK TIMBER COMPANY, L.P.
COMPLIANCE CERTIFICATE
DATE: _______________
Reference is made to that certain Credit Agreement
dated as of October 28, 1993 among Plum Creek Timber
Company, L.P., a Delaware limited partnership (the
"Company"), certain financial institutions from time to time
parties to the Credit Agreement (the "Banks") and Bank of
America National Trust and Savings Association, a national
banking association, as agent for the Banks (in such
capacity, the "Agent"). Unless otherwise defined herein,
capitalized terms used herein have the respective meanings
assigned to them in the Credit Agreement.
The undersigned Responsible Officer of the Company,
hereby certifies as of the date hereof that he/she is the
________________________ of the Company, and that, as such,
he/she is authorized to execute and deliver this Certificate
to the Banks and the Agent on the behalf of the Company and
its Subsidiaries and not as an individual, and that:
[Use the following paragraph if this Certificate is
delivered in connection with the financial statements
required by subsection 6.01(a) of the Credit Agreement.]
1. Attached as Schedule 1 hereto are (a) a true
and correct copy of the audited combined balance sheet of
the Company as at the end of the fiscal year ended
December 31, ____ and (b) the related combined statements of
income and statement of cash flows for such fiscal year,
setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by the opinion
of Coopers & Lybrand or another nationally-recognized
certified independent public accounting firm. Such opinion
is not qualified or limited because of a restricted or
limited examination by such accountant of any material
portion of the Company's or any Subsidiary's records and is
delivered to the Agent pursuant to a reliance agreement
between the Agent and Banks and such accounting firm which
you have advised us is in form and substance satisfactory to
the Agent and the Majority Banks;
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146
or
[Use the following paragraph if this Certificate is
delivered in connection with the financial statements
required by subsection 6.01(b) of the Credit Agreement.]
1. Attached as Schedule 1 hereto are (a) a true
and correct copy of the audited combining balance sheets of
the Company and each of its Subsidiaries as at the end of
the fiscal year ended December 31, ____ and (b) the related
combining statements of income and statement of cash flows
for such fiscal year; which financial statements were used
in connection with the preparation of the audited combined
balance sheet of the Company as of the end of such fiscal
year and the related combined statements of income and
statement of cash flows for such fiscal year.
or
[Use the following paragraph if this Certificate is
delivered in connection with the financial statements
required by subsections 6.01(c) and (d) of the Credit
Agreement.]
1. (a) Attached as Schedule 1A hereto is (i) a
true and correct copy of the unaudited combined balance
sheet of the Company and its combined Subsidiaries as of the
end of the fiscal quarter ended __________ __, ____ and
(ii) the related combined statements of income and statement
of cash flows of the Company and its combined Subsidiaries
for the period commencing on the first day and ending on the
last day of such quarter, setting forth in each case in
comparative form the figures for the previous year (subject
to normal year-end audit adjustments).
(b) Attach as Schedule 1B hereto is (i) a
true and correct copy of the unaudited combining balance
sheets of the Company and each of its Subsidiaries as of the
end of the fiscal quarter ended __________ __, ____ and
(ii) the related combining statements of income and
statement of cash flows for such quarter, which financial
statements were used in connection with the preparation of
the financial statements referred to in paragraph 1(a) above
of this Certificate.
2. The undersigned has reviewed and is familiar
with the terms of the Credit Agreement and has made, or has
caused to be made under his/her supervision, a detailed
review of the transactions and conditions (financial or
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147
otherwise) of the Company during the accounting period
covered by the attached financial statements.
3. The attached financial statements are complete
and correct, and have been prepared in accordance with GAAP
on a basis consistent with prior periods (except as approved
by such accountants or officer, as the case may be, and
disclosed therein).
4. The attached financial statements are
certified by a Responsible Officer of the Company and fairly
state the financial position and results of operations of
the Company and its Combined Subsidiaries.
5. To the best of the undersigned's knowledge,
the Company, during such period, has observed, performed or
satisfied all of its covenants and other agreements, and
satisfied every condition in the Credit Agreement to be
observed, performed or satisfied by the Company, and the
undersigned has no knowledge of any Default or Event of
Default.
6. The following financial covenant analyses and
information set forth on Schedule 2 attached hereto are true
and accurate on and as of the date of this Certificate.
[7. A Margin Reduction Discount of ____% should be
implemented in accordance with Section 2.09 of the Credit
Agreement.]
or
[7. The existing Margin Reduction Discount should
be changed to ____% in accordance with Section 2.09 of the
Credit Agreement.]
or
[7. The Margin Reduction Discount pursuant to
Section 2.09 of the Credit Agreement does not apply.]
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148
IN WITNESS WHEREOF, the undersigned has executed
this Certificate as of _______________ __, ____.
PLUM CREEK TIMBER COMPANY L.P.
By: Plum Creek Management
Company, L.P.,
its general partner
By: ___________________________
Title: ________________________
-4-
W88149.AB9[753/711]
149
Plum Creek Timber Company, L.P.
