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EXHIBIT 3.5.3
FIRST AMENDMENT
TO
FIRST AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
STRATEGIC TIMBER PARTNERS, LP
THIS Agreement of Amendment is made and entered into as of the 9th day
of October 1998 by and among Strategic Timber Operating Co. ("General Partner"),
Strategic Timber Trust, Inc. ("REIT"), and Louisiana Timber Partners, LLC
("LTP"), who are all of the partners of Strategic Timber Partners, LP, a
Delaware limited partnership (the "Partnership").
RECITALS
On April 21, 1998, the General Partner and the REIT, as the sole
limited partner, (collectively the "Original Partners") formed Strategic Timber
Partners, LP as a limited partnership under the Revised Uniform Limited
Partnership Act of the State of Delaware pursuant to the Certificate and
Agreement of Limited Partnership of Strategic Timber Partners, LP, dated as of
April 21, 1998.
On April 23, 1998, LTP was admitted as a Class B and Class C Limited
Partner in consideration of the contribution to capital of the Partnership
specified in that certain Contribution Agreement by and among the Partnership,
the General Partner, the REIT and LTP and executed the First Amended and
Restated Agreement of Limited Partnership of Strategic Timber Partners, LP
("Partnership Agreement.")
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In order to better reflect the intent of the parties with respect to
the rights of LTP and for other reasons, the parties hereto desire to amend the
Partnership Agreement in accordance with the terms set forth herein:
Capitalized terms used in this Agreement shall have the same meaning as
stated in the Partnership Agreement, unless provided to the contrary herein.
For and in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties agree as follows:
1. Amendments.
A. The definition of "REIT Expenses" appearing in Section 1.1
of the Partnership Agreement is hereby amended and restated as follows:
"REIT Expenses" mean the Partnership's allocable share, as
determined under Section 7.2(b) of this Agreement, of the
following expenses: (i) the costs and expenses relating to any
offer or registration of securities by the REIT and all
statements, reports, fees and expenses incidental thereto,
including underwriting discounts and selling commissions
applicable to any such offer of securities, (ii) costs and
expenses associated with compliance by the REIT with
laws, rules and regulations promulgated by any regulatory
body,
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including the SEC, and (iii) all other operating or
administrative costs of the General Partner, the REIT and its
subsidiaries reasonably allocable to the Partnership that are
incurred in the ordinary course of its business on behalf of
the Partnership, including without limitation reasonable
salaries for the officers and employees of Strategic Timber
Two Operating Co., LLC. The reimbursement of REIT Expenses
shall not constitute a distribution under Article V of this
Agreement.
B. Section 7.2(b) of the Partnership Agreement is hereby
amended by adding the following sentence at the end of such paragraph:
All operating or administrative costs of the General Partner,
the Partnership and their Affiliates shall be apportioned
among the various entities in a reasonable manner based upon
the services provided to the respective entities.
C. Paragraph 1 of Exhibit D is amended by amending and
restating the definition of IPO as follows:
"IPO" means any one or more of the following: (i) the REIT's
initial underwritten offering of its Shares to the public
pursuant to a registration statement that has been declared
effective by the SEC, or (ii) the Partnership having obtained
subscription agreements from equity investors, with
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adequate net worth to fund their subscriptions, in a private
placement of Partnership Units, or (iii) a public offering of
debt securities by the Partnership pursuant to a registration
statement that has been declared effective by the SEC, if any
one or more of such events will result in minimum net proceeds
of at least $210,000,000.
D. Paragraph 1 of Exhibit D is amended by adding the following
definition:
"IPO Closing" means consummation of any one or more of the
following: (i) the sale of Shares by the REIT in the IPO
including receipt of the consideration, or (ii) the funding
by the investors of their equity contribution to the
Partnership pursuant to a private placement of securities, or
(iii) a public offering of debt securities by the Partnership,
if any one or more of such events results in minimum net
proceeds of at least $210,000,000.
