AMENDMENT NO. 2 TO SUBORDINATED CREDIT AGREEMENT
Exhibit 10.23
EXECUTION COPY
AMENDMENT NO. 2 TO SUBORDINATED CREDIT AGREEMENT, dated as of February 29, 2008 (this
“Amendment”), among TIMBERLANDS II, LLC, a Delaware limited liability company (“Xxxxx
Timberland”), and XXXXX TIMBERLAND ACQUISITION, LLC, a Delaware limited liability company
(“Xxxxx Acquisition”; Xxxxx Timberland and Xxxxx Acquisition, each a “Borrower”
and, collectively, the “Borrowers”), the various other Loan Parties (as defined below) that
are parties hereto, the various financial institutions parties hereto (collectively, the
“Lenders”), and WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent (in such
capacity, the “Administrative Agent”) for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and the Administrative Agent are parties to that certain
Subordinated Credit Agreement (the “Subordinated Credit Agreement”), dated as of October 9,
2007, as amended by that certain Amendment No. 1 to Subordinated Credit Agreement, dated as of
November 26, 2007 (together, the “Existing Credit Agreement”), and along with the other
Loan Parties, as applicable, the other Loan Documents;
WHEREAS, the Borrowers have requested that, as of the Effective Date (as defined below), the
Existing Credit Agreement be amended as herein provided; and
WHEREAS, the Lenders are willing, subject to the terms and conditions hereinafter set forth,
to make such amendments.
NOW, THEREFORE, in consideration of the agreements herein contained, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not underscored)
when used in this Amendment shall have the following meanings:
“Administrative Agent” is defined in the preamble.
“Amended Credit Agreement” means the Existing Credit Agreement as amended by this
Amendment as of the Effective Date.
“Amendment” is defined in the preamble.
“Borrower” is defined in the preamble.
“Effective Date” is defined in Section 5.1.
“Existing Credit Agreement” is defined in the first recital.
“Lenders” is defined in the preamble.
SECTION 1.2. Other Definitions. Unless otherwise defined or the context otherwise
requires, terms used herein (including in the preamble and recitals hereto) have the meanings
provided for in the Amended Credit Agreement.
ARTICLE II
AMENDMENTS
Effective on (and subject to the occurrence of) the Effective Date, the Existing Credit
Agreement is amended as follows:
SECTION 2.1. Addition to Section 1.1. The following new definitions are added to
Section 1.1 of the Existing Credit Agreement in the appropriate alphabetical order:
“Amendment No. 2 to Subordinated Credit Agreement” means Amendment No. 2 to
Subordinated Credit Agreement, dated as of February 29, 2008, among the parties to this Amendment.
“Extended Maturity Date” means March 2, 2009.
“Secured Guaranty Pledge Agreement” means that certain Secured Guaranty Pledge
Agreement, dated as of October 9, 2007, by Xxxxx Advisory Services I, LLC, a Georgia limited
liability company, in favor of the Administrative Agent, as amended by that certain Amendment No. 1
to Secured Guaranty Pledge Agreement, dated as of February 29, 2008.
SECTION 2.2. Amendments to Section 1.1. Section 1.1 of the Existing Credit Agreement
is amended as follows:
(a) The definition of “Agreement” is amended and restated in its entirety to read as
follows: ““Agreement” means this Agreement, as amended by Amendment No. 1 to Subordinated
Credit Agreement and Amendment No. 2 to Subordinated Credit Agreement.”
(b) The definition of “First Principal Reduction Date” is amended by replacing
“February 29, 2008” with “June 30, 2008”.
(c) The definition of “Interest Rate” is amended by replacing “nine percent (9%)” with
“eleven percent (11%)”.
(d) The definition of “Second Principal Reduction Date” is amended by replacing “April
30, 2008” with “August 29, 2008”.
(e) The definition of “Stated Maturity Date” is amended and restated to read in its
entirety as follows:
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“Stated Maturity Date” means October 17, 2008; provided, however, that
if terms of Section 3.1.2(a) hereof are satisfied and the aggregate outstanding principal
amount of all Loans, all other Obligations of Borrower under the Loan Documents, including all
Fees, shall be due and payable in full on the Extended Maturity Date, then “Stated Maturity Date”
shall mean the Extended Maturity Date.
SECTION 2.3. Amendment to Section 3.1.2. Section 3.1.2 of the Existing Credit
Agreement is amended as follows:
(a) Subsection (a) is amended by adding the following at the end of such section: “provided,
however, that if on the Stated Maturity Date (i) the aggregate outstanding principal amount of all
Loans is no greater than sixty million dollars ($60,000,000) and (ii) a lien and security interest
in favor of the Administrative Agent has attached to eighty percent (80%) of the Pledged Common
Stock (as such term is defined in the Secured Guaranty Pledge Agreement) under the Secured Guaranty
Pledge Agreement, then the aggregate outstanding principal amount of all Loans, all other
Obligations of Borrower under the Loan Documents, including all Fees, shall be due and payable in
full on the Extended Maturity Date.”