Schedule 2
to the Compliance Certificate
($ in 000's)
Section 7.03: Harvesting Restrictions (MMBF)
199_ Maximum Allowable Harvest
Add: Prior year Cumulataive Carryover Harvest
Maximum Allowable 199_ Harvest
Actual 199_ Harvest
199_ Carryover Harvest
Section 7.04(i): Investments Not Otherwise Permitted:
The greater of $30 million or 60% of the
average annual Pro Forma Free Cash
Flow for the two fiscal years preceding
such date. $
Cumulative Investments made through month-day-year $
Section 7.05(c): Funded Debt Incurred to Finance Capital Improvements:
Maximum Allowed $20,000
Outstanding at month-day-year $
Section 7.05(e): Indebtedness Incurred Pursuant to a Revolving Credit Facility:
Maximum Allowed $15,000
Outstanding at month-day-year $
Section 7.05(g): Guarantee of Facilities Subsidiary Revolving Credit Facility:
Maximum Allowed $20,000
Outstanding at month-day-year $
Section 7.05(h): Guarantee of Facility Subsidiary Capital Improvement Funded
Debt:
Maximum Allowed $20,000
Outstanding at month-day-year $
150
Plum Creek Timber Company, L.P.
Schedule 2
to the Compliance Certificate
($ in 000's)
Section 7.05(i): Aggregate Principal Amount of Indebtedness Secured by Liens:
Maximum Allowed $
Outstanding at month-day-year $
Section 7.05(j): Additional Funded Debt:
Pro Forma Free Cash Flow $
Maximum Pro Forma Annual Interest Charges: 2:25 to 1 $
Current Interest Expense $
Additional Allowable Interest $
Allowable Fund Debt at ___% Interest Rate* $
* Aggregate outstanding principal amount of such additional Funded Debt shall
not exceed $400 million.
151
Plum Creek Timber Company, L.P.
Schedule 2
to the Compliance Certificate
($ in 000's)
Section 7.13(a): Restricted Payments:
Available Cash means, with respect to any calendar quarter,
(i)(a) Net Income $
(a) Excluding gain on the sale of any Capital Assets $
Plus:
(b) DD&A $
(b) Other non-cash charges $
(c) Reduction in reserves of the types referred
to in clause (ii)(d) below $
(d) Proceeds received from the sale of
Designated Acres $
(e) Cash from Capital Transaction used to
refinance or refund Indebtedness $
Less (ii) the sum of:
(a) All payments of principal Indebtedness $
(b) Capital Expenditures $
(c) Capital Expenditures made in prior quarter
anticipated to be financed but have not been $
(d) Reserve for future principal payments:
Bank $
Senior Notes $
(d) Reserve for future capital expenditures $
(d) Reserve for additional working capital $
(d) Reserve for future interest payments:
Bank $
Senior Notes $
(e) Other noncash credits $
(f) The amount of any Investments $
(g) Any investmenets made in prior quarter
anticipated to be financed but have not been $
Available Cash - month-day-year $
General Partner 2% Interest $
General Partner Incentive Distribution $
Allocable to Unitholders - Net $
152
Plum Creek Timber Company, L.P.
Schedule 2
to the Compliance Certificate
($ in 000's)
Summary of Available Cash Reserves:
Cumulative
Balance
----------
Reserve for future principal payments:
Bank $
Senior Notes $
Reserve for future Capital Expenditures $
Reserve for additional working capital $
Reserve for future distributions $
Reserve for future interest payments:
Bank $
Senior Notes $
Funds Flow Ratio Calculation with respect to any quarter.
EBITDA $
Less:
Taxes paid in cash not already excluded from EBITDA $
Capital Expenditures $
Total Funds Flow $
Indebtedness $
Funds Flow Ratio ___%
153
EXHIBIT E
FORM OF CASH COLLATERAL ACCOUNT AGREEMENT
This CASH COLLATERAL ACCOUNT AGREEMENT
("Agreement") dated as of ______________, 199_ is entered
into by and between PLUM CREEK TIMBER COMPANY, L.P., a
Delaware limited partnership (the "Company"), and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent
(solely in such capacity, "Agent") for the financial
institutions from time to time parties to the Credit
Agreement referred to below (such entities, together with
their respective successors and assigns, being collectively
referred to as the "Banks").
RECITALS
A. The Company, Agent and the Banks have entered
into a Credit Agreement dated as of October 28, 1993 (as the
same may from time to time be amended, amended and restated,
modified, supplemented or renewed, the "Credit Agreement").
Capitalized terms used herein without definition shall have
the meanings given to them in the Credit Agreement.
B. The Company wishes to sell properties that
constitute all or a part of its Columbia River Unit and to
apply the Net Proceeds thereof to the purchase of productive
assets in the same line of business.
