UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________________________
FORM 10-Q
___________________________________________________
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(Mark One)
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x
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Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the quarterly period ended September 30, 2018
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OR
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o
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Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the transition period from
to
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Commission file number 001-36239
CATCHMARK TIMBER TRUST, INC.
(Exact name of registrant as specified in its charter)
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Maryland
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20-3536671
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification Number)
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5 Concourse Parkway, Suite 2325
Atlanta, GA 30328
(Address of principal executive offices)
(Zip Code)
(855) 858-9794
(Registrant’s telephone number, including area code)
(Former name, former address, and former fiscal year, if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes
x
No
o
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or such shorter period that the registrant was required to submit such files)
Yes
x
No
o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer," “smaller reporting company,” and "emerging growth company" in Rule 12b-2 of the Exchange Act (check one).
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Large accelerated filer
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o
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Accelerated filer
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x
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Non-accelerated filer
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o
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Smaller reporting company
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x
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Emerging growth company
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o
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If an emerging growth company indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act
o
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes
o
No
x
Number of shares outstanding of the registrant’s common stock, as of October 31, 2018:
49,026,621
shares
FORM 10-Q
CATCHMARK TIMBER TRUST, INC.
TABLE OF CONTENTS
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Page No.
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PART I. FINANCIAL INFORMATION
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Item 1.
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Consolidated Statements of Operations for the Three Months and Nine Months Ended September 30, 2018 (unaudited) and 2017 (unaudited)
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Consolidated Statements of Comprehensive Income (Loss) for the Three Months and Nine Months Ended September 30, 2018 (unaudited) and 2017 (unaudited)
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Consolidated Statements of Stockholders' Equity for the Nine Months Ended September 30, 2018 (unaudited) and 2017 (unaudited)
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Consolidated Statements of Cash Flows for the Nine Months Ended September 30, 2018 (unaudited) and 2017 (unaudited)
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Item 2.
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Item 3.
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Item 4.
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PART II. OTHER INFORMATION
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Item 1.
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Item 1A.
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Item 2.
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Unregistered Sales of Equity Securities and Use of Proceeds
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Item 6.
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GLOSSARY
The following abbreviations or acronyms may be used in this document and shall have the adjacent meanings set forth below:
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AFM
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American Forestry Management, Inc.
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AgFirst
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Agfirst Farm Credit Bank
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ASC
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Accounting Standards Codification
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ASU
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Accounting Standards Update
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CoBank
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CoBank, ACB
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Code
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Internal Revenue Code of 1986, as amended
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EBITDA
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Earnings before Interest, Taxes, Depletion, and Amortization
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FASB
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Financial Accounting Standards Board
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FCCR
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Fixed Charge Coverage Ratio
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FRC
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Forest Resource Consultants, Inc.
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GAAP
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U.S. Generally Accepted Accounting Principles
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HBU
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Higher and Better Use
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IP
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International Paper Company
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LIBOR
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London Interbank Offered Rate
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LTIP
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Long-Term Incentive Plan
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LTV
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Loan-to-Value
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MBF
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Thousand Board Feet
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MPERS
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Missouri Department of Transportation & Patrol Retirement System
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NYSE
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New York Stock Exchange
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Rabobank
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Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A.
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REIT
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Real Estate Investment Trust
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SEC
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Securities and Exchange Commission
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TRS
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Taxable REIT Subsidiary
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U.S.
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United States
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WestRock
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WestRock Company (formerly known as MeadWestvaco Corporation)
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this Quarterly Report on Form 10-Q of
CatchMark Timber Trust, Inc.
(“CatchMark”, “we,” “our,” or “us”) may be considered forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In addition, we or our executive officers on our behalf, may from time to time make forward-looking statements in reports and other documents we file with the SEC or in connection with written or oral statements made to the press, potential investors, or others. We intend for all such forward-looking statements to be covered by the applicable safe harbor provisions for forward-looking statements contained in the Securities Act and the Exchange Act.
Forward-looking statements can generally be identified by our use of forward-looking terminology such as “may,” “will,” “expect,” “intend,” “anticipate,” “estimate,” “believe,” “continue,” or other similar words. However, the absence
of these or similar words or expressions does not mean that a statement is not forward-looking. Forward-looking statements are not guarantees of performance and are based on certain assumptions, discuss future expectations, describe plans and strategies, contain projections of results of operations or of financial condition or state other forward-looking information. Forward-looking statements in this report relate to anticipated delivery of income, value and long-term returns through sustainable harvests, well-timed real estate sales, selective acquisitions, joint ventures, and related fee-based asset management business; property performance and anticipated growth in our portfolio; expected uses of cash generated from operations, debt financings and debt and equity offerings; expected sources and adequacy of capital resources and liquidity; distribution policy; change in depletion rates, merchantable timber book value and standing timber inventory volume; anticipated harvest volume and mix of harvest volume; possible interest rate risk mitigation actions; anticipated non-cash GAAP losses from the unconsolidated Triple T Joint Venture; and other factors that may lead to fluctuations in future net income (loss). Forward-looking statements in this report also relate to our recently completed Triple T Timberlands transaction and include, but are not limited to, statements about the expected benefits of the transaction, including anticipated harvest volume, financial and operating results and future returns to stockholders; our plans, objectives, expectations, projections and intentions; our integration plans; and projected growth in our annual harvest volumes.
Forward-looking statements are based on a number of assumptions involving judgments and are subject to risks, uncertainties, and other factors that could cause actual results to differ materially from our historical experience and our present expectations. Such risks and uncertainties with regard to the Triple T Timberlands transaction include, but are not limited to, the risks that the acquired assets and operations may not be integrated successfully or integration costs may be higher than anticipated; the expected benefits of and growth from the transaction may not be fully realized or make take longer to realize than expected; the diversion of management time on integration-related matters; the potential impact of the transaction on relationships with customers, suppliers, competitors, and management and other employees; and litigation risks related to the transaction. With respect to our ongoing business, such risks and uncertainties include those discussed in Item 1A.
Risk Factors
in our Annual Report on Form 10-K for the year ended December 31, 2017 and our subsequent reports filed with the SEC. Accordingly, readers are cautioned not to place undue reliance on our forward-looking statements, which speak only as of the date that this report is filed with the SEC. We do not intend to publicly update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise, except as required by law.
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PART I.
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FINANCIAL INFORMATION
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ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The information furnished in the accompanying consolidated balance sheets and related consolidated statements of operations, comprehensive income (loss), stockholders’ equity, and cash flows reflects all adjustments, consisting solely of normal and recurring adjustments, that are, in management’s opinion, necessary for a fair and consistent presentation of the aforementioned financial statements.
The accompanying consolidated financial statements should be read in conjunction with the condensed notes to our consolidated financial statements and Management’s Discussion and Analysis of Financial Condition and Results of Operations included in this Quarterly Report on Form 10-Q and with our Annual Report on Form 10-K for the year ended
December 31, 2017
. Our results of operations for the three months and
nine months ended
September 30, 2018
are not necessarily indicative of the operating results expected for the full year.
CATCHMARK TIMBER TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except for per-share amounts)
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(Unaudited)
September 30, 2018
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December 31, 2017
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Assets:
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Cash and cash equivalents
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$
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15,323
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$
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7,805
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Accounts receivable
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6,549
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4,575
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Prepaid expenses and other assets
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10,495
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5,436
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Deferred financing costs
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348
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403
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Timber assets (Note 3):
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Timber and timberlands, net
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773,844
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710,246
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Intangible lease assets, less accumulated amortization of $944 and $941 as of September 30, 2018 and December 31, 2017, respectively
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13
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16
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Investments in unconsolidated joint ventures (Note 4)
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128,926
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11,677
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Total assets
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$
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935,498
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$
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740,158
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Liabilities:
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Accounts payable and accrued expenses
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$
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6,411
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$
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4,721
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Other liabilities
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3,920
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2,969
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Notes payable and lines of credit, net of deferred financing costs (Note 5)
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551,598
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330,088
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Total liabilities
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561,929
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337,778
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Commitments and Contingencies (Note 7)
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—
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—
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Stockholders’ Equity:
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Class A Common stock, $0.01 par value; 900,000 shares authorized; 49,125 and 43,425 shares issued and outstanding as of September 30, 2018 and December 31, 2017, respectively
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491
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434
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Additional paid-in capital
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730,814
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661,222
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Accumulated deficit and distributions
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(364,454
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)
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(261,652
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)
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Accumulated other comprehensive income
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6,718
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2,376
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Total stockholders’ equity
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373,569
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402,380
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Total liabilities and stockholders’ equity
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$
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935,498
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$
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740,158
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See accompanying notes.
CATCHMARK TIMBER TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except for per-share amounts)
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(Unaudited)
Three Months Ended
September 30,
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(Unaudited)
Nine Months Ended
September 30,
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2018
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2017
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2018
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2017
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Revenues:
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Timber sales
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$
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16,742
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$
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17,049
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$
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53,140
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$
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50,928
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Timberland sales
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3,818
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342
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14,904
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13,745
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Asset management fees
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2,698
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40
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2,759
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69
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Other revenues
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1,319
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1,181
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4,127
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3,831
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24,577
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18,612
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74,930
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68,573
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Expenses:
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Contract logging and hauling costs
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7,613
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6,876
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24,154
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21,857
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Depletion
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6,224
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7,265
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19,884
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20,511
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Cost of timberland sales
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3,210
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211
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11,590
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9,706
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Forestry management expenses
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1,370
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1,737
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4,622
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4,874
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General and administrative expenses
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2,484
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2,257
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8,602
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7,477
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Land rent expense
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153
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146
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490
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452
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Other operating expenses
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1,356
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1,340
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4,197
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3,988
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22,410
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19,832
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73,539
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68,865
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Operating income (loss)
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2,167
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(1,220
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)
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1,391
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(292
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)
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Other income (expense):
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Interest income
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20
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37
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180
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74
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Interest expense
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(4,321
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)
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(2,819
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)
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(11,125
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)
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(8,101
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)
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(4,301
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)
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(2,782
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)
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(10,945
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)
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(8,027
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)
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Net loss before unconsolidated joint ventures
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(2,134
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)
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(4,002
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)
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(9,554
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)
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(8,319
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)
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Loss from unconsolidated joint ventures
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(76,765
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)
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|
(42
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)
|
|
(74,235
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)
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(169
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)
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Net loss
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$
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(78,899
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)
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$
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(4,044
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)
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$
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(83,789
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)
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$
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(8,488
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)
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Weighted-average common shares outstanding - basic and diluted
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49,118
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38,823
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47,551
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38,799
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Net loss per share - basic and diluted
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$
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(1.61
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)
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$
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(0.10
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)
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$
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(1.76
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)
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$
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(0.22
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)
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See accompanying notes.
CATCHMARK TIMBER TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
(in thousands)
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(Unaudited)
Three Months Ended
September 30,
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(Unaudited)
Nine Months Ended
September 30,
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2018
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2017
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2018
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2017
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Net loss
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$
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(78,899
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)
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$
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(4,044
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)
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$
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(83,789
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)
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$
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(8,488
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)
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Other comprehensive income (loss):
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Market value adjustment to interest rate swaps
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891
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(531
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)
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4,342
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(1,103
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)
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Comprehensive loss
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$
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(78,008
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)
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$
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(4,575
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)
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$
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(79,447
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)
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|
$
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(9,591
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)
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See accompanying notes.
CATCHMARK TIMBER TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY (UNAUDITED)
(in thousands, except for per-share amounts)
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|
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|
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|
|
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Common Stock
|
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Additional
Paid-In
Capital
|
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Accumulated
Deficit and Distributions
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Accumulated Other Comprehensive Income
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Total
Stockholders’
Equity
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Shares
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Amount
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Balance, December 31, 2017
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43,425
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$
|
434
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|
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$
|
661,222
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|
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$
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(261,652
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)
|
|
$
|
2,376
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|
|
$
|
402,380
|
|
Common stock issued pursuant to:
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|
|
|
|
|
|
|
|
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Equity offering
|
5,750
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|
58
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|
|
72,392
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|
|
|
|
|
|
|
|
72,450
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|
LTIP, net of forfeitures and amounts withheld for income taxes
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(50
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)
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(1
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)
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|
823
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|
|
|
|
822
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Stock issuance cost
|
|
|
|
|
(3,623
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)
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|
|
|
|
|
(3,623
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)
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Dividends to common stockholders ($0.405 per share)
|
|
|
|
|
|
|
(19,013
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)
|
|
|
|
(19,013
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)
|
Net loss
|
|
|
|
|
|
|
(83,789
|
)
|
|
|
|
|
(83,789
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)
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Other comprehensive income
|
|
|
|
|
|
|
|
|
4,342
|
|
|
4,342
|
|
Balance, September 30, 2018
|
49,125
|
|
|
$
|
491
|
|
|
$
|
730,814
|
|
|
$
|
(364,454
|
)
|
|
$
|
6,718
|
|
|
$
|
373,569
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock
|
|
Additional
Paid-In
Capital
|
|
Accumulated
Deficit and Distributions
|
|
Accumulated Other Comprehensive Income
|
|
Total
Stockholders’
Equity
|
|
Shares
|
|
Amount
|
|
|
Balance, December 31, 2016
|
38,797
|
|
|
$
|
388
|
|
|
$
|
605,728
|
|
|
$
|
(226,793
|
)
|
|
$
|
1,747
|
|
|
$
|
381,070
|
|
Common stock issued pursuant to:
|
|
|
|
|
|
|
|
|
|
|
|
LTIP, net of forfeitures and amounts withheld for income taxes
|
124
|
|
|
1
|
|
|
1,713
|
|
|
|
|
|
|
1,714
|
|
Dividends to common stockholders ($0.405 per share)
|
|
|
|
|
|
|
(15,546
|
)
|
|
|
|
(15,546
|
)
|
Repurchases of common shares
|
(97
|
)
|
|
(1
|
)
|
|
(1,035
|
)
|
|
|
|
|
|
(1,036
|
)
|
Net loss
|
|
|
|
|
|
|
(8,488
|
)
|
|
|
|
(8,488
|
)
|
Other comprehensive loss
|
|
|
|
|
|
|
|
|
(1,103
|
)
|
|
(1,103
|
)
|
Balance, September 30, 2017
|
38,824
|
|
|
$
|
388
|
|
|
$
|
606,406
|
|
|
$
|
(250,827
|
)
|
|
$
|
644
|
|
|
$
|
356,611
|
|
See accompanying notes.
