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Full Doc
 | 2001 |
Agreement and Plan of Merger [Amendment No. 1]
Agreement and Plan of Merger [Amendment No. 1] (20K)
Doc #383859: Click preview link for longer preview.
AMENDMENT NO. 1
TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to Agreement and Plan of Merger (this "Amendment
No. 1"), dated as of June 12, 2001, is made by and among Plum Creek Timber
Company, Inc., a Delaware corporation ("Plum Creek"), Georgia-Pacific
Corporation, a Georgia corporation ("G-P"), and North American Timber Corp., NPI
Timber, Inc., GNN Timber, Inc., GPW Timber, Inc., LRFP Timber, Inc., and NPC
Timber, Inc., each a Delaware corporation and wholly-owned subsidiary of G-P
(each a "Spinco" and, collectively, the "Spincos"). Capitalized terms used but
not defined herein shall have the meanings ascribed to such terms in the Merger
Agreement.
WHEREAS, Plum Creek, G-P and each of the Spincos are parties to the
Agreement and Plan of Merger, dated as of July 18, 2000 (the "Merger
Agreement").
WHEREAS, Plum Creek, G-P and each of the Spincos desire to amend the
Merger Agreement on the terms provided herein.
WHEREAS, each of the Board of Directors of Plum Creek, G-P and each of
the Spincos has approved and declared advisable this Amendment No. 1 and the
transactions contemplated hereby.
WHEREAS, in connection with the execution of this Amendment No. 1, SPO
and certain individuals have entered into Amendment No. 1 to Voting Agreement
and Consent with Plum Creek and G-P, dated as of the date hereof.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. AMENDMENT TO THE SEVENTH RECITAL OF THE MERGER AGREEMENT. The
seventh recital of the Merger Agreement is hereby amended to insert the words ",
as amended by Amendment No. 1 to Voting Agreement and Consent, dated as of June
12, 2001" after the word "hereof" in the third line thereto.
2. AMENDMENT TO SECTION 1.01 OF THE MERGER AGREEMENT. Section 1.01 of
the Merger Agreement is hereby amended to:
(a) insert the following defined terms to read as follows
in their entirety:
"G-P Tax Matters Officers' Certificate" shall mean the G-P Tax Matters
Officers' Certificate substantially in the form attached hereto as Exhibit I.
"Insurance Binder" shall mean one or more binders of insurance, issued
by one or more insurance carriers reasonably acceptable to G-P and Plum Creek,
binding such insurance carriers unconditionally, except as respects non-payment
of premium, to issue one or more insurance policies (i) providing a minimum of
$500 million of tax opinion
{PAGE}
guarantee insurance coverage reasonably acceptable to G-P and Plum Creek and
(ii) containing terms and conditions customary to such insurance.
"Plum Creek Tax Matters Officers' Certificate" shall mean the Plum
Creek Tax Matters Officers' Certificate substantially in the form attached
hereto as Exhibit J.
(b) delete the defined term "Fort Bragg Note" in its
entirety;
(c) delete the defined term "Private Letter Ruling" in
its entirety;
(d) amend and restate the defined term "Tax Matters
Agreement" to read as follows in its entirety:
"Tax Matters Agreement" shall mean the agreement substantially
in the form attached to this Agreement as Exhibit C; and
(e) amend the defined term "Timber Group Timber Agreements" to
insert the words "to enable Plum Creek to continue to qualify as a Real Estate
Investment Trust under the Code and" after the word "necessary" in the second
line thereto.
3. AMENDMENT TO SECTION 2.01(a) OF THE MERGER AGREEMENT. Section
2.01(a) of the Merger Agreement is hereby amended to insert the words ", as
amended and restated on June 12, 2001" after the word "hereof" in the fourth
line thereto.
4. AMENDMENT TO SECTION 4.24 OF THE MERGER AGREEMENT. Section 4.24 of
the Merger Agreement is hereby amended and restated to read as follows in its
entirety:
Section 4.24 REDEMPTION. Upon completion of the Redemption,
the Spincos collectively will hold all of the assets and have assumed all of the
liabilities (whether accrued, absolute, contingent or otherwise) attributed to
the Timber Group. As of June 2, 2001, the aggregate outstanding indebtedness
383859
|
 McDermott Will
As referenced in this Agreement and Plan of Merger [Amendment No. 1]:
McDermott Will – entirety:
(e) Plum Creek shall have received the opinion of Skadden,
Arps, Slate Meagher & Flom LLP, special counsel to Plum Creek, and G-P shall
have received the opinion of McDermott Will & Emery, special counsel to G-P,
each dated as of the Notice of Redemption Date, in form and substance reasonably
satisfactory to each of Plum Creek and G-P,
_____________
McDermott Will – and
(i) Plum Creek shall have received the opinion of Skadden, Arps, Slate
Meagher & Flom LLP, special counsel to Plum Creek, and G-P shall have received
the opinion of McDermott Will & Emery, special counsel to G-P, each dated as of
the Closing Date, in form and substance reasonably satisfactory to each of Plum
Creek and G-P, respectively, based
_____________
McDermott Will – and
(f) Plum Creek shall have received the opinion of Skadden, Arps, Slate
Meagher & Flom LLP, special counsel to Plum Creek, and G-P shall have received
the opinion of McDermott Will & Emery, special counsel to G-P, each dated as of
the Closing Date, in form and substance reasonably satisfactory to each of Plum
Creek and G-P, respectively, based
_____________
dt 1436006
;
|
Skadden
As referenced in this Agreement and Plan of Merger [Amendment No. 1]:
Skadden,
Arps – AGREEMENT. Section
7.01(e) of the Merger Agreement is hereby amended and restated to read as
follows in its entirety:
(e) Plum Creek shall have received the opinion of Skadden,
Arps , Slate Meagher & Flom LLP, special counsel to Plum Creek, and G-P shall
have received the opinion of McDermott Will & Emery, special counsel to G-P,
each dated as
_____________
Skadden, Arps – follows in their entirety:
{PAGE}
(h) the Insurance Binder shall have been issued and be in full force
and effect; and
(i) Plum Creek shall have received the opinion of Skadden, Arps , Slate
Meagher & Flom LLP, special counsel to Plum Creek, and G-P shall have received
the opinion of McDermott Will & Emery, special counsel to G-P, each dated as
_____________
Skadden, Arps – as follows in their entirety:
(e) the Insurance Binder shall have been issued and be in full force
and effect; and
(f) Plum Creek shall have received the opinion of Skadden, Arps , Slate
Meagher & Flom LLP, special counsel to Plum Creek, and G-P shall have received
the opinion of McDermott Will & Emery, special counsel to G-P, each dated as
_____________
dt 1430932
|
Preview
Full Doc
| 2000 |
Agreement and Plan of Merger
Agreement and Plan of Merger (226K)
Doc #383873: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
by and among
GEORGIA-PACIFIC CORPORATION,
NORTH AMERICAN TIMBER CORP.,
NPI TIMBER, INC.
GNN TIMBER, INC.
GPW TIMBER, INC.
LRFP TIMBER, INC.
NPC TIMBER, INC.
and
PLUM CREEK TIMBER COMPANY, INC.
Dated as of July 18, 2000
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page No.
--------
ARTICLE I
DEFINITIONS
{S} {C}
Section 1.01 Definitions..................................................................... 2
ARTICLE II
SPINOFF AND THE MERGERS
Section 2.01 The Spinoff..................................................................... 11
Section 2.02 The Mergers..................................................................... 12
Section 2.03 Certificate of Incorporation of the Surviving Corporation....................... 12
Section 2.04 By-Laws of the Surviving Corporation............................................ 12
Section 2.05 Directors and Officers of the Surviving Corporation............................. 12
Section 2.06 Closing......................................................................... 12
ARTICLE III
CONVERSION OF SHARES AND RELATED MATTERS
Section 3.01 Conversion of Capital Stock..................................................... 13
Section 3.02 Exchange of Certificates........................................................ 13
Section 3.03 G-P Stock Options............................................................... 16
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF G-P
Section 4.01 Due Organization, Good Standing and Corporate Power............................. 18
Section 4.02 Authorization and Validity of Agreement......................................... 18
Section 4.03 Capitalization.................................................................. 19
Section 4.04 Consents and Approvals; No Violations........................................... 20
Section 4.05 G-P SEC Filings; Financial Statements........................................... 21
Section 4.06 No Undisclosed Liabilities...................................................... 21
Section 4.07 Information to Be Supplied...................................................... 22
Section 4.08 Absence of Certain Events....................................................... 22
Section 4.09 Litigation...................................................................... 22
Section 4.10 Title to Properties; Encumbrances............................................... 23
{/TABLE}
{PAGE}
{TABLE}
{S} {C}
Section 4.11 Compliance with Laws............................................................... 23
Section 4.12 G-P Employee Benefit Plans......................................................... 23
Section 4.13 Employment Relations............................................................... 25
Section 4.14 Taxes.............................................................................. 26
Section 4.15 Intellectual Property.............................................................. 27
Section 4.16 Environmental Matters.............................................................. 28
Section 4.17 State Takeover Statutes............................................................ 29
Section 4.18 Voting Requirements; Board Approval; Appraisal Rights.............................. 29
Section 4.19 Opinion of Financial Advisor....................................................... 30
Section 4.20 Rights Agreement................................................................... 30
Section 4.21 Insurance.......................................................................... 30
Section 4.22 Transactions with Affiliates....................................................... 30
Section 4.23 Material Contracts................................................................. 30
Section 4.24 Redemption......................................................................... 31
Section 4.25 Policies with Respect to Allocation of Expenses.................................... 31
Section 4.26 Disclosure......................................................................... 31
Section 4.27 Broker's or Finder's Fee........................................................... 31
Section 4.28 Solvency........................................................................... 31
Section 4.29 Installment Note................................................................... 32
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PLUM CREEK
Section 5.01 Due Organization, Good Standing and Corporate Power................................ 32
Section 5.02 Authorization and Validity of Agreement............................................ 32
Section 5.03 Capitalization..................................................................... 32
Section 5.04 Consents and Approvals; No Violations.............................................. 33
Section 5.05 Plum Creek SEC Filings; Financial Statements....................................... 34
Section 5.06 No Undisclosed Liabilities......................................................... 35
Section 5.07 Information to Be Supplied......................................................... 35
Section 5.08 Absence of Certain Events.......................................................... 35
Section 5.09 Litigation......................................................................... 36
Section 5.10 Voting Requirements; SPO Approval; Board Approval.................................. 36
Section 5.11 Title to Properties: Encumbrances.................................................. 37
Section 5.12 Compliance with Laws............................................................... 37
Section 5.13 Material Contracts................................................................. 37
Section 5.14 Environmental Matters.............................................................. 38
Section 5.15 Taxes.............................................................................. 38
Section 5.16 Tax Comfort........................................................................ 39
Section 5.17 Transactions with Affiliates....................................................... 39
Section 5.18 Insurance.......................................................................... 40
{/TABLE}
{PAGE}
{TABLE}
{S} {C}
Section 5.19 Employment Relations............................................................... 40
Section 5.20 Plum Creek Employee Benefit Plans.................................................. 42
Section 5.21 Broker's or Finder's Fee........................................................... 42
ARTICLE VI
COVENANTS
Section 6.01 Access to Information Concerning Properties and Records............................ 42
Section 6.02 Confidentiality.................................................................... 43
Section 6.03 Conduct of the Business of G-P Pending the Effective Time.......................... 43
Section 6.04 Conduct of the Business of Plum Creek Pending the Effective Time................... 46
Section 6.05 Conduct of the Business of G-P After the Notice of Redemption Date................. 48
Section 6.06 Method of Allocating the Assets and Liabilities of the Timber Group................ 48
Section 6.07 Shareholders' Meetings............................................................. 48
Section 6.08 Preparation of Joint Proxy Statement/Prospectus; Registration Statement............ 49
Section 6.09 Commercially Reasonable Efforts.................................................... 50
Section 6.10 Board Recommendations.............................................................. 50
Section 6.11 No Solicitation.................................................................... 51
Section 6.12 Notification of Certain Matters.................................................... 53
Section 6.13 Public Announcements............................................................... 53
Section 6.14 NYSE and PE Listing................................................................ 53
Section 6.15 Coordination of Dividends.......................................................... 53
Section 6.16 Separation Agreement............................................................... 54
Section 6.17 Ancillary Contracts................................................................ 54
Section 6.18 Affiliates......................................................................... 54
Section 6.19 Method of Effecting the Merger..................................................... 54
Section 6.20 Timber Agreements.................................................................. 54
ARTICLE VII
CONDITIONS TO THE NOTICE OF REDEMPTION AND MERGERS
Section 7.01 Conditions to the Notice of Redemption............................................. 54
Section 7.02 Conditions of Plum Creek........................................................... 55
Section 7.03 Conditions to Obligations of G-P................................................... 57
Section 7.04 Conditions to Obligations of Plum Creek to Effect the Merger....................... 58
Section 7.05 Conditions to Obligations of G-P to Effect the Mergers............................. 59
ARTICLE VIII
TERMINATION AND ABANDONMENT
{/TABLE}
{PAGE}
{TABLE}
{S} {C}
Section 8.01 Termination........................................................................ 59
Section 8.02 Effect of Termination.............................................................. 62
ARTICLE IX
MISCELLANEOUS
Section 9.01 Fees and Expenses.................................................................. 63
Section 9.02 Survival of Representations and Warranties......................................... 63
Section 9.03 Notices............................................................................ 64
Section 9.04 Entire Agreement................................................................... 65
Section 9.05 Binding Effect; Benefit; Assignment................................................ 65
Section 9.06 Amendment and Modification......................................................... 65
Section 9.07 Further Actions.................................................................... 65
Section 9.08 Headings........................................................................... 65
Section 9.09 Enforcement........................................................................ 65
Section 9.10 Counterparts....................................................................... 65
Section 9.11 Applicable Law..................................................................... 66
Section 9.12 Severability....................................................................... 66
Section 9.13 Waiver of Jury Trial............................................................... 66
{/TABLE}
Exhibit A Human Resources Agreement
Exhibit B Noncompete Agreement
Exhibit C Tax Matters Agreement
Exhibit D-1 Master Timber Agreement
Exhibit D-2 Master Stumpage Agreement
Exhibit D-3 Security Agreement
Exhibit E Transition Services Agreement
Exhibit F Amended Certificate of Incorporation
Exhibit G Form of G-P Legal Opinions
Exhibit H Form of Plum Creek Legal Opinions
{PAGE}
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of July 18, 2000 (this "Agreement"),
by and among Plum Creek Timber Company, Inc., a Delaware corporation ("Plum
Creek"), Georgia-Pacific Corporation, a Georgia corporation ("G-P"), and North
American Timber Corp., NPI Timber, Inc., GNN Timber, Inc., GPW Timber, Inc.,
LRFP Timber, Inc., and NPC Timber, Inc., each a Delaware corporation and a
wholly owned subsidiary of G-P (each a "Spinco" and, collectively, the
"Spincos").
WHEREAS, G-P and each of the Spincos below are parties to a Separation
Agreement (as defined below), pursuant to which the Spincos own or shall own all
of the assets and have assumed all of the liabilities (whether accrued,
absolute, contingent or otherwise) of G-P's Timber Group (as defined below)
prior to the Redemption (as defined below);
WHEREAS, immediately prior to the Effective Time (as defined below), G-P
shall redeem all of the outstanding shares of Timber Group Common Stock (as
defined below) in exchange for all of the outstanding shares of each Spinco by
delivery of one unit (a "Unit"), consisting of one share of common stock of each
Spinco, for each share of Timber Group Common Stock outstanding (the
"Redemption");
WHEREAS, pursuant to the Redemption, each option to purchase one share of
Timber Group Common Stock shall be converted into an option to purchase one Unit
on the terms described herein;
WHEREAS, each of the Board of Directors of Plum Creek, G-P and each of the
Spincos, has approved and declared advisable the merger of each of the Spincos
with and into Plum Creek (each, a "Merger" and collectively, the "Mergers"),
with Plum Creek as the surviving corporation, in each case, upon the terms and
subject to the conditions set forth in this Agreement and in accordance with the
General Corporation Law of the State of Delaware (the "DGCL");
WHEREAS, pursuant to resolutions duly adopted, each of the Board of
Directors of Plum Creek, G-P and each of the Spincos has approved and adopted
this Agreement and the transactions contemplated hereby; and
WHEREAS, pursuant to resolutions duly adopted, G-P, as the sole
stockholder of each of the Spincos, has approved and adopted this Agreement and
the transactions contemplated hereby.
{PAGE}
WHEREAS, as a condition to, and in connection with the execution of this
Agreement, SPO (as defined below) has entered into a Voting Agreement and
Consent with Plum Creek and G-P dated as of the date hereof (the "Voting
Agreement").
NOW THEREFORE, in consideration of the foregoing premises and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. When used in this Agreement, the following
-----------
terms shall have the respective meanings specified therefor below (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined).
"Affiliate" of any Person shall mean any Person directly or indirectly
controlling, controlled by, or under common control with, such Person; provided
that, for the purposes of this definition, "control" (including with correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or partnership
interests, by contract or otherwise.
"Affiliated Entity" shall mean any corporation or other entity in which G-P
or Plum Creek or any of its respective Subsidiaries owns capital stock, a
limited partnership interest or other security which constitutes at least 10% of
all of such outstanding securities or class of securities.
Agreement" shall have the meaning set forth in the preamble hereto.
"Allocation Policies" shall have the meaning set forth in Section 4.25.
"Ancillary Contracts" shall mean the (i) Timber Group Timber Agreements;
(ii) Tax Matters Agreement; (iii) Human Resources Agreement; (iv) Transition
Services Agreements; (v) Noncompete Agreement and (vi) Voting Agreement.
"Business Day" means a day other than a Saturday, a Sunday or a day on
which banks in New York, New York are permitted or required to close.
"Certificate" shall have the meaning set forth in Section 3.02.
"Certificates of Merger" shall have the meaning set forth in Section
2.02(a).
{PAGE}
"Closing" shall have the meaning set forth in Section 2.06.
"Closing Date" shall have the meaning set forth in Section 2.06.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Contracts" shall have the meaning set forth in Section 4.04.
"DGCL" shall have the meaning set forth in the fourth recital hereto.
"Effective Time" shall have the meaning set forth in Section 2.02(a).
"Environmental Claim" shall mean any claim, action, cause of action,
investigation or notice by any Person or entity alleging potential liability
(including, without limitation, potential liability for investigatory costs,
cleanup costs, governmental response costs, natural resources damages, property
damages, personal injuries, or penalties) arising out of, based on or resulting
from (a) the presence, or release into the environment, of any Material of
Environmental Concern at any location, whether or not owned or operated by G-P
or Plum Creek, as the case may be, or (b) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"Environmental Laws" shall mean any applicable Federal, state, local
and foreign laws and regulations, including common law, relating to pollution or
protection of human health or the environment, including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata, and
natural resources, and including, without limitation, laws and regulations
relating to emissions, discharges, releases or threatened releases of Materials
of Environmental Concern, or otherwise relating to the manufacture, generation,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Materials of Environmental Concern, or the preservation of the
environment or mitigation of adverse effects thereon and each law and regulation
with regard to record keeping, notification, disclosure, and reporting
requirements respecting Materials of Environmental Concern.
"ERISA" shall have the meaning set forth in Section 4.12(a).
"ERISA Affiliate" shall have the meaning set forth in Section 4.12(a).
"ERISA Plans" shall have the meaning set forth in Section 4.12(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Exchange Agent" shall have the meaning set forth in Section 3.02(a).
{PAGE}
"Exchange Fund" shall have the meaning set forth in Section 3.02(b).
"Exchange Ratio" shall have the meaning set forth in Section 3.01(a).
"Fort Bragg Note" shall have the meaning set forth in Section 6.03(d)(x).
"GAAP" shall mean generally accepted accounting principles of the United
States of America, as in effect from time to time.
"GCC" shall mean the Georgia Business Corporation Code.
"Georgia-Pacific Group" shall mean, as of any date:
(a) the interest of G-P or any of its subsidiaries on such date in all of
the assets, liabilities and businesses of G-P or any of its subsidiaries (and
any successor companies), other than any assets, liabilities and businesses
attributed in accordance with Articles of Incorporation of G-P to the Timber
Group;
(b) all properties and assets transferred to the Georgia-Pacific Group
from the Timber Group pursuant to transactions in the ordinary course of
business of both the Georgia-Pacific Group and the Timber Group or otherwise as
the Board of Directors of G-P may have directed as permitted by the Articles of
Incorporation of G-P; and
(c) the interest of G-P or any of its subsidiaries in any business or
asset acquired and any liabilities assumed by G-P or any of its subsidiaries
outside the ordinary course of business and attributed to the Georgia-Pacific
Group, as determined by the Board of Directors of G-P.