C. Pursuant to the Credit Agreement, any such Net
Proceeds in excess of $25,000,000 not paid immediately to
Agent on behalf of the Banks for prepayment of the Loans or
paid immediately to purchase such productive assets shall be
placed immediately upon receipt thereof into a cash
collateral account at Bank of America National Trust and
Savings Association ("BofA") for application in accordance
with Section 7.02(i) of the Credit Agreement.
D. The execution and delivery by the Company of
this Agreement is a condition to the application of the Net
Proceeds as set forth in Recital B above.
NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements contained herein, the Company and
Agent hereby agree as follows:
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154
1. Cash Collateral Account.
(a) Cash Collateral Account. For purposes of
Section 7.02(i) of the Credit Agreement, the Company has
established with BofA, for the benefit of Agent on behalf of
itself and the Banks, a special purpose restricted deposit
account in the name of the Company, deposit account
#__________ (together with any successor account(s) that may
be established from time to time in replacement thereof, the
"Cash Collateral Account"). Agent shall have exclusive
control over the Cash Collateral Account and the sole right
of withdrawal therefrom, except as expressly provided in
Section 1(b) below. The Company agrees that the Cash
Collateral Account shall be a blocked account, and upon the
deposit of funds into the Cash Collateral Account by or at
the direction of the Company, such deposit shall become
(except as expressly provided in such Section 1(b) hereof)
irrevocable and the Company shall have no right to withdraw
amounts contained therein or interest accrued thereon except
as provided in Section 1(b) hereof or upon the indefeasible
payment in full of the Obligations; and until such
indefeasible payment in full of the Obligations the Company
waives (i) the right to make withdrawals from the Cash
Collateral Account and (ii) the right to instruct BofA to
honor drafts drawn against the Cash Collateral Account,
except in each case as expressly provided in Section 1(b)
hereof.
(b) Withdrawal. The Company may withdraw
funds from the Cash Collateral Account if and only if
(i) such funds are applied directly (1) to purchase
investments permitted hereunder or (2) to purchase
productive assets in the same line of business provided that
the Company shall have delivered to Agent no later than
three (3) Business Days prior to the proposed date of such
withdrawal a certificate of a Responsible Representative
substantially the form of Exhibit A hereto, and (ii) no
Default or Event of Default exists or will occur by virtue
of such withdrawal and purchase.
(c) Application to Loans. Upon the date that
is 180 days after the date of the sale of the properties
that constitute all or part of the Columbia River Unit,
Agent shall promptly apply any amounts remaining in the Cash
Collateral Account to the prepayment of the Loans in
accordance with the provisions of Section 2.07 of the Credit
Agreement and the Company irrevocably directs Agent to apply
such funds at such time to the prepayment of the Loans in
accordance with Section 2.07 of the Credit Agreement.
2
155
2. Lien. The Cash Collateral Account, all funds
and investments contained therein, all interest accrued
thereon, and all proceeds thereof shall be held by BofA for
the benefit of Agent on behalf of itself and the Banks as
cash collateral to secure the Company's obligations to Agent
and the Banks. As security for the payment and performance
of all obligations of the Company hereunder and under the
Credit Agreement, the Company hereby grants to Agent on
behalf of itself and the Banks a first priority perfected
security interest in all of its rights, title and interest
now existing or hereafter arising in and to the Cash
Collateral Account and any proceeds or products thereof.
Agent and the Company hereby notify BofA of the foregoing
lien, and BofA, by its signature below, acknowledges receipt
of such notice.
The Company shall be deemed in default under this
Agreement upon the occurrence of an Event of Default, as
that term is defined in the Credit Agreement. Upon the
occurrence of any such Event of Default, Agent may, at its
option, and without notice to or demand on the Company and
in addition to all rights and remedies available to Agent
under the Credit Agreement, do any one or more of the
following: (a) foreclose or otherwise enforce Agent's
security interest in any manner permitted by law, or
provided for in this Agreement; (b) dispose of the Cash
Collateral Account on such terms and in such manner as Agent
may determine; and (c) recover from the Company all costs
and expenses, including, without limitation, Attorneys
Costs, incurred or paid by Agent in exercising any right,
power or remedy provided by this Agreement, the Loan
Documents, or by law.
3. Investments. Upon the Company's written
instructions as provided in Section 4 below, if no Default
or Event of Default exists, Agent shall invest the funds on
deposit in the Cash Collateral Account in any of the
permitted investments described in the Investment Policy
attached as Schedule 1.01 to the Credit Agreement; provided
that with respect to any instruction to invest funds in any
investment that does not constitute a "deposit account" (as
defined in Division 9 of the California Commercial Code)
maintained with BofA, Agent shall take no action to effect
such instructions to invest funds unless and until the
Company has duly executed and delivered such documents and
instruments and caused to be delivered such opinions of
counsel as the Majority Lenders may reasonably deem
necessary or appropriate to perfect or to confirm the
perfection and first priority status of Agent's security
interest in such investments.