CATCHMARK TIMBER TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
|
|
|
|
|
|
|
|
|
|
(Unaudited)
Nine Months Ended
September 30,
|
|
2018
|
|
2017
|
Cash Flows from Operating Activities:
|
|
|
|
Net loss
|
$
|
(83,789
|
)
|
|
$
|
(8,488
|
)
|
Adjustments to reconcile net loss to net cash provided by operating activities:
|
|
|
|
Depletion
|
19,884
|
|
|
20,511
|
|
Basis of timberland sold, lease terminations and other
|
10,771
|
|
|
9,647
|
|
Stock-based compensation expense
|
2,171
|
|
|
2,025
|
|
Noncash interest expense
|
2,371
|
|
|
834
|
|
Other amortization
|
160
|
|
|
127
|
|
Loss from unconsolidated joint ventures
|
74,235
|
|
|
169
|
|
Operating distributions from unconsolidated joint ventures
|
3,658
|
|
|
—
|
|
Changes in assets and liabilities:
|
|
|
|
Accounts receivable
|
(2,643
|
)
|
|
(1,005
|
)
|
Prepaid expenses and other assets
|
(295
|
)
|
|
(531
|
)
|
Accounts payable and accrued expenses
|
1,627
|
|
|
1,632
|
|
Other liabilities
|
1,121
|
|
|
809
|
|
Net cash provided by operating activities
|
29,271
|
|
|
25,730
|
|
|
|
|
|
Cash Flows from Investing Activities:
|
|
|
|
Timberland acquisitions, earnest money deposits and other
|
(91,424
|
)
|
|
(2,722
|
)
|
Capital expenditures (excluding timberland acquisitions)
|
(2,821
|
)
|
|
(3,654
|
)
|
Investments in unconsolidated joint ventures
|
(200,000
|
)
|
|
(10,539
|
)
|
Distributions from unconsolidated joint ventures
|
4,858
|
|
|
—
|
|
Net cash used in investing activities
|
(289,387
|
)
|
|
(16,915
|
)
|
|
|
|
|
Cash Flows from Financing Activities:
|
|
|
|
Repayments of note payable
|
(69,000
|
)
|
|
—
|
|
Proceeds from note payable
|
289,000
|
|
|
11,000
|
|
Financing costs paid
|
(832
|
)
|
|
(202
|
)
|
Issuance of common stock
|
72,450
|
|
|
—
|
|
Other offering costs paid
|
(3,623
|
)
|
|
—
|
|
Dividends paid to common stockholders
|
(19,013
|
)
|
|
(15,546
|
)
|
Repurchase of common shares under the share repurchase program
|
—
|
|
|
(1,036
|
)
|
Repurchase of common shares for minimum tax withholdings
|
(1,348
|
)
|
|
(311
|
)
|
Net cash provided by (used in) financing activities
|
267,634
|
|
|
(6,095
|
)
|
Net increase in cash and cash equivalents
|
7,518
|
|
|
2,720
|
|
Cash and cash equivalents, beginning of period
|
7,805
|
|
|
9,108
|
|
Cash and cash equivalents, end of period
|
$
|
15,323
|
|
|
$
|
11,828
|
|
See accompanying notes.
CATCHMARK TIMBER TRUST, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 2018
(unaudited)
CatchMark Timber Trust
Inc. ("CatchMark Timber Trust") (
NYSE
: CTT) owns and operates timberlands located in the United States and has elected to be taxed as a
REIT
for federal income tax purposes. CatchMark Timber Trust acquires, owns, operates, manages, and disposes of timberland directly, through wholly-owned subsidiaries, or through joint ventures.
CatchMark Timber Trust
was incorporated in Maryland in 2005 and commenced operations in 2007.
CatchMark Timber Trust
conducts substantially all of its business through CatchMark Timber Operating Partnership, L.P. (“
CatchMark Timber OP
”), a Delaware limited partnership.
CatchMark Timber Trust
is the general partner of
CatchMark Timber OP
, possesses full legal control and authority over its operations, and owns
99.99%
of its common partnership units. CatchMark LP Holder, LLC (“
CatchMark LP Holder
”), a Delaware limited liability company and wholly-owned subsidiary of
CatchMark Timber Trust
, is the sole limited partner of
CatchMark Timber OP
and owns the remaining
0.01%
of its common partnership units. In addition, CatchMark Timber TRS, Inc. (“CatchMark TRS”), a Delaware corporation formed as a wholly-owned subsidiary of
CatchMark Timber OP
in 2006, is our taxable REIT subsidiary. Unless otherwise noted, references herein to CatchMark shall include
CatchMark Timber Trust
and all of its subsidiaries, including
CatchMark Timber OP
, and the subsidiaries of
CatchMark Timber OP
, including CatchMark TRS.
2. Summary of Significant Accounting Policies
Basis of Presentation and Principles of Consolidation
The consolidated financial statements of CatchMark have been prepared in accordance with the rules and regulations of the SEC, including the instructions to Form 10-Q and Article 10 of Regulation S-X and do not include all of the information and footnotes required by GAAP for complete financial statements. In the opinion of management, the financial statements for the unaudited interim periods presented include all adjustments, which are of a normal and recurring nature, necessary for a fair and consistent presentation of the results for such periods. Results for these interim periods are not necessarily indicative of results for a full year. CatchMark’s consolidated financial statements include the accounts of CatchMark Timber Trust and its subsidiaries, including CatchMark Timber OP, and the subsidiaries of CatchMark Timber OP, including CatchMark TRS, and any variable-interest entity in which CatchMark Timber Trust or CatchMark Timber OP was deemed the primary beneficiary. With respect to entities that are not variable interest entities, CatchMark's consolidated financial statements also include the accounts of any entity in which CatchMark Timber Trust, CatchMark Timber OP, or their subsidiaries own a controlling financial interest and any limited partnership in which CatchMark Timber Trust, CatchMark Timber OP, or their subsidiaries own a controlling general partnership interest.
All intercompany balances and transactions have been eliminated in consolidation. For further information, refer to the audited financial statements and footnotes included in CatchMark’s Annual Report on Form 10-K for the year ended December 31, 2017.
Investments in Joint Ventures
For joint ventures that it does not control but exercises significant influence, CatchMark uses the equity method of accounting. CatchMark's judgment about its level of influence or control of an entity involves consideration of various factors including the form of its ownership interest; its representation in the entity's governance; its ability to participate in policy-making decisions; and the rights of other investors to participate in the decision-making process, to replace CatchMark as manager, and/or to liquidate the venture. Under the equity method, the investment in a joint venture is recorded at cost and adjusted for equity in earnings and cash contributions and distributions. Income or loss and cash distributions from an unconsolidated joint venture are allocated according to the provisions of the respective joint venture agreement, which may be different from its stated ownership percentages. Any difference between the carrying amount of these investments on CatchMark’s balance sheets and the underlying equity in net assets on the joint venture’s balance sheets is adjusted as the related underlying assets are depreciated, amortized, or sold. Distributions received
from unconsolidated joint ventures are classified in the accompanying consolidated statements of cash flows using the cumulative earnings approach under which distributions received in an amount equal to cumulative equity in earnings are classified as cash inflows from operating activities and distributions received in excess of cumulative equity in earnings represent returns of investment and therefore are classified as cash inflows from investing activities.
CatchMark evaluates the recoverability of its investments in unconsolidated joint ventures in accordance with accounting standards for equity investments by first reviewing each investment for any indicators of impairment. If indicators are present, CatchMark estimates the fair value of the investment. If the carrying value of the investment is greater than the estimated fair value, management assesses whether the impairment is “temporary” or “other-than-temporary.” In making this assessment, management considers the following: (1) the length of time and the extent to which fair value has been less than cost, (2) the financial condition and near-term prospects of the venture, and (3) CatchMark’s intent and ability to retain its interest long enough for a recovery in market value. If management concludes that the impairment is "other than temporary," CatchMark reduces the investment to its estimated fair value.
For information on CatchMark’s unconsolidated joint ventures, which are accounted for using the equity method of accounting, see
Note 4
,
Unconsolidated Joint Ventures
.
Revenue Recognition
In May 2014, the FASB issued ASU 2014-09,
Revenue from Contracts with Customers (Topic 606)
, a new revenue recognition model that supersedes most revenue recognition guidance under U.S. GAAP. Under this ASU and subsequently issued amendments, an entity is required to recognize revenue to depict the transfer of promised goods or services to customers in an amount that it expects to receive for the goods or services. CatchMark adopted ASU 2014-09 and its amendments for the interim and annual periods beginning January 1, 2018 using the modified retrospective method. Management performed a comprehensive evaluation of the impact of the new standard across all revenue streams and determined that the timing of revenue recognition and its classification in CatchMark’s consolidated financial statements remain substantially unchanged; however, additional disclosures are required.
Under the new standards, CatchMark recognizes revenues when the following criteria are met: (i) persuasive evidence of a contract with a customer exists, (ii) identifiable performance obligations under the contract exist, (iii) transaction price is determinable for each performance obligation, (iv) the transaction price is allocated to each performance obligation, and (v) when the performance obligations are satisfied.
CatchMark derives a majority of its revenues from timber sales, timberland sales, recreational leases, and asset management fees.
CatchMark generates its timber sales revenue from delivered wood sales, stumpage sales, and lump-sum sales with retained economic interests. Revenue for timber sales is recognized when the risk of loss passes to the customer. Only one performance obligation is associated with timber sales and it is satisfied when timber is delivered to or severed by the customer in an amount that reflects the consideration expected to be received.
Contractual terms of each timber sale, including pricing and volume for the respective product, are negotiated and entered into by the field managers. In delivered wood sales, product pricing includes amount sufficient to cover costs of contracting third-party logging crews to harvest and haul timber to the customers. Revenue is recognized when timber is delivered to the customer and the sales volume/value is known when timber crosses the customers’ scale. Stumpage sales are typically executed using pay-as-cut contracts, where a purchaser acquires the right to harvest specified timber on a designated tract for a set period of time at agreed-upon unit prices. Revenue is recognized when timber is severed under pay-as-cut contracts. In a lump-sum sales contract with retained economic interests, CatchMark receives advance payments for the standing timber specified in the contract and the customer is responsible for cutting and hauling the timber. CatchMark satisfies its performance obligation when timber is severed, at which time revenue is recognized. Contract payments are generally due within a month from the date timber is harvested and/or delivered. The transaction price for timber sales is determined using contractual rates applied to harvest volumes.
|
|
(b)
|
Timberland Sales Revenue
|
Performance obligations associated with timberland sales are met when all conditions of closing have been satisfied, which generally occurs at closing. Revenue for timberland sales is recognized at closing when title passes, payments are received or full collectibility is probable, and control is passed to the buyer.
|
|
(c)
|
Recreational Lease Revenue
|
Recreational lease revenue is derived from the leasing of the right to use CatchMark’s timberland. The agreed-upon transaction price of a lease is generally paid in full at the beginning of the lease term and recorded as deferred revenue. Performance obligations associated with a recreational lease are generally met over the period of the lease term. Revenue is recognized evenly over the lease term as CatchMark has satisfied its performance obligation.
|
|
(d)
|
Asset Management Fee Revenue
|
Under asset management agreements with its unconsolidated joint ventures, CatchMark earns management fees for performing asset management functions, as further described in
Note 4, Unconsolidated Joint Ventures.
As asset management services are ongoing and provided on a recurring basis, the associated performance obligations are generally met over the service period at an agreed-upon price stated in the agreements. Revenue for asset management services is recognized at the end of each service period.
Reclassification
Certain prior period amounts have been reclassified to conform with the current period's financial statement presentation.
Recent Accounting Pronouncements
In February 2016, the FASB issued ASU 2016-02,
Leases (Topic 842)
. The new standard establishes a right-of-use ("ROU") model that requires a lessee to record a ROU asset and a lease liability on the balance sheet for all leases with terms longer than 12 months. Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. In January 2018, the FASB issued ASU 2018-01, Leases
(Topic 842):
Land Easement Practical Expedient for Transition to Topic 842,
to address concerns about the costs and complexity of complying with the transition provision of the new lease requirements under ASU 2016-02
.
The amendments in ASU 2018-01 permit an entity to elect an optional transition practical expedient to not evaluate under Topic 842 its land easements that exist or expired before its adoption of Topic 842 that were not previously accounted for as leases under Topic 840. In July 2018, the FASB issued ASU 2018-10,
Codification Improvements to Topic 842, Leases
, to further improve existing guidance; and ASU 2018-11,
Leases (Topic 842)
:
Targeted Improvements,
to provide entities with relief from the costs of implementing certain aspects of ASU 2016-02. The standard requires a modified retrospective transition approach, but allows the entities to recognize a cumulative-effect adjustment to the opening balance of retained earnings in the period of adoption rather than in the earliest comparative period presented. ASU 2016-02 and its subsequent updates are effective for annual periods beginning after December 15, 2018, including interim periods within those annual periods, with early adoption permitted. CatchMark is in the process of evaluating the impact ASU 2016-02 and its amendments will have on its consolidated financial statements. CatchMark anticipates recognizing a right of use asset and lease liability for its corporate office lease. CatchMark anticipates using both of the practical expedients.
In August 2017, the FASB issued ASU 2017-12,
Targeted Improvements to Accounting for Hedging Activities (Topic 815),
which amends the hedge accounting recognition and presentation requirements in ASC 815, "
Derivatives and Hedging
." ASU 2017-12 expands an entity's ability to hedge nonfinancial and financial risk components and reduces the complexity in fair value hedges of interest rate risk. It eliminates the requirement to separately measure and report hedge ineffectiveness and requires the entire change in the fair value of a hedging instrument to be presented in the same income statement line as the hedged item when the hedged item affects earnings. ASU 2017-12 is effective for public entities for fiscal years beginning after December 15, 2018, and interim periods therein. Early adoption is
permitted in any interim period after issuance of ASU 2017-12. CatchMark adopted ASU 2017-12 on January 1, 2018 and the adoption did not have a material effect on its consolidated financial statements.
In June 2018, the FASB issued ASU 2018-07,
Compensation - Stock Compensation (Topic 718): Improvements to Nonemployee Share-Based Payment Accounting,
which expands the scope of ASC 718 to include share-based payments granted to non-employees in exchange for goods or services used or consumed in an entity’s own operations. This guidance aligns the measurement and classification for share-based payments to non-employees with the guidance for share-based payments to employees, with certain exceptions. ASU 2018-07 is effective for public entities for fiscal years beginning after December 15, 2018, and interim periods therein. CatchMark is currently assessing the impact ASU 2018-07 will have on its consolidated financial statements.
In August 2018, the FASB issued ASU 2018-13,
Fair Value Measurement (Topic 820)
:
Disclosure Framework - Changes to the Disclosure Requirements for Fair Value Measurement,
which added new disclosure requirements, eliminated and modified existing disclosure requirements on fair value measurement to improve the effectiveness of ASC 820. ASU 2018-13 is effective for all entities for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2019. CatchMark is currently assessing the impact ASU 2018-13 will have on its consolidated financial statements.
3. Timber Assets
As of
September 30, 2018
and
December 31, 2017
, timber and timberlands consisted of the following, respectively:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of September 30, 2018
|
(in thousands)
|
Gross
|
|
Accumulated
Depletion or
Amortization
|
|
Net
|
Timber
|
$
|
377,666
|
|
|
$
|
19,884
|
|
|
$
|
357,782
|
|
Timberlands
|
415,341
|
|
|
—
|
|
|
415,341
|
|
Mainline roads
|
1,438
|
|
|
717
|
|
|
721
|
|
Timber and timberlands
|
$
|
794,445
|
|
|
$
|
20,601
|
|
|
$
|
773,844
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2017
|
(in thousands)
|
Gross
|
|
Accumulated
Depletion or
Amortization
|
|
Net
|
Timber
|
$
|
332,253
|
|
|
$
|
29,035
|
|
|
$
|
303,218
|
|
Timberlands
|
406,284
|
|
|
—
|
|
|
406,284
|
|
Mainline roads
|
1,349
|
|
|
604
|
|
|
744
|
|
Timber and timberlands
|
$
|
739,886
|
|
|
$
|
29,639
|
|
|
$
|
710,246
|
|
Timberland Acquisitions
On August 28, 2018, CatchMark acquired fee simple interests in approximately
18,100
acres of timberland in Oregon (the "Bandon Property") for
$89.7 million
, exclusive of closing costs. The acquisition was funded from a combination of cash on hand and borrowing
$89.0 million
under CatchMark's multi-draw term facility (see
Note 5, Notes Payable and Lines of Credit
). During the three and nine months ended September 30, 2017, CatchMark did
no
t complete any timberland acquisitions.