"Georgia-Pacific Group Common Stock" shall mean the Georgia-Pacific
Corporation-Georgia-Pacific Group Common Stock, par value $0.80 per share.
"Governmental Authority" shall have the meaning set forth in Section 4.04.
"G-P" shall have the meaning set forth in the preamble hereto.
"G-P Acquisition Transaction" shall have the meaning set forth in Section
383873
|
 Goldman, Sachs
As referenced in this Agreement and Plan of Merger:
Goldman, Sachs & Co. – of its subsidiaries nor any Plum Creek ERISA Affiliate has any
contingent material liability under Section 4204 of ERISA.
Section 5.21 Broker's or Finder's Fee. Except for Goldman, Sachs & Co.
------------------------
(whose fees and expenses will be paid by Plum Creek in accordance with their
agreement with such firm, a true and correct copy of which has been previously
delivered
_____________
dt 1488908
;
Morgan Stanley
As referenced in this Agreement and Plan of Merger:
Morgan Stanley & Co. – result of, or in connection with this Agreement, each Merger and the
transactions contemplated hereby.
{PAGE}
Section 4.19 Opinion of Financial Advisor. G-P has received the opinion
----------------------------
of Morgan Stanley & Co. Incorporated to the effect that, as of the date of this
Agreement (i) the Spinoff and the Mergers are fair to G-P from a financial point
of view
_____________
Morgan
------------------------
Stanley & Co. – under which it was made,
in order to make the statements herein or therein not misleading.
Section 4.27 Broker's or Finder's Fee. Except for the fees of Morgan
------------------------
Stanley & Co. Incorporated, no agent, broker, Person or firm acting on behalf of
G-P is, or will be, entitled to any investment banking or broker's or finder's
fees
_____________
Morgan Stanley & Co. – common control with any of the parties hereto, in connection with
this Agreement or any of the transactions contemplated hereby. G-P has provided
Plum Creek a copy of the Morgan Stanley & Co. Incorporated engagement letter
with G-P and such engagement letter will not be amended without the consent of
Plum Creek.
Section 4.28 Solvency. (a) The consummation of the
_____________
dt 1471832
;
|
King & Spalding
As referenced in this Agreement and Plan of Merger:
King & Spalding, – all conditions set forth in
Section 7.02(a) and (b) have been satisfied;
(d) Plum Creek shall have received the favorable opinions of G-P's outside
legal counsel, King & Spalding, and the General Counsel of G-P, each dated the
Notice of Redemption Date substantially in the form of Exhibit G;
(e) Plum Creek shall have received the opinion
_____________
King & Spalding
– with a copy (which shall not constitute notice) to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Mario A. Ponce
Facsimile: (212) 455-2500
and to
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
Attention: William R. Spalding
Facsimile: (404) 572-5100
(b) if to Plum Creek, to it at:
999 Third Avenue, Suite 2300
Seattle, Washington
_____________
dt 1363560
;
McDermott Will
As referenced in this Agreement and Plan of Merger:
McDermott Will – as of the Notice of Redemption Date, all conditions set forth in
Section 7.03(a) and (b) have been satisfied;
(e) G-P shall have received the opinion of McDermott Will & Emery, special
counsel to G-P, in form and substance reasonably satisfactory to G-P, based upon
facts,
{PAGE}
representations and assumptions set forth in such opinion which are
_____________
dt 1436007
;
More... |
Preview
Full Doc
| 2001 |
Annual Incentive Plan
Annual Incentive Plan (15K)
Doc #383862: Click preview link for longer preview.
PLUM CREEK TIMBER COMPANY, INC.
ANNUAL INCENTIVE PLAN
1. Purposes.
The purposes of the Plum Creek Timber Company, Inc. Annual Incentive Plan are to provide incentives to officers and key employees to achieve the Company's financial and strategic goals; and to reward the performance of individual officers and other key employees when their performance and that of the Company meet specified objectives.
2. . . .
383862
| | |
Preview
Full Doc
| 2004 |
Credit Agreement
Credit Agreement (453K)
Doc #383784: Click preview link for longer preview.
EXECUTION VERSION
CREDIT AGREEMENT
Dated as of January 15, 2004
among
PLUM CREEK TIMBERLANDS, L.P.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,
THE BANK OF TOKYO-MITSUBISHI, LTD., SEATTLE BRANCH,
as Syndication Agent,
NORTHWEST FARM CREDIT SERVICES, PCA,
THE BANK OF NOVA SCOTIA,
SUNTRUST BANK
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
�RABOBANK INTERNATIONAL�, NEW YORK BRANCH,
as Documentation Agents,
and
THE OTHER LENDERS PARTY HERETO
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book . . .
383784
|
CCR-B
As referenced in this Credit Agreement:
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK – Line Lender and L/C Issuer,
THE BANK OF TOKYO-MITSUBISHI, LTD., SEATTLE BRANCH,
as Syndication Agent,
NORTHWEST FARM CREDIT SERVICES, PCA,
THE BANK OF NOVA SCOTIA,
SUNTRUST BANK
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
RABOBANK INTERNATIONAL, NEW YORK BRANCH,
as Documentation Agents,
and
THE OTHER LENDERS PARTY HERETO
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
TABLE
_____________
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK, – a
Lender
By: ____________________________
Name:
Title:
THE BANK OF TOKYO-
MITSUBISHI, LTD., SEATTLE
BRANCH, as a Lender
By: ____________________________
Name:
Title:
BNP PARIBAS, as a Lender
By: ____________________________
Name:
Title:
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK,
B.A. "RABOBANK INTERNATIONAL,"
NEW YORK BRANCH, as a Lender
By: ____________________________
Name:
Title:
FARM CREDIT BANK OF TEXAS, as a
Lender
By: ____________________________
Name:
Title:
FARM CREDIT SERVICES
_____________
dt 1000428
;
ER
As referenced in this Credit Agreement:
environmental remediation, – Act, the Toxic Substances Control Act, the Emergency Planning and Community Right-to-Know Act.
Environmental Liability means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any
_____________
dt 995918
;
|
ISDA
As referenced in this Credit Agreement:
International Swaps and Derivatives Association – and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association , Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a Master Agreement), including any such obligations or
_____________
dt 1003752
;
BofA Securities
As referenced in this Credit Agreement:
BANC OF AMERICA SECURITIES LLC – SERVICES, PCA,
THE BANK OF NOVA SCOTIA,
SUNTRUST BANK
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
RABOBANK INTERNATIONAL, NEW YORK BRANCH,
as Documentation Agents,
and
THE OTHER LENDERS PARTY HERETO
BANC OF AMERICA SECURITIES LLC ,
as
Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Section
Page
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1
1.01
Defined Terms
1
1.02
Other Interpretive
_____________
Banc of America Securities LLC – effect from the Closing Date through March 31, 2004 shall be determined based upon Pricing Level 2.
Approved Fund has the meaning specified in Section 10.07(g).
Arranger means Banc of America Securities LLC , in its capacity as sole lead arranger and sole book manager.
Asset Sales means any sale or disposition of Properties (other than inventory in the Ordinary Course of Business)
_____________
dt 1002890
;
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Credit Agreement [Amendment No. 1]
Credit Agreement [Amendment No. 1] (83K)
Doc #383799: Click preview link for longer preview.
FIRST AMENDMENT
TO
CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment") is dated
as of November 26, 2002, and is entered into among PLUM CREEK TIMBERLANDS, L.P.,
a Delaware limited partnership (the "Company"), each of the Banks (as defined in
the Credit Agreement referred to below) signatory hereto, and BANK OF AMERICA,
N.A., as administrative agent for the Banks (in its capacity as administrative
agent, the "Administrative Agent").
RECITALS
A. The Company, the Banks, First Union National Bank and The Bank of
Tokyo-Mitsubishi, Ltd., Portland Branch, as syndication agents for the Banks,
SunTrust Bank, ScotiaBanc Inc., and Northwest Farm Credit Services, PCA, as
documentation agents for the Banks, and Bank of America, N.A., as a letter of
credit issuing bank and as a swingline bank, and the Administrative Agent are
parties to the Credit Agreement, dated as of October 3, 2001 (as amended, the
"Credit Agreement"), pursuant to which the Administrative Agent, the Issuing
Bank and the Banks have extended certain credit facilities to the Company.
B. The Company has requested that the Banks agree to amendments to the
Credit Agreement as set forth herein.
C. The Banks are willing to agree to the amendments to the Credit
Agreement set forth herein subject to the terms and conditions of this First
Amendment.
NOW, THEREFORE, in consideration of the agreements and provisions herein
contained and for other valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
SECTION 1. DEFINITIONS. Any capitalized term used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended, effective as of the date of this First Amendment becomes effective in
accordance with Section 4 hereof, as follows:
2.01 AMENDMENT TO SECTION 1.01 .
(a) The following defined terms are hereby added to Section 1.01 of
the Credit Agreement in alphabetical order:
{PAGE}
"Asset Sales" means any sale or disposition of Properties
(other than inventory in the Ordinary Course of Business) of the
Company, any of its Subsidiaries or any other Person in which the
Company holds an equity or other ownership interest, by the Company,
such Subsidiary or such other Person.
"Permitted Ancillary Business" means the ownership,
development, management and sale of Property owned or previously
owned by the Company or a Restricted Subsidiary that, based on the
good faith determination of the Responsible Representatives at the
time of determination, has a higher value as recreational,
residential, grazing or agricultural property than for timber
production.
"364-Day Revolving Credit Agreement" means the 364-Day
Revolving Credit Agreement, dated as of November 26, 2002, among
Plum Creek Timberlands, L.P., the lenders party thereto, The Bank of
Tokyo-Mitsubishi, Ltd., Portland Branch, and Wachovia Bank, N.A., as
syndication agents, SunTrust Bank, Scotiabanc Inc. and Northwest
Farm Credit Services, PCA, as documentation agents, and Bank of
America, N.A., as administrative agent, as it may be amended,
amended and restated, supplemented or modified or renewed or
refinanced from time to time.
(b) The definition of "Available Cash" in Section 1.1 of the Credit
Agreement is hereby amended by deleting such definition in its entirety and
inserting the following new definition of "Available Cash" in replacement
thereof:
"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,
(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,
(e) any Cash from Capital Transactions received by the
Company during such quarter in specific contemplation
2
{PAGE}
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,
(f) (A) with respect to the calendar quarter ended
September 30, 2001, only, $140,000,000 and (B) other Cash from
Capital Transactions received by the Company during the relevant
quarter up to an aggregate amount equal to $200,000,000 for all
calendar quarters, commencing with the calendar quarter that ended
March 31, 2002, less the aggregate of other amounts of such
$200,000,000 utilized in the calculation Available Cash for previous
calendar quarters; and
(g) without duplication in respect of clauses (i)(e) and
(i)(f) above, in the event of any Asset Sale, an amount equal to
that portion of the Net Proceeds received from such sale that was
applied to the repayment of the Qualified Debt in accordance with
Section 2.7(a)(i) or 8.2(i) but not to exceed an amount equal to 50%
of the Net Proceeds received from such sale; provided, that, the
cumulative increase to Available Cash pursuant to this clause (i)(g)
(after giving effect to any current increase in respect thereof)
with respect to any Asset Sale shall not exceed, in any event, an
amount equal to the Net Proceeds from such Asset Sale less the
cumulative amount of such Net Proceeds applied to the repayment of
Qualified Debt and to the purchase of productive assets in
accordance with Section 2.7(a)(i) or 8.2(i);
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
3
{PAGE}
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 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 in the form of cash or
cash equivalents (other than guarantees, contingent liabilities or
383799
|
BofA
As referenced in this Credit Agreement [Amendment No. 1]:
BANK OF AMERICA,
N.A. – entered into among PLUM CREEK TIMBERLANDS, L.P.,
a Delaware limited partnership (the "Company"), each of the Banks (as defined in
the Credit Agreement referred to below) signatory hereto, and BANK OF AMERICA,
N.A. , as administrative agent for the Banks (in its capacity as administrative
agent, the "Administrative Agent").
RECITALS
A. The Company, the Banks, First Union National Bank and The Bank of
_____________
Bank of America, N.A. – Bank of
Tokyo-Mitsubishi, Ltd., Portland Branch, as syndication agents for the Banks,
SunTrust Bank, ScotiaBanc Inc., and Northwest Farm Credit Services, PCA, as
documentation agents for the Banks, and Bank of America, N.A. , as a letter of
credit issuing bank and as a swingline bank, and the Administrative Agent are
parties to the Credit Agreement, dated as of October 3, 2001 (as
_____________
Bank of
America, N.A. – The Bank of
Tokyo-Mitsubishi, Ltd., Portland Branch, and Wachovia Bank, N.A., as
syndication agents, SunTrust Bank, Scotiabanc Inc. and Northwest
Farm Credit Services, PCA, as documentation agents, and Bank of
America, N.A. , as administrative agent, as it may be amended,
amended and restated, supplemented or modified or renewed or
refinanced from time to time.
(b) The definition of "Available Cash" in
_____________
BANK OF AMERICA, N.A. – written.
PLUM CREEK TIMBERLANDS, L.P.
By: Plum Creek Timber I, L.L.C.,
its General Partner
By: Plum Creek Timber Company, Inc.,
its Managing Member
By: ________________________________
Name:
Title:
BANK OF AMERICA, N.A. ,
as Administrative Agent
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
BANK: BANK OF AMERICA, N.A.
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
_____________
BANK OF AMERICA, N.A. – Creek Timber Company, Inc.,
its Managing Member
By: ________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
BANK: BANK OF AMERICA, N.A.
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
BANK: WACHOVIA BANK, N.A., formerly known as
First Union National Bank
By: _______________________________________
Name:
Title:
[Signature page to
_____________
dt 1554055
;
BNY
As referenced in this Credit Agreement [Amendment No. 1]:
BANK OF NEW YORK
– BANK: SOVEREIGN BANK
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
BANK: SUMITOMO MITSUI BANKING CORPORATION
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
BANK: THE BANK OF NEW YORK
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
BANK: THE DAI-ICHI KANGYO BANK, LTD.
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
BANK: U.
_____________
dt 1583482
;
|
First Union
As referenced in this Credit Agreement [Amendment No. 1]:
First Union National Bank – below) signatory hereto, and BANK OF AMERICA,
N.A., as administrative agent for the Banks (in its capacity as administrative
agent, the "Administrative Agent").
RECITALS
A. The Company, the Banks, First Union National Bank and The Bank of
Tokyo-Mitsubishi, Ltd., Portland Branch, as syndication agents for the Banks,
SunTrust Bank, ScotiaBanc Inc., and Northwest Farm Credit Services, PCA, as
documentation agents for the
_____________
First Union National Bank
– Signature page to First Amendment]
{PAGE}
BANK: BANK OF AMERICA, N.A.
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
BANK: WACHOVIA BANK, N.A., formerly known as
First Union National Bank
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
BANK: THE BANK OF TOKYO-MITSUBISHI, LTD.,
PORTLAND BRANCH
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
_____________
First Union National Bank – made to that certain Credit Agreement, dated as of October 3,
2001 (as amended, the "Credit Agreement"), among Plum Creek Timberlands, L.P.
(the "Company"), the Banks referred to therein, First Union National Bank and
The Bank of Tokyo-Mitsubishi, Ltd., Portland Branch, as Syndication Agents,
SunTrust Bank, Scotiabanc Inc. and Northwest Farm Credit Services, PCA, as
Documentation Agents, and Bank of America, N.
_____________
dt 1464290
;
Keybank
As referenced in this Credit Agreement [Amendment No. 1]:
KEYBANK NA – Title:
[Signature page to First Amendment]
{PAGE}
BANK: KBC BANK, N.V., as a Bank
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
BANK: KEYBANK NA TIONAL ASSOCIATION
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
BANK: SCOTIABANC INC.
By: _______________________________________
Name:
Title:
[Signature page to First Amendment]
{PAGE}
BANK: SOVEREIGN BANK
By: _______________________________________
_____________
dt 1367335
;
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Credit Agreement
Credit Agreement (478K)
Doc #383800: Click preview link for longer preview.