3
156
4. Investment Direction. With respect to the
investment of funds on deposit in the Cash Collateral
Account pursuant to Section 3 above, Agent shall be entitled
to rely upon the written instructions of those individuals
whose signatures appear in the spaces provided below, or
such other individuals as may hereafter be designated in
writing by the Company:
______________________________
______________________________
______________________________
5. Compensation. BofA shall be entitled to
compensation from the Company for the maintenance of and
investment of funds contained in the Cash Collateral Account
in accordance with its standard fees for such services in
effect from time to time. Such compensation shall be
payable upon demand.
6. Notices, Etc. Any notice or other
communication herein required or permitted to be given shall
be in writing and may be delivered in person, with receipt
acknowledged, or sent by telex, telecopy or by United States
mail, registered or certified, return receipt requested,
postage prepaid and addressed as set forth on the signature
pages to this Agreement or at such other address as may be
substituted by notice given as herein provided. The giving
of any notice required hereunder may be waived in writing by
the party entitled to receive such notice. All such notices
and communications shall, when transmitted by overnight
delivery, telegraphed, telecopied by facsimile, telexed or
cabled, be effective when delivered for overnight delivery
or to the telegraph company, transmitted by telecopier (with
successful transmission confirmation), confirmed by telex
answerback or delivered to the cable company, respectively,
or if delivered, upon delivery. Failure or delay in
delivering copies of any notice, demand, request, consent,
approval, declaration or other communication to the persons
designated above to receive copies shall in no way adversely
affect the effectiveness of such notice, demand, request,
consent, approval, declaration or other communication.
4
157
7. Termination. This Agreement shall terminate
when transfers of amounts in the Cash Collateral Account
pursuant to Section 1 hereof shall have reduced the balance
of the Cash Collateral Account to zero.
8. Successors and Assigns; Governing Law. This
Agreement shall be binding upon and inure to the benefit of
the Company, Agent and the Banks and their respective
successors and assigns, except that the Company shall not
have the right to assign its rights hereunder or any
interest herein without the prior written consent of Agent
and each Bank. Except as otherwise expressly provided
herein or in any of the other Loan Documents, in all
respects, including all matters of construction, validity
and performance, this Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the
State of California applicable to contracts made and
performed in such state, without regard to the principles
thereof regarding conflict of laws, and any applicable laws
of the United States of America.
9. Entire Agreement; Construction; Amendments and
Waivers.
(a) Entire Agreement. This Agreement, the
Credit Agreement and the other Loan Documents, taken
together, constitute and contain the entire agreement among
the parties and supersede any and all prior agreements,
negotiations, correspondence, understandings and
communications among the parties, whether written or oral,
respecting the subject matter hereof.
(b) Construction. This Agreement is the
result of negotiations between and has been reviewed by each
of the Company, Agent and the Banks and their respective
counsel; accordingly, this Agreement shall be deemed to be
the product of the parties hereto, and no ambiguity shall be
construed in favor of or against the Company, Agent or the
Banks. The Company, Agent and the Banks agree that they
intend the literal words of this Agreement and that no parol
evidence shall be necessary or appropriate to establish the
Company's, Agent's or any Bank's actual intentions.
(c) Interpretation. The terms of this
Agreement shall be interpreted in accordance with the
provisions of Article I of the Credit Agreement, provided,
however, that (a) any reference to a "Section" shall refer
to the relevant Section to this Agreement, unless
specifically indicated to the contrary and (b) the words
"herein," "hereof" and "hereunder" and other words of
similar import (including, without limitation, in Article I
5
158
of the Credit Agreement) shall refer to this Agreement as a
whole, as the same may from time to time be amended, amended
and restated, modified or supplemented, and not to any
particular section, subsection or clause contained in this
Agreement.
(d) Amendments; Waivers. No amendment,
modification, discharge or waiver of, or consent to any
departure by the Company from, any provision of this
Agreement shall be effective unless the same shall be in
writing and signed by the Agent with the written consent of
the Majority Banks, and then such waiver shall be effective
only in the specific instance and for the specific purpose
for which given.
10. Severability. Whenever possible, each
provision of this Agreement shall be interpreted in such a
manner as to be valid, legal and enforceable under the
applicable law of any jurisdiction. Without limiting the
generality of the foregoing sentence, in case any provision
of this Agreement shall be invalid, illegal or unenforceable
under the applicable law of any jurisdiction, the validity,
legality and enforceability of the remaining provisions, or
of such provision in any other jurisdiction, shall not in
any way be affected or impaired thereby.
11. Headings. Section headings in this Agreement
are included herein for convenience of reference only and
shall not constitute a part of this Agreement for any other
purpose or be given any substantive effect.
12. No Third Parties Benefited. This Agreement is
made and entered into for the sole protection and legal
benefit of the Company, Agent, the Banks, and their
permitted successors and assigns, and no other Person shall
be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection
with this Agreement. Neither Agent nor any Bank shall have
any obligation to any Person not a party to this Agreement.
