Mortgage Note Agreement Amendment
PLUM CREEK MANUFACTURING, L.P.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Dated as of April 15, 1997
To each of the Noteholders
listed on Schedule 1
attached hereto
Dear Noteholder:
WHEREAS, the purchasers of the Mortgage Notes (as hereinafter defined),
Plum Creek Manufacturing, L.P., a Delaware limited partnership (the
"Company"), as successor in interest to Plum Creek Manufacturing, Inc.,
and Plum Creek Timber Company, L.P., a Delaware limited partnership (the
"Partnership"), entered into First Mortgage Note Agreements dated as of
May 31, 1989 (the "Original Mortgage Note Agreements"), pursuant to
which the Company issued $160,000,000 aggregate principal amount of its
11 1/8% First Mortgage Notes due June 8, 2007 (the "Mortgage Notes");
WHEREAS, the Original Mortgage Note Agreements were amended and affected
by (i) the Mortgage Note Agreement Amendment, Consent and Waiver dated
as of January 1, 1991, (ii) a letter amendment dated Xxxxx 00, 0000,
(xxx) a Mortgage Note Agreement Amendment dated as of September 1, 1993,
(iv) a Mortgage Note Agreement Amendment dated as of May 20, 1994,
(v) an Amendment to Mortgage Note Agreement dated as of June 15, 1995,
and (vi) a Mortgage Note Agreements Amendment dated as of May 31, 1996
(collectively, the "Amendments," and the Original Mortgage Note
Agreements, as amended by the Amendments, the "Mortgage Note
Agreements");
WHEREAS, Mortgage Notes in the aggregate principal amount of
$131,200,000 remain outstanding and are held by the holders thereof
(individually, a "Noteholder," and collectively the "Noteholders") in
the aggregate principal amount for each Noteholder shown opposite the
name of such Noteholder on Schedule 1;
WHEREAS, the Company, the Partnership, Plum Creek Marketing, Inc.
("Marketing") and the Noteholders wish to enter into this agreement
(this "Agreement") in order to further amend certain provisions of the
Mortgage Note Agreements;
NOW, THEREFORE, the Company, the Partnership and Marketing hereby agree
with each Noteholder as follows:
Section 1. Definitions
All capitalized terms used in this Agreement and not otherwise defined
herein have the meanings ascribed to them in the Mortgage Note
Agreements.
Section 2. Amendments to the Mortgage Note Agreements
2.1 Amendment to Xxxxxxxxx 0X
Xxxxxxxxx 0X shall be amended by deleting the period at the end thereof
and by adding the following:
; provided, that satisfaction of the foregoing requirements
with respect to any such Lien shall not remedy the Event of
Default resulting from such Lien.
2.2 Amendment to Paragraph 6B(3)(vii)
Paragraph 6B(3)(vii) shall be amended to read as follows:
(vii) make Investments not otherwise permitted by this
paragraph 6B(3) in entities engaged solely in a Permitted
Business, provided that the cumulative aggregate amount of
such Investments (calculated at original cost and including
the principal amount of any obligations guaranteed to the
extent such guarantees are not otherwise permitted by this
paragraph 6B(3)) outstanding from time to time made pursuant
to this clause (vii) between the date of closing 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;
2.3 Amendments to Paragraph 6B(5)(vi)
Paragraph 6B(5)(vi) shall be amended to read as follows:
(vi) the Company and its Restricted Subsidiaries may otherwise
sell for cash properties in an amount not less than the fair
value thereof as determined in good faith by the Responsible
Representatives if (a) immediately after giving effect to such
proposed sale, no condition or event shall exist which
constitutes an Event of Default or Material Default, (b) the
net proceeds of any such sale (x) are applied, within 180 days
after such sale, to the prepayment of the Notes pursuant to
paragraph 4A or 4B or (y) are applied, within 180 days after
such sale, to the purchase of productive assets in the same
line of business, (c) immediately after giving effect to such
sale (giving effect on a pro forma basis to any proposed
retirement of Debt out of the proceeds thereof), the Company
could incur $1 of additional Funded Debt pursuant to
paragraph 6B(2)(vi), and (d) in the case of any properties
constituting part of the Mortgaged Properties, (x) any escrow
funds referred to in the proviso to this clause (vi) shall be
held in a security account by the Trustee under the Trust
Agreement for the equal and ratable securing of all Debt
secured by the Security Documents, and (y) the productive
assets purchased as provided in subclause (b) shall become
part of the Mortgaged Properties securing such Debt by a
supplemental mortgage or deed of trust satisfactory in form
and substance to the Required Holder(s) entered into and
delivered by the Company or Restricted Subsidiary, as the case
may be, not later than 90 days after acquisition of such
assets (and, in connection with the mortgaging of such assets,
the Trustee and the holders shall receive such supporting
documentation as the Required Holders shall reasonably
request, which, in any event, shall include with respect to
any real estate, title insurance reasonably acceptable to the
Required Holders); provided that, if (I) the net proceeds of
any such sale exceed $25,000,000 (and such proceeds are not
immediately applied in accordance with subclause (b) above),
or (II) the unapplied net proceeds of all such sales exceed
$25,000,000 in the aggregate at any time, all the net proceeds
of any such sale described in clause (I) and/or all the
unapplied net proceeds of such sales described in clause (II),
as the case may be, shall be placed immediately upon receipt
thereof in escrow, pursuant to an escrow agreement reasonably
satisfactory in form and substance to the Required Holder(s),
for the purpose of application in accordance with subclause
(b) above;
In order to carry out the intention of the parties hereto in making the
foregoing amendment to paragraph 6B(5)(vi), the Noteholders hereby,
without any further required action or direction, instruct the Trustee
to issue any written consent that may be necessary under section 8 of
each Mortgage Document, subject only to receipt by the Trustee of an
Officers' Certificate stating that the conditions of clauses (a) and (c)
of paragraph 6B(5)(vi) have been complied with, and under any
corresponding provision of any supplemental or additional mortgage or
deed of trust entered into in accordance with the provisions of the
Mortgage Note Agreements, in order to exempt from the requirements of
the proviso to clause (a) of such section 8 the net proceeds of any sale
of properties governed by paragraph 6B(5)(vi) that are not required by
the terms of the proviso thereto to be placed in escrow.