CREDIT AGREEMENT
Dated as of November 26, 2002
among
PLUM CREEK TIMBERLANDS, L.P.,
THE FINANCIAL INSTITUTIONS PARTY HERETO
FROM TIME TO TIME AS LENDERS,
as the Lenders,
BANK OF AMERICA, N.A.,
as Administrative Agent,
THE BANK OF TOKYO-MITSUBISHI, LTD.,
PORTLAND BRANCH
and
WACHOVIA BANK, N.A.,
as Syndication Agents
SUNTRUST BANK,
SCOTIABANC INC.,
and
NORTHWEST FARM CREDIT SERVICES, PCA,
as Documentation Agents
BANC OF AMERICA SECURITIES LLC,
as Arranger
i
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
{S} {C}
Table of Schedules and Exhibits......................................................................... vi
EXHIBITS................................................................................................ vi
Exhibit A - Notice of Borrowing......................................................................... vi
Exhibit B - Notice of Conversion/Continuation........................................................... vi
Exhibit C - Legal Opinion of Counsel for the Company.................................................... vi
Exhibit D - Compliance Certificate...................................................................... vi
Exhibit E - Form of Cash Collateral Account Agreement................................................... vi
Exhibit F - Form of Assignment and Assumption Agreement................................................. vi
Exhibit G - Form of Revolving Credit Promissory Note.................................................... vi
ARTICLE I Definitions................................................................................... 1
1.1 Defined Terms............................................................................. 1
1.2 Other Interpretive Provisions............................................................. 36
1.3 Accounting Principles..................................................................... 37
ARTICLE II The Credits.................................................................................. 38
2.1 Amounts and Terms of Commitments.......................................................... 38
2.2 Evidence of Indebtedness.................................................................. 38
2.3 Procedure for Borrowing................................................................... 39
2.4 Conversion and Continuation Elections for Borrowings...................................... 40
2.5 Voluntary Termination or Reduction of Commitments......................................... 42
2.6 Optional Prepayments...................................................................... 42
2.7 Mandatory Prepayments of Loans; Mandatory Commitment Reductions........................... 42
2.8 Repayment................................................................................. 44
2.9 Interest.................................................................................. 44
2.10 [Intentionally Omitted]................................................................... 44
2.11 Fees...................................................................................... 44
{/TABLE}
i
{PAGE}
{TABLE}
{S} {C}
2.12 Computation of Fees and Interest.......................................................... 45
2.13 Payments by the Company................................................................... 46
2.14 Payments by the Lenders to the Administrative Agent....................................... 47
2.15 Sharing of Payments, Etc.................................................................. 48
2.16 Loan Tranches............................................................................. 48
ARTICLE III [Intentionally Omitted]..................................................................... 49
ARTICLE IV Taxes, Yield Protection And Illegality....................................................... 49
4.1 Taxes..................................................................................... 49
4.2 Illegality................................................................................ 53
4.3 Increased Costs and Reduction of Return................................................... 54
4.4 Funding Losses............................................................................ 54
4.5 Inability to Determine Rates.............................................................. 55
4.6 Certificate of Lender..................................................................... 55
4.7 Survival.................................................................................. 56
ARTICLE V Conditions Precedent.......................................................................... 56
5.1 Conditions of Initial Credit Extensions................................................... 56
5.2 Conditions to All Credit Extensions....................................................... 60
ARTICLE VI Representations And Warranties............................................................... 60
6.1 Corporate Existence and Power............................................................. 61
6.2 Authorization; No Contravention........................................................... 61
6.3 Governmental and Third Party Authorization................................................ 61
6.4 Binding Effect............................................................................ 62
6.5 Litigation................................................................................ 62
6.6 No Default................................................................................ 62
6.7 ERISA Compliance.......................................................................... 63
6.8 Use of Proceeds; Margin Regulations....................................................... 64
6.9 Title to Properties....................................................................... 65
6.10 Taxes..................................................................................... 65
6.11 Financial Condition....................................................................... 65
6.12 Environmental Matters..................................................................... 66
6.13 Regulated Entities........................................................................ 67
{/TABLE}
ii
{PAGE}
{TABLE}
{S} {C}
6.14 No Burdensome Restrictions................................................................ 67
6.15 Solvency.................................................................................. 67
6.16 Labor Relations........................................................................... 67
6.17 Copyrights, Patents, Trademarks and Licenses, Etc......................................... 67
6.18 Subsidiaries.............................................................................. 68
6.19 Partnership Interest...................................................................... 68
6.20 Insurance................................................................................. 68
6.21 Full Disclosure........................................................................... 68
6.22 Changes, etc.............................................................................. 68
6.23 Tax Matters Agreement; Tax Opinion Insurance Policy....................................... 69
ARTICLE VII Affirmative Covenants....................................................................... 69
7.1 Financial Statements...................................................................... 69
7.2 Certificates; Other Information........................................................... 70
7.3 Notices................................................................................... 71
7.4 Preservation of Partnership Existence, Etc................................................ 73
7.5 Maintenance of Property................................................................... 74
7.6 Insurance................................................................................. 74
7.7 Payment of Obligations.................................................................... 74
7.8 Compliance with Laws...................................................................... 74
7.9 Inspection of Property and Books and Records.............................................. 75
7.10 Environmental Laws........................................................................ 75
7.11 Use of Proceeds........................................................................... 75
7.12 Solvency.................................................................................. 76
7.13 Notices and Information Relating to Specified Tax Liabilities and Tax Claims.............. 76
ARTICLE VIII Negative Covenants......................................................................... 76
8.1 Limitation on Liens....................................................................... 76
8.2 Merger; Disposition of Assets............................................................. 79
8.3 Harvesting Restrictions................................................................... 81
8.4 Loans and Investments..................................................................... 82
8.5 Limitation on Indebtedness................................................................ 84
{/TABLE}
iii
{PAGE}
{TABLE}
{S} {C}
8.6 Transactions with Affiliates.............................................................. 87
8.7 Use of Proceeds........................................................................... 87
8.8 Sale of Stock and Indebtedness of Subsidiaries............................................ 88
8.9 Certain Contracts......................................................................... 88
8.10 Joint Ventures............................................................................ 89
8.11 Compliance with ERISA..................................................................... 89
8.12 Sale and Leaseback........................................................................ 90
8.13 Restricted Payments....................................................................... 90
8.14 Change in Business........................................................................ 91
8.15 Issuance of Stock by Subsidiaries......................................................... 92
8.16 Amendments................................................................................ 92
8.17 Available Cash............................................................................ 92
8.18 Interest Coverage Ratio................................................................... 93
8.19 Maximum Leverage Ratio.................................................................... 93
8.20 Tax Matters Agreement..................................................................... 93
ARTICLE IX Events Of Default............................................................................ 94
9.1 Event of Default.......................................................................... 94
9.2 Remedies.................................................................................. 97
9.3 Rights Not Exclusive...................................................................... 98
ARTICLE X The Administrative Agent...................................................................... 98
10.1 Appointment and Authorization............................................................. 98
10.2 Delegation of Duties...................................................................... 99
10.3 Liability of Administrative Agent......................................................... 99
10.4 Reliance by Administrative Agent.......................................................... 99
10.5 Notice of Default........................................................................ 100
10.6 Credit Decision; Disclosure of Information by Administrative Agent....................... 101
10.7 Indemnification of Administrative Agent.................................................. 101
10.8 Each Agent in Individual Capacity........................................................ 102
10.9 Successor Administrative Agent........................................................... 103
10.10 Syndication Agents, Documentation Agents and Arranger.................................... 103
{/TABLE}
iv
{PAGE}
{TABLE}
{S} {C}
10.11 Administrative Agent May File Proofs of Claim............................................ 104
ARTICLE XI Miscellaneous............................................................................... 105
11.1 Amendments and Waivers................................................................... 105
11.2 Notices.................................................................................. 106
11.3 No Waiver; Cumulative Remedies........................................................... 107
11.4 Costs and Expenses....................................................................... 108
11.5 Indemnity................................................................................ 108
11.6 Marshalling; Payments Set Aside.......................................................... 109
11.7 Successors and Assigns................................................................... 110
11.8 Assignments, Participations, Etc......................................................... 110
11.9 Confidentiality.......................................................................... 113
11.10 Set-off.................................................................................. 114
11.11 Automatic Debits of Fees................................................................. 115
11.12 Notification of Addresses, Lending Offices, Etc.......................................... 115
11.13 Counterparts............................................................................. 115
11.14 Severability............................................................................. 115
11.15 No Third Parties Benefited............................................................... 115
11.16 Survival of Representations and Warranties............................................... 116
11.17 Interest Rate Limitation................................................................. 116
11.18 Governing Law and Jurisdiction........................................................... 116
11.19 Service of Process....................................................................... 117
11.20 Waiver of Jury Trial..................................................................... 117
11.21 Entire Agreement......................................................................... 117
{/TABLE}
v
{PAGE}
TABLE OF SCHEDULES AND EXHIBITS
SCHEDULES
Schedule 1.1 - Corporate Investment Policy
Schedule 2.1 - Commitments
Schedule 6.7 - Plans
Schedule 6.12 - Environmental Matters
Schedule 6.18 - Subsidiaries
Schedule 6.22 - Changes, Etc.
Schedule 8.1 - Permitted Liens
Schedule 8.4 - Permitted Investments
Schedule 11.2 - Addresses for Notices
EXHIBITS
Exhibit A - Notice of Borrowing
Exhibit B - Notice of Conversion/Continuation
Exhibit C - Legal Opinion of Counsel for the Company
Exhibit D - Compliance Certificate
Exhibit E - Form of Cash Collateral Account Agreement
Exhibit F - Form of Assignment and Assumption Agreement
Exhibit G - Form of Revolving Credit Promissory Note
vi
{PAGE}
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of November 26, 2002, and entered into
among PLUM CREEK TIMBERLANDS, L.P., a Delaware limited partnership (the
"Company"), the financial institutions from time to time party to this Agreement
as lenders (collectively, the "Lenders"; individually, a "Lender"), THE BANK OF
TOKYO-MITSUBISHI, LTD., PORTLAND BRANCH, and WACHOVIA BANK, N.A., as syndication
agents for the Lenders (collectively, the "Syndication Agents"; individually, a
"Syndication Agent"), SUNTRUST BANK, SCOTIABANC INC. AND NORTHWEST FARM CREDIT
SERVICES, PCA, as documentation agents for the Lenders (collectively, the
"Documentation Agents"; individually, a "Documentation Agent"), and BANK OF
AMERICA, N.A., as administrative agent for the Lenders.
WHEREAS, the Lenders 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 hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS
In addition to the terms defined elsewhere in this Agreement, the
following terms have the following meanings:
"Administrative Agent" means Bank of America in its capacity as
administrative agent for the Lenders hereunder, or any successor administrative
agent.
"Administrative Agent's Payment Office" means the address for payments set
forth on Schedule 11.2 in relation to the Administrative Agent or such other
address as the Administrative Agent may from time to time specify to the Company
and the Lenders in accordance with Section 11.2.
"Administrative Agent-Related Persons" means Bank of America (including
Bank of America in its capacity as the Administrative Agent) and Banc of America
Securities (including Banc of America Securities in its capacity as the
Arranger), together with their respective Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"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
1
{PAGE}
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 Lender shall be deemed an "Affiliate"
of the Company or of any Subsidiary of the Company.
"Aggregate Commitment Percentage" means, at any time, with respect to each
Lender, the percentage (carried out to the ninth decimal place) equivalent of
(a) the aggregate amount of such Lender's Revolving Credit Commitment at such
time (or, if such Lender's Revolving Credit Commitment shall have terminated,
the aggregate Effective Amount of such Lender's Revolving Loans at such time)
divided by (b) the Aggregate Commitments.
"Aggregate Commitments" means, at any time, the Aggregate Revolving Credit
Commitment in effect at such time (or, if the Aggregate Revolving Credit
Commitment shall have terminated, the aggregate Effective Amount of the
Revolving Loans at such time).
"Aggregate Revolving Credit Commitment" means the combined Revolving
Credit Commitments of the Lenders, as such amount may be terminated or 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, in respect of all Loans outstanding on any date
(A) for the period from the Closing Date through March 31, 2003, 1.175% for
Eurodollar Rate Loans and 0.1750% for Base Rate Loans, and (B) from April 1,
2003, the percentage specified below opposite the Pricing Leverage Ratio (which
ratio shall be calculated on a four quarter rolling basis for the relevant
fiscal quarter) calculated for the periods described below.
{TABLE}
{CAPTION}
PRICING LEVERAGE RATIO AT END OF FISCAL QUARTER APPLICABLE MARGIN
----------------------------------------------- -----------------
Eurodollar Rate Base Rate
--------------- ---------
{S} {C} {C}
Greater than or equal to 3.75 1.3500% 0.3500%
Less than 3.75 but greater than or equal to 3.00 1.1750% 0.1750%
Less than 3.00 but greater than or equal to 2.50 1.0000% 0.0000%
Less than 2.50 but greater than or equal to 2.00 0.8000% 0.0000%
Less than 2.00 0.6000% 0.0000%
{/TABLE}
2
{PAGE}
The Applicable Margin for each fiscal quarter commencing on and after
April 1, 2003 shall be calculated in reliance on the financial reports delivered
pursuant to subsections 7.1(a) and 7.1(c) and the certificate delivered pursuant
to subsection 7.2(b) with respect to the fiscal quarter ending one fiscal
quarter before the fiscal quarter in question (e.g., June 30 financials
determine the Applicable Margin for the fiscal quarter beginning October 1). If
the Company fails to deliver such financial reports and certificate to the
Administrative Agent for any fiscal quarter by the beginning of the second
succeeding fiscal quarter (e.g., by October 1 for the fiscal quarter ending June
30), then the Applicable Margin for the following fiscal quarter (e.g., October
1 through December 31) shall equal the next higher Applicable Margin as set
forth in the chart above immediately above the previously effective Applicable
Margin; thus, for example, if the Applicable Margin had previously been 1.0000%
for Eurodollar Rate Loans and 0.0000% for Base Rate Loans, a failure to deliver
quarterly financials by the first day of the next fiscal quarter would cause the
Applicable Margin to be 1.1750% and 0.1750%, respectively, for the duration of
that quarter. In addition, if such financial reports and certificate when
delivered indicate that the Applicable Margin for such period should have been
higher than the Applicable Margin provided for in the previous sentence, then
the Company shall pay on the date of delivery of such financial reports and
certificate an amount equal to the positive difference, if any, between the
interest that the Company should have paid hereunder had the financial reports
and certificate been delivered on a timely basis over what the Company actually
paid. The Applicable Margin shall be adjusted automatically as to all Loans then
outstanding (without regard to the timing of Interest Periods) as of the
effective date of any change in the Applicable Margin.
"Approved Fund" has the meaning specified in Section 11.8(g).
"Arranger" means Banc of America Securities LLC.
"Assessment Rate" has the meaning specified in Section 4.3(a).
"Asset Sales" means any sale or disposition of Properties (other than
383800
|
CCR-B
As referenced in this Credit Agreement:
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, – PERCENTAGE
---------------------------------------------------- ----------- ----------------
{S} {C} {C}
BANK OF AMERICA, N.A $ 10,000,000 6.666666667%
AGSTAR FINANCIAL SERVICES, PCA D/B/A FCS $ 5,000,000 3.333333333%
COMMERCIAL FINANCE GROUP
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, $ 30,000,000 20.000000000%
B.A. "RABOBANK INTERNATIONAL", NEW YORK BRANCH
FARM CREDIT SERVICES OF MID-AMERICA, PCA $ 10,000,000 6.666666667%
GREENSTONE FARM CREDIT SERVICES, ACA $
_____________
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, – Address for Payments: Agribank
St. Paul, MN
ABA: 096 0169 72
Ref: Plum Creek/Timberlands, L.P.
Domestic and Eurodollar Same as Funding Notices address above.
Lending Office:
4
{PAGE}
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A. "RABOBANK
INTERNATIONAL", NEW YORK BRANCH, as a Lender
Addresses for Notices:
Funding Notices: Rabo Support Services, Inc.
10 Exchange Place, 16th Floor
Jersey City, NJ 07302
Attn:
_____________
dt 1398083
;
BofA Securities
As referenced in this Credit Agreement:
BANC OF AMERICA SECURITIES LLC – Agent,
THE BANK OF TOKYO-MITSUBISHI, LTD.,
PORTLAND BRANCH
and
WACHOVIA BANK, N.A.,
as Syndication Agents
SUNTRUST BANK,
SCOTIABANC INC.,
and
NORTHWEST FARM CREDIT SERVICES, PCA,
as Documentation Agents
BANC OF AMERICA SECURITIES LLC ,
as Arranger
i
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
{S} {C}
Table of Schedules and Exhibits......................................................................... vi
EXHIBITS................................................................................................ vi
Exhibit A - Notice of Borrowing......................................................................... vi
Exhibit B - Notice
_____________
Banc of America Securities LLC – the timing of Interest Periods) as of the
effective date of any change in the Applicable Margin.
"Approved Fund" has the meaning specified in Section 11.8(g).
"Arranger" means Banc of America Securities LLC .
"Assessment Rate" has the meaning specified in Section 4.3(a).
"Asset Sales" means any sale or disposition of Properties (other than
inventory in the Ordinary Course of Business)
_____________
Banc of America Securities LLC – above is made, and (B) the Pricing Leverage Ratio as the last day
of such calendar quarter is less than 4.0 to 1.0.
"Banc of America Securities" means Banc of America Securities LLC , and its
successor.
"Bank of America" means Bank of America, N.A., a national banking
association, and its successor.
"Bank of America Fee Letter" means the letter agreement dated
_____________
dt 1355112
;
|
BofA
As referenced in this Credit Agreement:
BANK OF AMERICA, N.A. – 10.2
CREDIT AGREEMENT
Dated as of November 26, 2002
among
PLUM CREEK TIMBERLANDS, L.P.,
THE FINANCIAL INSTITUTIONS PARTY HERETO
FROM TIME TO TIME AS LENDERS,
as the Lenders,
BANK OF AMERICA, N.A. ,
as Administrative Agent,
THE BANK OF TOKYO-MITSUBISHI, LTD.,
PORTLAND BRANCH
and
WACHOVIA BANK, N.A.,
as Syndication Agents
SUNTRUST BANK,
SCOTIABANC INC.,
and
NORTHWEST FARM CREDIT SERVICES, PCA,
_____________
BANK OF
AMERICA, N.A. – Agents"; individually, a
"Syndication Agent"), SUNTRUST BANK, SCOTIABANC INC. AND NORTHWEST FARM CREDIT
SERVICES, PCA, as documentation agents for the Lenders (collectively, the
"Documentation Agents"; individually, a "Documentation Agent"), and BANK OF
AMERICA, N.A. , as administrative agent for the Lenders.
WHEREAS, the Lenders have agreed to make available to the Company a
revolving credit facility upon the terms and conditions set forth in
_____________
Bank of America, N.A. – day
of such calendar quarter is less than 4.0 to 1.0.
"Banc of America Securities" means Banc of America Securities LLC, and its
successor.
"Bank of America" means Bank of America, N.A. , a national banking
association, and its successor.
"Bank of America Fee Letter" means the letter agreement dated October 28,
2002, among Bank of America, Banc of America Securities and
_____________
Bank of America, N.A. – Exchange Act of 1934, as amended
from time to time, and regulations promulgated thereunder.
"Existing Credit Agreement" means the Credit Agreement, dated as of
October 3, 2001, among the Company, Bank of America, N.A. , as issuing bank,
swingline bank and administrative agent, First Union National Bank and The Bank
of Tokyo-Mitsubishi, Ltd., Portland Branch, as syndication agents, SunTrust
Bank, ScotiaBanc Inc., and
_____________
BANK OF AMERICA, N.A. – written.
PLUM CREEK TIMBERLANDS, L.P.
By: Plum Creek Timber I, L.L.C.,
its General Partner
By: Plum Creek Timber Company, Inc.,
its Managing Member
By: _____________________________
Name:
Title:
BANK OF AMERICA, N.A. ,
as Administrative Agent
By: _____________________________________
Name:
Title:
[Signature page to Credit Agreement for Plum Creek Timberlands, L.P.]
{PAGE}
LENDER: BANK OF AMERICA, N.A., as a Lender
By:
_____________
dt 1554056
;
BNY
As referenced in this Credit Agreement:
BANK OF NEW YORK, – LENDER: KBC BANK, N.V., as a Lender
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
[Signature page to Credit Agreement for Plum Creek Timberlands, L.P.]
{PAGE}
LENDER: THE BANK OF NEW YORK, as a Lender
By: _____________________________________
Name:
Title:
[Signature page to Credit Agreement for Plum Creek Timberlands, L.P.]
{PAGE}
LENDER: U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By:
_____________
BANK OF NEW YORK – 10.000000000%
SCOTIABANC INC $ 10,000,000 6.666666667%
SUNTRUST BANK $ 10,000,000 6.666666667%
THE BANK OF TOYKO - MITSUBISHI, LTD., PORTLAND $ 10,000,000 6.666666667%
BRANCH
THE BANK OF NEW YORK $ 5,000,000 3.333333333%
U.S. BANK NATIONAL ASSOCIATION $ 5,000,000 3.333333333%
WACHOVIA BANK, N.A $ 10,000,000 6.666666667%
WASHINGTON MUTUAL BANK $ 10,000,
_____________
Bank of New York, – 3200
San Francisco, CA 94111
Attn: John McHugh
Fax: (415) 782-9810
Tel: (415) 986-8349
Attn: Terese Rowe
Fax: (415) 782-9811
Tel: (415) 986-8349
Address for Payments: Bank of New York, New York
ABA #: 021-000018
Acct #: 8026002533
Ref: Plum Creek Timberlands, L.P.
Domestic and Eurodollar Rabobank International
Lending Office: 245 Park Avenue, 36th Floor
New York, NY 10167
_____________
BANK OF NEW YORK, – Bank
Atlanta, GA
ABA #: 061000104
Acct #: 9088000112
Attn: Corporate Banking Support
Re: Plum Creek Timberlands LP
Domestic and Eurodollar Same as Funding Notices address above.
Lending Office:
12
{PAGE}
THE BANK OF NEW YORK,
as a Lender
Addresses for Notices:
Funding Notices: The Bank of New York
One Wall Street
22nd Floor
New York, NY 10005
Attn: Dawn Hertling
Fax: (212) 635-6399/
_____________
Bank of New York
– Creek Timberlands LP
Domestic and Eurodollar Same as Funding Notices address above.
Lending Office:
12
{PAGE}
THE BANK OF NEW YORK,
as a Lender
Addresses for Notices:
Funding Notices: The Bank of New York
One Wall Street
22nd Floor
New York, NY 10005
Attn: Dawn Hertling
Fax: (212) 635-6399/6877
Tel: (212) 635-6742
All Other Notices: The Bank of New York
_____________
dt 1583483
;
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| 2001 |
Credit Agreement
Credit Agreement (504K)
Doc #383830: Click preview link for longer preview.
CREDIT AGREEMENT
Dated as of October 3, 2001
among
PLUM CREEK TIMBERLANDS, L.P.,
BANK OF AMERICA, N.A.,
as Administrative Agent,
FIRST UNION NATIONAL BANK
and
THE BANK OF TOKYO-MITSUBISHI, LTD.,
PORTLAND BRANCH,
as Syndication Agents,
SUNTRUST BANK,
SCOTIABANC INC.,
and
NORTHWEST FARM CREDIT SERVICES, PCA,
as Documentation Agents,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY
HERETO
BANC OF AMERICA SECURITIES LLC
and
FIRST UNION SECURITIES, INC.,
as Arrangers
TABLE OF CONTENTS
Page
Table of . . .