E. Paragraph 4 of Exhibit D is amended and restated as
follows:
2. Put/Call.
(a) If on or before the IPO Deadline, (i) one or more of the
events listed in the definition of IPO has not occurred, or (ii) the
General Partner has not otherwise secured funding for the redemption of
LTP's Partnership
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Interest for $50 million in a manner that is consistent with the
Financing Documents, LTP shall have the right to put its Partnership
Interest to the REIT and the REIT shall have a call right on LTP's
Partnership Interest. The exercise price of the put and the call shall
be $50,000,000, plus 8 1/2% per annum simple interest from and after
the date that a Notice of put or call is given until such amount is
paid ("Exercise Price"). Any purchase and sale effectuated pursuant to
this Paragraph 2(a) shall be completed on or before the later of April
30, 1999 or 30 days following the date that a put or call Notice is
given and shall be subject to the customary representations and
warranties by a seller in such a transaction. However, if, on or before
the IPO Deadline, either a registration statement for the sale of
Shares has been completed and filed with the SEC, or a private
placement memorandum for the sale of Partnership Interests has been
completed and submitted to potential investors, and all material steps
necessary or desirable to effect the offering of such Shares or
Partnership Interests, as the case may be, are undertaken by the REIT
or the Partnership in good faith and the REIT and the Partnership are
diligently proceeding toward completion of the IPO or private
placement, taking into account existing market conditions, then LTP's
right to put its Partnership Interest will be tolled during the period
of either of such offerings; provided, however, if either of such
offerings has not been completed and the proceeds received with respect
thereto, on or before June 20, 1999, then LTP will once again have the
right to put its Partnership Interest to the REIT in accordance with
the provisions of this paragraph 4(a).
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During the period of either of such offerings, the General Partner
shall regularly consult with LTP regarding the status of such offering,
and, in the event the General Partner reasonably believes, on the basis
of market response to such offerings, that the IPO Closing will take
place within a reasonable period of time (not to exceed September 30,
1999), the General Partner may request a further extension of the Put
Deadline, and LTP agrees to consider any such extension reasonably and
in good faith. Upon any such put by LTP, the purchase and sale of LTP's
Partnership Interest will be completed upon the later to occur of June
30, 1999 or ten (10) days after the date that LTP provides notice of
such put to the REIT. The date upon which the REIT is obligated to
consummate the purchase of LTP's Partnership Interest pursuant to the
exercise of LTP's put right is hereinafter referred to as the "Put
Deadline".
(b) From and after the issuance of a Notice of a put, the
Partnership shall not make any further distributions from the
Partnership (except for distributions necessary to pay debt service
under any of the Financing Documents) unless the partners otherwise
agree or LTP has assumed responsibility for the marketing of the
Property pursuant to Section 2(c) hereof.
(c) If the REIT is unable to pay the Exercise Price on or
before the applicable Put Deadline, LTP shall have the exclusive right
to market the
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Bel Quatre Property for sale on such terms and conditions as LTP
elects, in its sole discretion, subject solely to the Financing
Documents or refinance the indebtedness evidenced and secured by the
Financing Documents. In that event, the REIT, the General Partner, and
any of their Affiliates will execute and deliver all documents
requested by LTP that may be necessary or appropriate, as determined in
the sole judgment of LTP, in connection with such sale or refinancing
of the Bel Quatre property.
(d) Once LTP has assumed responsibility for marketing the Bel
Quatre Property pursuant to paragraph 2(c) of this Exhibit D, all funds
realized from a sale or refinance of the Bel Quatre Property will,
after payment of the indebtedness evidenced by the Financing Documents,
be paid solely and exclusively to LTP.
3. Continuation. Except as specifically modified and amended herein,
the Partnership Agreement shall be and remain in full force and effect in
accordance with its terms, all of which are expressly ratified and confirmed.
4. Counterparts. This Amendment may be signed in multiple counterparts,
each of which shall be deemed an original.
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IN WITNESS WHEREOF, the parties have set their hands and seals, the day
and year written above.
GENERAL PARTNER:
STRATEGIC TIMBER OPERATING CO.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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LIMITED PARTNERS:
STRATEGIC TIMBER TRUST, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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LOUISIANA TIMBER PARTNERS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Manager
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