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Exhibit 10.90
AMENDMENT TO FINANCE AGREEMENT AND LIMITED WAIVER
AMENDMENT (the "Amendment"), dated as of December 28, 1999, between
CLOSED JOINT-STOCK COMPANY "FOREST-STARMA", (the "Company"), a closed
joint-stock company organized and existing under the laws of the Russian
Federation, and OVERSEAS PRIVATE INVESTMENT CORPORATION, an agency of the United
States of America ("OPIC").
WITNESSETH:
WHEREAS, the Company and OPIC are parties to a finance agreement dated
as of December 21, 1995, as amended, March 6, 1996, March 26, 1996, May 29,
1996, June 24, 1996 and June 3, 1999 (the "Finance Agreement");
WHEREAS, all capitalized terms used herein and not otherwise defined
herein shall have their respective meanings set forth in the Finance Agreement;
WHEREAS, PFI owns 100% of the shares of capital stock of the
Company and wishes to transfer all of this stock to PFI's wholly owned Delaware
subsidiary, "Pioneer Forest, L.L.C." ("PFLLC"), such that as a result of this
transaction (the "Share Transfer") PFLLC will own 100% of the capital stock of
the Company and PFI will no longer be shareholder of the Company; and
WHEREAS, in order that PFI may proceed with the Share Transfer, the
Company, PGI and PFI have requested that OPIC agree with the Company to amend
certain provisions of the Finance Agreement and to waive certain other
provisions of the Finance Agreement, in accordance with Section 8.06 of the
Finance Agreement; and OPIC is willing to do so.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants, provisions and undertakings herein and in the Finance Agreement and
for other good and valuable consideration, the receipt and and adequacy of which
is hereby acknowledged by the parties hereto, OPIC and the Company agree as
follows:
1. Amendments.
(a) The following definition is hereby added after the definition
of "PFI" in Section 1.01 of the Finance Agreement:
"PFLLC" means Pioneer Forest, L.L.C., a Delaware limited
liability company.
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(b) Paragraph (m) of Section 7.01 of the Finance Agreement is
hereby revised to read in its entirety as follows:
(m) The U.S. Sponsor ceases to hold 100% of the legal and
beneficial title to the equity of PFI; or PFI ceases to hold
100% of the legal and beneficial title to the equity of PFLLC;
or prior to the Share Transfer PFI ceases to own 100% of the
legal and beneficial title to the equity of the Company; or
following the Share Transfer PFLLC ceases to hold 100% of the
equity of the Company or the U.S. Sponsor ceases to retain
management control of the Company; or
2. Waiver. The Company has requested that OPIC waive any Event of
Default under paragraphs (i) or (m) of Section 7.01 of the Finance
Agreement arising out of the acquisition of equity of the Company
by PFLLC in connection with the Share Transfer as set forth in
Exhibit A annexed hereto and made a part hereof.
OPIC hereby waives any such Events of Default; provided, however,
that the waiver contained in paragraph (a) of this Section 2 shall
not be effective unless and until OPIC shall have received one or
more of an amended, restated or additional Contract of Pledge of
Shares, in form and substance satisfactory to OPIC, and an
opinion, in form and substance satisfactory to OPIC, from counsel
satisfactory to OPIC, with respect to OPIC's security interest in
shares of capital stock of the Company pledged to OPIC.
3. Representations and Warranties. The Company represents and warrants
that :
(a) This Amendment constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms.
(b) All representations and warranties made by the Company in the
Finance Agreement are true and accurate as of the date hereof,
except that the record and beneficial ownership of the capital
stock of the Company set forth in Section 3.04 of the Finance
Agreement has changed, or will change, as a result of the
Share Transfer as set forth in Exhibit A annexed hereto.
4. Ratification and Confirmation. As amended hereby, all the terms and
provisions of the Finance Agreement are hereby ratified and
confirmed in all respects and shall apply in full force and effect.
5. No Waiver. The Company acknowledges and agrees that except as
expressly provided in Section 2 of this Amendment, OPIC, in
executing and delivering this Amendment, has not and shall not be
deemed to have waived, released or modified any right or power that
it may have under the Finance Agreement, as amended herein, to
claim that any Event of Default has occurred or is occurring,
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and the execution and delivery of this Amendment shall not be
deemed a waiver by OPIC of any such Event of Default.
6. Effective Date. This Amendment shall be effective as of the date
hereof, except as otherwise expressly provided herein.
7. Counterparts. This Amendment may be executed in counterparts, each
of which when so executed and delivered shall be deemed an original
and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their authorized representatives as of the day and year
first above written.
CLOSED JOINT-STOCK COMPANY "FOREST-STARMA"
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
On the basis of power of attorney No. 73,
Dated December 3, 1999
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Xxxxxxxxx X. Xxxxxxx
On the basis of power of attorney No. 74,
Dated December 3, 1999
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
On the basis of power of attorney No. 72,
Dated December 3, 1999
OVERSEAS PRIVATE INVESTMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Its: Investment Officer