Timberland Sales
During the
three months ended
September 30, 2018
and
2017
, CatchMark sold approximately
1,900
and
230
acres of timberland for
$3.8 million
and
$0.3 million
, respectively. CatchMark's cost basis in the timberland sold was
$3.0 million
and
$0.2 million
, respectively.
During the
nine months ended
September 30, 2018
and
2017
, CatchMark sold approximately
7,200
and
7,000
acres of timberland for
$14.9 million
and
$13.7 million
, respectively. CatchMark's cost basis in the timberland sold was
$10.7 million
and
$9.2 million
, respectively. Land sale acreage by state is listed below:
|
|
|
|
|
|
|
|
Nine Months Ended
September 30,
|
Acres Sold In:
|
2018
|
|
2017
|
Alabama
|
800
|
|
|
1,900
|
|
Georgia
|
2,200
|
|
|
4,700
|
|
Louisiana
|
200
|
|
|
400
|
|
North Carolina
|
1,000
|
|
|
—
|
|
South Carolina
|
2,900
|
|
|
—
|
|
Texas
|
100
|
|
|
—
|
|
Total
|
7,200
|
|
|
7,000
|
|
On August 20, 2018, Catchmark entered into a purchase and sale agreement with Forest Investment Associates L.P. to sell approximately
56,000
acres of its wholly-owned timberlands located in Texas and Louisiana (the "Southwest Property") for an aggregate price of approximately
$80.4 million
. CatchMark will retain approximately
280,000
tons of merchantable inventory (
50%
sawtimber/
50%
pulpwood) to be harvested over the next 18-24 months. The closing of the sale is scheduled to take place before the end of 2018.
Current Timberland Portfolio
As of
September 30, 2018
, CatchMark directly owned interests in approximately
520,500
acres of timberlands in the U.S. South and the Pacific Northwest, approximately
490,200
acres of which were held in fee simple interests and approximately
30,300
acres were held in leasehold interests. A detailed breakout of land acreage by state is listed below:
|
|
|
|
|
|
|
|
|
|
|
Acres by state as of September 30, 2018
|
|
Fee
|
|
Lease
|
|
Total
|
South
|
|
|
|
|
|
|
Alabama
|
|
73,600
|
|
|
5,300
|
|
|
78,900
|
|
Florida
|
|
2,000
|
|
|
—
|
|
|
2,000
|
|
Georgia
|
|
261,400
|
|
|
25,000
|
|
|
286,400
|
|
Louisiana
|
|
20,600
|
|
|
—
|
|
|
20,600
|
|
North Carolina
|
|
600
|
|
|
—
|
|
|
600
|
|
South Carolina
|
|
78,100
|
|
|
—
|
|
|
78,100
|
|
Tennessee
|
|
300
|
|
|
—
|
|
|
300
|
|
Texas
|
|
35,500
|
|
|
—
|
|
|
35,500
|
|
|
|
472,100
|
|
|
30,300
|
|
|
502,400
|
|
Pacific Northwest
|
|
|
|
|
|
|
Oregon
|
|
18,100
|
|
|
—
|
|
|
18,100
|
|
Total
|
|
490,200
|
|
|
30,300
|
|
|
520,500
|
|
4. Unconsolidated Joint Ventures
As of September 30, 2018, CatchMark owned interests in
two
joint ventures with unrelated parties: the Triple T Joint Venture and the Dawsonville Bluffs Joint Venture (each as defined and described below). CatchMark accounts for these investments using the equity method of accounting.
Triple T Joint Venture
On July 6, 2018, CatchMark entered into a limited partnership agreement for TexMark Timber Treasury, L.P. (the “Triple T Joint Venture”) with a consortium of institutional investors (the “Preferred Investors”), including BTG Pactual Timberland Investment Group, Highland Capital Management, Medley Management Inc., and British Columbia Investment Management Corporation. CatchMark invested
$200.0 million
in the Triple T Joint Venture, equal to
21.6%
of the total equity contributions, in exchange for a common limited partnership interest in the Triple T Joint Venture. CatchMark, through a separate wholly-owned and consolidated subsidiary, is the sole general partner of the Triple T Joint Venture. The Preferred Investors invested
$725.9 million
in the Triple T Joint Venture, equal to
78.4%
of the total equity contributions. The Triple T Joint Venture limited partnership agreement provides for a term of
five
years (extendable, subject to certain approvals, to
seven
and
ten
years), a preferred return to the Preferred Investors in priority to CatchMark, a subsequent preferred return to CatchMark and, finally, participation by CatchMark and the Preferred Investors in remaining distributions in percentages equal to
50%
/
50%
or
80%
/
20%
, respectively, depending upon the outcome of certain contingencies.
Also on July 6, 2018, the Triple T Joint Venture completed an acquisition of
1.1 million
acres of prime East Texas timberlands (the “Triple T Timberlands”), for approximately
$1.39 billion
(the “Acquisition Price”), exclusive of transaction costs. The Acquisition Price was funded by
$925.9 million
of equity contributions from the Triple T Joint Venture partners and a
$600 million
seven
-
year term loan made pursuant to a credit agreement, dated July 6, 2018, between the Triple T Joint Venture and its affiliates and the lenders. Borrowings under the term loan bear interest at one-month LIBOR plus a margin determined based upon a LTV ratio and are secured by the assets of the Triple T Joint Venture and its subsidiaries.
CatchMark funded its
$200.0 million
equity contribution with borrowings under its multi-draw term facility (see
Note 5, Notes Payable and Lines of Credit
), including
$30.0 million
borrowed for an earnest money deposit made in May 2018 and
$170.0 million
borrowed on July 5, 2018.
CatchMark uses the equity method to account for its investment in the Triple T Joint Venture since it does not possess the power to direct the activities that most significantly impact the economic performance of the Triple T Joint Venture, and accordingly, CatchMark does not possess the first characteristic of a primary beneficiary described in GAAP. CatchMark has the ability to appoint the common board members of the Triple T Joint Venture, which provides CatchMark with significant influence over the Triple T Joint Venture. Accordingly, pursuant to the applicable accounting literature, it is appropriate for CatchMark to apply the equity method of accounting to its investment in the Triple T Joint Venture.
The Triple T Joint Venture agreement has liquidation rights and priorities that are significantly different from CatchMark's stated ownership percentage based on total equity contributions. The Preferred Investors are entitled to a minimum
10.25%
cumulative return on their equity contributions, plus a complete return of their equity contributions before any distributions may be made on CatchMark’s common limited partnership interest. As such, CatchMark uses the hypothetical-liquidation-at-book-value method (“HLBV”) to determine its equity in the earnings of the Triple T Joint Venture. The HLBV method is commonly applied to equity investments in real estate, where cash distribution percentages vary at different points in time and are not directly linked to an investor's ownership percentage. For investments accounted for under the HLBV method, applying the percentage ownership interest to GAAP net income in order to determine earnings or losses would not accurately represent the income allocation and cash flow distributions that will ultimately be received by the investors.
CatchMark applies HLBV using a balance sheet approach. A calculation is prepared at each balance sheet date to determine the amount that CatchMark would receive if the Triple T Joint Venture were to liquidate all of its assets (as valued in accordance with GAAP) on that date and distribute the cash to the partners based on the contractually defined liquidation priorities. The difference between the calculated liquidation distribution amounts at the beginning and the
end of the reporting period, after adjusting for capital contributions and distributions, is CatchMark's income or loss from the Triple T Joint Venture for the period.
Condensed balance sheet information for the Triple T Joint Venture as of September 30, 2018 is as follows:
|
|
|
|
|
|
As of
|
(in thousands)
|
September 30, 2018
|
Triple T Joint Venture:
|
|
Total assets
|
$
|
1,622,720
|
|
Total liabilities
|
$
|
755,875
|
|
Total equity
|
$
|
866,845
|
|
CatchMark:
|
|
Carrying value of investment
|
$
|
123,245
|
|
Condensed income statement information for the Triple T Joint Venture from July 6, 2018 (inception) to September 30, 2018 is as follows:
|
|
|
|
|
|
From Inception through
|
(in thousands)
|
September 30, 2018
|
Triple T Joint Venture:
|
|
Total revenues
|
$
|
28,255
|
|
Operating loss
|
$
|
(3,329
|
)
|
Net loss
|
$
|
(9,407
|
)
|
CatchMark:
|
|
Equity share of net loss
|
$
|
(76,755
|
)
|
CatchMark's equity share of the Triple T Joint Venture's net loss using the HLBV method is calculated as follows:
|
|
|
|
|
|
|
|
(in thousands)
|
|
|
Triple T Joint Venture:
|
|
|
Total equity as of September 30, 2018
|
|
$
|
866,845
|
|
Preferred Investors:
|
|
|
Equity in Triple T Joint Venture, beginning balance
|
$
|
725,866
|
|
|
Minimum preferred return as of September 30, 2018
|
$
|
17,734
|
|
|
HLBV distribution as of September 30, 2018
|
|
$
|
743,600
|
|
CatchMark:
|
|
|
Equity in Triple T Joint Venture as of September 30, 2018
|
|
$
|
123,245
|
|
Equity in Triple T Joint Venture, beginning balance
|
|
$
|
200,000
|
|
Equity share of Triple T Joint Venture's net loss
|
|
$
|
(76,755
|
)
|
Dawsonville Bluffs Joint Venture
In April 2017, CatchMark entered into a limited liability agreement for Dawsonville Bluffs, LLC (the “Dawsonville Bluffs Joint Venture”) with MPERS. The Dawsonville Bluffs Joint Venture acquired a portfolio of
11,000
acres of commercial timberlands located in North Georgia for an aggregate purchase price of
$20.0 million
, exclusive of transaction costs. CatchMark owns a
50%
membership interest in the Dawsonville Bluffs Joint Venture and MPERS owns the remaining
50%
interest. CatchMark shares substantive participation rights with MPERS, including management selection and termination, and the approval of material operating and capital decisions and, as such, uses the equity method of accounting to record its investment. Income or loss and cash distributions are allocated according
to the provisions of the joint venture agreement, which are consistent with the ownership percentages for the Dawsonville Bluffs Joint Venture.
Condensed balance sheet information for the Dawsonville Bluffs Joint Venture is as follows:
|
|
|
|
|
|
|
|
|
|
As of
|
(in thousands)
|
September 30, 2018
|
|
December 31, 2017
|
Dawsonville Bluffs Joint Venture:
|
|
|
|
Total assets
|
$
|
12,003
|
|
|
$
|
24,014
|
|
Total liabilities
|
$
|
641
|
|
|
$
|
660
|
|
Total equity
|
$
|
11,362
|
|
|
$
|
23,354
|
|
CatchMark:
|
|
|
|
Carrying value of investment
|
$
|
5,681
|
|
|
$
|
11,677
|
|
Condensed income statement information for the Dawsonville Bluffs Joint Venture is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
(in thousands)
|
2018
|
|
2017
|
|
2018
|
|
2017
|
Dawsonville Bluffs Joint Venture:
|
|
|
|
|
|
|
|
Total revenues
|
$
|
198
|
|
|
$
|
390
|
|
|
$
|
13,813
|
|
|
$
|
414
|
|
Net income (loss)
|
$
|
(19
|
)
|
|
$
|
(84
|
)
|
|
$
|
5,040
|
|
|
$
|
(339
|
)
|
CatchMark:
|
|
|
|
|
|
|
|
Equity share of net income (loss)
|
$
|
(10
|
)
|
|
$
|
(42
|
)
|
|
$
|
2,520
|
|
|
$
|
(169
|
)
|
During the three months and
nine months ended
September 30, 2018
, CatchMark received cash distributions of
$1.3 million
and
$8.5 million
, respectively, from the Dawsonville Bluffs Joint Venture. Of the
$8.5 million
of cash distributions received for the nine months ended September 30, 2018,
$3.6 million
was classified as operating distributions and
$4.9 million
was classified as return of capital in the investing section of the accompanying consolidated statement of cash flows.
Asset Management Fees
CatchMark provides asset management services to the Triple T Joint Venture and the Dawsonville Bluffs Joint Venture. Under these arrangements, CatchMark oversees the day-to-day operations of these joint ventures and their properties, including accounting, reporting and other administrative services, subject to certain major decisions that require partner approval. For management of the Triple T Joint Venture, CatchMark receives a fee equal to 1% per annum, subject to reduction and deferment in certain circumstances, of the Acquisition Price multiplied by
78.4
%, which represents the percentage of the total equity contributions made to the Triple T Joint Venture by the Preferred Investors. For management of the Dawsonville Bluffs Joint Venture, CatchMark receives a percentage fee based on invested capital, as defined by the joint venture agreement.
During the three months and nine months ended September 30, 2018 and 2017, CatchMark earned the following fees from these unconsolidated joint ventures:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
(in thousands)
|
2018
|
|
2017
|
|
2018
|
|
2017
|
Triple T Joint Venture
(1)
|
$
|
2,675
|
|
|
$
|
—
|
|
|
$
|
2,675
|
|
|
$
|
—
|
|
Dawsonville Bluffs Joint Venture
|
$
|
23
|
|
|
$
|
40
|
|
|
$
|
84
|
|
|
$
|
69
|
|
|
$
|
2,698
|
|
|
$
|
40
|
|
|
$
|
2,759
|
|
|
$
|
69
|
|
|
|
(1)
|
Includes approximately
$119
of reimbursements of compensation costs for the three months and nine months ended September 30, 2018.
|
5. Notes Payable and Lines of Credit
As of
September 30, 2018
and
December 31, 2017
, CatchMark had the following debt balances outstanding:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands)
|
|
|
|
|
|
|
|
Outstanding Balance as of
|
Credit Facility
|
|
Maturity Date
|
|
Interest Rate
|
|
Current Interest Rate
(1)
|
|
September 30, 2018
|
|
December 31, 2017
|
Term Loan A-1
|
|
12/23/2024
|
|
LIBOR + 1.75%
|
|
3.96%
|
|
$
|
100,000
|
|
|
$
|
100,000
|
|
Term Loan A-2
|
|
12/1/2026
|
|
LIBOR + 1.90%
|
|
4.14%
|
|
100,000
|
|
|
118,809
|
|
Term Loan A-3
|
|
12/1/2027
|
|
LIBOR + 2.00%
|
|
4.24%
|
|
68,619
|
|
|
118,810
|
|
Term Loan A-4
|
|
8/22/2025
|
|
LIBOR + 1.70%
|
|
3.82%
|
|
140,000
|
|
|
—
|
|
Multi-Draw Term Facility
|
|
12/1/2024
|
|
LIBOR + 2.20%
|
|
4.40%
|
|
149,000
|
|
|
—
|
|
Total principal balance
|
|
|
|
|
|
|
|
$
|
557,619
|
|
|
$
|
337,619
|
|
Less: net unamortized deferred financing costs
|
|
$
|
(6,021
|
)
|
|
$
|
(7,531
|
)
|
Total
|
|
|
|
|
|
|
|
$
|
551,598
|
|
|
$
|
330,088
|
|
|
|
(1)
|
Represents weighted-average interest rate as of
September 30, 2018
. The weighted-average interest rate excludes the impact of the interest rate swaps (see
Note 6 - Interest Rate Swaps
), amortization of deferred financing costs, unused commitment fees, and estimated patronage refunds.
|
Credit Agreement Amendment
CatchMark is party to a credit agreement
dated as of December 1, 2017 (the “2017 Credit Agreement”) with a syndicate of lenders, including CoBank. On August 22, 2018, CatchMark and the lenders amended the 2017 Credit Agreement (the "2018 Amendment"), which expanded the total borrowing capacity by
$75 million
to
$643.6 million
, added a new
$140.0 million
seven
-year term loan (the “Term A-4 Loan”), and reduced the capacity under the
seven
-year multi-draw term credit facility from
$265.0 million
to
$200.0 million
. The 2017 Credit Agreement, as amended by the 2018 Amendment, provides for borrowing under credit facilities consisting of the following:
|
|
•
|
a continuation of a
$35.0 million
five
-year revolving credit facility (the “Revolving Credit Facility”);
|
|
|
•
|
a reduced
$200.0 million
seven
-year multi-draw term credit facility (the “Multi-Draw Term Facility”);
|
|
|
•
|
a continuation of a
$100.0 million
ten
-year term loan (the “Term Loan A-1”);
|
|
|
•
|
a continuation of a
$100.0 million
nine
-year term loan (the “Term Loan A-2”);
|
|
|
•
|
a continuation of a
$68.6 million
ten
-year term loan (the “Term Loan A-3”); and
|
|
|
•
|
a new
$140.0 million
seven
-year term loan (the "Term Loan A-4").
|
During the nine months ended September 30, 2018, CatchMark borrowed
$289.0 million
under its credit facilities to fund its investment in the Triple T Joint Venture and the acquisition of the Bandon Property.