383830
|
ABN AMRO Bank
As referenced in this Credit Agreement:
ABN AMRO Bank N.V. – as of December 13, 1996 among the Plum Creek Acquisition Partners, L.P. (successor to Plum Creek Timber Company, L.P.), the financials institutions from time to time party thereto, ABN AMRO Bank N.V. and U.S. Bank National Association, as senior co-agents, and Bank of America National Trust and Savings Association, as a letter of credit issuing bank and as agent, as
_____________
ABN AMRO Bank N.V. – as of December 13, 1996, among the Plum Creek Acquisition Partners, L.P. (successor to Plum Creek Timber Company, L.P.), the financial institutions from time to time party thereto, ABN AMRO Bank N.V. and U.S. Bank National Association, as senior co-agents, and Bank of America National Trust and Savings Association, as a letter of credit issuing bank and as agent, as
_____________
dt 1030034
;
Citibank
As referenced in this Credit Agreement:
Citibank, N.A. – 8551
Tel: (206) 223-4048
All Other Notices:
277 Park Avenue
New York, New York 10172
Attn: Noel Swift
Fax: (212) 224-5197
Tel: (212) 224-4328
Address for Payments:
Citibank, N.A. New York
ABA #: 021000089
Acct Name: SMBC Group
Acct. #: 36023837
Att: Loan Operations
Ref: Plum Creek Timberlands LP
if Via Chips: SMBC Group
ABA: 967
Flo Loans (UID 279368)
_____________
dt 996375
;
|
BofA Securities
As referenced in this Credit Agreement:
BANC OF AMERICA SECURITIES LLC – BANK OF TOKYO-MITSUBISHI, LTD.,
PORTLAND BRANCH,
as Syndication Agents,
SUNTRUST BANK,
SCOTIABANC INC.,
and
NORTHWEST FARM CREDIT SERVICES, PCA,
as Documentation Agents,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY
HERETO
BANC OF AMERICA SECURITIES LLC
and
FIRST UNION SECURITIES, INC.,
as Arrangers
TABLE OF CONTENTS
Page
Table of Schedules and Exhibits
vi
ARTICLE I Definitions
1
1.1
Defined Terms
1
1.2
Other
_____________
Banc of America Securities LLC – timing of Interest Periods) as of the effective date of any change in the Applicable Margin.
"Approved Fund" has the meaning specified in Section 11.8(g).
"Arrangers" means, collectively, Banc of America Securities LLC , and First Union Securities, Inc.; and individually, an "Arranger".
"Assessment Rate" has the meaning specified in Section 4.3(a).
"Asset Transfer Date" means the date on which the
_____________
Banc of America Securities LLC – Bank of America, N.A., a national banking association.
"BofA Fee Letter" means the letter agreement dated July 30, 2001 among BofA, BofA Securities and the Company.
"BofA Securities" means Banc of America Securities LLC .
"Borrowing" means a borrowing hereunder consisting of Loans of the same Type made to the Company on the same day by the Banks, or a Swingline Loan or Loans
_____________
dt 1002891
;
BofA
As referenced in this Credit Agreement:
BANK OF AMERICA, N.A. – htm EXHIBIT 4.2
QuickLinks -- Click here to rapidly navigate through this document
EXHIBIT 4.2
CREDIT AGREEMENT
Dated as of October 3, 2001
among
PLUM CREEK TIMBERLANDS, L.P.,
BANK OF AMERICA, N.A. ,
as Administrative Agent,
FIRST UNION NATIONAL BANK
and
THE BANK OF TOKYO-MITSUBISHI, LTD.,
PORTLAND BRANCH,
as Syndication Agents,
SUNTRUST BANK,
SCOTIABANC INC.,
and
NORTHWEST FARM CREDIT SERVICES, PCA,
_____________
BANK OF AMERICA, N.A. – Agents"; individually, a "Syndication Agent"), SUNTRUST BANK, SCOTIABANC INC. AND NORTHWEST FARM CREDIT SERVICES, PCA, as documentation agents for the Banks (collectively, the "Documentation Agents"; individually, a "Documentation Agent"), and BANK OF AMERICA, N.A. , as a letter of credit issuing bank, as a swingline bank, and as administrative agent for the Banks.
WHEREAS, the Banks have agreed to make available to the Company
_____________
Bank of America, N.A. – Loan or a L/C Advance that bears interest based on the Base Rate.
"Board Foot" means a unit of measurement one foot square and one inch thick.
"BofA" means Bank of America, N.A. , a national banking association.
"BofA Fee Letter" means the letter agreement dated July 30, 2001 among BofA, BofA Securities and the Company.
"BofA Securities" means Banc of America Securities
_____________
Bank of America Na – Creek Timber Company, L.P.), the financials institutions from time to time party thereto, ABN AMRO Bank N.V. and U.S. Bank National Association, as senior co-agents, and Bank of America Na tional Trust and Savings Association, as a letter of credit issuing bank and as agent, as amended by the Consent and First Amendment To Amended and Restated Revolving Credit Agreement
_____________
Bank of America, N.A. – obligated to make, contributions.
"NATC Credit Agreement" means the Credit Agreement (Timber Disposition Bridge Facility), dated as of November 3, 2000, among North American Timber Corp., the lenders party thereto, Bank of America, N.A. , as agent, and Merrill Lynch Capital Corporation and Morgan Stanley Senior Funding Inc., as co-syndication agents, as amended by (a) the First Amendment To Credit Agreement dated as
_____________
dt 1032248
;
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| 2007 |
Credit Agreement
Credit Agreement (281K)
Doc #2979925: Click preview link for longer preview.
[EXECUTION VERSION]
$350,000,000
CREDIT AGREEMENT
Dated as of June 15, 2007
among
PLUM CREEK TIMBERLANDS, L.P.,
as the Borrower
BANK OF AMERICA, N.A.,
as Administrative Agent
SUNTRUST BANK,
as Syndication Agent
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., SEATTLE BRANCH and
THE ROYAL BANK OF SCOTLAND,
as Documentation Agents
THE OTHER LENDERS PARTY HERETO
BANC OF AMERICA SECURITIES LLC
and
SUNTRUST ROBINSON HUMPHREY,
a division of SunTrust Capital Markets, Inc.
as
Joint Lead Arrangers and Joint Book Managers
TABLE OF CONTENTS
. . .
2979925
| | |
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| 2004 |
Deposit Agreement
Deposit Agreement (102K)
Doc #383777: Click preview link for longer preview.
PLUM CREEK TIMBER COMPANY, INC.
and
_________________
as Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
_________________
DEPOSIT AGREEMENT
_________________
Dated as of ____________ ___, ___
TABLE OF CONTENTS
Page
Parties
Recitals
ARTICLE I
DEFINITIONS
"Certificate of Designations"
1
"Certificate of Incorporation"
1
"Common Stock"
1
"Company"
1
"Corporate Office"
1
"Deposit Agreement"
2
"Depositary"
2
"Depositary Share"
2
"Depositary's Agent"
. . .
383777
| | |
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| 2003 |
Executive Agreement
Executive Agreement (5K)
Doc #165169: Click preview link for longer preview.
November 20, 2001
Mr. Thomas Lindquist
[Address Omitted]
Fax [number omitted]
Dear Tom:
You ("Executive") have previously agreed to be employed by Plum Creek Timber
Company, Inc. (the "Company" or "Plum Creek") pursuant to the terms referred to
in my letter to you dated November 1, 2001. This letter sets forth the
"Executive Agreement" referenced in that letter.
EXECUTIVE AGREEMENT
The Company may terminate Executive's employment and this Executive Agreement at
any time for "Cause" (as hereinafter defined) immediately upon written notice to
Executive. As used herein, the term "Cause" shall mean that Executive shall have
in the reasonable judgment of the Board of Directors of the Company (i)
committed a criminal act or a single act of fraud, embezzlement, breach of
trust, or other act of gross misconduct, or (ii) violated any material written
Company policy or rules of the Company, unless rectified by Executive within 45
days following written notice thereof to Executive or (iii) refused to follow
the reasonable written directions given by the Board or the Company's Chief
Executive Officer from time to time or breached any covenant or obligation under
this Executive Agreement or other agreement with the Company, unless rectified
by Executive within 45 days following written notice thereof to Executive.
The Company may terminate Executive's employment and this Executive Agreement
Without Cause (as hereinafter defined) upon written notice to Executive.
Termination "Without Cause" shall mean termination of employment on any basis
(including no reason or cause) other than termination of Executive's employment
for Cause, voluntary resignation, death or permanent disability.
If your employment with Plum Creek is terminated Without Cause or if terminated
following a Change in Control (as hereinafter defined), in either case in the
first two years from your date of hire, Plum Creek will pay you as severance,
the equivalent of one year's base salary (at the level in effect at the date of
termination) plus an amount equal to the bonus paid with respect to the full
calendar year preceding the year in which Executive's employment was terminated.
If the termination Without Cause or following a Change in Control takes place
prior to the first year bonus being paid to Executive, then such bonus will be
based upon the average bonus paid to similarly situated executives of Plum
Creek. In addition, upon such termination, all outstanding stock options will
become immediately vested and
165169
| | Thomas Lindquist
|
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| 2004 |
Indenture
Indenture (243K)
Doc #383776: Click preview link for longer preview.
PLUM CREEK TIMBERLANDS, L.P.,
PLUM CREEK TIMBER COMPANY, INC.,
as Guarantor
and
_________________
as Trustee
Indenture
Dated as of _____________, ____
Debt Securities
CROSS REFERENCE SHEET*
Between Provisions of Trust Indenture Act (as defined herein) and Indenture, dated as of _______ __, ____, among PLUM CREEK TIMBERLANDS, L.P., PLUM CREEK TIMBER COMPANY, INC., Guarantor, and [ ], Trustee:
SECTION OF THE ACT
SECTION OF INDENTURE
310(a)(1) and (2)
6.9
310(a)(3) and (4)
Inapplicable
310(b)
6.8 and 6.10(a), (b) and (d)
310(c)
. . .
383776
| |
BNY
As referenced in this Indenture:
Bank of New York – Market Exchange Rate shall mean the noon Dollar buying rate in The City of New York for cable transfers of such currency or currencies as published by the Federal Reserve Bank of New York as of the most recent available date. If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, in its sole
_____________
Bank of New York – not available for any reason with respect to such currency, the Trustee shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York or quotations from one or more major banks in The City of New York or in the country of issue of the currency in question, which for purposes of the
_____________
dt 1006166
|
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| 2003 |
Stock Option Dividend Equivalent and Value Management Award Agreement
Stock Option Dividend Equivalent and Value Management Award Agreement (19K)
Doc #383804: Click preview link for longer preview.
STOCK OPTION DIVIDEND EQUIVALENT AND VALUE MANAGEMENT AWARD AGREEMENT
AGREEMENT made as of the _______ day of _______ 200__, between Plum
Creek Timber Company, Inc., a Delaware corporation (the "Company"), and
______________________________________ ("Employee"), an employee of Plum Creek
Timberlands, L.P., a subsidiary of the Company. Terms used herein, unless
otherwise defined herein, shall have the meanings ascribed to them in the Plum
Creek Timber Company, Inc. 2000 Stock Incentive Plan (the "Plan"). To carry out
the purposes of the Plan by affording Employee the opportunity to purchase
shares of common stock, par value $.01 per share, of the Company ("Stock") and
to receive certain other benefits under the Plan, and in consideration of the
mutual agreements and other matters set forth herein and in the Plan, the
Company and Employee hereby agree as follows:
A. STOCK OPTION AWARD.
1. Grant of Option. The Company hereby grants to Employee the
right and option (the "Option") to purchase all or any part of an aggregate of
__________ shares of Stock, on the terms and conditions set forth herein and in
the Plan, which Plan is incorporated herein by reference as a part of this
Agreement. The Option shall not be treated as an incentive stock option within
the meaning of section 422(b) of the Internal Revenue Code of 1986, as amended
(the "Code").
2. Purchase Price. The purchase price of any Stock purchased
pursuant to the exercise of the Option shall be $________ per share, which was
the closing price of a share of Stock on the date hereof.
3. Exercise of Option. Subject to the earlier expiration of the
Option as herein provided, the Option may be exercised by written notice to the
Company at its principal executive office addressed to the attention of the
Stock Option Plan Administrator, but, except as otherwise provided below, the
Option shall not be exercisable for more than a percentage of the aggregate
number of shares offered by the Option determined by the number of full years
from the date of grant hereof to the date of such exercise, in accordance with
the following vesting schedule:
{TABLE}
{CAPTION}
Number of Full Years (Date) Percentage of Shares
-------------------- --------------------
{S} {C}
Less than 1 year 0%
1 year (Date) 25%
2 years (Date) 50%
3 years (Date) 75%
4 years (Date) 100%
{/TABLE}
The Option is not transferable otherwise than by will or the laws of
descent and distribution, or pursuant to a "qualified domestic relations order"
as defined by the Code, and may be exercised during Employee's lifetime only by
Employee, Employee's guardian or legal representative or a transferee under a
qualified domestic relations order. Upon any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of the Option or of such rights
contrary to the provisions hereof or the Plan, or upon the levy of any
attachment or similar process upon the Option or such rights, the Option and
such rights shall immediately become null and void. The Option may be exercised
only while Employee remains an employee of the Company, subject to the following
exceptions:
1
{PAGE}
(a) If Employee's employment with the Company terminates by
reason of disability (disability being defined as being physically or mentally
incapable of performing either the Employee's usual duties or any other duties
that the Company reasonably makes available and such condition is likely to
remain continuously and permanently, as determined by the Company or an
employing subsidiary of the Company), the vested portion of the Option may be
383804
| | |
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Stock Option and Dividend Equivalent Award Agreement
Stock Option and Dividend Equivalent Award Agreement (14K)
Doc #383805: Click preview link for longer preview.
STOCK OPTION AND DIVIDEND EQUIVALENT AWARD AGREEMENT
AGREEMENT made as of the ____ day of _______, 200___, between Plum
Creek Timber Company, Inc., a Delaware corporation (the "Company"), and
__________ ("Director"). Terms used herein, unless otherwise defined herein,
shall have the meanings ascribed to them in the Plum Creek Timber Company, Inc.
2000 Stock Incentive Plan (the "Plan"). To carry out the purposes of the Plan by
affording Director the opportunity to purchase shares of common stock, par value
$.01 per share, of the Company ("Stock") and to receive certain other benefits
under the Plan, and in consideration of the mutual agreements and other matters
set forth herein and in the Plan, the Company and Director hereby agree as
follows:
A. Stock Option Award.
1. Grant of Option. The Company hereby grants to Director the
right and option (the "Option") to purchase all or any part of an aggregate of
__________shares of Stock, on the terms and conditions set forth herein and in
the Plan, which Plan is incorporated herein by reference as a part of this
Agreement. The Option shall NOT be treated as an incentive stock option within
the meaning of section 422(b) of the Internal Revenue Code of 1986, as amended
(the "Code").
2. Purchase Price. The purchase price of any Stock purchased
pursuant to the exercise of the Option shall be $________ per share, which was
the closing price of a share of Stock on the date hereof.
3. Exercise of Option. Subject to the earlier expiration of the
Option as herein provided, the Option may be exercised by written notice to the
Company at its principal executive office addressed to the attention of the
Stock Option Plan Administrator, but, except as otherwise provided below, the
Option shall not be exercisable for more than a percentage of the aggregate
number of shares offered by the Option determined by the number of full years
from the date of grant hereof to the date of such exercise, in accordance with
the following vesting schedule:
{TABLE}
{CAPTION}
Number of Full Years (Date) Percentage of Shares
-------------------- --------------------
{S} {C}
Less than 1 year 0%
1 year (Date) 25%
2 years (Date) 50%
3 years (Date) 75%
4 years (Date) 100%
{/TABLE}
The Option is not transferable otherwise than by will or the laws of
descent and distribution, or pursuant to a "qualified domestic relations order"
as defined by the Code, and may be exercised during Director's lifetime only by
Director, Director's guardian or legal representative or a transferee under a
qualified domestic relations order. Upon any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of the Option or of such rights
contrary to the provisions hereof or the Plan, or upon the levy of any
attachment or similar process upon the Option or such rights, the Option and
such rights shall immediately become null and void. The Option may be exercised
only while Director remains a Director of the Company, subject to the following
exceptions:
(a) If Director's term of office as a director of the Company
is terminated due to disability (disability being defined as being physically or
mentally incapable of performing either the Director's usual duties or any other
duties that the Company reasonably makes available and such condition is likely
to remain continuously and permanently, as determined by the Company), the
vested portion of the Option may be exercised by Director (or Director's estate
383805
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| Full Doc
| 2001 |
Opinion Letter Re: Plum Creek Timber Company, Inc. Registration Statement on Form S-3
Opinion Letter Re: Plum Creek Timber Company, Inc. Registration Statement on Form S-3 (5K)
Doc #383823: This document is immediately available for purchase, but does not have a preview available for viewing.
{DOCUMENT}
{TYPE}EX-5
{SEQUENCE}3
{FILENAME}s247124.txt
{DESCRIPTION}EXHIBIT 5.1
{TEXT}
Exhibit 5.1
October 31, 2001
Plum Creek Timber Company, Inc.
999 Third Avenue, Suite 2300
Seattle, Washington 98104
Re: Plum Creek Timber Company, Inc. Registration Statement on Form S-3
-------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Plum Creek Timber Company,
383823
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| 2003 |
Letter Agreement
Letter Agreement (5K)
Doc #383803: Click preview link for longer preview.
November 20, 2001
Mr. Thomas Lindquist
[Address Omitted]
Fax [number omitted]
Dear Tom:
You ("Executive") have previously agreed to be employed by Plum Creek Timber
Company, Inc. (the "Company" or "Plum Creek") pursuant to the terms referred to
in my letter to you dated November 1, 2001. This letter sets forth the
"Executive Agreement" referenced in that letter.
EXECUTIVE AGREEMENT
The Company may terminate Executive's employment and this Executive Agreement at
any time for "Cause" (as hereinafter defined) immediately upon written notice to
Executive. As used herein, the term "Cause" shall mean that Executive shall have
in the reasonable judgment of the Board of Directors of the Company (i)
committed a criminal act or a single act of fraud, embezzlement, breach of
trust, or other act of gross misconduct, or (ii) violated any material written
Company policy or rules of the Company, unless rectified by Executive within 45
days following written notice thereof to Executive or (iii) refused to follow
the reasonable written directions given by the Board or the Company's Chief
Executive Officer from time to time or breached any covenant or obligation under
this Executive Agreement or other agreement with the Company, unless rectified
by Executive within 45 days following written notice thereof to Executive.
The Company may terminate Executive's employment and this Executive Agreement
Without Cause (as hereinafter defined) upon written notice to Executive.
Termination "Without Cause" shall mean termination of employment on any basis
(including no reason or cause) other than termination of Executive's employment
for Cause, voluntary resignation, death or permanent disability.
If your employment with Plum Creek is terminated Without Cause or if terminated
following a Change in Control (as hereinafter defined), in either case in the
383803
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| 2002 |
Timberlands Purchase and Sale Agreement
Timberlands Purchase and Sale Agreement (106K)
Doc #383810: Click preview link for longer preview.
TIMBERLANDS PURCHASE AND SALE AGREEMENT
---------------------------------------
THIS TIMBERLANDS PURCHASE AND SALE AGREEMENT ("Agreement") dated as of
the 29/th/ day of October, 1999, is made and entered into by and among NORTH
AMERICAN TIMBER CORP., a Delaware corporation and GEORGIA PACIFIC CORPORATION, a
Georgia corporation (hereinafter collectively "Sellers", and individually
"Seller"), and HAWTHORNE TIMBER COMPANY, LLC, a Delaware limited liability
company ("Buyer").
W I T N E S S E T H:
--------------------
WHEREAS, Sellers own and operate approximately 194,000 acres of
timberlands in Mendocino and Humboldt Counties, California as hereinafter
defined (the "Timberlands"); and
WHEREAS, Buyer wishes to purchase from Sellers and Sellers wish to sell
to Buyer, the Timberlands and related assets in accordance with the terms and
conditions of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
PURCHASE AND SALE
-----------------
Section 1.1 Purchase and Sale. On the basis of the representations,
-----------------
warranties, covenants and agreements, and subject to the satisfaction or waiver
of the conditions set forth herein, at the "Closing" (as defined in Section
-------
1.10) Sellers will sell and convey to Buyer, and Buyer will purchase and acquire
----
from Sellers all of their respective right, title and interest, as of the
"Closing Date" (as defined in Section 1.10), in the following assets
------------
(collectively, the "Purchased Assets"), but specifically excluding the "Excluded
Assets" (as defined in Section 1.2):
-----------
{PAGE}
(a) the Timberlands, a legal description of which is attached as Schedule
--------
1.1(a), together with all buildings, roads, bridges and other improvements
------
located thereon, all timber growing or lying thereon, all timber rights, mineral
rights and water rights pertaining thereto, and any other privileges, easements
and other access rights appertaining thereto;
(b) all of the machinery, equipment, vehicles, including trailers and
other transportation equipment, and supplies identified on Schedule 1.1(b), with
---------------
such additions and deletions as may occur only in the ordinary course of
business after the date hereof (the "Equipment");
(c) all of the other tangible assets located at and used exclusively in
connection with the Timberlands, (excluding the Integrated Forest Management
System (IFIVIS), source code, executables, data base design, data base tables,
or any subsystems thereof);
(d) all computer hardware and software, except as provided in Section
-------
1.1(c), relating to the Timberlands, including systems, supporting documentation
------
and program code for the Sellers' modified version of CRYPWHR, the Timber
Settlement System, CRIZM, and CRYPTOS 4.0 and as listed on Schedule 1.1 (d);
---------------
(e) all of the books, maps, aerial photographs, surveys, GIS data,
wildlife records, other records, manuals, documents, and similar information
relating primarily or exclusively to the Timberlands;
(f) subject to any required consents of third parties, all operating
contracts, agreements, service agreements, purchase orders and leases listed on
Schedule 1.1 (f) (the "Operating Contracts"); and
------------
(g) to the extent transferable, all franchises, licenses, permits, water
rights, consents and certificates of all regulatory, administrative, and other
governmental agencies and bodies issued to or held by Sellers and which are
related exclusively to the operation of the Timberlands.
