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EXHIBIT 10.6.3
AMENDMENT NO. 2 TO LOAN AGREEMENT
(STRATEGIC TIMBER PARTNERS, LP)
THIS AMENDMENT NO. 2 TO LOAN AGREEMENT dated as of May 17, 1999 (this
"Amendment"), is entered into by and among STRATEGIC TIMBER PARTNERS, LP, a
Delaware limited partnership (the "Borrower"), as the borrower, the LENDERS
party to the Loan Agreement (as defined below), and ABN AMRO BANK N.V., not in
its individual capacity but solely in its capacity as the agent on behalf of
the Lenders (in such capacity, the "Agent").
RECITALS
A. The Borrower, the Lenders and the Agent have entered into that
Loan Agreement dated as of April 27, 1998, as amended by that Amendment No. 1
to Loan Agreement dated as of April 22, 1999 (as so amended, the "Loan
Agreement"), pursuant to which the Lenders have extended and have agreed to
extend and make available to the Borrower certain advances of credit in
accordance with their respective Commitments and upon the terms and conditions
set forth in the Loan Agreement and other Loan Documents.
B. The Borrower desires to amend the Loan Agreement as provided
below and the Lenders are willing to so amend the Loan Agreement, on the terms
and conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS. Capitalized terms used but not defined in this
Amendment shall have the meanings given to them in the Loan Agreement.
SECTION 2. AMENDMENTS. Effective as of the Effective Date (as defined
below), and subject to the terms of and conditions precedent to the
effectiveness of this Amendment, the Loan Agreement is amended as follows:
1.1 The definition of "Borrowing Base" set forth in
Section 1.1 of the Loan Agreement is deleted in its entirety and is replaced
with the following:
"Borrowing Base" means, as calculated for the Borrower as of
any date of determination, an amount equal to the sum of (a) an amount
equal to eighty percent (80.0%) of the contract price for all Timber
sold forward under Eligible Timber Agreements (calculated on the basis
of the applicable floor or minimum price over the remaining term of
such Eligible Timber Agreements), whether title to such underlying
Timber transfers immediately, as under a timber deed, or at the time
such Timber is harvested, plus (b) an amount equal to sixty-one and
two-tenths percent (61.2%) of the Value of Merchantable Timber. The
Borrowing Base advance rate percentage applicable under clause (b),
above, shall be reduced automatically to fifty-eight percent (58.0%)
on June 30, 1999 and thereafter shall be reduced incrementally and
automatically by two
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percent (2.0%) on each succeeding anniversary of the Closing Date
(i.e., to 56% on the second anniversary of the Closing Date, 54% on
the third anniversary, and so on).
1.2 Section 2.8 of the Loan Agreement is amended by
inserting at the end thereof, after the words "together with all accrued and
unpaid interest thereon", the following parenthetical:
(provided, however, that notwithstanding anything to the
contrary contained in this SECTION 2.8, the mandatory
prepayment, if any, required by this SECTION 2.8 in
connection with any Over Advance arising or occurring on June
30, 1999 as a result of the scheduled reduction to
fifty-eight percent (58.0%) of the Borrowing Base advance
rate percentage applicable to the Value of Merchantable
Timber shall be payable by June 30, 1999 and failure to make
payment in full of such Over Advance by June 30, 1999 shall
be an Event of Default under SECTION 10.1(a)).
SECTION 3. LIMITATIONS ON AMENDMENTS.
(a) The amendments set forth in SECTION 2 above is
effective for the purposes set forth herein and shall be limited precisely as
written and shall not be deemed to (i) be a consent to any other amendment,
waiver or modification of any other term or condition of any Loan Document, or
(ii) otherwise prejudice any right or remedy which the Lenders or the Agent may
now have or may have in the future under or in connection with any Loan
Document.
(b) This Amendment shall be construed in connection with
and as part of the Loan Documents and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Loan Documents, except as
herein waived or amended, are hereby ratified and confirmed and shall remain in
full force and effect.
