AMENDMENT NO. 1 TO CREDIT AGREEMENT
Exhibit 10.10
AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of November 26, 2007 (this
“Agreement”), 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 (such capitalized term and
all other capitalized terms not defined herein shall have the meanings provided for in Article
I) that are parties hereto, the various financial institutions parties hereto (collectively,
the “Lenders”), and COBANK, ACB, as 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 the Credit
Agreement, dated as of October 9, 2007 (the “Existing Credit Agreement”), and the other
Loan Documents; and
WHEREAS, the Borrowers have requested that, as of the Effective Date, 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 Agreement shall have the following meanings:
“Administrative Agent” is defined in the preamble.
“Agreement” is defined in the preamble.
“Amended Credit Agreement” means the Existing Credit Agreement as amended by this
Agreement as of the Effective Date.
“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 Existing 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. 1 to Credit Agreement” means Amendment No. 1 to Credit Agreement,
dated as of November 26, 2007, among the parties to this Agreement.”
““Working Capital Sub-Account” means the “Working Capital Sub-Account” of the Revenue
Account.”
SECTION 2.2. Amendments to Section 1.1. Section 1.1 of the Existing Credit Agreement
is amended by amending and restating in the entirety the definition “Interest Expense” as follows:
‘“Interest Expense” means, for any period, the aggregate interest expense of Xxxxx
Timberland in respect of the Loans for such period, as determined in accordance with GAAP,
including, without duplication, the portion of any capitalized lease liabilities of such Persons
allocable to interest expense, all commissions, discounts and other fees charged with respect to
the amortization of debt discounts and the net costs under Rate Protection Agreements, in each case
paid or payable during such period.”
SECTION 2.3. Amendments to Section 7.2.6. Clause (a) of Section 7.2.6 of the Existing
Credit Agreement is amended by replacing “and” before sub-clause (E) with a comma and adding at the
end thereof the following:
“, (F) Xxxxx REIT may redeem from any of its individual shareholders, within two years of his
death or disability (as defined from time to time in the United States Social Security Act of 1965,
U.S.C. Sections 601-687)), all or any part of his Equity Interests in Xxxxx REIT and (G) if all
amounts outstanding under the Subordination Debt Documents have been paid in full in cash, Xxxxx
REIT may redeem from any of its shareholders all or any part of his or its Equity Interests in
Xxxxx REIT, provided that the Equity Interests of Xxxxx REIT redeemed in any calendar year
pursuant to this sub-clause (G) shall not, in the aggregate, exceed 5% of the weighted
average number of Equity Interests of Xxxxx REIT outstanding during the prior calendar year.”
-2-
SECTION 2.4. Amendments to Section 9.3(a); Omnibus Section Reference Change. Clause
(a) of Section 9.3 of the Existing Credit Agreement is amended as follows:
(a) Adding a new sub-clause (iv) as follows:
“(iv) to fund the Working Capital Sub-Account in an amount not to exceed $3,000,000;”
, and renumbering sub-clauses (iv) — (viii) to read (v) — (ix), respectively. All references in the
Amended Credit Agreement to such sub-clauses being renumbered shall refer to such sub-clauses as so
renumbered.
(b) Amending and restating sub-clause (viii) as follows:
“(ix) to fund (A) the acquisition of assets by the Borrowers pursuant to clause (d) of
Section7.2.8 or (B) dividends, distributions, other payments and loans pursuant to
clause (a)(y)(A)-(G) of Section 7.2.6.”
SECTION 2.5. Amendments to Section 9.3(b). Clause (b) of Section 9.3 of the Existing
Credit Agreement is amended and restated in the entirety as follows:
“(b) To the extent funds constituting Collateral Disposition Proceeds, Collateral Insurance
Proceeds or LTC Lease Disposition Proceeds are on deposit in the Revenue Account, the
Administrative Agent shall apply 100% of the same to make mandatory prepayments on the outstanding
principal amount of the Loans pursuant to clause (b) of Section 3.1.2;
provided, however, that if no Default or Event of Default has occurred and is
continuing the Borrowers may, with respect to any Collateral Disposition Proceeds received in
respect of any Collateral sold, leased, transferred or otherwise disposed of, fund the Working
Capital Sub-Account in an amount with respect thereto equal to the excess, if any, provided for in
clause (b) of the definition “Collateral Disposition Proceeds” over the amount with
respect thereto provided for in clause (a) of the definition “Collateral Disposition
Proceeds”.”
SECTION 2.6. New Section 9.7. A new Section 9.7 is added to the Existing Credit
Agreement as follows:
“SECTION 9.7. Working Capital Sub-Account. The Working Capital Sub-Account shall be
a sub-account of the Revenue Account and not an additional or separate account. Accordingly, all
provisions of this Article and otherwise that apply to the Revenue Account shall apply to the
Working Capital Sub-Account. The Borrowers agree to apply all amounts in the Working Capital
Sub-Account exclusively to the payment of their operating expenses (other than the payment of
Interest Expense).”
