EXHIBIT 10.55
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT ("Second
Amendment") is entered into this 30th day of March, 2001, by and between TEXAS
TIMBERJACK, INC. ("Borrower") and BANK OF AMERICA, N.A. ("Lender").
WHEREAS, Borrower and Lender entered into an Amended and Restated Loan
Agreement dated March 31, 2000 (the "Agreement"); and
WHEREAS, Borrower and Lender entered into a First Amendment to Amended
and Restated Loan Agreement dated September 1, 2000 (the "First Amendment"); and
WHEREAS, Borrower and Lender now desire to further modify and amend the
Agreement as hereinafter provided.
NOW, THEREFORE, for and in consideration of the premises, Borrower and
Lender hereby covenant and agree as follows:
1. The "Line" (as defined in Section 2Ai of the Agreement) shall mean the
line of credit loan evidenced by a Promissory Note of even date
herewith, executed by Borrower, as Maker, payable to the order of Bank
of America, N.A. in the maximum principal amount of $8,000,000.00, and
any renewals, extensions or modifications thereof. The Line is subject
to the Borrowing Base Agreement set forth in Exhibit "A" to the
Agreement, provided (i) "Eligible Accounts Receivable" shall not
include accounts arising from performance of warranty services, and
(ii) "Eligible Sales Contract Receivables" shall not include any such
account receivable which is 90 days or more past due. The Borrowing
Base Certificate attached to the Agreement shall be amended to reflect
the foregoing amendments to the said Borrowing Base Agreement.
2. The "Loan" (as defined in Section 1F and Section 2A of the Agreement)
shall mean, in addition to the loans described in Section 2A of the
Agreement, the loans evidenced by two Promissory Notes of even date
herewith, executed by Borrower and Southern Forest Products, LLC, as
Maker, payable to the order of Bank of America, N.A. in the principal
face amount of $3,500,000.00 and $589,000.00, respectively, and any
renewals, extensions or modifications thereof.
3. The "Note" (as defined in Section 2A of the Agreement) shall refer
collectively to the Promissory Notes referenced above and Borrower's
Promissory Note dated August 7, 1998, payable to the order of
NationsBank of Texas, N.A. in the principal face amount of
$4,000,000.00, and any renewals, extensions or modifications thereof.
4. Borrower stipulates, acknowledges and agrees that Lender has not
required Borrower to guarantee, co-make, secure or otherwise become
obligated directly or indirectly) for
the indebtedness of any third party to Lender as a condition to, or as
consideration or, the making of the Loan or the extension of any
credit to Borrower.
5. All collateral and security of any kind mortgaged, pledged or otherwise
hypothecated by Borrower to secure any indebtedness of Borrower to
Lender shall also secure the payment of the Loan and all indebtedness
(whether now existing or hereafter incurred) of Southern Forest
Products, LLC owing to Lender or to any affiliate or subsidiary of Bank
of America Corporation.
6. Borrower represents and warrants to Lender that each of the
representations and warranties set forth in Section 3 of the Agreement
are true and correct as of the date hereof, as if made on the effective
date of this Second Amendment, except for representations which are
specifically limited to a specified date or time period prior to the
date of this Second Amendment.
7. Borrower represents and warrants to Lender that no default (as defined
in Section 6 of the Agreement) exists under the terms of the
Agreement, as amended hereby.
8. Borrower and Lender hereby ratify, adopt and reaffirm (i) each of the
terms and provisions of the Agreement subject only to the modifications
contained herein, and (ii) each of the Loan Documents (as defined in
the Agreement).
9. This Second Amendment is effective as of the month, day and year first
above stated. With regard to periods of time prior to the said
effective date, except as herein specifically provided, the Agreement
and the First Amendment (as originally written, without the amendments
set forth herein) shall be applicable.
10. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY RELATED NOTES OR INSTRUMENTS, INCLUDING ANY
CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY
BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR
IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE
AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OR JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. (J.A.M.S.) AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL
RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY MAY BRING AN
ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL
ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT
APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(A) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF
BORROWER'S DOMICILE AT THE TIME OF EXECUTION OF THIS
AGREEMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR.
IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND
FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF
CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR AN
ADDITIONAL 60 DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO
(i) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR
(ii) BE A WAIVER BY LENDER OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. ss. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT
THE RIGHT OF LENDER (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (B) TO FORECLOSURE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR
ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT
OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. LENDER MAY EXERCISE
SUCH SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY, OR OBTAIN SUCH
PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY
OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT.
NEITHER THE EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY
REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING
THE CLAIMANT IN SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY
OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
11. THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties have caused this Second Amendment to
Amended and Restated Loan Agreement to be duly executed as of the month, day and
year first stated above.
BORROWER: LENDER:
TEXAS TIMBERJACK, INC. BANK OF AMERICA, N.A.
By:___________________________ By:_______________________________
Name:_____________________ Name:______________________
Title:______________________ Title:_____________________
JOINDER OF SOUTHERN FOREST PRODUCTS, LLC
The undersigned hereby approves, and consents to, the foregoing Second
Amendment.
SOUTHERN FOREST PRODUCTS, LLC
By:________________________________
Name:__________________________
Title:___________________________