Borrowings under the Revolving Credit Facility may be used for general working capital, to support letters of credit, to fund cash earnest money deposits, to fund acquisitions in an amount not to exceed
$5.0 million
, and for other general corporate purposes. The Revolving Credit Facility bears interest at an adjustable rate equal to a
base rate
plus between
0.50%
and
1.20%
or a
LIBOR
rate plus between
1.50%
and
2.20%
, in each case depending on CatchMark’s LTV Ratio, and will terminate and all amounts outstanding under the facility will be due and payable on December 1, 2022.
The Multi-Draw Term Facility may be used to finance timber acquisitions and associated expenses, to fund investment in joint ventures, and to reimburse payments of drafts under letters of credit. The Multi-Draw Term Facility, which is interest only until its maturity date, bears interest at an adjustable rate equal to a
base rate
plus between
0.50%
and
1.20%
or a
LIBOR
rate plus between
1.50%
and
2.20%
, in each case depending on CatchMark’s LTV Ratio, and will terminate and all amounts outstanding under the facility will be due and payable on December 1, 2024.
CatchMark pays the lenders an unused commitment fee on the unused portions of the Revolving Credit Facility and the Multi-Draw Term Facility at an adjustable rate ranging from
0.15%
to
0.35%
, depending on the LTV Ratio.
CatchMark’s obligations under the credit agreement are collateralized by a first priority lien on the timberlands owned by CatchMark’s subsidiaries and substantially all of CatchMark’s subsidiaries’ other assets in which a security interest may lawfully be granted, including, without limitation, accounts, equipment, inventory, intellectual property, bank accounts and investment property. In addition, CatchMark's obligations are jointly and severally guaranteed by all of CatchMark and its subsidiaries pursuant to the terms of the credit agreement. CatchMark has also agreed to guarantee certain losses caused by certain willful acts of CatchMark or its subsidiaries.
As of
September 30, 2018
,
$86.0 million
remained available under CatchMark's credit facilities, consisting of
$51.0 million
under
the Multi-Draw Term Facility and
$35.0 million
under
the Revolving Credit Facility.
Patronage Refunds
CatchMark is eligible to receive patronage refunds from its lenders (the "Patronage Banks") under a profit-sharing program made available to borrowers of the Farm Credit System. CatchMark has received a patronage refund on its eligible patronage loans annually since 2015. Of the total amount received each year,
75%
was received in cash and
25%
was received in equity of the Patronage Banks. The eligibility remains the same under the 2017 Credit Agreement and the 2018 Amendment. Therefore, CatchMark accrues patronage refunds it expects to receive in 2019 based on actual patronage refunds received as a percentage of its weighted-average eligible debt balance. For the
three months ended
September 30, 2018
and 2017, CatchMark recorded
$1.0 million
and
$0.7 million
, respectively, in expected patronage refunds against interest expense on the consolidated statements of operations. For the
nine months ended
September 30, 2018
and 2017, CatchMark recorded
$2.2 million
and
$2.0 million
, respectively, in expected patronage refunds against interest expense on the consolidated statements of operations. As of
September 30, 2018
and
December 31, 2017
, CatchMark recorded the following balances related to the patronage refund program on its balance sheets:
|
|
|
|
|
|
|
|
|
(in thousands)
|
As of
|
Patronage refunds classified as:
|
September 30, 2018
|
|
December 31, 2017
|
Accounts receivable
|
$
|
2,239
|
|
|
$
|
2,694
|
|
Prepaid expenses and other assets
(1)
|
1,499
|
|
|
831
|
|
Total
|
$
|
3,738
|
|
|
$
|
3,525
|
|
|
|
(1)
|
Represents
25%
of patronage refunds received as equity of the Patronage Banks.
|
Debt Covenants
CatchMark's credit agreement contains, among others, the following financial covenants that:
|
|
•
|
limit the LTV ratio to (i)
50%
at any time prior to the last day of fiscal quarter corresponding to the fourth anniversary of the effective date and (ii)
45%
at any time thereafter;
|
|
|
•
|
require that we maintain a FCCR of not less than 1.05:1.00;
|
|
|
•
|
require maintenance of a minimum liquidity balance of no less than
$25.0 million
at any time; and
|
|
|
•
|
limit the aggregated capital expenditures to
1%
of the value of the timberlands during any fiscal year.
|
CatchMark was in compliance with the financial covenants of its credit agreement as of
September 30, 2018
.
Interest Paid and Fair Value of Outstanding Debt
During the
three months ended
September 30, 2018
and
2017
, CatchMark made interest payments of
$4.4 million
and
$3.0 million
, respectively, on its borrowings. Included in the interest payments for the
three months ended
September 30, 2018 and
2017
were unused commitment fees of
$0.1 million
and
$0.1 million
, respectively.
During the
nine months ended
September 30, 2018
and
2017
, CatchMark made interest payments of
$10.0 million
and
$8.3 million
, respectively, on its borrowings. Included in the interest payments for the
nine months ended
September 30, 2018
and
2017
were unused commitment fees of
$0.2 million
and
$0.4 million
, respectively.
As of
September 30, 2018
and
December 31, 2017
, the weighted-average interest rate on CatchMark's borrowings, after consideration of interest rate swaps (see
Note 6 - Interest Rate Swaps
), was
4.27%
and
3.61%
, respectively. After further consideration of expected patronage refunds, CatchMark's weighted-average interest rate as of
September 30, 2018
and
December 31, 2017
was
3.47%
and
2.81%
, respectively.
The fair value of CatchMark's outstanding debt approximated its book value as of
September 30, 2018
. The fair value was estimated based on discounted cash flow analysis using the current market borrowing rates for similar types of borrowing arrangements as of the measurement dates.
6. Interest Rate Swaps
CatchMark uses interest rate swaps to mitigate its exposure to changing interest rates on its variable rate debt instruments. In August 2018, CatchMark entered into
three
separate interest rate swaps with Rabobank totaling
$150.0 million
. CatchMark had
ten
interest rate swaps outstanding as of
September 30, 2018
, with terms below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands)
|
|
|
|
|
|
|
|
|
|
|
Interest Rate Swap
|
|
Effective Date
|
|
Maturity Date
|
|
Pay Rate
|
|
Receive Rate
|
|
Notional Amount
|
2017 Rabobank Swap
|
|
3/28/2017
|
|
3/28/2020
|
|
1.800%
|
|
one-month LIBOR
|
|
$
|
30,000
|
|
2018 Rabobank Swap
|
|
9/6/2018
|
|
9/6/2020
|
|
2.796%
|
|
one-month LIBOR
|
|
$
|
50,000
|
|
2018 Rabobank Swap
|
|
9/6/2018
|
|
9/6/2021
|
|
2.869%
|
|
one-month LIBOR
|
|
$
|
50,000
|
|
2017 Rabobank Swap
|
|
3/28/2017
|
|
11/28/2021
|
|
2.045%
|
|
one-month LIBOR
|
|
$
|
20,000
|
|
2018 Rabobank Swap
|
|
2/28/2018
|
|
11/28/2022
|
|
2.703%
|
|
one-month LIBOR
|
|
$
|
30,000
|
|
2017 Rabobank Swap
|
|
3/23/2017
|
|
3/23/2024
|
|
2.330%
|
|
one-month LIBOR
|
|
$
|
20,000
|
|
2014 Rabobank Swap
|
|
12/23/2014
|
|
12/23/2024
|
|
2.395%
|
|
one-month LIBOR
|
|
$
|
35,000
|
|
2016 Rabobank Swap
|
|
8/23/2016
|
|
12/23/2024
|
|
1.280%
|
|
one-month LIBOR
|
|
$
|
45,000
|
|
2018 Rabobank Swap
|
|
2/28/2018
|
|
11/28/2026
|
|
2.884%
|
|
one-month LIBOR
|
|
$
|
20,000
|
|
2018 Rabobank Swap
|
|
8/28/2018
|
|
8/28/2027
|
|
3.014%
|
|
one-month LIBOR
|
|
$
|
50,000
|
|
|
|
|
|
|
|
|
|
|
|
$
|
350,000
|
|
As of
September 30, 2018
, CatchMark’s interest rate swaps effectively fixed the interest rate on
$350.0 million
of its
$557.6 million
variable rate debt at
4.26%
, inclusive of the applicable spread. All
ten
interest rate swaps qualify for hedge accounting treatment.
Fair Value and Cash Paid for Interest Under Interest Rate Swaps
The following table presents information about CatchMark's interest rate swaps measured at fair value as of
September 30, 2018
and
December 31, 2017
:
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands)
|
|
Estimated Fair Value as of
|
Instrument Type
|
|
Balance Sheet Classification
|
|
September 30, 2018
|
|
December 31, 2017
|
Derivatives designated as hedging instruments:
|
|
|
|
|
|
|
Interest rate swaps
|
|
Prepaid expenses and other assets
|
|
$
|
7,049
|
|
|
$
|
2,935
|
|
Interest rate swaps
|
|
Other liabilities
|
|
$
|
(331
|
)
|
|
$
|
(559
|
)
|
As of
September 30, 2018
, CatchMark estimated that approximately
$1.0 million
will be reclassified from accumulated other comprehensive income to interest expense over the next 12 months.
During the
three months ended
September 30, 2018
and
2017
, CatchMark recognized a change in fair value of the interest rate swaps of approximately
$0.9 million
and
$0.5 million
as other comprehensive income and other comprehensive loss, respectively. During the
nine months ended
September 30, 2018
and
2017
, CatchMark recognized a change in fair value of the interest rate swaps of approximately
$4.3 million
and
$1.1 million
as other comprehensive income and other comprehensive loss, respectively. There was
no
hedge ineffectiveness on the interest rate swaps required to be recognized in current earnings.
During the three months ended
September 30, 2018
and
2017
, net payments of approximately
$56,000
and
$256,000
were made under the interest rate swaps, respectively. During the
nine months ended
September 30, 2018
and
2017
, net payments of approximately
$0.3 million
and
$0.8 million
were made under the interest rates swaps, respectively. Interest rate swaps payments were recorded as interest expense.
7. Commitments and Contingencies
Mahrt Timber Agreements
CatchMark is party to a fiber supply agreement and a master stumpage agreement (collectively, the “Mahrt Timber Agreements”) with a wholly-owned subsidiary of
WestRock
. The fiber supply agreement provides that WestRock will purchase specified tonnage of timber from CatchMark TRS at specified prices per ton, depending upon the type of
timber. The fiber supply agreement is subject to quarterly market pricing adjustments based on an index published by Timber Mart-South, a quarterly trade publication that reports raw forest product prices in
11
southern states. The master stumpage agreement provides that CatchMark will sell specified amounts of timber and make available certain portions of its timberlands to CatchMark TRS for harvesting. The initial term of the Mahrt Timber Agreements is
October 9, 2007
through
December 31, 2032
, subject to extension and early termination provisions. The Mahrt Timber Agreements ensure a long-term source of supply of wood fiber products for WestRock in order to meet its paperboard and lumber production requirements at specified mills and provide CatchMark with a reliable customer for the wood products from its timberlands.
Timberland Operating Agreements
Pursuant to the terms of the timberland operating agreement between CatchMark and
FRC
(the "FRC Timberland Operating Agreement"), FRC manages and operates certain of
CatchMark
's timberlands and related timber operations, including ensuring delivery of timber to WestRock in compliance with the Mahrt Timber Agreements. In consideration for rendering the services described in the timberland operating agreement, CatchMark pays FRC (i) a monthly management fee based on the actual acreage that FRC manages, which is payable monthly in advance, and (ii) an incentive fee based on timber harvest revenues generated by the timberlands, which is payable quarterly in arrears. The FRC Timberland Operating Agreement, as amended, is effective through March 31, 2019, and is automatically extended for
one
-year periods unless written notice is provided by CatchMark or FRC to the other party at least
120
days prior to the current expiration. The FRC Timberland Operating Agreement may be terminated by either party with mutual consent or by CatchMark with or without cause upon providing
120
days’ prior written notice.
Pursuant to the terms of the timberland operating agreement between CatchMark and AFM (the "AFM Timberland Operating Agreement"), AFM manages and operates certain of CatchMark's timberlands and related timber operations, including ensuring delivery of timber to customers. In consideration for rendering the services described in the AFM Timberland Operating Agreement, CatchMark pays AFM (i) a monthly management fee based on the actual acreage that AFM manages, which is payable monthly in advance, and (ii) an incentive fee based on revenues generated by the timber operations, which is payable quarterly in arrears. The AFM Timberland Operating Agreement is effective through November 30, 2019, and is automatically extended for
one
-year periods unless written notice is provided by CatchMark or AFM to the other party at least
120
days prior to the current expiration. The AFM Timberland Operating Agreement may be terminated by either party with mutual consent or by CatchMark with or without cause upon providing
120
days’ prior written notice.
Litigation
From time to time, CatchMark may be a party to legal proceedings, claims, and administrative proceedings that arise in the ordinary course of its business. Management makes assumptions and estimates concerning the likelihood and amount of any reasonably possible loss relating to these matters using the latest information available. CatchMark records a liability for litigation if an unfavorable outcome is probable and the amount of loss or range of loss can be reasonably estimated. If an unfavorable outcome is probable and a reasonable estimate of the loss is a range, CatchMark accrues the best estimate within the range. If no amount within the range is a better estimate than any other amount, CatchMark accrues the minimum amount within the range. If an unfavorable outcome is probable but the amount of the loss cannot be reasonably estimated, CatchMark discloses the nature of the litigation and indicates that an estimate of the loss or range of loss cannot be made. If an unfavorable outcome is reasonably possible and the estimated loss is material, CatchMark discloses the nature and estimate of the possible loss of the litigation. CatchMark does not disclose information with respect to litigation where an unfavorable outcome is considered to be remote.