SECTION 4. REAFFIRMATION AND ACKNOWLEDGEMENT. The Borrower hereby
reaffirms its obligations under each Loan Document to which it is a party and
ratifies and reaffirms the validity and enforceability of all of the Liens and
security interests heretofore granted, pursuant to the Collateral Documents to
the Agent, for itself and on behalf of the Lenders, as collateral security for
the Obligations, and acknowledges that all of such Liens and security
interests, and all Collateral heretofore pledged as security for the
Obligations, continues to be and remain collateral for the Obligations from and
after the date hereof.
SECTION 5. REPRESENTATIONS AND WARRANTIES. In order to induce the
Lenders and the Agent to enter into this Amendment, the Borrower hereby
represents and warrants to each Lender and the Agent as follows:
(a) Immediately after giving effect to this Amendment (i)
the representations and warranties contained in the Loan Documents (other than
those which expressly speak as of a different date) are true, accurate and
complete in all material respects as of the date hereof and (ii) no Default or
Event of Default has occurred and is continuing;
(b) The Borrower has the power and authority to execute
and deliver this Amendment and to perform its obligations under the Loan
Agreement, as amended by this Amendment, and each of the other Loan Documents
to which it is a party;
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(c) The execution and delivery by the Borrower of this
Amendment and the performance by Borrower of its obligations under the Loan
Agreement, as amended by this Amendment, and each of the other Loan Documents
to which it is a party have been duly authorized by all necessary partnership
action on the part of the Borrower;
(d) The execution and delivery by the Borrower of this
Amendment and the performance by the Borrower of its obligations under the Loan
Agreement, as amended by this Amendment, and each of the other Loan Documents
to which it is a party do not and will not contravene (i) any law or regulation
binding on or affecting the Borrower, (ii) the Borrower Partnership Agreement,
(iii) any order, judgment or decree of any court or other governmental or
public body or authority, or subdivision thereof, binding on the Borrower, or
(iv) any contractual restriction with a Person other than an Affiliate binding
on the Borrower;
(e) The execution and delivery by the Borrower of this
Amendment and the performance by the Borrower of its obligations under the Loan
Agreement, as amended by this Amendment, and each of the other Loan Documents
to which it is a party do not require any order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by any governmental or public body or authority, or subdivision
thereof, binding on the Borrower, except as already has been obtained or made;
and
(f) This Amendment has been duly executed and delivered
by the Borrower and is the binding obligation of the Borrower, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or
other similar laws of general application and equitable principles relating to
or affecting creditors' rights.
SECTION 6. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
SECTION 7. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Amendment shall
be effective and shall be deemed effective as of May 31, 1999 (the "Effective
Date") if each of the following conditions precedent shall be satisfied prior
to 5:00 p.m., Chicago, Illinois time, May 31, 1999:
(a) STT shall have printed the preliminary prospectus for
the IPO (as defined in the Loan Agreement dated as of April 9, 1999, by and
among the Borrower and Pioneer Resources, LLC, an Oregon limited liability
company, as co-borrowers, the lenders party thereto, and ABN AMRO Bank, N.V.,
as the administrative agent);
(b) STT shall have commenced the roadshow meetings with
prospective equity investors in respect of the IPO;
(c) The Borrower, the Lenders and the Agent shall have
duly executed and delivered this Amendment to the Agent.
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SECTION 8. RELEASE AND WAIVER.
(a) The Borrower hereby acknowledges and agrees that: (a)
it has no claim, right or cause of action of any kind against any Lender or the
Agent or any parent, subsidiary or affiliate of any Lender or any of such
Lender's or the Agent's officers, directors, employees, attorneys or other
representatives or agents (all of which parties other than the Lenders and the
Agent being, collectively, the "Lender Agents") in connection with the Loan
Agreement and the other Loan Documents, the Loans advanced or the transactions
contemplated therein; (b) it has no offset or defense of any kind against any
of its respective obligations, indebtedness or contracts in favor of the
Lenders or the Agent; and (c) it recognizes that each of the Lenders and the
Agent has heretofore properly performed and satisfied in a timely manner all of
its respective obligations to and contracts with the Borrower.