13. Counterparts. This Agreement and any
amendments, waivers, consents or supplements hereto 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 an original, but
all such counterparts together shall constitute but one and
the same instrument.
6
159
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered as of the
date first above written.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By:_________________________________
Title:______________________________
Notice to be sent to:
Plum Creek Timber Company, L.P.
999 Third Avenue, Suite 2300
Seattle, WA 98104
Attn: Chief Financial Officer
Tel: (206) 467-3600
Fax: (206) 467-3797
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: _____________________________________
Printed Name:
Title:
Notice to be sent to:
Bank of America National Trust
and Savings Association
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn: Daniel G. Farthing
Global Agency #5596
Tel: (415) 953-0849
Fax: (415) 622-4894
7
160
Notice of security interest
acknowledged:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as depository
By: _________________________
Printed Name:
Title:
Notice to be sent to:
Bank of America National Trust
and Savings Association
555 California Street, 41st Floor
San Francisco, CA 94104
Attn: Michael J. Balok
Tel: (415) 622-2018
Fax: (415) 622-4585
8
123957 (753)(711)
161
EXHIBIT A
OFFICER'S CERTIFICATE
Date: ___________________
Reference is made to that certain Cash Collateral
Account Agreement dated as of _____________, 199_ (the
"Cash Collateral Account Agreement") between Plum Creek
Timber Company, L.P., a Delaware limited partnership (the
"Company"), and Bank of America National Trust and Savings
Association, as agent ("Agent") (capitalized terms used
herein without definition shall have the meanings given to
them in the Cash Collateral Account Agreement).
The undersigned Responsible Representative of the
Company, hereby certifies as of the date hereof that he/she
is the ____________________________ of the Company, and
that, as such, he/she is authorized to execute and deliver
this Certificate to the Agent on behalf of the Company and
not as an individual, and that:
(1) Pursuant to Section 1(b) of the Cash
Collateral Account Agreement, the Company may withdraw funds
from the Cash Collateral Account to purchase productive
assets in the same line of business;
(2) The Company has acquired [or will acquire on
__________, 199_] the assets listed on Schedule 1 attached
hereto (the "Eligible Assets"), which Eligible Assets
constitute productive assets in the same line of the
Company's business;
(3) The aggregate purchase price for the Eligible
Assets is $____________________ (the "Purchase Price");
(4) No Default or Event of Default exists or would
result from such proposed purchase of the Eligible Assets or
a withdrawal from the Cash Collateral Account to fund such
purchase; and
(5) The representations and warranties made by the
Company contained in Article V of the Credit Agreement are
true and correct as though made on and as of the date hereof
(except to the extent such representations and warranties
specifically relate to an earlier date, in which case they
are true and correct as of such earlier date).
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162
The Company hereby requests that the Agent release
from the Cash Collateral Account and transfer to the Company
at _______________________________________ on
______________, 199_ an amount equal to the lesser of
(i) the Purchase Price and (ii) the amount remaining in the
Cash Collateral Account on such date of transfer. The
undersigned hereby certifies that such amount shall be used
solely to pay the Purchase Price, or part thereof, of the
Eligible Assets.
IN WITNESS WHEREOF, the Company has executed and
delivered this Certificate as of ________________.
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management
Company, L.P.,
its general partner
By: __________________________
Title: ________________________
2
123957(753)(711)
163
SCHEDULE 1
ELIGIBLE ASSETS
123957(753)(711)
164
EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this
"Agreement") dated as of __________, ____ is made between
______________________________ (the "Assignor") and
__________________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain
Credit Agreement dated as of October 28, 1993 among PLUM
CREEK TIMBER COMPANY, L.P., a Delaware limited partnership
(the "Company"), the several financial institutions from
time to time party thereto (including the Assignor, the
"Banks"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent (as from time to time amended, amended
and restated, modified, supplemented or renewed, the "Credit
Agreement"). Any terms defined in the Credit Agreement and
not defined in this Agreement are used herein as defined in
the Credit Agreement;
WHEREAS, as provided under the Credit Agreement,
the Assignor has committed to making Loans (the "Committed
Loans") to the Company in an aggregate amount not to exceed
$__________ (the "Commitment");
WHEREAS, [the Assignor has made Committed Loans in
the aggregate principal amount of $__________ to the
Company] [no Committed Loans are outstanding under the
Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the
Assignee [part of the] [all] rights and obligations of the
Assignor under the Credit Agreement in respect of its
Commitment, [together with a corresponding portion of each
of its outstanding Committed Loans,] in an amount equal to
$__________ (the "Assigned Amount") on the terms and subject
to the conditions set forth herein and the Assignee wishes
to accept assignment of such rights and to assume such
obligations from the Assignor on such terms and subject to
such conditions;
NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements contained herein, the parties
hereto agree as follows:
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165
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of
this Agreement, (i) the Assignor hereby sells, transfers
and assigns to the Assignee, and (ii) the Assignee
hereby purchases, assumes and undertakes from the
Assignor, without recourse and without representation or
warranty (except as provided in this Agreement) __% (the
"Assignee's Percentage Share") of (A) the Commitment
[and the Committed Loans] of the Assignor and (B) all
related rights, benefits, obligations, liabilities and
indemnities of the Assignor under and in connection with
the Credit Agreement and the Loan Documents.