CatchMark is
no
t currently involved in any legal proceedings of which the outcome is reasonably likely to have a material adverse effect on the results of operations or financial condition of CatchMark. CatchMark is not aware of any legal proceedings contemplated by governmental authorities.
8. Stockholders' Equity
Equity Offering
On June 2, 2017, CatchMark filed a shelf registration statement on Form S-3 (File No. 333-218466) with the SEC (the "Shelf Registration Statement"), which was declared effective by the SEC on June 16, 2017. The Shelf Registration Statement provides CatchMark with future flexibility to offer, from time to time and in one or more offerings, debt securities, common stock, preferred stock, depositary shares, warrants, or any combination thereof. The terms of any such future offerings are established at the time of an offering. In March 2018, under the Shelf Registration Statement, CatchMark issued
5.75 million
shares of its Class A common stock ("common stock") at a price of
$12.60
per share (the "2018 Equity Offering"). After deducting
$3.5 million
in underwriting commissions and fees and other issuance costs, CatchMark received net proceeds of
$69.0 million
from the 2018 Equity Offering. CatchMark used the net proceeds from the 2018 Equity Offering to pay down a portion of its outstanding debt.
9. Stock-based Compensation
Stock-based Compensation - Independent Directors
On June 25, 2018, CatchMark issued a total of
23,736
shares of common stock to its
six
independent directors,
4,154
shares of which were repurchased for estimated income tax payments. CatchMark recognized approximately
$0.3
million of fair value of the awards in general and administrative expenses for the nine months ended
September 30, 2018
.
Stock-based Compensation - Employees
During the three months ended September 30, 2018, CatchMark issued
11,361
shares of service-based restricted stock grants to certain non-executive employees.
A rollforward of CatchMark's unvested, service-based restricted stock awards to employees for the
nine months ended
September 30, 2018
is as follows:
|
|
|
|
|
|
|
|
|
Number of
Underlying Shares
|
|
Weighted-Average
Grant Date
Fair Value
|
Unvested at December 31, 2017
|
278,633
|
|
|
$
|
11.05
|
|
Granted
|
84,361
|
|
|
$
|
12.85
|
|
Vested
|
(153,967
|
)
|
|
$
|
11.41
|
|
Forfeited
|
—
|
|
|
$
|
—
|
|
Unvested at September 30, 2018
|
209,027
|
|
|
$
|
11.51
|
|
Stock-based Compensation Expense
A summary of CatchMark's stock-based compensation expense for the three months and
nine months ended
September 30, 2018
and
2017
is presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands)
|
Three Months Ended
September 30,
|
|
Nine Months Ended
September 30,
|
Stock-based Compensation Expense classified as:
|
2018
|
|
2017
|
|
2018
|
|
2017
|
General and administrative expenses
|
$
|
587
|
|
|
$
|
447
|
|
|
$
|
1,861
|
|
|
$
|
1,450
|
|
Forestry management expenses
|
23
|
|
|
240
|
|
|
310
|
|
|
575
|
|
Total
|
$
|
610
|
|
|
$
|
687
|
|
|
$
|
2,171
|
|
|
$
|
2,025
|
|
As of
September 30, 2018
, approximately
$2.7 million
of unrecognized compensation expense related to non-vested restricted stock and restricted stock units remained and will be recognized over a weighted-average period of
2.2
years.
10. Subsequent Event
Dividend Declaration
On November 1, 2018, CatchMark declared a cash dividend of
$0.135
per share for its common stockholders of record on November 30, 2018, payable on December 13, 2018.
|
|
ITEM 2.
|
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
|
The following discussion and analysis should be read in conjunction with our accompanying consolidated financial statements and notes thereto. See also “Cautionary Note Regarding Forward-Looking Statements” preceding Part I of this report, as well as our consolidated financial statements and the notes thereto and Management's Discussion and Analysis of Financial Condition and Results of Operations in our Annual Report on Form 10-K for the year ended
December 31, 2017
.
Overview
We are a REIT primarily engaged in the ownership, management, acquisition, and disposition of timberland properties located in the United States. We generate recurring income and cash flow from the harvest and sale of timber, as well as from non-timber related revenue sources, such as rent from hunting and recreational leases, and asset management fees. When and where we believe appropriate, we also generate income and cash flow from timberland sales. In addition to current income, we expect to realize long-term returns from the biological growth of our standing timber inventory.
We strive to deliver superior long-term returns for our stockholders through disciplined acquisitions, sustainable harvests, and well-timed real estate sales. Our immediate emphasis is to grow through selective acquisitions and investments in high demand fiber markets and to efficiently integrate new acquisitions and investments into our operations. Operationally, we focus on generating cash flows from sustainable harvests and improved harvest mix on prime timberlands, as well as opportunistic land sales to provide recurring dividends to our stockholders. We continue to practice intensive forest management and silvicultural techniques that increase the biological growth of our forests.
On August 28, 2018, we acquired fee simple interests in approximately
18,100
acres of prime Oregon timberlands for
$89.7 million
, exclusive of closing costs. The timberlands, known as the Bandon Property, are strategically situated within the Douglas fir/western hemlock zone and offer the high-quality stocking characteristics and sustainability attributes that we seek in property acquisitions. This acquisition establishes our first position in the Pacific Northwest, increasing our geographic and market diversity and providing additional harvest options. We funded our acquisition of the Bandon Property through a combination of cash on hand and $89.0 million of borrowings from our Multi-Draw Term Facility.
We also seek to create additional value by entering into joint ventures with long-term, institutional equity partners to opportunistically acquire, own, and manage timberland properties that fit our core investment strategy. In addition, we expect that our joint venture platform will drive future growth through a fee-based management business that leverages our scale and timberland management efficiencies.
On July 6, 2018, we entered into the Triple T Joint Venture with a consortium of Preferred Investors. We invested $200.0 million in the Triple T Joint Venture, equal to
21.6%
of the total equity contributions, in exchange for a common limited partnership interest in the Triple T Joint Venture. CatchMark, through a separate wholly-owned and consolidated subsidiary, is the sole general partner of the Triple T Joint Venture. The Preferred Investors invested
$725.9 million
in the Triple T Joint Venture, equal to
78.4%
of the total equity contributions. Also on July 6, 2018, the Triple T Joint Venture completed an acquisition of
1.1 million
acres of prime East Texas timberlands, or the Triple T Timberlands, for approximately
$1.39 billion
, exclusive of transaction costs. The purchase price of the Triple T Timberlands was funded by
$925.9 million
of equity contributions from the Triple T Joint Venture partners and a
$600 million
seven
-year term loan made pursuant to a credit agreement, dated July 6, 2018, between the Triple T Joint Venture and its affiliates and the lenders. We funded our
$200.0 million
equity contribution with borrowings from our Multi-Draw Term Facility, comprised of
$30.0 million
earnest money deposit made in May 2018 and
$170.0 million
borrowed on July 5, 2018.
With our investment in the Triple T Joint Venture, we have tripled the number of acres under our management to approximately 1.6 million acres and significantly expanded our fee-based asset management business. This innovative transaction fits our profile for acquiring interests in properties that can provide sustainable growth for our stockholders.
We account for our investment in the Triple T Joint Venture using the equity method. The Triple T Joint Venture agreement has liquidation rights and priorities that are significantly different from our stated ownership percentage based on total equity contributions. Income (loss) from the Triple T Joint Venture is allocated according to the provisions of the joint venture agreement, which results in significantly different allocations than if income (loss) was based on the stated ownership percentages. Accordingly, we use the hypothetical-liquidation-at-book-value method, or HLBV, to determine our equity in earnings of the Triple T Joint Venture. As a result of transaction costs and distribution preferences, we anticipate incurring non-cash GAAP losses from the unconsolidated Triple T Joint Venture equal to our initial investment in the joint venture in the near term. We recognized a loss from the unconsolidated Triple T Joint Venture of approximately $76.8 million for the three months ended September 30, 2018. We exclude such non-cash losses in our non-GAAP measures, including Adjusted EBITDA, as they are based on a hypothetical liquidation of the underlying joint venture at book value as of the reporting date rather than a liquidation at fair value as of a date that is more in-line with the joint venture’s expected timing for a liquidity event.
In connection with entering into the Triple T Joint Venture and acquiring the Triple T Timberlands, we entered into an asset management agreement with the Triple T Joint Venture under which we oversee its day-to-day operations, subject to major decisions that require approval of the Preferred Investors. We receive an asset management fee equal to 1% per annum, subject to reduction and deferment in certain circumstances, of the Acquisition Price multiplied by 78.4%, which represents the Preferred Investors’ initial equity contribution percentage. During the three months and nine months ended September 30, 2018, we recognized approximately $2.7 million and $2.8 million, respectively, of asset management fees as manager of the unconsolidated Triple T Joint Venture and the unconsolidated Dawsonville Bluffs Joint Venture.
For more details on our unconsolidated joint ventures, see
Note 4
,
Unconsolidated Joint Ventures
to our accompanying consolidated financial statements.
Timberland Portfolio
As of
September 30, 2018
, we wholly owned interests in approximately
520,500
acres of high-quality industrial timberland in the U.S. South and the Pacific Northwest, consisting of approximately
490,200
acres of fee timberlands and approximately
30,300
acres of leased timberlands. Our wholly-owned timberlands contained acreage comprised of approximately
74%
pine stands and
26%
hardwood stands located within two attractive and desirable fiber baskets encompassing a diverse group of pulp, paper and wood products manufacturing facilities. Wholly-owned timberland acreage by state is listed below:
|
|
|
|
|
|
|
|
|
|
|
Acres by state as of September 30, 2018
|
|
Fee
|
|
Lease
|
|
Total
|
South
|
|
|
|
|
|
|
Alabama
|
|
73,600
|
|
|
5,300
|
|
|
78,900
|
|
Florida
|
|
2,000
|
|
|
—
|
|
|
2,000
|
|
Georgia
|
|
261,400
|
|
|
25,000
|
|
|
286,400
|
|
Louisiana
|
|
20,600
|
|
|
—
|
|
|
20,600
|
|
North Carolina
|
|
600
|
|
|
—
|
|
|
600
|
|
South Carolina
|
|
78,100
|
|
|
—
|
|
|
78,100
|
|
Tennessee
|
|
300
|
|
|
—
|
|
|
300
|
|
Texas
|
|
35,500
|
|
|
—
|
|
|
35,500
|
|
|
|
472,100
|
|
|
30,300
|
|
|
502,400
|
|
Pacific Northwest
|
|
|
|
|
|
|
Oregon
|
|
18,100
|
|
|
—
|
|
|
18,100
|
|
Total
|
|
490,200
|
|
|
30,300
|
|
|
520,500
|
|
As of
September 30, 2018
, our wholly-owned timber inventory consisted of an estimated
19.9
million tons of merchantable inventory with the following components:
|
|
|
|
|
|
|
|
(in millions)
|
|
Tons
|
Merchantable timber inventory:
(1)
|
|
Fee
|
|
Lease
|
|
Total
|
Pulpwood
|
|
9.4
|
|
0.5
|
|
9.9
|
Sawtimber
(2)
|
|
9.6
|
|
0.4
|
|
10.0
|
Total
|
|
19.0
|
|
0.9
|
|
19.9
|
|
|
(1)
|
Merchantable timber inventory does not include current year growth, which should approximate current year harvest volumes (see
Results of Operations
below for information on current year harvest volume). Pacific Northwest merchantable timber inventory is converted from MBF to tons using a factor of 8.
|
(2)
Includes chip-n-saw and sawtimber.
In addition to our wholly-owned timber assets, as of
September 30, 2018
, we owned a 50% membership interest in the Dawsonville Bluffs Joint Venture, which owns approximately
5,500
acres of high-quality commercial timberlands located in North Georgia, and we owned the common limited partnership interest in the Triple T Joint Venture, which owns 1.1 million acres of prime East Texas timberlands with approximately 38.0 million tons of merchantable timber inventory.
Timber Agreements
A significant portion of our timber sales is derived from the Mahrt Timber Agreements under which we sell specified amounts of timber to WestRock subject to market pricing adjustments. For full year 2018, WestRock is required to purchase approximately
408,000
tons of timber under the Mahrt Timber Agreements. For the
nine months ended
September 30, 2018
, WestRock purchased approximately
351,100
tons under the Mahrt Timber Agreements, which contributed approximately
17%
of our net timber sales revenue. WestRock has historically purchased tonnage that exceeded the minimum requirement under the Mahrt Timber Agreements. See
Note 7 – Commitments and Contingencies
to our accompanying consolidated financial statements for additional information regarding the material terms of the Mahrt Timber Agreements.
We assumed a pulpwood supply agreement with IP (the "Carolinas Supply Agreement") in connection with a timberland acquisition that closed in June 2016. For full year 2018, we are required by the Carolinas Supply Agreement to supply to IP approximately 137,000 tons of pulpwood. During the
nine months ended
September 30, 2018
, we sold approximately
104,500
tons under the Carolinas Supply Agreement, which contributed approximately
5%
of our net timber sales revenue.
Liquidity and Capital Resources
Overview
Cash flows generated from our operations are primarily used to fund recurring expenditures and distributions to our stockholders. The amount of distributions to common stockholders is determined by our board of directors and is dependent upon a number of factors, including funds deemed available for distribution based principally on our current and future projected operating cash flows, less capital requirements necessary to maintain our existing timberland portfolio. In determining the amount of distributions to common stockholders, we also consider our financial condition, our expectations of future sources of liquidity, current and future economic conditions, market demand for timber and timberlands, and tax considerations, including the annual distribution requirements necessary to maintain our status as a REIT under the Code.
In determining how to allocate cash resources in the future, we will initially consider the source of the cash. We anticipate using a portion of cash generated from operations, after payments of periodic operating expenses and interest expense, to fund certain capital expenditures required for our timberlands. Any remaining cash generated from operations may be used to partially fund timberland acquisitions and pay distributions to stockholders. Therefore, to the extent that cash flows from operations are lower, timberland acquisitions and stockholder distributions are
anticipated to be lower as well. Capital expenditures, including new timberland acquisitions, are generally funded with cash flow from operations or existing debt availability; however, proceeds from future debt financings, and equity and debt offerings may be used to fund capital expenditures, acquire new timberland properties, invest in joint ventures, and pay down existing and future borrowings. From time to time, we may also sell certain large timberland properties in order to generate capital to fund capital allocation priorities, including but not limited to redeployment into more desirable timberland investments, pay down of outstanding debt or repurchase of shares of our common stock. Such large dispositions are typically larger in size and more infrequent than sales under our normal land sales program. We have entered into an agreement to sell 56,000 acres of wholly-owned timberlands located in Texas and Louisiana for approximately $80.4 million, the proceeds of which we expect to use to pay down a portion of our outstanding debt. See
Pending Sale of Southwest Timberlands
below for more information.