{PAGE}
Section 1.2 Excluded Assets. All assets of Sellers on the Closing Date not
---------------
referred to in Section 1.1 (the "Excluded Assets") shall be retained by Sellers,
-----------
and shall not be transferred to or purchased by Buyer. Without limiting the
generality of the foregoing, Buyer shall not purchase from Sellers:
(a) any asset of whatsoever nature relating to Sellers' Atlanta
headquarters or Fort Bragg offices, including the office buildings, furniture,
and any information systems used in connection with transmitting information
from the Timberlands to (or from) the Atlanta or Fort Bragg facilities;
(b) any of the cash, cash equivalents, bank accounts, deposits, lock boxes
and other similar accounts (whether maintained at a bank, savings and loan or
other financial institution), marketable securities, including petty cash and
cash deposits, and investments of Sellers as of the Closing Date;
(c) any of the accounts receivable generated by or in connection with the
Timberlands on or prior to the Closing Date;
(d) all prepaid items by or on behalf of Sellers or credits and deposits,
rights of offset and credits and claims for refund generated or incurred by or
in connection with the Timberlands prior to the Closing Date;
(e) any claims, choses in action and rights of or actions by Sellers
against third parties arising out of or related to the Timberlands prior to the
Closing;
(f) permits not related to the Timberlands, and permits related to the
Timberlands to the extent not lawfully transferable;
(g) any assets of any pension plan, including, but not limited to, the
right to receive any assets of any such plan upon termination thereof if the
plan's assets exceed its liabilities;
(h) personnel files, employee medical records, and affirmative action plans
and related documents, together with any other books and records the provision
of which to Buyer would violate any applicable law;
{PAGE}
(i) any rights to any patents, copyrights, trade secrets, trademarks,
service marks or trade names (including use of the names "Georgia-Pacific", "The
Timber Company", and "G-P" or any derivations thereof and associated logos), any
applications therefor, or any other intellectual property of any Seller or its
affiliates or suppliers (except for intellectual property specifically included
in the Purchased Assets under Section 1.1);
-----------
(j) any claims for refunds of taxes and other governmental charges or
assessments arising from or pertaining to periods, activities, operations or
events occurring on or prior to the Closing Date;
(k) the Integrated Forest Management System (IFMS), including any equipment
dedicated exclusively to the IFMS system; and
(l) any rights or liabilities related to any employee benefit plans
sponsored, or maintained, at any time by a Seller, or to which a Seller has
contributed.
Section 1.3 Assumed Liabilities. As partial consideration for consummation
-------------------
of the transactions contemplated hereby, at the Closing, Buyer shall assume and
agree to thereafter perform when due and discharge, and indemnify and hold
Sellers harmless with respect to, the following liabilities and obligations of
Sellers with respect to the Timberlands (the "Assumed Liabilities"):
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Warburg Dillon
As referenced in this Timberlands Purchase and Sale Agreement:
Warburg
---------------------
Dillon Read LLC – with the giving of notice or the
passage of time or both, would constitute such a breach or default.
Section 2.11 Brokers, Finders, Etc. Except for the services of Warburg
---------------------
Dillon Read LLC , Sellers have not employed any broker, finder, consultant or
other intermediary in connection with the transactions contemplated by this
Agreement who might be entitled to a fee or commission
_____________
Warburg Dillon Read LLC – Agreement who might be entitled to a fee or commission in connection with such
transactions. Sellers are solely responsible for any payment, fee or commission
that may be due to Warburg Dillon Read LLC , in connection with the transactions
contemplated hereby.
{PAGE}
Section 2.12 Labor and Employment Matters.
----------------------------
(a) Buyer shall have no liability, obligation or expense with respect to
any of
_____________
Warburg Dillon Read LLC – from the
Excluded Assets; (v) any liabilities of Sellers not expressly assumed by Buyer
hereunder; (vi) failure to comply with the Bulk Sales laws; (vii) failure by
Sellers to pay Warburg Dillon Read LLC , Sellers' employees, Sellers' trade
payables, or taxes Sellers are required to pay pursuant to this Agreement; or
(viii) the litigation disclosed on Schedule 2.6.
-------------
(b) Indemnification by Buyer.
_____________
dt 1338557
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| 2003 |
Stock Option Dividend Equivalent and Value Management Award Agreement
Stock Option Dividend Equivalent and Value Management Award Agreement (19K)
Doc #177810: Click preview link for longer preview.
STOCK OPTION DIVIDEND EQUIVALENT AND VALUE MANAGEMENT AWARD AGREEMENT
AGREEMENT made as of the _______ day of _______ 200__, between Plum
Creek Timber Company, Inc., a Delaware corporation (the "Company"), and
______________________________________ ("Employee"), an employee of Plum Creek
Timberlands, L.P., a subsidiary of the Company. Terms used herein, unless
otherwise defined herein, shall have the meanings ascribed to them in the Plum
Creek Timber Company, Inc. 2000 Stock Incentive Plan (the "Plan"). To carry out
the purposes of the Plan by affording Employee the opportunity to purchase
shares of common stock, par value $.01 per share, of the Company ("Stock") and
to receive certain other benefits under the Plan, and in consideration of the
mutual agreements and other matters set forth herein and in the Plan, the
Company and Employee hereby agree as follows:
A. STOCK OPTION AWARD.
1. Grant of Option. The Company hereby grants to Employee the
right and option (the "Option") to purchase all or any part of an aggregate of
__________ shares of Stock, on the terms and conditions set forth herein and in
the Plan, which Plan is incorporated herein by reference as a part of this
Agreement. The Option shall not be treated as an incentive stock option within
the meaning of section 422(b) of the Internal Revenue Code of 1986, as amended
(the "Code").
2. Purchase Price. The purchase price of any Stock purchased
pursuant to the exercise of the Option shall be $________ per share, which was
the closing price of a share of Stock on the date hereof.
3. Exercise of Option. Subject to the earlier expiration of the
Option as herein provided, the Option may be exercised by written notice to the
Company at its principal executive office addressed to the attention of the
Stock Option Plan Administrator, but, except as otherwise provided below, the
Option shall not be exercisable for more than a percentage of the aggregate
number of shares offered by the Option determined by the number of full years
from the date of grant hereof to the date of such exercise, in accordance with
the following vesting schedule:
{TABLE}
{CAPTION}
Number of Full Years (Date) Percentage of Shares
-------------------- --------------------
{S} {C}
Less than 1 year 0%
1 year (Date) 25%
2 years (Date) 50%
3 years (Date) 75%
4 years (Date) 100%
{/TABLE}
The Option is not transferable otherwise than by will or the laws of
descent and distribution, or pursuant to a "qualified domestic relations order"
as defined by the Code, and may be exercised during Employee's lifetime only by
Employee, Employee's guardian or legal representative or a transferee under a
qualified domestic relations order. Upon any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of the Option or of such rights
contrary to the provisions hereof or the Plan, or upon the levy of any
attachment or similar process upon the Option or such rights, the Option and
such rights shall immediately become null and void. The Option may be exercised
only while Employee remains an employee of the Company, subject to the following
exceptions:
177810
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| 2003 |
Stock Option and Dividend Equivalent Award Agreement
Stock Option and Dividend Equivalent Award Agreement (14K)
Doc #177811: Click preview link for longer preview.
STOCK OPTION AND DIVIDEND EQUIVALENT AWARD AGREEMENT
AGREEMENT made as of the ____ day of _______, 200___, between Plum
Creek Timber Company, Inc., a Delaware corporation (the "Company"), and
__________ ("Director"). Terms used herein, unless otherwise defined herein,
shall have the meanings ascribed to them in the Plum Creek Timber Company, Inc.
2000 Stock Incentive Plan (the "Plan"). To carry out the purposes of the Plan by
affording Director the opportunity to purchase shares of common stock, par value
$.01 per share, of the Company ("Stock") and to receive certain other benefits
under the Plan, and in consideration of the mutual agreements and other matters
set forth herein and in the Plan, the Company and Director hereby agree as
follows:
A. Stock Option Award.
1. Grant of Option. The Company hereby grants to Director the
right and option (the "Option") to purchase all or any part of an aggregate of
__________shares of Stock, on the terms and conditions set forth herein and in
the Plan, which Plan is incorporated herein by reference as a part of this
Agreement. The Option shall NOT be treated as an incentive stock option within
the meaning of section 422(b) of the Internal Revenue Code of 1986, as amended
(the "Code").
2. Purchase Price. The purchase price of any Stock purchased
pursuant to the exercise of the Option shall be $________ per share, which was
the closing price of a share of Stock on the date hereof.
3. Exercise of Option. Subject to the earlier expiration of the
Option as herein provided, the Option may be exercised by written notice to the
Company at its principal executive office addressed to the attention of the
Stock Option Plan Administrator, but, except as otherwise provided below, the
Option shall not be exercisable for more than a percentage of the aggregate
number of shares offered by the Option determined by the number of full years
from the date of grant hereof to the date of such exercise, in accordance with
the following vesting schedule:
{TABLE}
{CAPTION}
Number of Full Years (Date) Percentage of Shares
-------------------- --------------------
{S} {C}
Less than 1 year 0%
1 year (Date) 25%
2 years (Date) 50%
3 years (Date) 75%
4 years (Date) 100%
{/TABLE}
The Option is not transferable otherwise than by will or the laws of
descent and distribution, or pursuant to a "qualified domestic relations order"
as defined by the Code, and may be exercised during Director's lifetime only by
Director, Director's guardian or legal representative or a transferee under a
qualified domestic relations order. Upon any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of the Option or of such rights
contrary to the provisions hereof or the Plan, or upon the levy of any
attachment or similar process upon the Option or such rights, the Option and
such rights shall immediately become null and void. The Option may be exercised
only while Director remains a Director of the Company, subject to the following
exceptions:
(a) If Director's term of office as a director of the Company
is terminated due to disability (disability being defined as being physically or
mentally incapable of performing either the Director's usual duties or any other
duties that the Company reasonably makes available and such condition is likely
to remain continuously and permanently, as determined by the Company), the
vested portion of the Option may be exercised by Director (or Director's estate
or the person
177811
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| 2005 |
News Release
News Release (21K)
Doc #383769: Click preview link for longer preview.
Plum Creek Timber Company, Inc.
999 Third Avenue
Suite 4300
Seattle, Washington 98104
206 467 3600
News Release
For more information contact:
For immediate release
Investors: John Hobbs 1-800-858-5347
January 31, 2005
Media: Kathy Budinick 1-206-467-3620
Plum Creek Timber Company, Inc. Reports Results for Fourth
Quarter and Full Year 2004
SEATTLE, Wash. ? Plum Creek Timber Company, Inc. (NYSE: PCL) today announced fourth quarter earnings of $73 million, or $0.40 per diluted share, on revenues of $327 million. Earnings for the fourth quarter of 2003 were . . .
383769
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| 2003 |
Purchase and Sale Agreement
Purchase and Sale Agreement (58K)
Doc #383797: Click preview link for longer preview.
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT (this "Agreement"), made as of September 19, 2002, by
and between Plum Creek Timberlands, L.P., a Delaware limited partnership ("PC
Timberlands"); Plum Creek Marketing, Inc., a Delaware corporation ("Marketing");
and Plum Creek Land Company, a Delaware corporation ("Land Company," and
collectively with PC Timberlands and Marketing, "Purchaser"), and STORA ENSO
NORTH AMERICA CORP., a Wisconsin corporation (hereinafter referred to as
"Seller");
W I T N E S S E T H:
WHEREAS, Seller is the owner of the Assets (as hereinafter defined);
and
WHEREAS, Purchaser desires to purchase the Assets from Seller;
NOW, THEREFORE, the parties have agreed and as follows:
1. Agreement of Purchase and Sale. Subject to the provisions of
this Agreement, and for consideration herein stated, Seller agrees to sell to
Purchaser and Purchaser agrees to buy from Seller all of the following described
property (collectively, the "Assets"):
(a) Timberlands. All of Seller's right, title and
interest in and to certain real property owned by Seller in the States of
Wisconsin and Michigan, as further described on Exhibit "A" attached hereto and
incorporated herein by this reference as though fully set forth (hereinafter the
"Timberlands"), and other rights related or appurtenant thereto, including but
not limited to all of Seller's right, title, and interest (i) in and to the
merchantable and unmerchantable timber, growing, lying, standing or felled,
timber interests and timber rights located on or appurtenant to the Timberlands;
(ii) in and to any mineral, sand, oil, gas, hydrocarbon substances and gravel
and other hard rock rights on and under the Timberlands which have not
previously been reserved or severed by Seller's predecessors in interest; and
(iii) all rights of Seller in and to any development rights, air rights, water,
water rights, ditch and ditch rights appurtenant to the Timberlands.;
(b) Leases and Contracts. All of Seller's right, title
and interest in and to the leases, described on Exhibit B-1 attached hereto
(collectively, the "Gravel Leases"), pursuant to which third parties have the
right to use portions of the Timberlands for gravel and sand production and
other incidental purposes, and all of Seller's right, title and interest in and
to the contracts and other agreements identified on Exhibit B-2 attached hereto
(collectively, the "Contracts").
-1-
{PAGE}
(c) Offices. All of Seller's right, title and interest in
and to certain real property described on Exhibit "C" attached hereto and
incorporated herein by this reference as though fully set forth (hereinafter the
"Offices," and together with the Timberlands, the "Real Property"), together
with all buildings, structures and other improvements located thereon and all
rights and appurtenances associated therewith.
(d) Access Rights and Easements. All rights of Seller in
and to any access rights, rights-of-way and easements appurtenant to the Real
Property, to the extent assignable ("Access Rights and Easements").
(e) Personal Property. Any and all personal property,
tangible and intangible, including without limitation all furniture, fixtures,
equipment, vehicles and tools, used primarily in connection with the operation
of the Timberlands or located within the Offices; any and all of Seller's maps,
seeds, property books, aerial photos, plans, drawings, specifications,
renderings, engineering studies, biological studies, grading or drainage
studies, environmental and hazardous waste studies and reports and related data
and materials in Seller's possession relating to the Timberlands or the Offices,
and all administrative software solely concerning the Timberlands, including the
timber inventory and computerized forest inventory software program, data base
software program and mapping software program ("GIS"), that can operate
independent of Seller's mainframe and that Seller is permitted to license to
Purchaser but excluding proprietary software of a type used by or which may be
used by Seller in its mill operations ("Personal Property"). In the event that
programs such as the timber inventory and GIS programs cannot operate
independent of Seller's mainframe or Seller cannot license such software, Seller
shall provide the electronic data contained in such programs to Purchaser. The
Personal Property is described on Exhibit "D-1" attached hereto and incorporated
herein by this reference as though fully set forth. Certain items of personal
property associated with Seller's forestry resources operations which are not
being sold to Purchaser are listed on Exhibit D-2 (the "Excluded Personal
Property").
(f) Assets. The Timberlands, Offices, Access Rights and
Easements and Personal Property are collectively referred to as the "Assets."
The parties agree that if any portion of the Real Property is deleted or taken
pursuant to either of paragraphs 6 or 7(c) below, then the term "Real Property"
shall no longer include such deleted portion.
2. Purchase Price, Allocations and Purchase Price Adjustment.
(a) Purchase Price. The purchase price (the "Purchase
Price") for the Assets will be One Hundred Forty-Two Million United States
Dollars ($142,000,000.00), subject to adjustment to the extent, if any, provided
in paragraphs 6 and 7(b) hereof. The Purchase Price will be paid at the Closing
(as hereinafter defined) by wire transfer of the full amount thereof in
immediately available funds to an account designated by Seller.
(b) Purchase Price Allocation. The parties shall allocate
the Purchase
-2-
{PAGE}
Price among the Assets and Purchasers PC Timberlands, Marketing and Land Company
in accordance with Section 1060 of the Internal Revenue Code and shall cooperate
with each other and provide such information as may be requested in connection
with the preparation of the allocation. The parties shall report the federal,
state and local tax consequences of the purchase and sale contemplated hereby
(including the filing of IRS Form 8594) in a manner consistent with such
allocation.
(c) Purchase Price Adjustment.The amount of timber by
species and product mix contemplated to be harvested from the Timberlands by
Seller from April 1, 2002 to the Closing is set forth on the Harvest Schedule
attached hereto as Exhibit "E" (the "Harvest Schedule"). Immediately following
the Closing, Purchaser and its accountants shall be provided with reasonable
access to all of Seller's books, records, accounting and other documents
reasonably necessary to confirm the actual amount of timber harvested by species
and product mix from the period commencing April 1, 2002 through the Closing. In
383797
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UBS Warburg
As referenced in this Purchase and Sale Agreement:
UBS Warburg LLC – site preparation, release and planting
activities on the Real Property pursuant to the Harvest Schedule and the
Operating and Capital Budgets.
10. Brokerage. At the Closing, Seller will pay to UBS Warburg LLC
certain commissions, fees and/or expenses pursuant to the terms of a separate
agreement between Seller and UBS Warburg LLC.(the "UBS Fee"). Seller and
Purchaser each warrant and
_____________
UBS Warburg LLC – Budgets.
10. Brokerage. At the Closing, Seller will pay to UBS Warburg LLC
certain commissions, fees and/or expenses pursuant to the terms of a separate
agreement between Seller and UBS Warburg LLC .(the "UBS Fee"). Seller and
Purchaser each warrant and represent to the other that, except for the UBS Fee,
which remains the sole responsibility of the Seller, neither has
_____________
dt 1538262
;
|
Michael Best
As referenced in this Purchase and Sale Agreement:
Michael, Best – set forth in Section 28(d)
hereof; provided, however, that the Closing will occur in any event on or before
December 3, 2002 at the offices of Seller's counsel, Michael, Best & Friedrich,
at 401 N. Michigan Ave., Chicago, Illinois, subject to any extension expressly
provided for in this Agreement, or such earlier date and time, and/or such other
location,
_____________
MICHAEL BEST – is received by the addressee.
Seller: STORA ENSO NORTH AMERICA CORP.
510 High Street
Wisconsin Rapids, WI 54495
Attention: Carl H. Wartman
Facsimile: 715-422-3203
with a copy to: MICHAEL BEST & FRIEDRICH LLP
100 E. Wisconsin Ave.
Milwaukee, WI 53202-4108
Attention: Nancy Leary Haggerty
Facsimile: 414-277-0656
Purchaser: Plum Creek Timberlands, L.P.
999 Third Avenue, Suite 2300
_____________
dt 1384077
|
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| 2001 |
Purchase Agreement
Purchase Agreement (141K)
Doc #383814: Click preview link for longer preview.