SECTION 2.7. Amendments to Section 11.1(b). Sub-clause (v) of Section 11.1(b) of the
Existing Credit Agreement is amended and restated in the entirety as follows:
“(v) alter Section 2.1 or 2.3 or 9.3;”.
-3-
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to make the amendments provided for in Article II, the
Borrowers hereby jointly and severally (a) represent and warrant that (i) each of the
representations and warranties of the Loan Parties contained in the 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) and (ii) no Default or Event of Default has occurred and is continuing and (b) agrees
that the incorrectness in any material respect of any representation and warranty contained in the
preceding clause (a) shall constitute an immediate Event of Default.
ARTICLE IV
ACKNOWLEDGMENT OF OTHER LOAN PARTIES
By executing this Agreement, 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 Credit Agreement shall refer to the Amended
Credit Agreement.
ARTICLE V
CONDITIONS TO EFFECTIVENESS; EXPIRATION
SECTION 5.1. Effective Date. This Agreement shall become effective on such date
(herein called the “Effective Date”) when the conditions set forth in this Section have
been satisfied.
SECTION 5.1.1 Execution of Agreement. The Administrative Agent shall have received
counterparts of this Agreement duly executed and delivered on behalf of the Borrower, each of the
other Loan Parties, the Administrative Agent and all the Lenders.
SECTION 5.1.2 Subordinated Credit Agreement Amendment. The parties to the
Subordinated Credit Agreement shall have entered into a satisfactory amendment thereto that gives
effect to the relevant terms hereof.
SECTION 5.1.3 Representations and Warranties. The representations and warranties made
by the Borrowers pursuant to Article III as of the Effective Date shall be true and
correct.
SECTION 5.2. Expiration. If the Effective Date has not occurred on or prior to
November ___, 2007, the agreements of the parties contained in this Agreement shall, unless
otherwise agreed by all the Lenders terminate immediately on such date and without further action.
-4-
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Cross-References. References in this Agreement to any Article or Section
are, unless otherwise specified, to such Article or Section of this Agreement.
SECTION 6.2. Loan Document Pursuant to Amended Credit Agreement. This Agreement 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 and each other Loan Document shall remain unamended or otherwise
unmodified and in full force and effect.
SECTION 6.3. 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 6.4. Counterparts. This Agreement 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 6.5. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns.
SECTION 6.6. 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
Administrative Agent and the Lenders, such documents, agreements, certificates and other
instruments as shall be necessary or advisable to effect the purposes of this Agreement.
SECTION 6.7. Costs and Expenses. The Borrower agrees 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 Agreement and the other agreements and documents entered into in connection
herewith.
SECTION 6.8. GOVERNING LAW; WAIVER OF JURY TRIAL; ENTIRE AGREEMENT. THIS AGREEMENT
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 AGREEMENT OR ANY AGREEMENT OR
DOCUMENT ENTERED INTO IN CONNECTION HEREWITH. THIS AGREEMENT 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.
-5-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers hereunto duly authorized as of the day and year first above written.
| BORROWER: TIMBERLANDS II, LLC |
||||
| By: | XXXXX TIMBERLAND MANAGEMENT ORGANIZATION, LLC, as Manager |
|||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President | |||
| XXXXX TIMBERLAND ACQUISITION, LLC |
||||
| By: | XXXXX TIMBERLAND MANAGEMENT ORGANIZATION, LLC, as Manager |
|||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President | |||
| OTHER LOAN PARTIES: XXXXX TRS HARVESTING OPERATIONS, LLC, a Delaware limited liability company |
||||
| By: | Forest Resource Consultants, Inc., a Georgia corporation, Manager |
|||
| By: | /s/ Xxxxx Foil | |||
| Name: | Xxxxx Foil | |||
| Title: | President | |||
| XXXXX TIMBERLAND REIT, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
-6-
| XXXXX TIMBERLAND TRS, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
| ADMINISTRATIVE AGENT: COBANK, ACB, as Administrative Agent |
||||
| By: | /s/ Xxxxxxx Tonsignant | |||
| Name: | Xxxxxxx Tonsignant | |||
| Title: | VP | |||
| LENDERS: COBANK, ACB |
||||
| By: | /s/ Xxxxxxx Tonsignant | |||
| Name: | Xxxxxxx Tonsignant | |||
| Title: | VP | |||
| AGFIRST FARM CREDIT, ACA |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxxxxxx, Xx. | |||
| Title: | Vice President | |||
| WACHOVIA BANK, NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Director | |||
-7-
| COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A. “RABOBANK NEDERLAND”, NEW YORK BRANCH |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Executive Director | |||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Director | |||
-8-