Shelf Registration Statement and Equity Offerings
On June 2, 2017, we filed a shelf registration statement on Form S-3 with the SEC, which was declared effective by the SEC on June 16, 2017. The Shelf Registration Statement provides us with future flexibility to offer, from time to time and in one or more offerings, up to $600 million in an undefined combination of debt securities, common stock, preferred stock, depositary shares, or warrants. The terms of any such future offerings would be established at the time of an offering.
In March 2018, under the Shelf Registration Statement, we issued 5.75 million shares of common stock at a price of $12.60 per share. After deducting
$3.5 million
in underwriting commissions and fees and other issuance costs, we received net proceeds of
$69.0 million
from the 2018 Equity Offering, which we deployed into direct timberland acquisitions and joint venture investments.
Credit Agreement Amendment
We are party to a credit agreement
dated as of December 1, 2017 (the "2017 Credit Agreement") with a syndicate of lenders, including CoBank. On August 22, 2018, we amended the 2017 Credit Agreement (the "2018 Amendment"), which expanded the total borrowing capacity by $75.0 million to
$643.6 million
, added a new $140.0 million seven-year term loan, and reduced the capacity under the seven-year multi-draw term credit facility from
$265.0 million
to
$200.0 million
. As a result, the 2017 Credit Agreement, as amended by the 2018 Amendment, provides for borrowings consisting of the following:
|
|
•
|
a continuation of
$35.0 million
five
-year revolving credit facility (the “Revolving Credit Facility”);
|
|
|
•
|
a reduced
$200.0 million
seven
-year multi-draw term credit facility (the “Multi-Draw Term Facility”);
|
|
|
•
|
a continuation of
$100.0 million
ten
-year term loan (the “Term Loan A-1”);
|
|
|
•
|
a continuation of
$100.0 million
nine
-year term loan (the “Term Loan A-2”);
|
|
|
•
|
a continuation of
$68.6 million
ten
-year term loan (the “Term Loan A-3”); and
|
|
|
•
|
a new
$140.0 million
seven
-year term loan (the "Term Loan A-4").
|
Borrowings under the Revolving Credit Facility may be used for general working capital, to support letters of credit, to fund cash earnest money deposits, to fund acquisitions in an amount not to exceed $5.0 million, and for other general corporate purposes. The Revolving Credit Facility will bear interest at an adjustable rate equal to a
base rate
plus between
0.50%
and
1.20%
or a
LIBOR
rate plus between
1.50%
and
2.20%
, in each case depending on our LTV Ratio, and will terminate and all amounts outstanding under the facility will be due and payable on December 1, 2022.
The Multi-Draw Term Facility may be used to finance timber acquisitions and associated expenses, to fund investment in joint ventures, and to reimburse payments of drafts under letters of credit. The Multi-Draw Term Facility, which is interest only until its maturity date, will bear interest at an adjustable rate equal to a
base rate
plus between
0.50%
and
1.20%
or a
LIBOR
rate plus between
1.50%
and
2.20%
, in each case depending on our LTV Ratio, and will terminate and all amounts outstanding under the facility will be due and payable on December 1, 2024.
The table below presents the details of each credit facility under the amended credit agreement as of September 30, 2018:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(dollars in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
Facility Name
|
|
Maturity Date
|
|
Interest Rate
(1)
|
|
Unused Commitment Fee
|
|
Total Availability
|
|
Outstanding Balance
|
|
Remaining Availability
|
Revolving Credit Facility
|
|
12/1/2022
|
|
LIBOR + 2.20%
|
|
0.35%
|
|
$
|
35,000
|
|
|
$
|
—
|
|
|
$
|
35,000
|
|
Multi-Draw Term Facility
|
|
12/1/2024
|
|
LIBOR + 2.20%
|
|
0.35%
|
|
200,000
|
|
|
149,000
|
|
|
51,000
|
|
Term Loan A-1
|
|
12/23/2024
|
|
LIBOR + 1.75%
|
|
N/A
|
|
100,000
|
|
|
100,000
|
|
|
—
|
|
Term Loan A-2
|
|
12/1/2026
|
|
LIBOR + 1.90%
|
|
N/A
|
|
100,000
|
|
|
100,000
|
|
|
—
|
|
Term Loan A-3
|
|
12/1/2027
|
|
LIBOR + 2.00%
|
|
N/A
|
|
68,619
|
|
|
68,619
|
|
|
—
|
|
Term Loan A-4
|
|
8/22/2025
|
|
LIBOR + 1.70%
|
|
N/A
|
|
140,000
|
|
|
140,000
|
|
|
$
|
—
|
|
Total
|
|
|
|
|
|
|
|
$
|
643,619
|
|
|
$
|
557,619
|
|
|
$
|
86,000
|
|
|
|
(1)
|
The applicable LIBOR margin on the Revolving Credit Facility and the Multi-Draw Term Facility ranges from 1.50% to 2.20%, depending on the LTV ratio.
|
Patronage Refunds
We are eligible to receive annual patronage refunds from our lenders under the amended credit agreement. The annual patronage refund depends on the weighted-average debt balance with each participating lender, as calculated by CoBank, for the respective fiscal year under the eligible patronage loans, as well as the financial performance of the Patronage Banks. In March
2018
, we received a patronage refund of
$2.7 million
on our borrowings under the eligible patronage loans that were outstanding during 2017. Of the total amount received, 75% was received in cash and 25% was received in equity in Patronage Banks. The equity component of the patronage refund is redeemable for cash only at the discretion of the Patronage Banks' board of directors. As of September 30, 2018, we have accrued
$2.2 million
of patronage refund receivable for the nine months ended September 30, 2018, approximately 75% of which is expected to be received in cash in March 2019.
Interest Rate Swaps
In August 2018, we entered into
three
separate interest rate swaps with Rabobank totaling
$150.0 million
to mitigate exposure to changing interest rates on our variable rate debts. As of September 30, 2018, we effectively fixed interest rates on $350.0 million of our $557.6 million outstanding debt balance at 4.26%.
Debt Covenants
The amended credit agreement contains, among others, the following financial covenants which:
|
|
•
|
limit the LTV ratio to (i) 50% at any time prior to the last day of fiscal quarter corresponding to the fourth anniversary of the effective date and (ii) 45% at any time thereafter;
|
|
|
•
|
require that we maintain a FCCR of not less than 1.05:1.00;
|
|
|
•
|
require maintenance of a minimum liquidity balance of no less than $25.0 million at any time; and
|
|
|
•
|
limit the aggregate capital expenditures to 1% of the value of the timberlands during any fiscal year.
|
We were in compliance with the financial covenants of the amended credit agreement as of
September 30, 2018
.
Pending Sale of Southwest Timberlands
On August 20, 2018, we entered into a purchase and sale agreement with Forest Investment Associates L.P. and First American Title Insurance Company, to sell approximately 56,000 acres of our wholly-owned timberlands located in Texas and Louisiana (the "Southwest Property") for an aggregate price of approximately $80.4 million. The closing
of the sale is scheduled to take place before the end of 2018. The net proceeds from the sale are expected to be used to pay down our outstanding debt balance under our credit agreement.
Short-Term Liquidity and Capital Resources
Net cash provided by operating activities for the
nine months ended
September 30, 2018
was
$29.3 million
, a
$3.5 million
increase from the
nine months ended
September 30, 2017
. Cash provided by operating activities consisted primarily of receipts from customers for timber and timberland sales and distributions from the Dawsonville Bluffs Joint Venture, reduced by payments for operating costs, general and administrative expenses and interest expense. The increase was primarily due to
$3.7 million
of operating distributions received from the Dawsonville Bluffs Joint Venture.
Net cash used in investing activities for the
nine months ended
September 30, 2018
was
$289.4 million
, which was
$272.5 million
more than in the
nine months ended
September 30, 2017
. We made a $200.0 million equity investment in the Triple T Joint Venture in July 2018. We acquired
18,100
acres of timberland for $91.4 million (including transaction costs) during the nine months ended September 2018, as compared to no direct acquisitions in the nine months ended September 30, 2017. We received
$4.9 million
of return of capital from the Dawsonville Bluffs Joint Venture during the nine months ended September 30, 2018. We did not receive any return of capital distributions during the same period in the prior year.
Net cash provided by financing activities for the
nine months ended
September 30, 2018
was
$267.6 million
as compared to
$6.1 million
used in financing activities in the same period of 2017. During the
nine months ended
September 30, 2018
, we borrowed
$289.0 million
to fund the Triple T Joint Venture investment and the Bandon Property acquisition. Additionally, we received
$72.5 million
of gross proceeds from the 2018 Equity Offering. After deducting
$3.5 million
in underwriting commissions and fees and other issuance costs, the net proceeds of
$69.0 million
from the 2018 Equity Offering were used to pay down our outstanding debt balances. During the nine months ended September 30, 2018, we paid cash distributions of
$19.0 million
to our stockholders, fully funded by net cash provided by operating activities.
We believe that we have access to adequate liquidity and capital resources, including cash flow generated from operations, cash on-hand and borrowing capacity, necessary to meet our current and future obligations that become due over the next 12 months. As of September 30, 2018, we had a cash balance of $15.3 million and had access to
$86.0 million
of additional borrowing capacity (see
Credit Agreement Amendment
above).
Long-Term Liquidity and Capital Resources
Over the long-term, we expect our primary sources of capital to include net cash flows from operations, including proceeds from timber and timberland sales, proceeds from secured or unsecured financings from banks and other lenders, and public offerings of equity or debt securities. Our principal demands for capital include operating expenses, interest expense on any outstanding indebtedness, repayment of debt, timberland acquisitions, certain other capital expenditures, and stockholder distributions.
Contractual Obligations and Commitments
As of September 30, 2018, our contractual obligations are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands)
|
|
Payments Due by Period
|
Contractual Obligations
|
|
Total
|
|
2018
|
|
2019-2020
|
|
2021-2022
|
|
Thereafter
|
Debt obligations
(1) (2)
|
|
$
|
557,619
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
557,619
|
|
Estimated interest on debt obligations
(1)
(2)
|
|
165,149
|
|
|
5,991
|
|
|
50,776
|
|
|
47,994
|
|
|
60,388
|
|
Operating lease obligations
|
|
2,790
|
|
|
487
|
|
|
1,399
|
|
|
904
|
|
|
—
|
|
Other liabilities
(3)
|
|
553
|
|
|
6
|
|
|
279
|
|
|
268
|
|
|
—
|
|
Total
|
|
$
|
726,111
|
|
|
$
|
6,484
|
|
|
$
|
52,454
|
|
|
$
|
49,166
|
|
|
$
|
618,007
|
|
|
|
(1)
|
Represents respective obligations under our credit amendment as of
September 30, 2018
, of which $408.6 million was outstanding under the term loans and $149.0 million was outstanding under the Multi-Draw Term Facility (see "
Credit Agreement Amendment"
above). We expect to use the net proceeds from the disposition of the Southwest Property to pay down a portion of our outstanding debt when the sale close in the fourth quarter of 2018.
|
|
|
(2)
|
Amounts include the impact of interest rate swaps. See
Note 6 – Interest Rate Swaps
of our accompanying consolidated financial statements for additional information.
|
|
|
(3)
|
Represents future payments to satisfy a liability that expires in May 2022 which was assumed upon a timberland acquisition.
|
Distributions
Our board of directors declares cash distributions quarterly. The amount of future distributions that we may pay to our common stockholders will be determined by our board of directors. During the nine months ended September 30, 2018, our board of directors declared the following distributions:
|
|
|
|
|
|
|
|
Declaration Date
|
|
Record Date
|
|
Payment Date
|
|
Distribution Per Share
|
February 15, 2018
|
|
February 28, 2018
|
|
March 16, 2018
|
|
$0.135
|
May 3, 2018
|
|
May 31, 2018
|
|
June 15, 2018
|
|
$0.135
|
August 2, 2018
|
|
August 30, 2018
|
|
September 14, 2018
|
|
$0.135
|
For the
nine months ended
September 30, 2018
, we paid total distributions to stockholders of
$19.0 million
, which was funded from net cash provided by operating activities.
Results of Operations
Overview
Our results of operations are materially impacted by the fluctuating nature of timber prices, changes in the levels and mix of our harvest volumes, the level of timberland sales, the amount of asset management fees earned, changes to associated depletion rates, varying interest expense based on the amount and cost of outstanding borrowings, and earnings from joint venture investments.
Timber sales volumes, net timber sales prices, timberland sales, and changes in volume, price and harvest mix for the three months and
nine months ended
September 30, 2018
and
2017
are shown in the following tables:
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
September 30,
|
|
Change
|
|
2018
|
|
2017
|
|
%
|
Timber sales volume (tons)
(1)
|
|
|
Pulpwood
|
343,120
|
|
|
387,329
|
|
|
(11
|
)%
|
Sawtimber
(2)
|
185,470
|
|
|
216,187
|
|
|
(14
|
)%
|
|
528,590
|
|
|
603,516
|
|
|
(12
|
)%
|
|
|
|
|
|
|
Harvest mix
(1)
|
|
|
|
|
|
Pulpwood
|
65
|
%
|
|
64
|
%
|
|
|
Sawtimber
(2)
|
35
|
%
|
|
36
|
%
|
|
|
|
|
|
|
|
|
Net timber sales price (per ton)
(1)
(3)
|
|
|
Pulpwood
|
$
|
13
|
|
|
$
|
13
|
|
|
4
|
%
|
Sawtimber
(2)
|
$
|
24
|
|
|
$
|
24
|
|
|
(1
|
)%
|
|
|
|
|
|
|
Timberland sales
|
|
|
|
|
|
Gross sales (000's)
|
$
|
3,818
|
|
|
$
|
342
|
|
|
|
Sales volume (acres)
|
1,900
|
|
|
200
|
|
|
|
% of fee acres
|
0.4
|
%
|
|
0.1
|
%
|
|
|
Sales price (per acre)
|
$
|
1,967
|
|
|
$
|
1,468
|
|
|
|
|
|
(1)
|
Excludes amounts from the Bandon Property, which was acquired at the end of August 2018. Harvest volume and timber sales revenue from the Bandon Property for one month of operations accounted for less than 1% of our consolidated total harvest volume and total timber sales revenue.
|
(2)
Includes chip-n-saw and sawtimber.
|
|
(3)
|
Prices per ton are rounded to the nearest dollar and shown on a stumpage basis (i.e., net of contract logging and hauling costs) and, as such, the sum of these prices multiplied by the tons sold does not equal timber sales in the accompanying consolidated statements of operations for the three months ended
September 30, 2018
and
2017
.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
September 30,
|
|
Change
|
|
2018
|
|
2017
|
|
%
|
Timber sales volume (tons)
(1)
|
|
|
Pulpwood
|
1,038,687
|
|
|
1,030,750
|
|
|
1
|
%
|
Sawtimber
(2)
|
625,312
|
|
|
666,209
|
|
|
(6
|
)%
|
|
1,663,999
|
|
|
1,696,959
|
|
|
(2
|
)%
|
|
|
|
|
|
|
Harvest mix
(1)
|
|
|
|
|
|
Pulpwood
|
62
|
%
|
|
61
|
%
|
|
|
Sawtimber
(2)
|
38
|
%
|
|
39
|
%
|
|
|
|
|
|
|
|
|
Net timber sales price (per ton)
(1)
(3)
|
|
|
Pulpwood
|
$
|
14
|
|
|
$
|
13
|
|
|
7
|
%
|
Sawtimber
(2)
|
$
|
24
|
|
|
$
|
24
|
|
|
(1
|
)%
|
|
|
|
|
|
|
Timberland sales
|
|
|
|
|
|
Gross sales (000's)
|
$
|
14,904
|
|
|
$
|
13,745
|
|
|
|
Sales volume (acres)
|
7,200
|
|
|
7,000
|
|
|
|
% of fee acres
|
1.5
|
%
|
|
1.5
|
%
|
|
|
Sales price (per acre)
|
$
|
2,063
|
|
|
$
|
1,950
|
|
|
|
|
|
(1)
|
Excludes amounts from the Bandon Property, which was acquired at the end of August 2018. Harvest volume and timber sales revenue from the Bandon Property for one month of operations accounted for less than 1% of our consolidated total harvest volume and total timber sales revenue.
|
|
|
(2)
|
Includes chip-n-saw and sawtimber.
|
|
|
(3)
|
Prices per ton are rounded to the nearest dollar and shown on a stumpage basis (i.e., net of contract logging and hauling costs) and, as such, the sum of these prices multiplied by the tons sold does not equal timber sales in the accompanying consolidated statements of operations for the
nine months ended
September 30, 2018
and
2017
.
|
We continued to execute our 2018 harvest management plan during the quarter by deferring some harvests to future periods when we expect a better pricing environment. Our harvest volume for the quarter was 12% lower as compared to the third quarter of 2017. Year-to-date volume was only 2% lower than the nine months ended September 30, 2017, primarily as a result of increased harvests from strong local markets, particularly from our Coastal Georgia property acquired in the fourth quarter of 2017, in order to take advantage of favorable pulpwood pricing. We expect our annual harvest volume for 2018 to be between 2.0 million to 2.3 million tons, consistent with our business plan.