PLUM CREEK TIMBER COMPANY, INC.
a Delaware corporation
7,500,000 Shares of Common Stock
PURCHASE AGREEMENT
Dated: November 15, 2001
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
{PAGE}
{TABLE}
{CAPTION}
Table of Contents
{S} {C}
SECTION 1. Representations and Warranties. .................................... 3
(a) Representations and Warranties by the Company ......................... 3
(i) Compliance with Registration Requirements ...................... 3
(ii) Incorporated Documents ......................................... 4
(iii) Independent Accountants ........................................ 4
(iv) Financial Statements ........................................... 4
(v) No Material Adverse Change in Business ......................... 5
(vi) Good Standing of the Company ................................... 5
(vii) Good Standing of Subsidiaries .................................. 6
(viii) Capitalization ................................................. 6
(ix) Authorization of Agreement ..................................... 6
(x) Description of Securities ...................................... 6
(xi) Absence of Defaults and Conflicts .............................. 7
(xii) Absence of Proceedings ......................................... 7
(xiii) Accuracy of Exhibits ........................................... 8
(xiv) Absence of Further Requirements ................................ 8
(xv) Possession of Licenses and Permits ............................. 8
(xvi) Title to Property .............................................. 8
(xvii) Investment Company Act ......................................... 9
(xviii) Environmental Laws ............................................. 9
(xix) REIT ........................................................... 9
{/TABLE}
i
{PAGE}
{TABLE}
{S} {C}
(xx) Registration Rights ............................................. 10
(xxi) NYSE Listing .................................................... 10
(b) Representations and Warranties by the Selling Stockholders ........... 10
(i) Accurate Disclosure ............................................. 10
(ii) Authorization of Agreements ..................................... 10
(iii) Good and Marketable Title ....................................... 11
(iv) Absence of Manipulation ......................................... 11
(v) Absence of Further Requirements ................................. 11
(vi) Restriction on Sale of Securities ............................... 12
(vii) No Association with NASD ........................................ 12
(c) Officer's Certificates ............................................... 12
SECTION 2. Sale and Delivery to Underwriters; Closing. ........................ 13
(a) Initial Securities ................................................... 13
(b) Option Securities .................................................... 13
(c) Payment .............................................................. 14
(d) Denominations; Registration .......................................... 14
SECTION 3. Covenants of the Company ........................................... 15
(a) Compliance with Securities Regulations and Commission Requests ....... 15
(b) Filing of Amendments ................................................. 15
(c) Delivery of Registration Statements .................................. 15
(d) Delivery of Prospectuses ............................................. 16
{/TABLE}
ii
{PAGE}
{TABLE}
{S} {C}
(e) Continued Compliance with Securities Laws...................... 16
(f) Blue Sky Qualifications........................................ 16
(g) Rule 158....................................................... 17
(h) Restriction on Sale of Securities.............................. 17
(i) Reporting Requirements......................................... 17
SECTION 4. Payment of Expenses...................................... 17
(a) Expenses....................................................... 18
(b) Expenses of the Selling Stockholders........................... 18
(c) Termination of Agreement....................................... 18
(d) Allocation of Expenses......................................... 19
SECTION 5. Conditions of Underwriters' Obligations.................. 19
(a) Effectiveness of Registration Statement........................ 19
(b) Opinion of Counsel for Company................................. 19
(c) Opinion of In-House Counsel.................................... 19
(d) Opinion of Counsel for the Selling Stockholders................ 20
(e) Opinion of Counsel for Underwriters............................ 20
(f) Officers' Certificate.......................................... 20
(g) Certificate of Selling Stockholders............................ 20
(h) Accountant's Comfort Letter.................................... 21
(i) Bring-down Comfort Letter...................................... 21
{/TABLE}
iii
{PAGE}
{TABLE}
{S} {C}
(j) No Objection.................................................. 21
(k) Lock-up Agreements............................................ 21
(l) Conditions to Purchase of Option Securities................... 21
(i) Officers' Certificate..................................... 21
(ii) Certificate of Selling Stockholders....................... 21
(iii) Opinion of Counsel for Company............................ 22
(iv) Opinion of In-House Counsel............................... 22
(v) Opinion of Counsel for the Selling Stockholders........... 22
(vi) Opinion of Counsel for Underwriters....................... 22
(vii) Bring-down Comfort Letter................................. 22
(m) Additional Documents.......................................... 22
(n) Termination of Agreement...................................... 23
SECTION 6. Indemnification......................................... 23
(a) Indemnification of Underwriters by the Company................ 23
(b) Indemnification of Underwriters by the Selling Stockholders... 24
(c) Indemnification of Company, Directors and Officers and Selling
Stockholders.................................................. 25
(d) Actions against Parties; Notification......................... 25
(e) Settlement without Consent if Failure to Reimburse............ 26
(f) Other Agreements with Respect to Indemnification.............. 27
SECTION 7. Contribution............................................ 27
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery................................................ 28
{/TABLE}
iv
{PAGE}
{TABLE}
{S} {C}
SECTION 9. Termination of Agreement................................ 29
(a) Termination; General.......................................... 29
(b) Liabilities................................................... 29
SECTION 10. Default by One or More of the Underwriters.............. 29
SECTION 11. Default by one or more of the Selling Stockholders...... 30
SECTION 12. Notices................................................. 31
SECTION 13. Parties................................................. 31
SECTION 14. GOVERNING LAW AND TIME.................................. 31
SECTION 15. Effect of Headings...................................... 32
{/TABLE}
v
{PAGE}
{TABLE}
{S} {C}
SCHEDULES
Schedule A - List of Underwriters....................... Sch A-1
Schedule B - List of Selling Stockholders............... Sch B-1
Schedule C - Pricing Information........................ Sch C-1
Schedule D - List of Subsidiaries....................... Sch D-1
Schedule E - List of Persons subject to Lock-up......... Sch E-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel.......... A-1
Exhibit B - Form of Opinion of In-House Counsel........... B-1
Exhibit C - Form of Opinion for the Selling Stockholders.. C-1
Exhibit D- Form of Lock-up Letter......................... D-1
{/TABLE}
vi
{PAGE}
PLUM CREEK TIMBER COMPANY, INC.
(a Delaware corporation)
7,500,000 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
------------------
November 15, 2001
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Goldman, Sachs & Co.
D.A. Davidson & Co.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Plum Creek Timber Company, Inc., a Delaware corporation (the
"Company"), and the entities listed in Schedule B hereto (the "Selling
Stockholders"), confirm their respective agreements with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), which is
acting as sole book-runner, and each of the other Underwriters named in Schedule
A hereto (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Merrill Lynch, Goldman, Sachs & Co. and D.A. Davidson & Co. are acting as
representatives (in such capacity, the "Representatives"), with respect to (i)
the sale by the Selling Stockholders, acting severally and not jointly, and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.01 per share,
1
{PAGE}
of the Company ("Common Stock") set forth in Schedules A and B hereto and (ii)
the grant by the Selling Stockholders to the Underwriters, acting severally and
not jointly, of the option described in Section 2(b) hereof to purchase all or
any part of 1,125,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 7,500,000 shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriters and all or any part of
the 1,125,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "Option Securities") are hereinafter called, collectively, the
"Securities".
The Company and the Selling Stockholders understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-72522) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Securities is herein called the "Prospectus." If Rule 434 is
relied
2
{PAGE}
on, the term "Prospectus" shall refer to the preliminary prospectus dated
November 9, 2001 together with the Term Sheet and all references in this
383814
|
UBS Warburg
As referenced in this Purchase Agreement:
UBS Warburg LLC – D. A. Davidson & Co. ................................. 824,950
Credit Suisse First Boston Corporation ............... 824,950
Lehman Brothers Inc. ................................. 225,000
Morgan Stanley & Co. Incorporated .................... 225,000
Salomon Smith Barney Inc. ............................ 225,000
UBS Warburg LLC ...................................... 225,000
Total ................................................ 7,500,000
Sch A-1
{PAGE}
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to Be Sold
--------------------- ---------------------
PC Advisory
_____________
dt 1538263
;
Goldman, Sachs
As referenced in this Purchase Agreement:
Goldman, Sachs & Co. – INC.
(a Delaware corporation)
7,500,000 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
------------------
November 15, 2001
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Goldman, Sachs & Co.
D.A. Davidson & Co.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New
_____________
Goldman, Sachs & Co. – the other Underwriters named in Schedule
A hereto (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Merrill Lynch, Goldman, Sachs & Co. and D.A. Davidson & Co. are acting as
representatives (in such capacity, the "Representatives"), with respect to (i)
the sale by the Selling Stockholders, acting severally and not jointly,
_____________
GOLDMAN, SACHS & CO. – Corp. I, its general partner
By:_____________________________________
Name:
Title:
33
{PAGE}
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
D.A. DAVIDSON & CO.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By_______________________________________________
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
34
{
_____________
GOLDMAN, SACHS & CO. – PAGE}
Form of lock-up from directors, officers or other stockholders pursuant to
Section 5(l)
Exhibit D
November _, 2001
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
GOLDMAN, SACHS & CO.
D.A. DAVIDSON & CO.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
_____________
Goldman, Sachs & Co. – and an officer and/or director of Plum
Creek Timber Company, Inc., a Delaware corporation (the "Company"), understands
that Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), Goldman, Sachs & Co. and D.A. Davidson propose to enter into
a Purchase Agreement (the "Purchase Agreement") with the Company and PC Advisory
Partners I, L.P. and PCMC Intermediate Holdings, L.
_____________
dt 1488906
;
|
Lehman Brothers
As referenced in this Purchase Agreement:
Lehman Brothers Inc – Underwriter Securities
------------------- ----------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated ............................. 2,475,050
Goldman, Sachs & Co .................................. 2,475,050
D. A. Davidson & Co. ................................. 824,950
Credit Suisse First Boston Corporation ............... 824,950
Lehman Brothers Inc . ................................. 225,000
Morgan Stanley & Co. Incorporated .................... 225,000
Salomon Smith Barney Inc. ............................ 225,000
UBS Warburg LLC ...................................... 225,000
Total ................................................ 7,500,000
Sch A-1
{PAGE}
SCHEDULE B
_____________
dt 1511773
;
Merrill Lynch
As referenced in this Purchase Agreement:
MERRILL LYNCH & CO – D-1
{/TABLE}
vi
{PAGE}
PLUM CREEK TIMBER COMPANY, INC.
(a Delaware corporation)
7,500,000 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
------------------
November 15, 2001
MERRILL LYNCH & CO .
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Goldman, Sachs & Co.
D.A. Davidson & Co.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
_____________
Merrill Lynch & Co – Share)
PURCHASE AGREEMENT
------------------
November 15, 2001
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Goldman, Sachs & Co.
D.A. Davidson & Co.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co .
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Plum Creek Timber Company, Inc., a Delaware corporation (the
"
_____________
Merrill Lynch & Co – 1209
Ladies and Gentlemen:
Plum Creek Timber Company, Inc., a Delaware corporation (the
"Company"), and the entities listed in Schedule B hereto (the "Selling
Stockholders"), confirm their respective agreements with Merrill Lynch & Co .,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), which is
acting as sole book-runner, and each of the other Underwriters named in Schedule
A hereto (collectively, the "Underwriters,"
_____________
MERRILL LYNCH & CO – I, L.P., its general
partner
By: PC Advisory Corp. I, its general partner
By:_____________________________________
Name:
Title:
33
{PAGE}
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO .
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
D.A. DAVIDSON & CO.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By_______________________________________________
Authorized Signatory
For themselves and as Representatives of
_____________
MERRILL LYNCH & CO – assumptions which we have not independently
verified.
C-1
{PAGE}
Form of lock-up from directors, officers or other stockholders pursuant to
Section 5(l)
Exhibit D
November _, 2001
MERRILL LYNCH & CO .
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
GOLDMAN, SACHS & CO.
D.A. DAVIDSON & CO.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/
_____________
dt 1467709
;
More... |
Preview
Full Doc
| 2001 |
Purchase Agreement
Purchase Agreement (145K)
Doc #383817: Click preview link for longer preview.
PLUM CREEK TIMBER COMPANY, INC.
a Delaware corporation
8,566,637 Shares of Common Stock
PURCHASE AGREEMENT
Dated: November -, 2001
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
{Page}
TABLE OF CONTENTS
{Table}
{S} {C} {C}
SECTION 1. Representations and Warranties..................................................3
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY.............................................3
(i) Compliance with Registration Requirements...........................................3
(ii) Incorporated Documents..............................................................4
(iii) Independent Accountants.............................................................4
(iv) Financial Statements................................................................4
(v) No Material Adverse Change in Business..............................................5
(vi) Good Standing of the Company........................................................5
(vii) Good Standing of Subsidiaries.......................................................6
(viii) Capitalization......................................................................6
(ix) Authorization of Agreement..........................................................6
(x) Description of Securities...........................................................6
(xi) Absence of Defaults and Conflicts...................................................7
(xii) Absence of Proceedings..............................................................7
(xiii) Accuracy of Exhibits................................................................8
(xiv) Absence of Further Requirements.....................................................8
(xv) Possession of Licenses and Permits..................................................8
(xvi) Title to Property...................................................................8
(xvii) Investment Company Act..............................................................9
(xviii) Environmental Laws..................................................................9
(xix) REIT................................................................................9
{/Table}
i
{Page}
{Table}
{S} {C} {C}
(xx) Registration Rights................................................................10
(xxi) NYSE Listing.......................................................................10
(b) REPRESENTATIONS AND WARRANTIES BY THE SELLING STOCKHOLDERS...............................10
(i) Accurate Disclosure................................................................10
(ii) Authorization of Agreements........................................................10
(iii) Good and Marketable Title..........................................................11
(iv) Absence of Manipulation............................................................11
(v) Absence of Further Requirements....................................................11
(vi) Restriction on Sale of Securities..................................................11
(vii) No Association with NASD...........................................................12
(c) OFFICER'S CERTIFICATES...................................................................12
SECTION 2. Sale and Delivery to Underwriters; Closing.....................................13
(a) INITIAL SECURITIES.......................................................................13
(b) OPTION SECURITIES........................................................................13
(c) PAYMENT..................................................................................13
(d) DENOMINATIONS; REGISTRATION..............................................................14
SECTION 3. Covenants of the Company.......................................................14
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS...........................14
(b) FILING OF AMENDMENTS.....................................................................15
(c) DELIVERY OF REGISTRATION STATEMENTS......................................................15
(d) DELIVERY OF PROSPECTUSES.................................................................15
{/Table}
ii
{Page}
{Table}
{S} {C} {C}
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS................................................16
(f) BLUE SKY QUALIFICATIONS..................................................................16
(g) RULE 158.................................................................................17
(h) RESTRICTION ON SALE OF SECURITIES........................................................17
(i) REPORTING REQUIREMENTS...................................................................17
SECTION 4. Payment of Expenses............................................................17
(a) EXPENSES.................................................................................17
(b) EXPENSES OF THE SELLING STOCKHOLDERS.....................................................18
(c) TERMINATION OF AGREEMENT.................................................................18
(d) ALLOCATION OF EXPENSES...................................................................18
SECTION 5. Conditions of Underwriters' Obligations........................................19
(a) EFFECTIVENESS OF REGISTRATION STATEMENT..................................................19
(b) OPINION OF COUNSEL FOR COMPANY...........................................................19
(c) OPINION OF IN-HOUSE COUNSEL..............................................................19
(d) OPINION OF COUNSEL FOR THE SELLING STOCKHOLDERS..........................................19
(e) OPINION OF COUNSEL FOR UNDERWRITERS......................................................19
(f) OFFICERS' CERTIFICATE....................................................................20
(g) CERTIFICATE OF SELLING STOCKHOLDERS......................................................20
(h) ACCOUNTANT'S COMFORT LETTER..............................................................20
(i) BRING-DOWN COMFORT LETTER................................................................21
{/Table}
iii
{Page}
{Table}
{S} {C} {C}
(j) NO OBJECTION.............................................................................21
(k) LOCK-UP AGREEMENTS.......................................................................21
(l) CONDITIONS TO PURCHASE OF OPTION SECURITIES..............................................21
(i) Officers' Certificate..............................................................21
(ii) Certificate of Selling Stockholders................................................21
(iii) Opinion of Counsel for Company.....................................................21
(iv) Opinion of In-House Counsel........................................................22
(v) Opinion of Counsel for the Selling Stockholders....................................22
(vi) Opinion of Counsel for Underwriters................................................22
(vii) Bring-down Comfort Letter..........................................................22
(m) ADDITIONAL DOCUMENTS.....................................................................22
(n) TERMINATION OF AGREEMENT.................................................................22
SECTION 6. Indemnification................................................................23
(a) INDEMNIFICATION OF UNDERWRITERS BY THE COMPANY...........................................23
(b) INDEMNIFICATION OF UNDERWRITERS BY THE SELLING STOCKHOLDERS..............................24
(c) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS AND SELLING STOCKHOLDERS..............25
(d) ACTIONS AGAINST PARTIES; NOTIFICATION....................................................25
(e) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE.......................................26
(f) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION.........................................26
SECTION 7. Contribution...................................................................26
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.................28
{/Table}
iv
{Page}
{Table}
{S} {C} {C}
SECTION 9. Termination of Agreement.......................................................28
(a) TERMINATION; GENERAL.....................................................................28
(b) LIABILITIES..............................................................................29
SECTION 10. Default by One or More of the Underwriters.....................................29
SECTION 11. Default by one or more of the Selling Stockholders.............................30
SECTION 12. Notices........................................................................30
SECTION 13. Parties........................................................................31
SECTION 14. GOVERNING LAW AND TIME.........................................................31
SECTION 15. Effect of Headings.............................................................31
{/Table}
v
{Page}
{Table}
{S} {C} {C}
SCHEDULES
Schedule A - List of Underwriters..................................................Sch A-1
Schedule B - List of Selling Stockholders..........................................Sch B-1
Schedule C - Pricing Information...................................................Sch C-1
Schedule D - List of Subsidiaries..................................................Sch D-1
Schedule E - List of Persons subject to Lock-up....................................Sch E-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel.........................................A-1
Exhibit B - Form of Opinion of In-House Counsel..........................................B-1
Exhibit C - Form of Opinion for the Selling Stockholders.................................C-1
Exhibit D- Form of Lock-up Letter........................................................D-1
{/Table}
vi
{Page}
PLUM CREEK TIMBER COMPANY, INC.
(a Delaware corporation)
8,566,637 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
November _, 2001
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Goldman, Sachs & Co.
D.A. Davidson & Co.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Plum Creek Timber Company, Inc., a Delaware corporation (the
"Company"), and the entities listed in Schedule B hereto (the "Selling
Stockholders"), confirm their respective agreements with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), which is
acting as sole book-runner, and each of the other Underwriters named in Schedule
A hereto (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Merrill Lynch, Goldman, Sachs & Co. and D.A. Davidson & Co. are acting as
representatives (in such capacity, the "Representatives"), with respect to (i)
the sale by the Selling Stockholders, acting severally and not jointly, and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.01 per share,
1
{Page}
of the Company ("Common Stock") set forth in Schedules A and B hereto and (ii)
the grant by the Selling Stockholders to the Underwriters, acting severally and
not jointly, of the option described in Section 2(b) hereof to purchase all or
any part of 1,284,996 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 8,566,637 shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriters and all or any part of
the 1,284,996 shares of Common Stock subject to the option described in Section
2(b) hereof (the "Option Securities") are hereinafter called, collectively, the
"Securities".
The Company and the Selling Stockholders understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-72522) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
383817
|
Goldman, Sachs
As referenced in this Purchase Agreement:
Goldman, Sachs & Co. – INC.
(a Delaware corporation)
8,566,637 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
November _, 2001
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Goldman, Sachs & Co.
D.A. Davidson & Co.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New
_____________
Goldman, Sachs & Co. – the other Underwriters named in Schedule
A hereto (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Merrill Lynch, Goldman, Sachs & Co. and D.A. Davidson & Co. are acting as
representatives (in such capacity, the "Representatives"), with respect to (i)
the sale by the Selling Stockholders, acting severally and not jointly,
_____________
GOLDMAN, SACHS & CO. – Corp. I, its general
partner
By:______________________________________
Name:
Title:
32
{Page}
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
D.A. DAVIDSON & CO.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
-------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
33
{
_____________
Goldman, Sachs & Co. – of the other Underwriters named in
Schedule A hereto.
33
{Page}
SCHEDULE A
{Table}
{Caption}
{S} {C}
Number of
Initial
NAME OF UNDERWRITER Securities
----------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.................................
Goldman, Sachs & Co. ..............................................
D. A. Davidson & Co...............................................
Total............................................................. 8,566,637
{/Table}
Sch A-1
{Page}
SCHEDULE B
{Table}
{Caption}
Number of Initial Maximum Number of Option
Securities to be Sold Securities
_____________
GOLDMAN, SACHS & CO. – Page}
FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS PURSUANT TO
SECTION 5(l)
Exhibit D
November _, 2001
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
GOLDMAN, SACHS & CO.
D.A. DAVIDSON & CO.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
_____________
dt 1488907
;
Merrill Lynch
As referenced in this Purchase Agreement:
MERRILL LYNCH & CO – D-1
{/Table}
vi
{Page}
PLUM CREEK TIMBER COMPANY, INC.
(a Delaware corporation)
8,566,637 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
November _, 2001
MERRILL LYNCH & CO .
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Goldman, Sachs & Co.
D.A. Davidson & Co.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
_____________
Merrill Lynch & Co – Share)
PURCHASE AGREEMENT
November _, 2001
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Goldman, Sachs & Co.
D.A. Davidson & Co.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co .