(b) Although each of the Lenders and the Agent regards
its respective conduct as proper and does not believe the Borrower to have any
claim, right, cause of action, offset or defense against such Lender or the
Agent or any Lender Agent in connection with the Loan Agreement or any of the
other Loan Documents, the Loans advanced or the transactions contemplated
therein, each Lender and the Agent wishes and the Borrower agrees to eliminate
any possibility that any past conditions, acts, omissions, events,
circumstances or matters could impair or otherwise affect any rights,
interests, contracts or remedies of the Lenders or the Agent. Therefore, the
Borrower unconditionally, freely, voluntarily and after consultation with
counsel, releases, waives and forever discharges (i) any and all liabilities,
indebtedness and obligations, whether known or unknown, of any kind of any
Lender or the Agent or of any Lender Agent to the Borrower except the
obligations remaining to be respectively performed by the Lenders or the Agent
as expressly stated in the Loan Agreement, this Agreement and the other Loan
Documents; (ii) any legal, equitable or other obligations or duties, whether
known or unknown, of any Lender, the Agent or any Lender Agent to the Borrower
(and any rights of the Borrower against any Lender, the Agent, or any Lender
Agent) besides those expressly stated in the Loan Agreement, this Agreement and
the other Loan Documents; (iii) any and all claims under any oral or implied
agreement, obligation or understanding with any Lender, the Agent or any Lender
Agent, whether known or unknown, which is different from or in addition to the
express terms of the Loan Agreement, this Agreement or any of the other Loan
Documents; and (iv) all other claims, rights, causes of action, counterclaims
or defenses of any kind whatsoever (if any), whether known or unknown, which
the Borrower might otherwise have against any Lender, the Agent or any Lender
Agent on account of any condition, act, omission, event, contract, liability,
obligation, indebtedness, claim, right, cause of action, defense, circumstance
or matter of any kind whatsoever which existed, arose or occurred at any time
prior to the execution and delivery of this Agreement or which could arise
concurrently with the effectiveness of this Agreement.
SECTION 9. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
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IN WITNESS WHEREOF, the parties hereto have caused this Consent to be
executed as of the date first written above.
THE BORROWER STRATEGIC TIMBER PARTNERS, L.P., a Delaware limited
partnership
By: STRATEGIC TIMBER OPERATING CO., a Delaware
corporation, its general partner
By: /s/ Xxxxxxx X. Xxxxx
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Printed Name: Xxxxxxx X. Xxxxx
Title: Senior VP and CFO
THE LENDERS ABN AMRO BANK N.V.
By: /s/ Xxxx X. Xxxxxx
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Printed Name: Xxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxxxxx
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Printed Name: Xxxxx Xxxxxxxx
Title: Vice President
NATIONSBANK, N.A.
By: /s/ Xxxxxx X. Xxxxx
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Printed Name: Xxxxxx X. Xxxxx
Title: Vice President
AMSOUTH BANK
By: /s/ Xxxxxx X. Xxxxxxxx
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Printed Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ X. X. Xxxxxxx
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Printed Name: X. X. Xxxxxxx
Title: Authorized Signatory
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SOCIETE GENERALE
By: /s/ Xxxxxxx X. Xxxxx
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Printed Name: Xxxxxxx X. Xxxxx
Title: Director
SOUTH TRUST BANK, N.A.
By: /s/ W. Xxxxxxx Xxxxxxx
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Printed Name: W. Xxxxxxx Xxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Printed Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
THE AGENT ABN AMRO BANK N.V., as Agent
By: /s/ Xxxx X. Xxxxxx
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Printed Name: Xxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxxxxx
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Printed Name: Xxxxx Xxxxxxxx
Title: Vice President
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