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EXHIBIT 4.C.2
MORTGAGE NOTE AGREEMENT AMENDMENT
PLUM CREEK MANUFACTURING, L.P.
999 Third Avenue
Seattle, Washington 98104
As of May 20, 1994
To each of the Purchasers
listed on the attached
Purchaser Schedule
Dear Purchaser:
RECITALS
WHEREAS, you, Plum Creek Manufacturing, L.P., a Delaware limited
partnership (the "Company"), and Plum Creek Timber Company, L.P., a Delaware
limited partnership (the "Partnership"), are parties to Mortgage Note
Agreements dated as of May 31, 1989 and as amended to the date hereof by
amendments thereto dated as of January 1, 1991, April 22, 1993 and September l,
1993 (the "Mortgage Note Agreements") pursuant to which the Company is the
obligor with respect to certain 11-1/8% First Mortgage Notes due June 8, 2007
(the "Mortgage Notes");
WHEREAS, the payment of the Mortgage Notes is guaranteed by the
Partnership pursuant to Paragraph 7 of the Mortgage Note Agreements;
WHEREAS, the Partnership purchased certain timberlands in the State of
Montana ("Champion Timberlands") from Champion International Corporation;
WHEREAS, the Partnership, in order to finance the purchase of the
Champion Timberlands pursuant to the Purchase Agreement, entered into a
Revolving Credit Agreement dated as of October 28, 1993 with Bank of America
National Trust and Savings Association and the other lenders under to such
facility ("Bank of America Revolving Credit Agreement");
WHEREAS, the Partnership, in order to refinance a portion of the
borrowings under the Bank of America Revolving Credit Agreement, proposes to
enter into Senior Note Agreements with certain lenders (the "1994 Senior Note
Agreements");
WHEREAS, consummation of the foregoing transactions requires certain
amendments to the Mortgage Note Agreements;
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NOW, THEREFORE, the Company and the Partnership hereby agree with you
that this Agreement shall become effective as of the date on which the 1994
Senior Note Agreements become effective (the "Effective Time") and that
thereafter, all references to, and actions taken in connection with, the
Mortgage Note Agreements shall incorporate this Agreement in its entirety. All
capitalized terms used in this Agreement and not otherwise defined have the
meanings ascribed to them in the Mortgage Note Agreements.
1. AMENDMENT
The first part of Paragraph 7J of the Mortgage Note Agreements shall
be amended to read as follows:
7J INCORPORATED COVENANTS. The provisions of paragraphs 5
and 6 of the Senior Note Agreements as originally in effect
(except as amended to and as of May 20, 1994 between the
Partnership and the Senior Noteholders (collectively, the
"Amendments")) and the definitions set forth or specified by
reference in the Senior Note Agreement as originally in effect
(except as amended by the Amendments) of terms used in such
paragraphs 5 and 6 or in such definitions (herein,
collectively, the Incorporated Provisions") . . .
The last sentence of Paragraph 7J shall be amended to read as follows:
The Incorporated Provisions shall not be affected by any
amendments, modification, waiver or termination of the Senior
Note Agreements, except as amended by the Amendments, and may
be amended, modified, waived or terminated only pursuant to
Paragraph 12C of this Agreement.
2. CONDITIONS TO EFFECTIVENESS
The amendments to the Mortgage Note Agreements and the other
agreements set forth herein shall become effective, subject to the fulfillment
of the following conditions to your satisfaction or waiver by you thereof (as
evidenced by your execution and delivery of this Agreement) on or prior to the
Effective Time:
A. REPRESENTATIONS AND WARRANTIES; NO DEFAULT
The representations and warranties contained in Paragraph 3 hereof
shall be true in all material respects on and as of the closing, except to the
extent of changes caused by the transactions herein contemplated; and there
shall exist on the date of closing no Event of Default or Default; and you
shall receive a duly executed officer's certificate, dated as of the Effective
Time, to both such effects.
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B. CERTAIN AGREEMENTS
Each of (i) this Agreement, (ii) the 1994 Senior Note Agreements, and
(iii) the amendment to the Senior Note Agreement of even date herewith among
the Partnership and the several holders of the Senior Notes (the "Senior Note
Agreement Amendment") shall have been duly authorized, executed and delivered
by the parties thereto (other than you) and by the Required Holders and shall
be in full force and effect.
C. PROCEEDINGS
All proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incident thereto shall be
satisfactory in substance and form to you, and you shall have received all such
counterpart originals or certified or other copies of such documents as you may
reasonably request.