[If appropriate, add paragraph specifying
payment to Assignor by Assignee of outstanding principal
of, accrued interest on, and fees with respect to,
Committed Loans assigned.]
(b) With effect on and after the Effective
Date (as defined herein), the Assignee shall be a party
to the Credit Agreement and succeed to all of the rights
and be obligated to perform all of the obligations of a
Bank under the Credit Agreement, including the
requirements concerning confidentiality, with a
Commitment in an amount equal to the Assigned Amount.
The Assignee agrees that it will perform in accordance
with their terms all of the obligations which by the
terms of the Credit Agreement are required to be
performed by it as a Bank. It is the intent of the
parties hereto that the Commitment of the Assignor
shall, as of the Effective Date, be reduced by an amount
equal to the Assigned Amount and the Assignor shall
relinquish its rights and be released from its
obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee.
(c) After giving effect to the assignment and
assumption, on the Effective Date the Assignee's
Commitment will be $__________.
2. Payments.
(a) As consideration for the sale, assignment
and transfer contemplated in Section 1, the Assignee
shall pay to the Assignor on the Effective Date in
immediately available funds an amount equal to
$__________, representing the Assignee's Percentage
Share of the principal amount of all Committed Loans
previously made, and currently owed, by the Company to
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the Assignor under the Credit Agreement and outstanding
on the Effective Date.
(b) The [Assignor] [Assignee] further agrees
to pay to the Agent a processing fee in the amount
specified in Section 10.08(a) of the Credit Agreement.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to
the Effective Date with respect to the Committed Loans and
the Commitment shall be for the account of the Assignor.
Any interest, fees and other payments accrued on and after
the Effective Date with respect to the Assigned Amount shall
be for the account of the Assignee. Each of the Assignor
and the Assignee agrees that it will hold in trust for the
other party any interest, fees and other amounts which it
may receive to which the other party is entitled pursuant to
the preceding sentence and pay to the other party any such
amounts which it may receive promptly upon receipt.
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received
a copy of the Credit Agreement and the Schedules and
Exhibits thereto, together with copies of the most recent
financial statements referred to in Section 6.01 of the
Credit Agreement, and such other documents and information
as it has deemed appropriate to make its own credit and
legal analysis and decision to enter into this Agreement;
and (b) agrees that it will, independently and without
reliance upon the Assignor, the Agent or any other Bank and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit and
legal decisions in taking or not taking action under the
Credit Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee,
the effective date for this Agreement shall be
__________, ____ (the "Effective Date"); provided that
the following conditions precedent have been satisfied
on or before the Effective Date:
(i) this Agreement shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Company and the
Agent required for an effective assignment of the
Assigned Amount by the Assignor to the Assignee
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under Section 10.08(a) of the Credit Agreement
shall have been duly obtained and shall be in full
force and effect as of the Effective Date;
(iii) the Assignee shall pay to the
Assignor all amounts due to the Assignor under this
Agreement;
(iv) the Assignee shall have complied
with Section 3.01(f) of the Credit Agreement (if
applicable; and
(v) the processing fee referred to in
Section 2(b) hereof and in Section 10.08(a) of the
Credit Agreement shall have been paid to the Agent.
(b) Promptly following the execution of this
Agreement, the Assignor shall deliver to the Company and
the Agent for acknowledgement by the Agent, a Notice of
Assignment in the form attached hereto as Schedule 1.
[6. Agent. [INCLUDE ONLY IF ASSIGNOR IS AGENT]
(a) The Assignee hereby appoints and
authorizes the Assignor to take such action as agent on
its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the Banks
pursuant to the terms of the Credit Agreement.
(b) The Assignee shall assume no duties or
obligations held by the Assignor in its capacity as
Agent under the Credit Agreement.]
7. Withholding Tax.
The Assignee agrees to comply with Section 3.01(f)
of the Credit Agreement (if applicable).
8. Representations and Warranties.
(a) The Assignor represents and warrants that
(i) it is the legal and beneficial owner of the interest
being assigned by it hereunder and that such interest is
free and clear of any lien, security interest or other
adverse claim; (ii) it is duly organized and existing
and it has the full power and authority to take, and has
taken, all action necessary to execute and deliver this
Agreement and any other documents required or permitted
to be executed or delivered by it in connection with
this Agreement and to fulfill its obligations hereunder;
(iii) no notices to, or consents, authorizations or
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approvals of, any person are required (other than any
already given or obtained) for its due execution,
delivery and performance of this Agreement, and apart
from any agreements or undertakings or filings required
by the Credit Agreement, no further action by, or notice
to, or filing with, any person is required of it for
such execution, delivery or performance; and (iv) this
Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of
the Assignor, enforceable against the Assignor in
accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application
relating to or affecting creditors' rights and to
general equitable principles.