(b) Subsection (b) is amended and restated to read in its entirety as follows:
“(b) A principal payment shall be made on the First Principal Reduction Date in an amount
which, when added to all previously made principal payments, reduces the aggregate outstanding
principal balance of the Loans to an amount not greater than one hundred twenty million dollars
($120,000,000);”
(c) Subsection (c) is amended and restated to read in its entirety as follows:
“(c) A principal payment shall be made on the Second Principal Reduction Date in an amount
which, when added to all previously made principal payments, reduces the aggregate outstanding
principal balance of the Loans to an amount not greater than ninety million dollars ($90,000,000);”
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. In order to induce the Lenders to make
the amendments provided for in Article II, the Borrowers hereby jointly and severally
represent and warrant that:
(a) each of the representations and warranties of the Loan Parties contained in the Existing
Credit Agreement and in the other Loan Documents is true and correct in all material respects as of
the date hereof as if made on the date hereof (except, if any such representation and warranty
relates to an earlier date, such representation and warranty shall be true and correct in all
material respects as of such earlier date);
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(b) no Default or Event of Default has occurred and is continuing; and
(c) the execution, delivery and performance by each Loan Party of this Amendment and the
consummation of the transactions contemplated hereby and the fulfillment of the terms hereof do not
(i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time) a default under (A) the formation documents of the Loan
Parties, or (B) any material indenture, agreement, mortgage, deed of trust, or other instrument to
which any Loan Party is a party or by which it is bound or any of its properties are subject; (ii)
result in the creation or imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement, mortgage, deed of trust, or other instrument; or (iii) violate
any law, order, rule, or regulation applicable to any Loan Party of any court or of any Federal or
State regulatory body, administrative agency, or other governmental instrumentality having
jurisdiction over any Loan Party or its properties.
SECTION 3.2. Further Agreement. The Borrowers hereby jointly and severally agree that
(a) the incorrectness in any material respect of any representation and warranty contained in the
preceding Section 3.1 shall constitute an immediate Event of Default, (b) each Loan
Document to which each Loan Party is a party is in full force and effect with respect to it, and
(c) no event that would reasonably be expected to have a Material Adverse Effect has occurred since
the execution of Amendment No. 1 to Subordinated Credit Agreement.
ARTICLE IV
ACKNOWLEDGMENT OF OTHER LOAN PARTIES
By executing this Amendment, each of the Loan Parties (other than the Borrowers) hereby
confirms and agrees that each Loan Document to which it is a party is, and shall continue to be, in
full force and effect and is hereby ratified and confirmed in all respects, except that on and
after the Effective Date each reference therein to the Subordinated Credit Agreement shall refer to
the Existing Credit Agreement after giving effect to this Amendment.
ARTICLE V
CONDITIONS TO EFFECTIVENESS; EXPIRATION
SECTION 5.1. Effective Date. This Amendment shall become effective on such date
(herein called the “Effective Date”) when the conditions set forth in this Section have
been satisfied.
SECTION 5.2. Execution of Amendment. The Administrative Agent shall have received
counterparts of this Amendment duly executed and delivered on behalf of the Borrower, each of the
other Loan Parties, the Administrative Agent and all the Lenders.
SECTION 5.3. Representations and Warranties. The representations, warranties and
agreements made by the Borrowers pursuant to Article III as of the Effective Date shall be
true and correct.
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SECTION 5.4. Amendment to Secured Guaranty Pledge Agreement. The Administrative Agent
shall have received a duly executed original copy of that certain Amendment No. 1 to Secured
Guaranty Pledge Agreement, dated as of even date herewith, made by Xxxxx Advisory Services I, LLC,
a Georgia limited liability company, in favor of the Administrative Agent.
SECTION 5.5. Expiration. If the Effective Date has not occurred on or prior to
February 29, 2008, the agreements of the parties contained in this Amendment shall, unless
otherwise agreed by all the Lenders, terminate immediately on such date and without further action.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Legal Opinions. No later than five (5) Business Days after the date of
this Amendment, the Administrative Agent shall have received from counsel to the Loan Parties legal
opinions regarding due organization, existence and good standing, due authorization, due execution
and delivery, enforceability and usury for the Loan Parties and the Amended Credit Agreement
substantially in the forms received by the Administrative Agent at the closing of the Subordinated
Credit Agreement.
SECTION 6.2. Cross-References. References in this Amendment to any Article or Section
are, unless otherwise specified, to such Article or Section of this Amendment.
SECTION 6.3. Loan Document Pursuant to Amended Credit Agreement. This Amendment is a
Loan Document executed pursuant to the Amended Credit Agreement. Except as expressly amended
hereby, all of the representations, warranties, terms, covenants and conditions contained in the
Existing Credit Agreement shall remain unamended or otherwise unmodified and in full force and
effect.
SECTION 6.4. Limitation of Amendments. The amendments set forth in Article II
shall be limited precisely as provided for herein and shall not be deemed to be a waiver of,
amendment of, consent to or modification of any other term or provision of the Existing Credit
Agreement or of any term or provision of any other Loan Document or of any transaction or further
or future action on the part of the Borrower or any other Loan Party which would require the
consent of any of the Lenders under the Existing Credit Agreement or any other Loan Document.