2.4 Amendments to Paragraph 7J
Paragraph 7J shall be amended by deleting that portion of the paragraph
beginning with the heading and continuing through the words "(herein,
collectively, the "Incorporated Provisions")," and by inserting in lieu
thereof the following:
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 April 15, 1997 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"),
Section 3. Representations and Warranties
Each of the Company and the Partnership represents and warrants as
follows:
3.1 No Default
No Default or Event of Default has occurred and is continuing, and,
after giving effect to the amendments contemplated hereby, no Default or
Event of Default will exist.
3.2 Organization
The Company is a limited partnership, duly organized, validly existing
and in good standing under the Delaware Revised Uniform Limited
Partnership Act and has all requisite partnership power and authority to
own and operate its properties, to conduct its business as now conducted
and as proposed to be conducted and to enter into this Agreement. 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 this Agreement.
3.3 Qualification
Each of the Company and the Partnership 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,
properties or assets, condition or operations of the Company or the
Partnership, or on the ability of the Company or the Partnership to
perform its obligations under this Agreement or, after giving effect to
the transactions contemplated hereby, the Mortgage Note Agreements or
the Mortgage Notes.
3.4 Changes, etc.
Except as described in this section 3.4 and except as contemplated by
this Agreement, since December 31, 1996, the date of the most recent
combined financial statements of the Partnership, (a) 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 (b) there has
not been any material adverse change in the business, properties or
assets, condition (financial or otherwise) or operations of the Company
or the Partnership. On January 21, 1997, the Board of Directors of the
General Partner authorized the Partnership to make a distribution of
$0.51 per Unit for the fourth quarter of 1996, payable on February 28,
1997 to Unitholders of record on February 14, 1997. On April 15, 1997,
the Board of Directors of the General Partner authorized the Partnership
to make a distribution of $0.55 per Unit for the first quarter of 1997,
payable on May 29, 1997 to Unitholders of record on May 16, 1997.
3.5 Actions Pending
There is no action, suit, investigation or proceeding pending or, to the
knowledge of the Company or the Partnership, threatened against the
Company or the Partnership, or any properties or rights of the Company
or the Partnership, by or before any court, arbitrator or administrative
or governmental body that questions the validity of this Agreement, or
any action taken or to be taken pursuant to this Agreement, which would
be reasonably likely to result in any material adverse change in the
business, properties or assets, condition or operations of the Company
or the Partnership, or in the inability of the Company or the
Partnership to perform its obligations under this Agreement, the
Mortgage Note Agreements or the Mortgage Notes after giving effect to
the transactions contemplated hereby.
3.6 Compliance With Other Instruments, etc.
The Company is not in violation of any provision of its Partnership
Agreement and the Partnership is not in violation of any provision of
the Partnership Agreement and neither the Company nor the Partnership is
in violation 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, 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 or the
Partnership to perform its obligations under this Agreement, or, after
giving effect to the transactions contemplated hereby, the performance
of the Mortgage Note Agreements or the Mortgage Notes, and the
execution, delivery and performance by the Company and the Partnership
of this Agreement, or, after giving effect to the transactions
contemplated hereby, the Mortgage Note Agreements or the Mortgage Notes,
will not result in the violation of or be in conflict with or constitute
a default of any such term or result in the creation of (or impose any
obligation on the Company or the Partnership to create) any Lien upon
any of the properties or assets of the Company or the Partnership,
pursuant to any such term except for Liens permitted by paragraph 6B(1)
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 Partnership or the ability
of the Company or the Partnership to perform its obligations under this
Agreement, or, after giving effect to the transactions contemplated
hereby, the Mortgage Note Agreements or the Mortgage Notes.
3.7 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 and the Partnership of this Agreement or,
after giving effect to the transactions contemplated hereby, the
Mortgage Note Agreements or the Mortgage Notes.