(b) The Assignor makes no representation or
warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or
in connection with the Credit Agreement or the
execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished
pursuant thereto. The Assignor makes no representation
or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial
condition or statements of the Company, or the
performance or observance by the Company, of any of its
respective obligations under the Credit Agreement or any
other instrument or document furnished in connection
therewith.
(c) The Assignee represents and warrants that
(i) it is duly organized and existing and it has full
power and authority to take, and has taken, all action
necessary to execute and deliver this Agreement and any
other documents required or permitted to be executed or
delivered by it in connection with this Agreement, and
to fulfill its obligations hereunder; (ii) no notices
to, or consents, authorizations or approvals of, any
person are required (other than any already given or
obtained) for its due execution, delivery and
performance of this Agreement; and apart from any
agreements or undertakings or filings required by the
Credit Agreement, no further action by, or notice to, or
filing with, any person is required of it for such
execution, delivery or performance; (iii) this Agreement
has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of
the Assignee, enforceable against the Assignee in
accordance with the terms hereof, subject, as to
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enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application
relating to or affecting creditors' rights and to
general equitable principles; and (iv) it is an Eligible
Assignee.
9. Further Assurances.
The Assignor and the Assignee each hereby agrees to
execute and deliver such other instruments, and take such
other action, as either party may reasonably request in
connection with the transactions contemplated by this
Agreement, including the delivery of any notices or other
documents or instruments to the Company or the Agent, which
may be required in connection with the assignment and
assumption contemplated hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision
of this Agreement shall be in writing and signed by the
parties hereto. No failure or delay by either party
hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any
waiver of any breach of the provisions of this Agreement
shall be without prejudice to any rights with respect to
any other or further breach thereof.
(b) All payments made hereunder shall be made
without any set-off or counterclaim.
(c) The Assignor and the Assignee shall each
pay its own costs and expenses incurred in connection
with the negotiation, preparation, execution and
performance of this Agreement.
(d) This Agreement may be executed in any
number of counterparts and all of such counterparts
taken together shall be deemed to constitute one and the
same instrument.
(e) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
CALIFORNIA. The Assignor and the Assignee each
irrevocably submits to the non-exclusive jurisdiction of
any State or Federal court sitting in California over
any suit, action or proceeding arising out of or
relating to this Agreement and irrevocably agrees that
all claims in respect of such action or proceeding may
be heard and determined in such California State or
Federal court. Each party to this Agreement hereby
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irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum
to the maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH THIS AGREEMENT, THE CREDIT
AGREEMENT, ANY RELATED DOCUMENTS AND AGREEMENTS OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS
(WHETHER ORAL OR WRITTEN).
[Other provisions to be added as may be
negotiated between the Assignor and the Assignee,
provided that such provisions are not inconsistent with
the Credit Agreement.]
IN WITNESS WHEREOF, the Assignor and the Assignee
have caused this Assignment and Acceptance Agreement to be
executed and delivered by their duly authorized officers as
of the date first above written.
__________________________________
Assignor
By: _________________________________
Title: ______________________________
Address:
__________________________________
Assignee
By: _________________________________
Title: ______________________________
Address:
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SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______________, 19__
Bank of America National Trust
and Savings Association, as Agent
1455 Market Street, 12th Floor
San Francisco, CA 94103
Attn: Global Agency #5596
Plum Creek Timber Company, L.P.
999 Third Avenue, Suite 2300
Seattle, WA 98104
Attn: Chief Financial Officer
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of October 28,
1993 (the "Credit Agreement") among Plum Creek Timber
Company, L.P. (the "Company"), the Banks referred to therein
and Bank of America National Trust and Savings Association,
as Agent. Terms defined in the Credit Agreement are used
herein as therein defined.
1. We hereby give you notice of, and request the
consent of the Company to, the assignment by
__________________ (the "Assignor") to _______________ (the
"Assignee") of _____% of the right, title and interest of
the Assignor in and to the Credit Agreement (including,
without limitation, the right, title and interest of the
Assignor in and to the Commitments of the Assignor and all
outstanding Loans made by the Assignor). Before giving
effect to such assignment the Assignor's Commitment is
$ ___________, and the aggregate amount of its
outstanding Loans is $_____________.
2. The Assignee agrees that, upon receiving the
consent of the Company and the Agent to such assignment, the
Assignee will be bound by the terms of the Credit Agreement
as fully and to the same extent as if the Assignee were the
Bank originally holding such interest in the Credit
Agreement.