SECTION 6.5. Counterparts. This Amendment may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement.
SECTION 6.6. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns.
SECTION 6.7. Further Assurances. The Borrower shall execute and deliver, and shall
cause each other Loan Party to execute and deliver, from time to time in favor of the
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Administrative Agent and the Lenders, such documents, agreements, certificates and other
instruments as shall be necessary or advisable to effect the purposes of this Amendment.
SECTION 6.8. Costs and Expenses. The Borrowers agree to pay all reasonable costs and
expenses of the Administrative Agent (including the reasonable fees and out-of-pocket expenses of
legal counsel of the Administrative Agent) that are incurred in connection with the execution and
delivery of this Amendment and the other agreements and documents entered into in connection
herewith.
SECTION 6.9. No Waiver; Reservation of Rights. In no way or manner shall this
Amendment or any provision herein be construed as a waiver by the Loan Parties of their rights or
remedies under the Amended Credit Agreement and the other Loan Documents. The Loan Parties hereby
expressly, fully and completely reserve all of their rights and remedies under the Amended Credit
Agreement and the other Loan Documents.
SECTION 6.10. Release. Each of the Loan Parties hereby releases the Administrative
Agent, the Lenders and their respective officers, directors, equity owners, agents and employees
(collectively, the “Specified Parties”) of, from and against any and all claims, liability,
losses, costs and expenses directly or indirectly relating to or arising out of the Loan Documents
and the execution and delivery thereof or any act or omission of the Specified Parties thereunder
or relating thereto which has occurred up through and including the time of the execution and
delivery of this Amendment and which is known by, or should have been known by, any of the Loan
Parties.
SECTION 6.11. GOVERNING LAW; WAIVER OF JURY TRIAL; ENTIRE AGREEMENT. THIS AMENDMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH
PERSON A PARTY HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION ARISING UNDER OR IN CONNECTION WITH THIS AMENDMENT OR ANY AGREEMENT OR
DOCUMENT ENTERED INTO IN CONNECTION HEREWITH. THIS AMENDMENT CONSTITUTES THE ENTIRE UNDERSTANDING
AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY PRIOR
AGREEMENT, WRITTEN OR ORAL, WITH RESPECT HERETO.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers hereunto duly authorized as of the day and year first above written.
| BORROWERS: | ||||
| TIMBERLANDS II, LLC, a Delaware limited liability company | ||||
By:
|
XXXXX TIMBERLAND MANAGEMENT ORGANIZATION, LLC, a Georgia limited liability company, as Manager |
|||
By: |
||||
| Name: Xxxxx Xxxxx | ||||
| Title: VP Finance | ||||
| XXXXX TIMBERLAND ACQUISITION, LLC, a Delaware limited liability company |
||||
By:
|
XXXXX TIMBERLAND MANAGEMENT ORGANIZATION, LLC, a Georgia limited liability company, as Manager |
|||
By: |
||||
| Name: Xxxxx Xxxxx | ||||
| Title: VP Finance | ||||
Amendment No. 2 to Subordinated Credit Agreement
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| OTHER LOAN PARTIES: | ||||
| XXXXX TRS HARVESTING OPERATIONS, LLC, | ||||
| a Delaware limited liability company | ||||
BY:
|
Forest Resource Consultants, Inc., | |||
| a Georgia corporation, Manager | ||||
By: |
||||
| Name: Xxxxx Foil | ||||
| Title: President | ||||
| XXXXX TIMBERLAND REIT, INC., a Maryland corporation | ||||
By: |
||||
| Name: Xxxxxxx X. Xxxxx | ||||
| Title: Senior Vice President | ||||
| XXXXX TIMBERLAND TRS, INC., a Delaware corporation | ||||
By: |
||||
| Name: Xxxxxxx X. Xxxxx | ||||
| Title: Senior Vice President | ||||
| XXXXX REAL ESTATE FUNDS, INC., a Georgia corporation | ||||
By: |
||||
| Name: Xxxxxxx X. Xxxxx | ||||
| Title: Vice President | ||||
| [continued on next page] | ||||
Amendment No. 2 to Subordinated Credit Agreement
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| XXXXX TIMBERLAND OPERATING PARTNERSHIP, L.P., a Delaware limited partnership | ||||
BY:
|
Xxxxx Timberland REIT, Inc., a Maryland corporation, its General Partner | |||
By: |
||||
| Name: Xxxxxxx X. Xxxxx | ||||
| Title: Senior Vice President | ||||
Amendment No. 2 to Subordinated Credit Agreement
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| ADMINISTRATIVE AGENT: | ||||
| WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent |
||||
By: |
||||
| Name: Xxxxx Xxxxxx | ||||
| Title: Vice President | ||||
Amendment No. 2 to Subordinated Credit Agreement
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| LENDERS: | ||||
| WACHOVIA BANK, NATIONAL ASSOCIATION | ||||
By: |
||||
| Name: Xxxxx Xxxxxx | ||||
| Title: Vice President | ||||
Amendment No. 2 to Subordinated Credit Agreement
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