Our realized stumpage prices in the third quarter for all five product categories are higher than South-wide average as reported by TimberMart-South due to the strength of the micro-markets in which we operate. Our pulpwood stumpage price for the quarter increased by 4% from the prior year quarter primarily due to higher percentage of pulpwood harvest from strong local markets. Our sawtimber stumpage price for the quarter decreased by 1% from the prior year quarter primarily as a result of higher chip-n-saw volume in our sawtimber mix.
During the quarter, we commenced operations at our newly-acquired Bandon Property in the Pacific Northwest, which was acquired at the end of August 2018. For the period ended September 30, 2018, we harvested approximately 2,000 tons from the Bandon Property, which generated timber sales revenue of $0.1 million. More than 90% of the average five-year harvest volume from the Pacific Northwest is expected to be derived from sawtimber. We expect a higher percentage of stumpage sales versus delivered sales from the Bandon Property as compared to our U.S. South properties, especially in the near term.
Comparison of the three months ended
September 30, 2018
versus the three months ended
September 30, 2017
Revenues.
Revenues for the three months ended
September 30, 2018
were
$24.6 million
,
$6.0 million
higher than the three months ended
September 30, 2017
as a result of a
$3.5 million
increase in timberland sales revenue and a
$2.7 million
increase in asset management fees. Timberland sales revenue increased to
$3.8 million
for the three months ended
September 30, 2018
from
$0.3 million
for the three months ended
September 30, 2017
as we sold more acres in 2018 at higher average per-acre sales price. Asset management fees increased primarily due to $2.7 million in asset management fees from the Triple T Joint Venture. Gross timber sales revenue decreased by $0.3 million, or 2%, due to a 12% decrease in harvest volume mitigated by an increase in per-ton gross timber sales revenue. The decrease in harvest volume was a result of management’s plan to defer some harvest in anticipation of a better pricing environment. The increase in per-ton gross timber sales revenue resulted from capturing higher pulpwood pricing from strong micro-markets in the South and continuing to execute our delivered sales strategy. Delivered sales volume as a percentage of total harvest increased from 65% in the third quarter of 2017 to 78% in the current quarter. Gross timber sales revenue from delivered sales includes logging and hauling costs that customers pay for deliveries. In future periods, we expect our delivered sales as a percentage of total harvest to be impacted by the Bandon Property in the Pacific Northwest due to its higher percentage of stumpage sales compared to our U.S. South properties.
Timber sales revenue by product for the three months ended
September 30, 2018
and 2017 are shown in the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
September 30, 2017
|
|
Changes attributable to:
|
|
Three Months Ended
September 30, 2018
|
(in thousands)
|
|
Price/Mix
|
|
Volume
(3)
|
|
Timber sales
(1)
|
|
|
|
|
|
|
|
Pulpwood
|
$
|
9,218
|
|
|
$
|
280
|
|
|
$
|
(139
|
)
|
|
$
|
9,359
|
|
Sawtimber
(2)
|
7,831
|
|
|
82
|
|
|
(530
|
)
|
|
7,383
|
|
|
$
|
17,049
|
|
|
$
|
362
|
|
|
$
|
(669
|
)
|
|
$
|
16,742
|
|
|
|
(1)
|
Timber sales are presented on a gross basis. Gross timber sales revenue from delivered sales includes logging and hauling costs that customers pay for deliveries.
|
|
|
(2)
|
Includes chip-n-saw and sawtimber.
|
|
|
(3)
|
Timber sales revenue generated by properties acquired within the last 12 months are attributed to volume change.
|
Operating Expenses.
Contract logging and hauling costs increased
11%
to
$7.6 million
for the
three months ended
September 30, 2018
from
$6.9 million
for the
three months ended
September 30, 2017
as a result of a
6%
increase in delivered sales volume combined with a 4% increase in average per-ton logging and hauling cost due to higher logging rates in certain operating regions.
Depletion expense decreased
14%
to
$6.2 million
for the three months ended
September 30, 2018
from
$7.3 million
for the three months ended
September 30, 2017
due to a
12%
decrease in harvest volume and lower blended depletion rates. We calculate depletion rates annually by dividing the beginning merchantable inventory book value, after the write-off of accumulated depletion, by current standing timber inventory volume. Before the impact of any future acquisitions or significant land sales, the merchantable book value is expected to decrease over time due to depletion, while the standing timber inventory volume is expected to stay relatively stable due to our sustainable harvest management practices. Therefore, we generally expect depletion rates of our current portfolio to decrease over time.
Cost of timberland sales increased to
$3.2 million
for the three months ended
September 30, 2018
from
$0.2 million
for the three months ended
September 30, 2017
as we sold more acres in 2018.
Forestry management fees decreased to
$1.4 million
for the three months ended
September 30, 2018
from
$1.7 million
for the three months ended
September 30, 2017
primarily as a result of a $0.4 million decrease in personnel costs allocated to forestry management fees as a result of changes in time allocations of certain personnel due to the Triple T Timberlands transaction.
General and administrative expenses increased slightly to
$2.5 million
for the three months ended
September 30, 2018
from
$2.3 million
for the three months ended
September 30, 2017
primarily due to a $0.6 million increase in transaction costs, a $0.5 million increase in personnel costs, and a $0.4 million increase in various expense categories, offset by a $1.2 million reduction in transaction costs previously expensed that were reimbursed from the Triple T Joint Venture upon closing. Personnel costs increased as a result of increased allocation of staff time to our joint venture asset management business, for which we earn asset management fees and receive reimbursements of certain general and administrative expenses. These reimbursements are included in asset management fee revenue in the accompanying consolidated statements of operations.
Interest expense.
Interest expense increased
$1.5 million
to
$4.3 million
for the three months ended
September 30, 2018
, primarily due to higher average outstanding debt balance and higher effective interest rates on our borrowings, partially due to interest rate swaps to hedge our exposure to rising interest rates. The higher average debt balance was a result of borrowing an additional $170.0 million to fund our investment in the Triple T Joint Venture and borrowing $89.0 million to fund the purchase of the Bandon Property. We expect to pay down a portion of the outstanding debt balance with net proceeds from the Southwest Property disposition during the fourth quarter.
Loss from unconsolidated joint ventures
. During the three months ended
September 30, 2018
, we recognized a
$76.8 million
loss from the investment in the Triple T Joint Venture under the HLBV method of accounting. The HLBV method is commonly applied to equity investments in real estate where cash distributions vary at different points in time and are not directly linked to an investor's ownership percentage. See
Note 4, Unconsolidated Joint Ventures
to our accompanying consolidated financial statements.
Net loss.
Our net loss increased to
$78.9 million
for the three months ended
September 30, 2018
from
$4.0 million
for the three months ended
September 30, 2017
primarily due to the
$76.8 million
loss from the Triple T Joint Venture and a $1.5 million increase in interest expense, offset by a
$3.4 million
increase in operating income. Our net loss per share for the three months ended
September 30, 2018
and
2017
was
$1.61
and
$0.10
, respectively.
Comparison of the
nine months ended
September 30, 2018
versus the
nine months ended
September 30, 2017
Revenues.
Revenues increased to
$74.9 million
for the
nine months ended
September 30, 2018
from
$68.6 million
for the
nine months ended
September 30, 2017
due to an increase in timber sales revenue of
$2.2 million
, an increase in timberland sales revenue of
$1.2 million
, an increase in asset management fees of
$2.7 million
, and an increase in other revenues of
$0.3 million
. Gross timber sales revenue increased
4%
primarily due to a 6% increase in average gross timber sales pricing offset by a
2%
decrease in total harvest volume. Average gross timber sales pricing increased primarily as a result of our continued execution of our delivered sales strategy. Delivered sales volume as a percentage of total harvest volume increased from 72% for the nine months ended September 30, 2017 to 81% for the nine months ended September 30, 2018. In future periods, we expect our delivered sales as a percentage of total harvest to be impacted by the Bandon Property in the Pacific Northwest due to its higher percentage of stumpage sales compared to our U.S. South properties.
Timber sales revenue by product for the
nine months ended
September 30, 2018 and 2017 are shown in the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
September 30, 2017
|
|
Changes attributable to:
|
|
Nine Months Ended
September 30, 2018
|
(in thousands)
|
|
Price/Mix
|
|
Volume
(3)
|
|
Timber sales
(1)
|
|
|
|
|
|
|
|
Pulpwood
|
$
|
26,682
|
|
|
$
|
617
|
|
|
$
|
1,995
|
|
|
$
|
29,294
|
|
Sawtimber
(2)
|
24,246
|
|
|
157
|
|
|
(557
|
)
|
|
23,846
|
|
|
$
|
50,928
|
|
|
$
|
774
|
|
|
$
|
1,438
|
|
|
$
|
53,140
|
|
|
|
(1)
|
Timber sales are presented on a gross basis. Gross timber sales revenue from delivered sales includes logging and hauling costs that customers pay for deliveries.
|
|
|
(2)
|
Includes chip-n-saw and sawtimber.
|
|
|
(3)
|
Timber sales revenue generated by properties acquired within the last 12 months are attributed to volume change.
|
Timberland sales revenue increased to
$14.9 million
for the
nine months ended
September 30, 2018
from
$13.7 million
for the
nine months ended
September 30, 2017
as we sold more acres at higher average per-acre sales price. Asset management fees increased to
$2.8 million
for the
nine months ended
September 30, 2018
from
$0.1 million
for the
nine months ended
September 30, 2017
primarily due to management fees earned from the Triple T Joint Venture.
Operating Expenses.
Contract logging and hauling costs increased
11%
to
$24.2 million
for the
nine months ended
September 30, 2018
from
$21.9 million
for the
nine months ended
September 30, 2017
primarily as a result of a
9%
increase in delivered sales volume.
Depletion expense decreased
3%
to
$19.9 million
for the
nine months ended
September 30, 2018
from
$20.5 million
for the
nine months ended
September 30, 2017
due to a
2%
decrease in total harvest volume and lower blended depletion rates.
Cost of timberland sales increased to
$11.6 million
for the
nine months ended
September 30, 2018
from
$9.7 million
for the
nine months ended
September 30, 2017
as we sold more acres in 2018.
Forestry management fees decreased
$0.3 million
to
$4.6 million
for the
nine months ended
September 30, 2018
as a result of lower personnel costs allocated to forestry management fees.
General and administrative expenses increased to
$8.6 million
for the
nine months ended
September 30, 2018
from
$7.5 million
for the
nine months ended
September 30, 2017
primarily due to a $1.2 million increase in personnel costs as a result of increased head count to manage a growing business and increased allocation of staff time to joint venture management, a $0.6 million increase in transaction costs and a $0.6 million increase in various expense categories, offset by a $1.2 million reimbursement of previously expensed transaction costs received from the Triple T Joint Venture.
Other operating expenses increased to
$4.2 million
for the
nine months ended
September 30, 2018
from
$4.0 million
the
nine months ended
September 30, 2017
primarily as a result of an increase in logging road maintenance costs and an increase in planting costs on leased properties.
Interest expense.
Interest expense increased to
$11.1 million
for the
nine months ended
September 30, 2018
from
$8.1 million
for the
nine months ended
September 30, 2017
primarily due to a $1.9 million increase in the cash component of interest expense due to higher average outstanding debt and higher LIBOR rates. Additionally, we had a $1.6 million non-recurring write-off of deferred financing costs due to debt repayment and the amendment of our credit agreement in August 2018, offset by a $0.5 million decrease in interest expense as a result of favorable swap rates on certain interest rate swaps.
Loss from unconsolidated joint ventures
. During the
nine months ended
September 30, 2018
, we recognized
$2.5 million
of income from the Dawsonville Bluffs Joint Venture, which represents our portion of the joint venture’s net income of $5.1 million, generated primarily through the sale of HBU timberland and mitigation bank credits. During the
nine months ended
September 30, 2018
, we recognized a
$76.8 million
loss from the Triple T Joint Venture, which represents our equity pick-up under the HLBV method of accounting.
Net loss.
Our net loss increased to
$83.8 million
for the
nine months ended
September 30, 2018
from
$8.5 million
for the
nine months ended
September 30, 2017
primarily due to the
$76.8 million
loss from the Triple T Joint Venture, offset by the
$1.7 million
increase in operating income. Our net loss per share for the
nine months ended
September 30, 2018
and
2017
was
$1.76
and
$0.22
, respectively.