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3. The following administrative details apply to the
Assignee:
(A) Notice Address:
Assignee name: __________________________
Address: _______________________________
_______________________________
_______________________________
Attention: _____________________________
Telephone: (___) _______________________
Telecopier: (___) ______________________
Telex (Answerback): ____________________
(B) Payment Instructions:
Account No.: ___________________________
At: ___________________________
___________________________
___________________________
Reference: ___________________________
Attention: ___________________________
IN WITNESS WHEREOF, the Assignor and the Assignee have
caused this Assignment Notice and Acceptance to be executed
by their respective duly authorized officials, officers or
agents as of the date first above mentioned.
Very truly yours,
[Name of Assignor]
By: ________________________
Title:
[Name of Assignee]
By: ________________________
Title:
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173
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.
By: ______________________
Its: _____________________
By: __________________________
Title: _______________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: __________________________
Vice President
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123897.AB2 (753)(711)
174
CLOSING DOCUMENTS
PLUM CREEK CREDIT AGREEMENT
PARTIES
Borrower & Affiliates:
- ---------------------
Plum Creek Timber Company, L.P. ("Company")
Plum Creek Management Company, L.P. ("General Partner")
PC Advisory Partners I, L.P. ("PMC General Partner")
PC Advisory Corp. I ("PC Advisory General Partner")
Agent:
- -----
Bank of America National Trust and
Savings Association, as agent for
the Banks ("Agent")
Collectively the Banks: ("Banks")
- ----------------------
Bank of America National Trust and
Savings Association
NationsBank of North Carolina, N.A.
United States National Bank of Oregon
Wells Fargo Bank, N.A.
Seattle First National Bank
ABN AMRO Bank N.V.
Chemical Bank
The Bank of Tokyo, Ltd.
The Bank of California, N.A.
Counsel:
- -------
Morrison & Foerster ("MoFo")
(for Agent)
Perkins Coie ("Perkins")
(for PCTC)
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175
Document
Number:
- --------
CREDIT DOCUMENTS
----------------
1. Credit Agreement dated as of October 28, 1993, among PCTC,
the Banks and the Agent
2. Schedules to the Credit Agreement:
. Schedule 1.01: Investment Policy
. Schedule 2.01: Commitments
. Schedule 5.05: Litigation
. Schedule 5.07: ERISA
. Schedule 5.12: Environmental Matters
. Schedule 5.18: Subsidiaries of PCTC
. Schedule 7.01: Permitted Liens
. Schedule 7.04: Permitted Investments
3. Exhibits to the Credit Agreement:
. Exhibit A: Notice of Borrowing
. Exhibit B: Notice of Conversion/Continuation
. Exhibit C-1: Form of Legal Opinion of Company Counsel
. Exhibit C-2: Form of Legal Opinion of Perkins
. Exhibit D: Compliance Certificate
. Exhibit E: Form of Cash Collateral Agreement
. Exhibit F: Form of Assignment and Acceptance
CORPORATE AND PARTNERSHIP DOCUMENTS
-----------------------------------
4. Resolutions of the Board of Directors of PC Advisory
General Partner certified by the Assistant Secretary
5. Incumbency Certificate of PC Advisory General Partner
2
176
Document
Number:
- --------
6. Certificates of the Assistant Secretary of PC Advisory General
Partner certifying a copy of Company's:
(i) Partnership Certificate, certified by the Delaware
Secretary of State
(ii) Partnership Agreement
7. Certificates of the Assistant Secretary of PC Advisory General
Partner certifying a copy of General Partner's:
(i) Partnership Certificate, certified by the Delaware
Secretary of State
(ii) Partnership Agreement
8. Certificates of the Assistant Secretary of PC Advisory General
Partner certifying a copy of PCMC General Partner's:
(i) Partnership Certificate, certified by the Delaware
Secretary of State
(ii) Partnership Agreement
9. Certificates of the Assistant Secretary of PC Advisory General
Partner certifying:
(i) Articles of Incorporation of PC Advisory General
Partner, certified by the Delaware Secretary of
State.
(ii) Bylaws of PC Advisory General Partner
10. Good standing certificates of Company from the States of:
- Delaware
- Washington
- Montana
- Idaho
11. Good standing certificates of General Partner from the States of:
- Delaware
- Washington
- Montana
- Idaho
3
177
Document
Number:
- --------
12. Good standing certificates of PCMC General Partner from
the States of:
-Delaware
-Washington
-Montana
13. Good standing certificates of PC Advisory General Partner
from the States of:
-Delaware
-Washington
-Montana
LEGAL OPINIONS
--------------
14. Opinion of Company's Counsel
15. Opinion of Perkins
16. Officer's Certificate with respect to representations true
and correct, no Event of Default and no Material Adverse
Effect
17. Certificate of Chief Financial Officer of General Partner
with respect to Financial Statements of Company
18. Officer's Certificate of PC Advisory General Partner
certifying a copy of:
(a) Senior Note Agreement, as amended
(b) Mortgage Note Agreement, as amended
(c) ABN Credit Agreement, as amended
4