3. REPRESENTATIONS AND WARRANTIES
Each of the Company and the Partnership represents and warrants:
A. ORGANIZATION
The Company is a limited partnership duly organized, validly existing
and in good standing under the Delaware Revised Uniform Limited Partnership Act
and has all requisite partnership power and authority to own and operate its
properties, to conduct its business as now conducted and as proposed to be
conducted, and to enter into and carry out the terms of this Agreement. The
Partnership is a limited partnership duly organized, validly existing and in
good standing under the Delaware Revised Uniform Limited Partnership Act and
has all requisite partnership power and authority to own and operate its
properties, to conduct its business as now conducted and as proposed to be
conducted, and to enter into and carry out the terms of this Agreement.
B. QUALIFICATION
The Company is duly qualified or registered for transaction of
business and in good standing as a foreign limited partnership in each
jurisdiction in which the failure so to qualify or be registered would have a
material adverse effect on the business, property or assets, condition or
operations of the Company, or on the ability of the Company to perform its
obligations under this Agreement, or, after giving effect to the transactions
contemplated hereby, the Mortgage Note Agreements or the Mortgage Notes.
C. SUBSIDIARIES
As of the Effective Time the General Partner owns a 2% general
partner's interest and the Company owns a 98% limited partner's interest in
Manufacturing, which interests have been duly authorized and validly issued,
fully paid and non-assessable and are owned
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free and clear of any Liens. Manufacturing has issued no warrants or options
to acquire, or instruments convertible into or exchangeable for any equity
interest in Manufacturing. As of the Effective Time the General Partner owns
4% of the capital stock and the Company owns 96% of the capital stock of
Marketing, which capital stock has been duly authorized and validly issued,
fully paid and non-assessable and are owned free and clear of any liens.
Marketing has issued no warrants or options to acquire or interests convertible
into or exchangeable for any equity interest in Marketing. As of the Effective
Time the Company has no Subsidiaries other than Manufacturing and Marketing.
As of the Effective Time Manufacturing has no Subsidiaries.
D. CHANGES, ETC.
Except as contemplated by this Agreement, since March 31, 1994, the
date of the most recent consolidated financial statements of the Partnership,
(i) neither the Company nor the Partnership has incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business, and (ii) there has not
been any material adverse change in the financial condition or operations of
the Company or the Partnership.
E. ACTIONS PENDING
There is no action, suit, investigation or proceeding pending or, to
the knowledge of the Company, threatened against the Company, or any properties
or rights of the Company, by or before any court, arbitrator or administrative
or governmental body which questions the validity of this Agreement, or any
action taken or to be taken pursuant to this Agreement, which would be
reasonably likely to result in any material adverse change in the business,
properties or assets, condition (financial or otherwise) or operations of the
Company, or in the inability of the Company to perform its obligations under
this Agreement, the Mortgage Note Agreements or the Mortgage Notes, following
the effectuation of the transactions described herein.
F. COMPLIANCE WITH OTHER INSTRUMENTS, ETC.
The Company is not in violation of any provision of the Partnership
Agreement or of any term of any agreement or instrument to which it is a party
or by which it or any of its properties is bound or any term of any applicable
law, ordinance, rule or regulation of any governmental authority or any term of
any applicable order, judgment or decree of any court, arbitrator or
governmental authority (collectively, "term"), the consequences of which
violation would be reasonably likely to have a material adverse effect on its
business, properties or assets, condition (financial or otherwise) or
operations or on the ability of the Company to perform its obligations under
this Agreement, or, after giving effect to the transactions contemplated
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hereby, the performance of the Mortgage Note Agreements or the Mortgage Notes,
and the execution, delivery and performance by the Company of this Agreement,
or, after giving effect to the transactions contemplated hereby, the Mortgage
Note Agreements or the Mortgage Notes will not result in any violation of or be
in conflict with or constitute a default under any such term or result in the
creation of (or impose any obligation on the Company to create) any Lien upon
any of the properties or assets of the Company, pursuant to any such term
except for Liens permitted by paragraph 6B(l) of the Mortgage Note Agreements;
and there is no such term which materially adversely affects or in the future
would be likely to materially adversely affect the business, properties or
assets, condition or operations of the Company or the ability of the Company to
perform its obligations under this Agreement, or, after giving effect to the
transactions contemplated hereby, the Mortgage Note Agreements or the Mortgage
Notes.
G. GOVERNMENTAL CONSENT
No consent, approval or authorization of, or declaration or filing
with, any governmental authority is required for the valid execution, delivery
and performance by the Company of this Agreement, or, after giving effect to
the transactions contemplated hereby, the Mortgage Note Agreements or the
Mortgage Notes other than those which have been obtained on or prior to the
Effective Time.