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Plum Creek Timber Company, Inc., a Delaware corporation (the
"
_____________
Merrill Lynch & Co – 1209
Ladies and Gentlemen:
Plum Creek Timber Company, Inc., a Delaware corporation (the
"Company"), and the entities listed in Schedule B hereto (the "Selling
Stockholders"), confirm their respective agreements with Merrill Lynch & Co .,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), which is
acting as sole book-runner, and each of the other Underwriters named in Schedule
A hereto (collectively, the "Underwriters,"
_____________
MERRILL LYNCH & CO – I, L.P., its
general partner
By: PC Advisory Corp. I, its general
partner
By:______________________________________
Name:
Title:
32
{Page}
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO .
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
D.A. DAVIDSON & CO.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
-------------------------------------
Authorized Signatory
For themselves and as Representatives of
_____________
MERRILL LYNCH & CO – assumptions which we have not independently
verified.
C-1
{Page}
FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS PURSUANT TO
SECTION 5(l)
Exhibit D
November _, 2001
MERRILL LYNCH & CO .
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
GOLDMAN, SACHS & CO.
D.A. DAVIDSON & CO.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/
_____________
dt 1467710
;
|
Fried Frank
As referenced in this Purchase Agreement:
Fried,
Frank – any sales or
purchases of fractional shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Fried,
Frank , Harris, Shriver & Jacobson, One New York Plaza, New York, New York,
10004, or at such other place as
13
{Page}
shall be agreed upon by the Representatives and the
_____________
Fried, Frank – forth in Exhibit C hereto.
(e) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of
19
{Page}
Fried, Frank , Harris, Shriver & Jacobson, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the matters set forth
_____________
Fried, Frank – on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(d) hereof.
(vi) OPINION OF COUNSEL FOR UNDERWRITERS. The favorable
opinion of Fried, Frank , Harris, Shriver & Jacobson, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the
_____________
Fried, Frank – the
Underwriters shall be directed to the Representatives at North Tower, World
Financial Center, New York, New York
30
{Page}
10281-1201, attention of Dan Granirer, with a copy to Fried, Frank , Harris,
Shriver & Jacobson, One New York Plaza, New York, New York 10004, attention of
Valerie Ford Jacob; notices to the Company shall be directed to it at 999 Third
_____________
dt 1522961
;
Skadden
As referenced in this Purchase Agreement:
Skadden, Arps – the Commission in accordance with Rule
424(b).
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the
Representatives shall have received an opinion, dated as of Closing Time, of
Skadden, Arps , Slate, Meagher & Flom LLP, counsel for the Company, in form and
substance reasonably satisfactory to the Underwriters, together with signed or
reproduced copies of such letter for each of
_____________
Skadden, Arps – the certificate delivered at Closing Time pursuant to Section 5(f)
remains true and correct as of such Date of Delivery.
(iii) OPINION OF COUNSEL FOR COMPANY. An opinion of
Skadden, Arps , Slate, Meagher & Flom LLP, counsel for the Company, in
form and substance reasonably satisfactory to the Underwriters, dated
such Date of Delivery, relating to the Option Securities to be
_____________
Skadden, Arps – Valerie Ford Jacob; notices to the Company shall be directed to it at 999 Third
Avenue, Suite 2300, Seattle, Washington 98104, attention of James A. Kraft, with
a copy to Skadden, Arps , Slate, Meagher & Flom LLP, 300 South Grand Avenue, 34th
Floor, Los Angeles, California 90071, attention of Gregg A. Noel; and notices to
the Selling Stockholders shall be directed to
_____________
dt 1430930
;
Sullivan
As referenced in this Purchase Agreement:
Sullivan & Cromwell, – to the Underwriters may reasonably request.
(d) OPINION OF COUNSEL FOR THE SELLING STOCKHOLDERS. At Closing
Time, the Representatives shall have received an opinion, dated as of Closing
Time, of Sullivan & Cromwell, counsel for the Selling Stockholders, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the
_____________
Sullivan & Cromwell, – such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(c) hereof.
(v) OPINION OF COUNSEL FOR THE SELLING STOCKHOLDERS. An
opinion of Sullivan & Cromwell, counsel for the Selling Stockholders,
in form and substance reasonably satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased
_____________
Sullivan & Cromwell, – A. Noel; and notices to
the Selling Stockholders shall be directed to 591 Redwood Highway, Suite 3215,
Mill Valley, California 94941, attention of William J. Patterson, with a copy to
Sullivan & Cromwell, 1888 Century Park East, Los Angeles, California 90067,
attention of Alison S. Ressler.
SECTION 13. PARTIES. This Agreement shall each inure to
the benefit of and be binding upon
_____________
dt 1341451
|
Preview
Full Doc
| 2006 |
Purchase Agreement
Purchase Agreement (93K)
Doc #1566419: Click preview link for longer preview.
Exhibit 1.1
PLUM CREEK TIMBERLANDS, L.P.
5.875% Notes due 2015
Fully and Unconditionally Guaranteed by
PLUM CREEK TIMBER COMPANY, INC.
a Delaware corporation
PURCHASE AGREEMENT
Dated:
April 25, 2006
Table of Contents
SECTION 1.
Representations and Warranties.
2
(a)
Representations and Warranties by the Company and the Operating
Partnership
2
. . .
1566419
|
BofA Securities
As referenced in this Purchase Agreement:
Banc of America Securities LLC – 1
v
PLUM CREEK
TIMBERLANDS, L.P.
$225,000,000
5.875% Notes due 2015
Fully and Unconditionally Guaranteed by
PLUM CREEK TIMBER COMPANY, INC.
PURCHASE AGREEMENT
April 25, 2006
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Ladies and Gentlemen:
Plum Creek
Timberlands, L.P., a Delaware limited partnership (the “Operating Partnership”),
and Plum Creek
_____________
Banc of America Securities LLC – Timberlands, L.P., a Delaware limited partnership (the “Operating Partnership”),
and Plum Creek Timber Company, Inc., a Delaware corporation (the “Company”),
confirm their respective agreements with Banc of America Securities LLC (the “Underwriter”),
with respect to the sale by the Operating Partnership and the purchase by the
Underwriter of $225,000,000 principal amount of the Operating Partnership&#
_____________
Banc of
America Securities LLC – be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriter shall be directed to Banc of
America Securities LLC , 40 West 57th Street, 27th Floor,
New York, New York 10019, attention of High Grade Debt Capital Markets
Transaction Management, with a copy to Sidley Austin LLP, 787 Seventh
_____________
BANC OF AMERICA SECURITIES LLC – COMPANY, INC.
By:
/s/ William R. Brown
Name:
William R. Brown
Title:
Executive Vice President and
Chief Financial Officer
25
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By:
/s/ Lily Chang
Name:
Lily Chang
Title:
Principal
26
SCHEDULE A
ISSUER FREE
WRITING PROSPECTUSES
A-1
FINAL TERM SHEET
Issuer:
Plum Creek Timberlands, L.P.
Guarantor:
Plum
_____________
Banc of America Securities LLC – Spot:
5.073 (% yield)
Coupon Dates:
May 15 and November 15
Next Coupon:
May 15, 2006
Settlement:
T+5 (May 2, 2006)
Optional Redemption:
M/W + 25 bps
Sole Underwriter:
Banc of America Securities LLC
The issuer has filed a registration statement
(including a prospectus) with the Securities and Exchange Commission for the
offering to which this communication relates. Before you invest, you should
_____________
dt 1687835
;
|
U.S. Bank, NA
As referenced in this Purchase Agreement:
U.S. Bank National
Association, – Securities, the “Securities”) by the Company. The
Securities will be issued pursuant to an Indenture, dated as of November 14,
2005, among the Operating Partnership, the Company and U.S. Bank National
Association, as trustee (the “Trustee”), as supplemented by officer’s
certificates, dated November 14, 2005 and May 2, 2006 (such Indenture as
amended or supplemented is herein
_____________
dt 1643007
;
Skadden
As referenced in this Purchase Agreement:
Skadden, Arps – 160; Opinion of Counsel for the
Operating Partnership and the Company. At Closing Time, the Underwriter
shall have received an opinion, dated as of Closing Time, of Skadden, Arps ,
Slate, Meagher & Flom LLP, counsel for the Operating Partnership and the
Company, in form and substance reasonably satisfactory to the Underwriter, to
the effect set forth in Exhibit
_____________
Skadden, Arps – to the Operating Partnership and the Company shall be directed to it at
999 Third Avenue, Suite 2300, Seattle, Washington 98104, attention of James A.
Kraft, with a copy to Skadden, Arps , Slate, Meagher & Flom LLP, 300 South
Grand Avenue, 34th Floor, Los Angeles, California 90071, attention of
Gregg A. Noel.
SECTION 12. &#
_____________
dt 1667870
|
Preview
Full Doc
| 2003 |
Real Estate Sales Contract [Form]
Real Estate Sales Contract [Form] (76K)
Doc #383790: Click preview link for longer preview.
Ownership No. _________
FORM OF REAL ESTATE SALES CONTRACT
[Greenwood Tract; Kedron Tract; White Mountain Tree Farm]
Date: July 2, 2003
Compartment No. __________
[Greenwood Tract Only] PLUM CREEK TIMBERLANDS, L.P., a Delaware limited partnership, PLUM CREEK LAND COMPANY, a Delaware corporation, and PLUM CREEK MARKETING, INC., a Delaware corporation, hereinafter collectively referred to as Buyer, hereby agrees to purchase from GREAT EASTERN TIMBER COMPANY LLC, a Delaware limited liability company, hereinafter referred to as Seller, and Seller hereby agrees to sell and convey to Buyer that certain real estate described in Exhibit A attached hereto and made a part hereof, and Sellers right, title and interest in and to the timber deed described on Exhibit B attached hereto and made a part hereof (the Timber Deed), and the building described on Exhibit C attached hereto and made a part hereof hereinafter collectively referred to as the Property, upon the following terms and conditions:
[Kedron Tract Only] PLUM CREEK TIMBERLANDS, L.P., a Delaware limited partnership, PLUM CREEK LAND COMPANY, a Delaware corporation, and PLUM CREEK MARKETING, INC., a Delaware corporation, hereinafter collectively referred to as Buyer, hereby agrees to purchase from GREAT EASTERN TIMBER COMPANY LLC, a Delaware limited liability company, hereinafter referred to as Seller, and Seller hereby agrees to sell and convey to Buyer that certain real estate described in Exhibit A attached hereto and made a part hereof hereinafter referred to as the Property, upon the following terms and conditions:
[White Mountain Tree Farm Only] PLUM CREEK MAINE TIMBERLANDS, LLC, a Delaware limited liability company, PLUM CREEK LAND COMPANY, a Delaware corporation, and PLUM CREEK MAINE MARKETING, INC., a Delaware corporation, hereinafter collectively referred to as Buyer, hereby agrees to purchase from GREAT EASTERN TIMBER COMPANY LLC, a Delaware limited liability company, hereinafter referred to as Seller, and Seller hereby agrees to sell and convey to Buyer that certain real estate described in Exhibit A attached hereto and made a part hereof hereinafter referred to as the Property, upon the following terms and conditions:
1. Purchase Price:
(a) Buyer hereby agrees to pay for said Property the amount of [One Hundred Sixty-Two Million Dollars ($162,000,000.00) for all tracts] (Purchase Price). [Two Million and Twenty Thousand Dollars (collectively, $2,020,000.00) for all tracts] (Initial Deposit) has been delivered by check payable by Buyer to Seller, and Seller will further transfer the Initial Deposit to Escrow Agent promptly following the execution of this Contract. Buyer will also cause the Additional Deposit, if applicable, to be paid as set forth in Section 3(e) below (the Initial Deposit and the Additional Deposit, if any, being referred to herein as Deposit) and the balance of the Purchase Price shall be paid by Buyer to Seller at the Closing described in Paragraph 4 below; said Purchase Price to be paid to Seller in cash, by official bank cashiers check, or by wiring immediately available Federal Funds to the Escrow Agent as described below.
(b) Purchase Price Adjustment for Permitted Thinning Volume [Greenwood and Kedron Tracts Only]. The parties acknowledge and agree that the Purchase Price takes into consideration the amount of timber contemplated to be harvested from the Property by Seller by reason of thinning operations from the date of the inventory provided to Buyer by Seller (January 1, 2003) (the January Inventory) through June 30, 2003 (such amount contemplated to be harvested during such six-month period by reason of thinning operations pursuant to the January Inventory being referred to herein as the Permitted Thinning Volume). The Buyer and Seller acknowledge that due to weather, the Seller will not have harvested the Permitted Thinning Volume by June 30, 2003 and that Seller shall be permitted to continue thinning harvesting activity pursuant to the cutting contracts as specifically described on Exhibit D hereto until the Closing Date hereunder in an amount up to the Permitted Thinning Volume. Seller shall, within five (5) business days following Closing, provide to Buyer and its accountants with reasonable access to the relevant portions of Sellers books, records, accounting and other documents reasonably necessary to confirm the actual amount of timber harvested by reason of thinning operations by species and product mix from the period commencing January 1, 2003 through Closing. In the event that, based upon Buyers review of such books, records and documents, Buyer reasonably determines that the actual amount of timber harvested by reason of thinning operations by species and product mix from January 1, 2003 through Closing exceeded the Permitted Thinning Volume by more than ten percent (10%) of the stumpage value of the Permitted Thinning Volume (such stumpage value to be based on published data contained in Timber Mart South for Quarter 1, 2003, [Arkansas Region 1 (Kedron Tract); South Carolina Region 2 (Greenwood Tract)]), Buyer shall submit a harvesting report (the Harvesting Report) to Seller setting forth the basis for this determination. Buyer must submit such Harvesting Report not later than fifteen (15) business days after Buyers receipt of the harvesting data from Seller. In the event Buyer fails to provide such Harvesting Report to Seller within such fifteen day period, Buyer shall be deemed to have accepted the amount of timber harvested by reason of thinning operations without any post closing adjustment to the Purchase Price. Seller shall have 10 days from Sellers receipt of the Harvesting Report to review such report and to deliver a notice of any reasonable dispute regarding the determination made by Buyer (Harvesting Dispute Notice). In the event that Seller does not deliver a Harvesting Dispute Notice within such ten day period, the Harvesting Report shall be deemed accepted by Seller. The Purchase Price shall be adjusted post Closing by an amount equal to the stumpage value of such excess harvested timber by reason of thinning operations as reflected on the applicable Harvesting Report and applicable Harvesting Dispute Notice accepted (or deemed accepted by Buyer and Seller) (based on the value of the species and product mix as reflected in Timber Mart South, Quarter 1, 2003, [Arkansas Region 1 (Kedron Tract); South Carolina Region 2 (Greenwood Tract)]). In the event Seller and Buyer are unable to agree upon the Harvesting Report and Harvesting Dispute Notice to determine the stumpage value for such excess harvested timber by reason of thinning operations, the provisions of Paragraph 13(c) shall apply. The Seller shall pay to the Buyer the applicable amount determined for adjustment of the Purchase Price within thirty days of the date of Closing, subject to extension, if applicable, to resolve any dispute in accordance with Section 13(c) hereof; provided, however, that notwithstanding anything to the contrary set forth herein, the adjustment to the Purchase Price made pursuant to this Section 1(b) is to be made as a post Closing obligation of Seller to Buyer, and shall not delay the payment of the Purchase Price by Buyer to Seller at Closing. The obligation to adjust the Purchase Price under this paragraph shall survive Closing. The Cutting Contracts described on Exhibit D which remain in effect and survive closing shall be assigned to and assumed by Buyer at Closing pursuant to an Assignment and Assumption Agreement in a form reasonably acceptable to Seller and Buyer, subject to pro-ration of the amounts payable thereunder as of the Closing Date, and further subject to the adjustment in Purchase Price as described in this paragraph (it being understood that certain of such Cutting Contracts listed on Exhibit D will be completed and terminated prior to Closing and certain of such Cutting Contracts will continue following Closing).
(c) Purchase Price Adjustment for Clear Cut Contracts [Greenwood and Kedron Tracts Only]. The parties acknowledge that the Purchase Price takes into consideration that the Seller (x) has entered into clear cut contracts for all of the timber on the parcels described on Exhibit G hereto (the Existing Clear Cut Contracts) and (y) will, prior to Closing, enter into clear cut contracts for the parcels described on Exhibit H hereto (the Additional Clear Cut Contracts; the Existing Clear Cut Contracts and the Additional Clear Cut Contracts are hereinafter collectively referred to as the Clear Cut Contracts). The Seller has been and/or will be paid in full for the entire amount of such Clear Cut Contracts prior to Closing, and the Seller shall be entitled to retain such proceeds of the Clear Cut Contracts without any adjustment to the Purchase Price except as set forth below in this paragraph. The Seller will deliver the Existing Clear Cut Contracts to Buyer within ten (10) days after execution of this Contract. The Seller will deliver the Additional Clear Cut Contracts to Buyer within 10 business days of the execution thereof and such Additional Clear Cut Contracts must be substantially in the same form as the Existing Clear Cut Contracts and shall only cover the parcels described on Exhibit H. The Seller will, upon delivery of the last Additional Clear Cut Contract to Buyer, notify Buyer in writing (Final Clear Cut Notice) that all of the Clear Cut Contracts (including any Additional Clear Cut Contracts) have been delivered to Buyer (it being the intent that there will be no further Clear Cut Contracts executed after the date of such notice), and Buyer shall have 15 business days after the date of the Final Clear Cut Notice (the Clear Cut Review Period) to compare the actual parcels covered by the Clear Cut Contracts with the data contained in the January Inventory to determine if the acreage covered by the Clear Cut Contracts matches with the data provided in the January Inventory. Seller shall, during the Clear Cut Review Period, provide to Buyer and its accountants with reasonable access to the relevant portions of Sellers books, records, accounting and other documents reasonably necessary to confirm the actual amount of acreage covered by such Clear Cut Contracts. In the event that, based upon such January Inventory, books, records and documents, either Buyer or Seller reasonably determines during the Clear Cut Review Period that the actual amount of acreage covered by such Clear Cut Contracts varies from the data contained in the January Inventory by more that 5% of the total acres subject to Clear Cutting as set forth on Exhibits G and H, then either Buyer or Seller may submit a clear cut reconciliation report (the Clear Cut Report) to the other setting forth the basis for this determination on or before the end of the Clear Cut Review Period. The party receiving the Clear Cut Report shall have 5 business days to review such report and to deliver to the other party a notice of any reasonable dispute regarding the determination made in the Clear Cut Report (Clear Cut Dispute Notice). In the event that the applicable party does not deliver a Clear Cut Dispute Notice within such 5 business day period, the Clear Cut Report shall be deemed accepted by such party. The Purchase Price shall be adjusted at Closing either up or down by an amount equal to the variance in the number of acres times the average price per acre defined in any Clear Cut Contract which is the subject of such variance. In the event Seller and Buyer are unable to agree upon the Clear Cut Report and Clear Cut Dispute Notice to determine the adjustment in the Purchase Price for such Clear Cut acreage variance, as aforesaid, then the provisions of Paragraph 13(c) shall apply. To the extent that harvesting activities have not been completed on any Clear Cut Contract at Closing any such Clear Cut Contract will be assigned by Seller and assumed by Buyer at Closing pursuant to an Assignment and Assumption Agreement in a form reasonably acceptable to Seller and Buyer.
383790
| |
Womble Carlyle
As referenced in this Real Estate Sales Contract [Form]:
Womble Carlyle – John J. Delaney Drive, Suite 203
Charlotte, NC 28277
Attention: David Kimbrough
Manager, Land Sales and Asset Evaluation
Telephone: (704) 540-4102
Email: dkimbrough@hnrg.com
with a copy to:
Womble Carlyle Sandridge & Rice, PLLC
One West Fourth Street
Winston-Salem, NC 27101
Attention: Hardin G. Halsey, Esq.
Telephone: 336-721-3511
Telecopy: 336-733-8397
Email: hhalsey@wcsr.com
_____________
dt 1054545
|
Preview
Full Doc
| 2001 |
Registration Rights Agreement
Registration Rights Agreement (59K)
Doc #383818: Click preview link for longer preview.
REGISTRATION RIGHTS AGREEMENT
Dated as of July 1, 1999
between
PLUM CREEK TIMBER COMPANY, INC.
and
THE PARTIES NAMED HEREIN
TABLE OF CONTENTS
PAGE
Section 1.
Definitions
1
Section 2.
Demand Registrations
2
Section 3.
Piggyback Registrations
4
Section 4.
Hold-back Agreements
5
Section 5.
Registration Procedures
6
Section 6.
Registration Expenses
9
Section 7. . . .
383818
| |
Skadden
As referenced in this Registration Rights Agreement:
Skadden, Arps – Timber Company, Inc.