3.8 Authorization; Enforceability
This Agreement has been duly authorized by all requisite action and duly
executed and delivered by authorized officers of each of the General
Partner of the Company, Marketing and the General Partner of the
Partnership, and the Mortgage Note Agreements and the Mortgage Notes, as
amended and affected by this Agreement, are valid obligations of the
Company, Marketing and the Partnership (in the case of the Mortgage Note
Agreements), legally binding upon and enforceable against the Company,
Marketing and the Partnership (in the case of the Mortgage Note
Agreements) in accordance with their terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency,
reorganization or other similar law affecting the enforcement of
creditors' rights generally and (b) general principles of equity
(regardless of whether such enforceability is considered in proceeding
in equity or at law).
3.9 Disclosure
Neither this Agreement nor any other document, certificate or statement
furnished in writing to you by or on behalf of the Company or the
Partnership 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 or the Partnership which materially
adversely affects or in the future may (so far as the Company or the
Partnership can now reasonably foresee) materially adversely affect the
business, properties or assets, condition or results of operations of
the Company or the Partnership and which has not been set forth in this
Agreement, or in the other documents, certificates and statements
furnished in writing to you by or on behalf of the Company or the
Partnership, prior to the date hereof in connection with the
transactions contemplated hereby.
Section 4. Affirmation of Guarantee
The Partnership hereby agrees that its Guarantee in respect of the
Mortgage Notes, as set forth in paragraph 7 of the Mortgage Note
Agreements, shall continue in full force and effect after the
effectiveness of this Agreement.
Section 5. Miscellaneous
5.1 Continuity and Integration of Agreements
Upon the effectiveness of this Agreement, the Mortgage Note Agreements
and the Mortgage Notes, as amended and affected by this Agreement, shall
remain in full force and effect and are hereby ratified and confirmed by
the parties hereto, and the Mortgage Note Agreements and this Agreement
shall be deemed to be and are construed as a single agreement.
5.2 Survival of Representations and Warranties
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the transfer of any
Mortgage Note by a holder thereof. Such representations and warranties
may be relied upon by any Transferee of a Mortgage Note from a holder
thereof.
5.3 Effectiveness
This Agreement shall become effective upon its execution and delivery by
the Company, the Partnership and Marketing and Noteholders holding not
less than 55% of the aggregate principal amount of Mortgage Notes
outstanding as of April 15, 1997 according to Schedule 1 ($72,160,000).
5.4 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.
5.5 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.
5.6 Counterparts
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which 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.
5.7 Governing Law
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first above written.
PLUM CREEK MARKETING, INC.
By: /s/ Xxxxx X. Xxxxxx
Title: Vice President and Chief Financial Officer
PLUM CREEK MANUFACTURING, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By: /s/ Xxxxx X. Xxxxxx
Title: Vice President and Chief Financial Officer
PLUM CREEK TIMBER COMPANY, L.P.
By: Plum Creek Management Company, L.P.,
its general partner
By: /s/ Xxxxx X. Xxxxxx
Title: Vice President and Chief Financial Officer
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx X. Xxxxxxx
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx X. Xxxxxxx
Title: Authorized Signatory
AMERICAN MUTUAL LIFE INSURANCE COMPANY (formerly Central Life Assurance
Company)
By:
Title:
CUNA MUTUAL LIFE INSURANCE COMPANY
By CIMCO Inc.
By: /s/ Xxxxxx Xxxxxxx
Title: Vice President
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By:
Title:
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY
By:
Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Title: Managing Director
MELLON BANK, N.A., solely in its capacity as Trustee for the AT&T MASTER
PENSION TRUST, as directed by XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY, and not in its individual capacity
By: /s/ Xxxxx Xxxxxx
Title: Vice President
MELLON BANK, N.A., solely in its capacity as Trustee for the NYNEX
MASTER PENSION TRUST, as directed by XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY, and not in its individual capacity
By: /s/ Xxxxx Xxxxxx
Title: Vice President
MODERN WOODMEN OF AMERICA
By:
Title:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Xxxx Xxxxxxx
Title: Vice President
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By: /s/ Xxxxxx Xxxxx-Xxxx
Title: Associate Director - Private Placements
Receipt of the instructions from the Noteholders set forth in
Section 2.3 above is hereby acknowledged:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
Title:
SCHEDULE OF NOTEHOLDERS
Noteholder -- 11 1/8% Mortgage Notes As of 4/15/97
Allstate Life Insurance Company $ 8,200,000
Allstate Life Insurance Company of New York 1,640,000
American Mutual Life Insurance Company
(formerly Central Life Assurance Company) 2,460,000
CUNA Mutual Life Insurance Company 2,460,000
Xxxx Xxxxxxx Mutual Life Insurance Company 29,110,000
Xxxx Xxxxxxx Variable Life Insurance Company 1,230,000
Massachusetts Mutual Life Insurance Company 8,200,000
Mellon Bank, N.A., as Trustee for AT&T
Master Pension Trust 820,000
Mellon Bank, N.A., as Trustee for NYNEX
Master Pension Trust 2,460,000
Modern Woodmen of America 2,050,000
The Prudential Insurance Company of America 62,320,000
Teachers Insurance and Annuity Association
of America 10,250,000
Aggregate Principal Amount of Mortgage Notes $ 131,200,000