H. FOREIGN ASSETS CONTROL REGULATIONS, ETC.
The execution and delivery of this Agreement by the Company and the
consummation of the transactions contemplated hereby will not violate the
Foreign Assets Control Regulations, the Transaction Control Regulations, the
Cuban Assets Control Regulations, the Foreign Funds Control Regulations, the
Iranian Assets Control Regulations, the Nicaraguan Trade Control Regulations,
the South African Transactions Regulations, the Libyan Sanctions Regulations,
the Soviet Gold Coin Regulations or the Panamanian Transactions Regulations of
the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as
amended) or (i) Executive Orders 12722 and 12724 (55 Fed. Reg. 31803 and 55
Fed. Reg. 33089), Blocking Iraqi Government Property and Prohibiting
Transactions with Iraq, and (ii) Executive Orders 12723 and 12725 (55 Fed. Reg.
31805 and 55 Fed. Reg. 33091), Blocking Kuwaiti Government Property and
Prohibiting Transactions with Kuwait.
I. AUTHORIZATION; ENFORCEABILITY
This Agreement has been duly authorized by all requisite action and
duly executed and delivered by authorized officers of the Company and the
General Partner, and the Mortgage Note Agreements, as amended by this
Agreement, are valid obligations of the Company, legally binding upon and
enforceable against the Company in accordance with their terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization or
other similar law affecting the enforcement of creditors' rights generally, and
(ii) general principles of equity (regardless of whether such enforceability is
considered in proceeding in equity or at law).
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J. DISCLOSURE
Neither this Agreement nor any other document, certificate or
statement furnished to you by or on behalf of the Company in connection
herewith contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein and
therein not misleading. There is no fact peculiar to the Company which
materially adversely affects or in the future may (so far as the Company can
now reasonably foresee) materially adversely affect the businesses, property or
assets, condition (financial or otherwise) or results of operations of the
Company and which has not been set forth in this Agreement, or in the other
documents, certificates and statements furnished to you by or on behalf of the
Company, prior to the date hereof in connection with the transactions
contemplated hereby.
4. AFFIRMATION OF GUARANTEE
The Partnership hereby agrees that its Guarantee in respect of the
Mortgage Notes, as set forth in Paragraph 7 of the Mortgage Note Agreements,
shall continue in full force and effect from and after the Effective Time.
5. EXPENSES; INDEMNIFICATION
The Company shall, whether or not the transactions contemplated hereby
are consummated, save each holder of Mortgage Notes harmless for all
out-of-pocket expenses arising in connection with the execution and delivery or
performance of this Agreement and the consummation of the transactions
contemplated hereby, including the reasonable fees and expenses of special
counsel for the holders of Mortgage Notes. The Company shall also indemnify
and save each holder of Mortgage Notes harmless from and against all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever (including,
without limitation, any taxes, and any additional taxes imposed on any amounts
payable pursuant to this Paragraph 5) which may at any time be imposed on,
incurred by or asserted against any holder of Mortgage Notes in any way arising
out of, relating to or resulting from this Agreement or the transactions
contemplated hereby. The obligations of the Operations Partnership under this
Paragraph 5 shall survive the transfer of any Mortgage Note or portion thereof
or interest therein by a holder of Mortgage Notes or any transferee and the
payment of any Mortgage Note.
6. MISCELLANEOUS
A. CONTINUITY AND INTEGRATION OF AGREEMENTS
The Mortgage Note Agreements, as affected by this Agreement, shall
remain in full force and effect and are hereby ratified and confirmed, and the
Mortgage Note Agreements and this Agreement shall be deemed to be and construed
as a single agreement.
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B. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby and the transfer of any Mortgage Note by a holder of
Mortgage Notes. Such representations and warranties may be relied upon by any
transferee of a Mortgage Note from a holder of Mortgage Notes.
C. SUCCESSORS AND ASSIGNS
All covenants and agreements in this Agreement contained by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not.
D. DESCRIPTIVE HEADINGS
The descriptive headings of the several paragraphs of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
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E. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK. THIS AGREEMENT SHALL BE BINDING UPON THE COMPANY, THE PARTNERSHIP, THE
OPERATIONS PARTNERSHIP, THE MERGER COMPANY, AND THE HOLDERS OF MORTGAGE NOTES
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first above written.
PLUM CREEK MARKETING, INC.
/s/ Diane M. Irvine
By: ---------------------------------
Name: Diane M. Irvine
Title: Vice President and Chief
Financial Officer
PLUM CREEK MANUFACTURING, L.P.
By: Plum Creek Management Company,
L.P., General Partner
/s/ Diane M. Irvine
By: --------------------------------
Name: Diane M. Irvine
Title: Vice President and Chief
Financial Officer
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PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company,
L.P., General Partner
/s/ Diane M. Irvine
By: ------------------------------
Name: Diane M. Irvine
Title: Vice President and Chief
Financial Officer
The foregoing is accepted and agreed to:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
/s/ Angela Brock-Kyle
By: ---------------------------------------
Name: Angela Brock-Kyle
Title: Associate Director
Company: Teachers Insurance and Annuity
Association of America