999 Third Avenue, Suite 2300
Seattle, Washington 98104
(206) 467-3799 (fax)
Attention: President and Chief Executive Officer
with a copy (which shall not constitute notice) to:
Skadden, Arps , Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
(213) 687-5600 (fax)
Attention: Jonathan H. Grunzweig, Esq.
or to such other address
_____________
dt 1023683
|
Preview
Full Doc
| 2004 |
Stock Option and Dividend Equivalent Award Agreement [Form] [Amended and Restated]
Stock Option and Dividend Equivalent Award Agreement [Form] [Amended and Restated] (13K)
Doc #383773: Click preview link for longer preview.
FORM OF AMENDED AND RESTATED
STOCK OPTION AND DIVIDEND EQUIVALENT AWARD AGREEMENT
This AMENDED AND RESTATED STOCK OPTION AND DIVIDEND EQUIVALENT AWARD AGREEMENT (?Agreement?) dated the date set forth in the Acceptance attached hereto amends and restates in its entirety that certain Stock Option and Dividend Equivalent Award Agreement dated as of February 2, 2004 (the ?Grant Date?), between Plum Creek Timber Company, Inc., a Delaware corporation (the ?Company?), and [Name of Director] (?Director?), a director of the Company. Terms used herein, . . .
383773
| | |
| Full Doc
| 2004 |
Subsidiaries of the Registrant
Subsidiaries of the Registrant (1K)
Doc #383786: This document is immediately available for purchase, but does not have a preview available for viewing.
383786
| | |
Preview
Full Doc
| 2001 |
Tax Opinion Insurance Policy
Tax Opinion Insurance Policy (52K)
Doc #383851: Click preview link for longer preview.
GULF INSURANCE COMPANY
TAX OPINION INSURANCE POLICY
THIS TAX OPINION INSURANCE POLICY dated ______, 2001, (the "POLICY") is
for the benefit of the INSURED and the Additional Insured as provided herein and
is issued by the INSURER.
WHEREAS, Insured anticipates entering into the Transaction; and
WHEREAS, in connection with the Transaction, Insured intends to fulfill
its obligations under the Merger Agreement, a copy of which is attached as
Exhibit I to this Policy; and
WHEREAS, Insured anticipates receiving Insured Tax Benefits in
conjunction with the Transaction and the Insured and Plum Creek have obtained
the Opinions of McDermott, Will & Emery and Skadden, Arps, Slate, Meagher & Flom
LLP, respectively, copies of which are attached as Exhibit II to this Policy;
and
WHEREAS, Insurer has consulted with its own legal and tax advisors and
has been afforded the opportunity to undertake its own independent
investigation; and
WHEREAS, Insured will claim the Insured Tax Benefits for United States
Federal income tax purposes as described in the Opinions; and
WHEREAS, Insured desires, and Insurer has agreed to provide, a policy
of Tax Opinion Insurance in favor of Insured and Additional Insured in respect
of an Insured Tax Loss; and
WHEREAS, Plum Creek may become an Additional Insured under this Policy
upon the occurrence of an Additional Insured Event, and
WHEREAS, the premium for this Policy has been paid to the Insurer in
accordance with the provisions below.
{PAGE}
NOW, THEREFORE, subject to the terms, conditions, exclusions, Contest
Expenses Retention, and Limit of Liability herein set forth, Insurer, Insured,
and Plum Creek (potentially an Additional Insured) agree as follows:
SECTION 1. INSURING CLAUSE. The Insurer shall indemnify Insured (but
not its shareholders) for any Insured Tax Loss sustained directly by Insured,
provided the Insured gives notice to Insurer of a Claim for such indemnification
as provided in Section 4 below. In the event of an Additional Insured Event, as
set forth in Section 5(a) below, the Insurer shall indemnify Additional Insured
(but not its stockholders) for any Insured Tax Loss only as provided herein.
SECTION 2. AMOUNT OF PAYMENT.
(a) LIMIT OF LIABILITY. The Insurer's maximum aggregate liability under
this Policy for all Insured Tax Loss, including Contest Expenses, Gross Ups,
Penalties, and Interest owed by one or both the Insured and Additional Insured
to the IRS or applicable state or local taxing authority, is $50,000,000.
(b) CONTEST EXPENSES RETENTION. Either or both the Insured and
Additional Insured shall be responsible for the first $500,000 of Contest
Expenses.
(c) CO-INSURANCE. Excess of the Contest Expense Retention, the Insurer
shall pay eighty five percent (85%) of Insured Tax Loss up to $30,000,000. The
Insurer shall pay one hundred percent (100%) of Insured Tax Loss in excess of
$30,000,000, excess of the Contest Expense Retention.
THE CONTEST EXPENSES RETENTION AND CO-INSURANCE SPECIFIED IN THIS
SECTION 2(B)AND (C) FURTHER LIMITS AND DOES NOT INCREASE THE INSURER'S LIABILITY
UNDER THIS POLICY, AND SHALL NOT LIMIT INSURED'S OR ADDITIONAL INSURED'S
OBLIGATION TO CONTEST AN INSURED TAX LOSS.
(d) LIMIT OF LIABILITY REDUCTIONS. The Limit of Liability under this
Policy shall be reduced by the amount of Insured Tax Loss which is paid by
Insurer and which is subject to such Limit of Liability. If Insurer pays the
full amount of its then remaining Limit of Liability, all further liabilities
and obligations of Insurer under this Policy with respect to Insured Tax Loss or
Contest Expenses, respectively, shall cease.
(e) LOSS COMPUTATION. For purposes of this Policy, the Insured Tax Loss
shall be 37% of all Insured Tax Benefits not legally available to the Insured or
Additional Insured, plus Contest Expenses, Gross Ups, Penalties, and Interest,
less any Offsetting Benefit. In the event that the Insured Tax Loss is owed by
the Insured or Additional Insured only to any applicable state or local taxing
authority, the Insured Tax Loss will be the actual lost Insured Tax Benefit
(which will be based upon any applicable state/local tax rates) and which will
be computed at the time of the Insured Tax Loss, less any Offsetting Benefit.
SECTION 3. PROCEDURE FOR & TIME OF PAYMENT
1
{PAGE}
(a) IN GENERAL. Payment of Claims shall be made to Insured or
Additional Insured, at the addresses set forth in Section 9 below, on the later
of (1) thirty (30) Business Days after the Receipt by Insurer of a sworn Proof
of Loss from Insured or Additional Insured in the form attached hereto as
Schedule A, or (2) if Insured or Additional Insured has commenced a Contest of
an Insured Tax Loss, fifteen (15) Business Days after notice to Insurer of the
end of the Contest, unless there has been an earlier payment of such contested
Insured Tax Loss, with Insurer's consent. The filing of an Interim Proof of
Loss, as provided in Section 4(b) of this Policy, does not require Insurer to
pay under this Policy.
(b) INTEREST. If Insurer fails to pay to Insured or Additional Insured
a Claim within the time period set forth in Section 3(a) above, the amount of
such Claim shall be paid to Insured or Additional Insured by Insurer with
interest thereon, accruing from the date such amount was due and payable, at the
prime rate announced by Citibank, N.A. in New York, New York, as in effect from
time to time.
(c) ALLOCATION AND PAYMENT OF CONTEST EXPENSES. If the Insured or
Additional Insured is involved in a Contest simultaneously with a contest of any
matter pertaining to any actual or alleged tax liability of the Insured or
Additional Insured that does not involve an Insured Tax Benefit, the Insured or
Additional Insured and the Insurer shall fairly and reasonably allocate the
contest costs, subject to Section 2(b) above, between matters related to an
Insured Tax Benefit and matters that are not related to an Insured Tax Benefit
If there is an agreement on an allocation of contest costs, or if the
Contest involves only an Insured Tax Benefit, the Insurer shall pay those costs
allocated to covered Contest Expenses, subject to Section 2(b) above, every
ninety (90) days, commencing ninety days after the Contest has commenced.
If there is no agreement on an allocation of contest costs, the Insurer
shall pay, every ninety (90) days commencing ninety (90) days after the Contest
has commenced, those Contest Expenses, subject to Section 2(b) above, that the
Insurer, in its reasonable discretion, believes to be covered Contest Expenses
under this Policy until a different allocation is negotiated, arbitrated or
judicially determined.
Any negotiated, arbitrated or judicially determined allocation of
contest costs on account of an Insured Tax Loss shall be applied retroactively
to all contest costs on account of the Insured Tax Loss, notwithstanding any
prior payment to the contrary. Any allocation or payment of Contest Expenses
shall not apply to or create any presumption with respect to the allocation of
contest costs associated with any other Insured Tax Benefit.
Any payment of Contest Expenses under this Policy shall be subject to
the Insurer's receipt of a written undertaking by the Insured or Additional
Insured to repay the Insurer, to the extent legally permitted, any advanced
Contest Expenses that are ultimately established not to be covered Contest
Expenses, as defined herein.
NOTWITHSTANDING THE CONTEST EXPENSES RETENTION AND CO-INSURANCE
SPECIFIED IN SECTION 2(b) AND 2(c) ABOVE, IT IS A CONDITION PRECEDENT TO PAYMENT
383851
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Citibank
As referenced in this Tax Opinion Insurance Policy:
Citibank, N.A. – Claim shall be paid to Insured or Additional Insured by Insurer with
interest thereon, accruing from the date such amount was due and payable, at the
prime rate announced by Citibank, N.A. in New York, New York, as in effect from
time to time.
(c) ALLOCATION AND PAYMENT OF CONTEST EXPENSES. If the Insured or
Additional Insured is involved in a
_____________
Citibank, N.A. – to Insurer by Insured or
Additional Insured with interest thereon, accruing from the date of such
determination or receipt by Insured or Additional Insured, at the prime rate
announced by Citibank, N.A. in New York, New York, as in effect from time to
time.
SECTION 9. NOTICES.
(a) TO INSURED. Any notice or other communication to be given to
Insured shall
_____________
dt 1478239
;
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McDermott Will
As referenced in this Tax Opinion Insurance Policy:
McDermott, Will – as
Exhibit I to this Policy; and
WHEREAS, Insured anticipates receiving Insured Tax Benefits in
conjunction with the Transaction and the Insured and Plum Creek have obtained
the Opinions of McDermott, Will & Emery and Skadden, Arps, Slate, Meagher & Flom
LLP, respectively, copies of which are attached as Exhibit II to this Policy;
and
WHEREAS, Insurer has consulted with its own legal
_____________
McDermott, Will – to all the rights and remedies of Insured or Additional Insured in
respect of such Insured Tax Loss; provided, however, that the Insurer shall not
have any subrogation rights against McDermott, Will & Emery or Skadden, Arps,
Slate, Meagher & Flom LLP or any individual attorney or employee thereof. The
Insurer shall be entitled at its own expense to sue on its own
_____________
McDermott, Will – if made in a writing and Received by:
Georgia-Pacific Corporation 133
Peachtree Street, N.E.
Atlanta, GA 30303
Attention: Pat Evers, Director of Risk Management
with a copy to:
McDermott, Will & Emery
600 13th Street, NW
Washington, DC 20005
Attention: Stephen E. Wells
(b) TO ADDITIONAL INSURED. Any notice or other communication to be
given to Additional Insured shall be
_____________
McDermott, Will – by
using eight percent (8%) discount rate; provided, however, that the Offsetting
Benefits shall not exceed the amount otherwise due and payable by Insurer.
"OPINION(S)" means the opinions of McDermott, Will & Emery and Skadden,
Arps, Slate, Meagher & Flom LLP, copies of which are attached as Exhibit II to
this Policy.
"PENALTIES" mean penalties imposed under the Code or comparable state
_____________
dt 1436005
;
Skadden
As referenced in this Tax Opinion Insurance Policy:
Skadden, Arps – this Policy; and
WHEREAS, Insured anticipates receiving Insured Tax Benefits in
conjunction with the Transaction and the Insured and Plum Creek have obtained
the Opinions of McDermott, Will & Emery and Skadden, Arps , Slate, Meagher & Flom
LLP, respectively, copies of which are attached as Exhibit II to this Policy;
and
WHEREAS, Insurer has consulted with its own legal and tax advisors and
_____________
Skadden, Arps – and remedies of Insured or Additional Insured in
respect of such Insured Tax Loss; provided, however, that the Insurer shall not
have any subrogation rights against McDermott, Will & Emery or Skadden, Arps ,
Slate, Meagher & Flom LLP or any individual attorney or employee thereof. The
Insurer shall be entitled at its own expense to sue on its own for any
independent rights
_____________
Skadden, Arps – in writing and
Received by:
Plum Creek Timber Company, Inc.
999 Third Avenue, Suite 2300
Seattle, WA 98104
Attention: James Kraft
Vice President, General Counsel & Secretary
with a copy to:
Skadden, Arps , Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036-6522
Attention: Edward Gonzalez
(c) TO INSURER. Any notice or other communication to be given to
Insurer shall
_____________
Skadden,
Arps – 8%) discount rate; provided, however, that the Offsetting
Benefits shall not exceed the amount otherwise due and payable by Insurer.
"OPINION(S)" means the opinions of McDermott, Will & Emery and Skadden,
Arps , Slate, Meagher & Flom LLP, copies of which are attached as Exhibit II to
this Policy.
"PENALTIES" mean penalties imposed under the Code or comparable state
law with respect to
_____________
dt 1430931
|
Preview
Full Doc
| 2001 |
Voting Agreement and Consent [Amendment No. 1]
Voting Agreement and Consent [Amendment No. 1] (11K)
Doc #383860: Click preview link for longer preview.
AMENDMENT NO. 1
TO VOTING AGREEMENT AND CONSENT
This Amendment No. 1 to Voting Agreement and Consent, dated as
of June 12, 2001 (this "Amendment"), to the Voting Agreement, dated as of July
18, 2000 (the "Voting Agreement"), by and among Plum Creek Timber Company, Inc.,
a corporation organized under the laws of the state of Delaware (the "Company"),
Georgia-Pacific Corporation, a corporation organized under the laws of the state
of Georgia ("Georgia-Pacific"), and each other person set forth on the signature
pages hereof. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Voting Agreement.
WHEREAS, concurrently with the execution and delivery of the
Voting Agreement, the Company, Georgia-Pacific and the direct or indirect wholly
owned subsidiaries of Georgia-Pacific (collectively, the "Spincos") entered into
an Agreement and Plan of Merger, dated as of July 18, 2000 (the "Merger
Agreement"), pursuant to which each of the Spincos will be merged with and into
the Company, with the Company being the surviving corporation in the merger;
WHEREAS, the Company, Georgia-Pacific and the Spincos intend
concurrently with the execution of this Amendment to execute Amendment No. 1 to
the Merger Agreement in order to provide for certain changes to the terms and
conditions thereof (the "Merger Agreement Amendment"); and
WHEREAS, the parties to this Amendment now desire to amend and
reaffirm certain provisions of the Voting Agreement in accordance with Section
10(j) of the Voting Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
1. The first recital of the Voting Agreement is hereby amended
to delete such recital in its entirety and insert in its stead the following:
"WHEREAS, the Company, Georgia-Pacific and the direct or
indirect wholly owned subsidiaries of Georgia-Pacific party thereto
(collectively, the "Spincos") entered into an Agreement and Plan of Merger,
dated as of July 18, 2000, as amended by Amendment No. 1 to Agreement and Plan
of Merger, dated as of June 12, 2001, attached as Exhibit A hereto (the "Merger
Agreement"), pursuant to which each of the Spincos will be merged with and into
the Company, with the Company being the surviving corporation in the merger (the
"Merger");".
2. The second recital of the Voting Agreement is hereby
amended to delete
{PAGE}
the word "Triton" and insert in its stead the words "Timber Group" in the second
line thereto.
3. Section 1 of the Voting Agreement is hereby amended to
insert the defined term "Principals" to read as follows in its entirety:
"Principals" shall mean Messrs. William E. Oberndorf, William
J. Patterson and John H. Scully, collectively.
4. Section 2(a) of the Voting Agreement is hereby amended as
follows:
(a) to add the words "and each Principal hereby irrevocably
consents to such election" to the end of the first sentence.
(b) to add the words "and Principal" after the words "Each
383860
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Preview
Full Doc
| 2000 |
Voting Agreement and Consent
Voting Agreement and Consent (25K)
Doc #383872: Click preview link for longer preview.
VOTING AGREEMENT AND CONSENT
VOTING AGREEMENT AND CONSENT (this "Agreement"), dated as of July 18,
2000, by and among Plum Creek Timber Company, Inc., a corporation organized
under the laws of the state of Delaware (the "Company"), Georgia-Pacific
Corporation, a corporation organized under the laws of the state of Georgia
("Georgia-Pacific"), and each other person set forth on the signature pages
hereof (each individually a "Securityholder", and collectively, the
"Securityholders"). Capitalized terms . . .
383872
|
King & Spalding
As referenced in this Voting Agreement and Consent:
King & Spalding
– a copy (which shall not constitute notice) to:
Simpson, Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Mario A. Ponce
Facsimile: (212) 455-2500
{PAGE}
and to
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
Attention: William R. Spalding
Facsimile: (404) 572-5100
or to such other address as the person to whom notice is given may have
_____________
dt 1053001
;
|
Simpson Thacher
As referenced in this Voting Agreement and Consent:
Simpson, Thacher – Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Vice President and Deputy General Counsel
Facsimile: (404) 230-1611
with a copy (which shall not constitute notice) to:
Simpson, Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Mario A. Ponce
Facsimile: (212) 455-2500
{PAGE}
and to
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
Attention:
_____________
dt 1021673
;
Skadden
As referenced in this Voting Agreement and Consent:
Skadden, Arps – Plum Creek Timber Company, Inc.
999 Third Avenue
Seattle, Washington 98104
Attention: Vice President and General Counsel
Facsimile: (206) 467-3799
with a copy (which shall not constitute notice) to:
Skadden, Arps , Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, California 90071
Attention: Joseph J. Giunta
Gregg A. Noel
Facsimile: (213) 687-5600
If to Georgia-Pacific, to:
Georgia-
_____________
dt 1023699
|
Preview
Full Doc
| 2000 |
Voting Agreement and Consent
Voting Agreement and Consent (25K)
Doc #383874: Click preview link for longer preview.
VOTING AGREEMENT AND CONSENT
VOTING AGREEMENT AND CONSENT (this "Agreement"), dated as of July 18,
2000, by and among Plum Creek Timber Company, Inc., a corporation organized
under the laws of the state of Delaware (the "Company"), Georgia-Pacific
Corporation, a corporation organized under the laws of the state of Georgia
("Georgia-Pacific"), and each other person set forth on the signature pages
hereof (each individually a "Securityholder", and collectively, the
"Securityholders"). Capitalized terms . . .
383874
|
King & Spalding
As referenced in this Voting Agreement and Consent:
King & Spalding
– a copy (which shall not constitute notice) to:
Simpson, Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Mario A. Ponce
Facsimile: (212) 455-2500
{PAGE}
and to
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
Attention: William R. Spalding
Facsimile: (404) 572-5100
or to such other address as the person to whom notice is given may have
_____________
dt 1053003
;
|
Simpson Thacher
As referenced in this Voting Agreement and Consent:
Simpson, Thacher – Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Vice President and Deputy General Counsel
Facsimile: (404) 230-1611
with a copy (which shall not constitute notice) to:
Simpson, Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Mario A. Ponce
Facsimile: (212) 455-2500
{PAGE}
and to
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
Attention:
_____________
dt 1021675
;
Skadden
As referenced in this Voting Agreement and Consent:
Skadden, Arps – Plum Creek Timber Company, Inc.
999 Third Avenue
Seattle, Washington 98104
Attention: Vice President and General Counsel
Facsimile: (206) 467-3799
with a copy (which shall not constitute notice) to:
Skadden, Arps , Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, California 90071
Attention: Joseph J. Giunta
Gregg A. Noel
Facsimile: (213) 687-5600
If to Georgia-Pacific, to:
Georgia-
_____________
dt 1023700
|
Preview
Full Doc
| 2004 |
Warrant Agreement
Warrant Agreement (71K)
Doc #383778: Click preview link for longer preview.
Form of Warrant Agreement
EX-4 4 pcs3-43exhibit.htm EXHIBIT 4.3, FORM OF STOCK WARRANT AGREEMENT
Exhibit 4.3
FORM OF STOCK WARRANT AGREEMENT
PLUM CREEK TIMBER COMPANY, INC.
and
_________________
as Warrant Agent
_________________
WARRANT AGREEMENT
Dated as of ____________, ____
_________________
Page
TABLE OF CONTENTS
Parties
1
Recitals
1
ARTICLE I
ISSUANCE, EXECUTION AND AUTHENTICATION
OF WARRANT CERTIFICATES
. . .
383778
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