Adjusted EBITDA
The discussion below is intended to enhance the reader’s understanding of our operating performance and ability to satisfy lender requirements. EBITDA is a non-GAAP financial measure of operating performance. EBITDA is defined by the SEC as earnings before interest, taxes, depreciation and amortization; however, we have excluded certain other expenses which we believe are not indicative of the ongoing operating results of our timberland portfolio, and we refer to this measure as Adjusted EBITDA (see the reconciliation table below). As such, our Adjusted EBITDA may not be comparable to similarly titled measures reported by other companies. Due to the significant amount of timber assets subject to depletion, significant income (losses) from unconsolidated joint ventures based on HLBV, and the significant amount of financing subject to interest and amortization expense, management considers Adjusted EBITDA to be an important measure of our financial performance. By providing this non-GAAP financial measure, together with the reconciliation below, we believe we are enhancing investors’ understanding of our business and our ongoing results of operations, as well as assisting investors in evaluating how well we are executing our strategic initiatives. Items excluded from Adjusted EBITDA are significant components in understanding and assessing financial performance. Adjusted EBITDA is a supplemental measure of operating performance that does not represent and should not be considered in isolation or as an alternative to, or substitute for net income, cash flow from operations, or other financial statement data presented in accordance with GAAP in our consolidated financial statements as indicators of our operating performance. Adjusted EBITDA has limitations as an analytical tool and should not be considered in isolation or as a substitute for analysis of our results as reported under GAAP. Some of the limitations are:
|
|
•
|
Adjusted EBITDA does not reflect our capital expenditures, or our future requirements for capital expenditures;
|
|
|
•
|
Adjusted EBITDA does not reflect changes in, or our interest expense or the cash requirements necessary to
|
service interest or principal payments on, our debt; and
|
|
•
|
Although depletion is a non-cash charge, we will incur expenses to replace the timber being depleted in the
|
future, and Adjusted EBITDA does not reflect all cash requirements for such expenses.
|
|
•
|
Although HLBV income and losses are primarily hypothetical and non-cash in nature, Adjusted EBITDA does not reflect cash income or losses from unconsolidated joint ventures for which we use the HLBV method of accounting to determine our equity in earnings.
|
Due to these limitations, Adjusted EBITDA should not be considered as a measure of discretionary cash available to us to invest in the growth of our business. Our credit agreement contains a minimum debt service coverage ratio based, in part, on Adjusted EBITDA since this measure is representative of adjusted income available for interest payments. We further believe that our presentation of this non-GAAP financial measurement provides information that is useful to analysts and investors because they are important indicators of the strength of our operations and the performance of our business.
For the three months ended
September 30, 2018
, Adjusted EBITDA was
$11.5 million
, a
$4.3 million
increase from the three months ended
September 30, 2017
, primarily due to a
$3.3 million
increase in net timberland sales and a
$2.7 million
increase in asset management fees, offset by a
$1.0 million
decrease in net timber sales and a
$0.7 million
increase in general and administrative expenses.
For the
nine months ended
September 30, 2018
, Adjusted EBITDA was
$40.4 million
, a
$8.3 million
increase from the
nine months ended
September 30, 2017
, primarily due to
$6.4 million
of Adjusted EBITDA from the Dawsonville Bluffs Joint Venture, a
$2.7 million
increase in asset management fees, a
$0.7 million
increase in net timberland sales and a
$0.3 million
increase in other revenues, offset by a
$1.3 million
increase in general and administrative expenses, and a
$0.5 million
increase in other operating expenses.
Our reconciliation of net loss to Adjusted EBITDA for the three months and
nine months ended
September 30, 2018
and
2017
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
September 30,
|
|
Nine Months Ended
September 30,
|
(in thousands)
|
2018
|
|
2017
|
|
2018
|
|
2017
|
Net loss
|
$
|
(78,899
|
)
|
|
$
|
(4,044
|
)
|
|
$
|
(83,789
|
)
|
|
$
|
(8,488
|
)
|
Add:
|
|
|
|
|
|
|
|
Depletion
|
6,224
|
|
|
7,265
|
|
|
19,884
|
|
|
20,511
|
|
Basis of timberland sold, lease terminations and other
(1)
|
2,983
|
|
|
247
|
|
|
10,771
|
|
|
9,647
|
|
Amortization
(2)
|
493
|
|
|
308
|
|
|
2,532
|
|
|
961
|
|
Depletion, amortization, basis of timberland, mitigation credits sold included in loss from unconsolidated joint venture
(3)
|
39
|
|
|
125
|
|
|
3,885
|
|
|
128
|
|
HLBV(income) loss from unconsolidated joint venture
(4)
|
76,755
|
|
|
—
|
|
|
76,755
|
|
|
—
|
|
Stock-based compensation expense
|
610
|
|
|
687
|
|
|
2,171
|
|
|
2,025
|
|
Interest expense
(2)
|
3,883
|
|
|
2,553
|
|
|
8,754
|
|
|
7,266
|
|
Other
(5)
|
(632
|
)
|
|
10
|
|
|
(597
|
)
|
|
29
|
|
Adjusted EBITDA
|
$
|
11,456
|
|
|
$
|
7,151
|
|
|
$
|
40,366
|
|
|
$
|
32,079
|
|
|
|
(1)
|
Includes non-cash basis of timber and timberland assets written-off related to timberland sold, terminations of timberland leases and casualty losses.
|
|
|
(2)
|
For the purpose of the above reconciliation, amortization includes amortization of deferred financing costs, amortization of intangible lease assets, and amortization of mainline road costs, which are included in either interest expense, land rent expense, or other operating expenses in the accompanying consolidated statements of operations.
|
|
|
(3)
|
Reflects our share of depletion, amortization, and basis of timberland and mitigation credits sold of the unconsolidated Dawsonville Bluffs Joint Venture.
|
|
|
(4)
|
Reflects HLBV (income) losses from the Triple T Joint Venture, which is determined based on a hypothetical liquidation of the underlying joint venture at book value as of the reporting date rather than a liquidation at fair value as of a date that is more in-line with the joint venture’s expected timing for a liquidity event.
|
|
|
(5)
|
Includes certain cash expenses paid, or reimbursement received, that management believes do not directly reflect the core business operations of our timberland portfolio on an on-going basis, including costs required to be expensed by GAAP related to acquisitions transactions, joint ventures or new business initiatives.
|
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
As a result of our debt facilities, we are exposed to interest rate changes. Our interest rate risk management objectives are to limit the impact of interest rate changes on earnings and cash flows and to lower our overall borrowing costs. To achieve these objectives, we have entered into ten interest rate swaps, and may enter into other interest rate swaps, caps, or other arrangements in order to mitigate our interest rate risk on a related financial instrument. We do not enter into derivative or interest rate transactions for speculative purposes; however, certain of our derivatives may not qualify for hedge accounting treatment. All of our debt was entered into for other than trading purposes. We manage our ratio of fixed-to-floating-rate debt with the objective of achieving a mix that we believe is appropriate in light of anticipated changes in interest rates. We closely monitor interest rates and will continue to consider the sources and terms of our borrowing facilities to determine whether we have appropriately guarded ourselves against the risk of increasing interest rates in future periods.
As of
September 30, 2018
, the outstanding balance under the amended credit agreement was
$557.6 million
, of which
$100.0 million
was outstanding under the Term Loan A-1,
$100.0 million
was outstanding under the Term Loan A-2,
$68.6 million
was outstanding under the Term Loan A-3,
$140.0 million
was outstanding under the Term Loan A-4, and
$149.0 million
was outstanding under the Multi-Draw Term Facility. The Term Loan A-1 matures on
December 23, 2024
and bears interest at an adjustable rate based on one-month LIBOR Rate plus a margin of 1.75%, the Term Loan A-2 matures on
December 1, 2026
and bears interest at an adjustable rate based on one-month LIBOR Rate plus a margin of 1.90%, the Term Loan A-3 matures on
December 1, 2027
and bears interest at an adjustable rate based on
one-month LIBOR Rate plus a margin of 2.0%, the Term Loan A-4 matures on
August 22, 2025
and bears interest at an adjustable rate based on one-month LIBOR Rate plus a margin of 1.70%, and the Multi-Draw Term Facility matures on
December 1, 2024
and bears interest at an adjustable rate equal to a base rate plus between 0.50% and 1.20% or a LIBOR rate plus between 1.50% and 2.20%, in each case depending on our LTV Ratio.
As of
September 30, 2018
, we had ten outstanding interest rate swaps with a total notional value of $350.0 million. After consideration of the interest rate swaps,
$207.6 million
of our total debt outstanding remains subject to variable interest rates. A change in the market interest rate impacts the net financial instrument position of our effectively fixed-rate debt portfolio; however, it has no impact on interest incurred or cash flows.
Details of our variable-rate and effectively fixed-rate debt outstanding as of
September 30, 2018
, along with the corresponding average interest rates, are listed below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expected Maturity Date
|
|
|
(dollars in thousands)
|
|
2018
|
|
2019
|
|
2020
|
|
2021
|
|
2022
|
|
Thereafter
|
|
Total
|
Maturing debt:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variable-rate debt
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
207,619
|
|
|
$
|
207,619
|
|
Effectively fixed-rate debt
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
350,000
|
|
|
$
|
350,000
|
|
Average interest rate:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variable-rate debt
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
4.28
|
%
|
|
4.28
|
%
|
Effectively fixed-rate debt
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
—
|
%
|
|
4.26
|
%
|
|
4.26
|
%
|
As of
September 30, 2018
, the weighted-average interest rate of our outstanding debt, after consideration of the interest rate swaps, was
4.27%
. A
1.0%
change in interest rates would result in a change in interest expense of approximately
$2.1 million
per year. The amount of effectively variable-rate debt outstanding in the future will largely depend on the level of cash flow from operations and the rate at which we are able to deploy such proceeds toward repayment of amounts outstanding under the amended credit agreement, the acquisition of timberland properties and investments in joint ventures.
ITEM 4. CONTROLS AND PROCEDURES
Management’s Conclusions Regarding the Effectiveness of Disclosure Controls and Procedures
Management, with the participation of the Chief Executive Officer (Principal Executive Officer) and Chief Financial Officer (Principal Financial Officer), has evaluated the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) as of the end of the period covered by this quarterly report. Based upon that evaluation, the Principal Executive Officer and Principal Financial Officer concluded that our disclosure controls and procedures were effective as of the end of the period covered by this quarterly report in providing a reasonable level of assurance that information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods in SEC rules and forms, including providing a reasonable level of assurance that information required to be disclosed by us in such reports is accumulated and communicated to our management, including our Principal Executive Officer and our Principal Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
Changes in Internal Control Over Financial Reporting
There were no changes in our internal control over financial reporting during the quarter ended
September 30, 2018
that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
|
|
PART II.
|
OTHER INFORMATION
|
|
|
ITEM 1.
|
LEGAL PROCEEDINGS
|
From time to time, we are party to legal proceedings, which arise in the ordinary course of our business. We are not currently involved in any legal proceedings of which the outcome is reasonably likely to have a material adverse effect on our results of operations or financial condition, nor are we aware of any such legal proceedings contemplated by governmental authorities.
ITEM 1A. RISK FACTORS
There have been no material changes from the risk factors disclosed in the "Risk Factors" section of our Annual
Report on Form 10-K for the year ended December 31, 2017 and our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2018.
|
|
ITEM 2.
|
UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
|
Issuer Purchases of Equity Securities
The following table provides information regarding our purchases of our common stock during the quarter ended
September 30, 2018
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Period
|
|
Total Number of Shares Purchased
(2)
|
|
Average Price Paid per Share
(2)
|
|
Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs
(1)
|
|
Maximum Number (Or Approximate Dollar Value) of Shares that May Yet Be Purchased Under the Plans or Programs
(1)
|
July 1 - July 31
|
|
9,493
|
|
|
$
|
12.94
|
|
|
—
|
|
|
$
|
19.8
|
|
million
|
August 1 - August 31
|
|
—
|
|
|
$
|
—
|
|
|
—
|
|
|
$
|
19.8
|
|
million
|
September 1 - September 30
|
|
—
|
|
|
$
|
—
|
|
|
—
|
|
|
$
|
19.8
|
|
million
|
Total
|
|
9,493
|
|
|
|
|
—
|
|
|
|
|
|
|
(1)
|
On August 7, 2015, our Board of Directors authorized a share repurchase program under which we may repurchase up to $30 million of our outstanding common shares.
|
|
|
(2)
|
Represents shares purchased for tax withholding or estimated income tax payments purposes only.
|
ITEM 6. EXHIBITS
The exhibits required to be filed with this report are set forth below and incorporated by reference herein.
|
|
|
|
Exhibit
Number
|
|
Description
|
|
|
|
3.1
|
|
|
|
|
|
3.2
|
|
|
|
|
|
3.3
|
|
|
|
|
|
3.4
|
|
|
|
|
|
3.5
|
|
|
|
|
|
3.6
|
|
|
|
|
|
10.1
|
|
Consent and Amendment Agreement, dated as of June 29, 2018, by and among CatchMark Timber Trust, Inc. and its wholly-owned subsidiaries, CatchMark Timber Operating Partnership, L.P., CoBank, ACB, and certain financial institutions named therein (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on July 5, 2018)
|
|
|
|
10.2 *^
|
|
Purchase and Sale Agreement, dated as of August 20, 2018, by and among CatchMark HBU, LLC, CatchMark Southern Timberlands II, L.P., CatchMark TRS Harvesting Operations, LLC, CatchMark Texas Timberlands, L.P., Forest Investment Associates L.P. and First American Title Insurance Company
|
|
|
|
10.3 *^
|
|
First Amendment to Purchase and Sale Agreement, dated as of October 4, 2018, by and among CatchMark HBU, LLC, CatchMark Southern Timberlands II, L.P., CatchMark TRS Harvesting Operations, LLC, CatchMark Texas Timberlands, L.P., and Forest Investment Associates L.P.]
|
|
|
|
10.4*
|
|
|
|
|
|
10.5*
|
|
|
|
|
|
10.6*
|
|
|
|
|
|
10.7*
|
|
Fifth Amended and Restated Credit Agreement, dated as of December 1, 2017 and amended August 22, 2018, by and among CatchMark Timber Trust, Inc. and its wholly-owned subsidiaries, CatchMark Timber Operating Partnership, L.P., CoBank, ACB, AgFirst Farm Credit Bank, Coöperatieve Rabobank U.A., New York Branch, and certain financial institutions named therein
|
|
|
|
10.8^
|
|
Limited Partnership Agreement of TexMark Timber Treasury, L.P., dated as of July 6, 2018, by and among Triple T GP, LLC, Creek Pine Holdings, LLC, IMC RRIF C US Inc., IMC RRIF M US Inc., IMC RRIF PS US Inc., IMC RRIF T US Inc., IMC RRIF WS US Inc., IMC RRIF H US Inc., and bcIMC (WCBAF REKYN) Investment Corporation, Caddo TIG Newco L.P., Caddo Investors Holdings 1 LLC, Highland Floating Rate Opportunities Fund, NexPoint Strategic Opportunities Fund, NexPoint Real Estate Strategies Fund, and JAWS Capital, LP (incorporated by reference to Exhibit 10.1 to Amendment No. 1 to the Current Report on Form 8-K filed on September 12, 2018)
|
|
|
|
10.9^
|
|
|
|
|
|
31.1*
|
|
|
|
|
|
31.2*
|
|
|
|
|
|
32.1*
|
|
|
|
|
|
101.INS*
|
|
XBRL Instance Document
|
|
|
|
101.SCH*
|
|
XBRL Taxonomy Extension Schema Document
|
|
|
|
|
|
|
|
101.CAL*
|
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
|
|
|
101.DEF*
|
|
XBRL Taxonomy Extension Definition Linkbase Document
|
|
|
|
101.LAB*
|
|
XBRL Taxonomy Extension Label Linkbase Document
|
|
|
|
101.PRE*
|
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
|
|
|
*Filed herewith.
|
^Confidential treatment requested as to portions of the exhibit. Confidential materials omitted and filed separately with the SEC.
|
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
|
|
|
|
|
|
|
CATCHMARK TIMBER TRUST, INC.
(Registrant)
|
|
|
|
|
Date:
|
November 1, 2018
|
By:
|
|
/s/ Brian M. Davis
|
|
|
|
|
Brian M. Davis
Senior Vice President and Chief Financial Officer
(Principal Financial Officer)
|
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT (this “
Agreement
”) is made as of August 20, 2018 (the “Effective Date”), by and among
CATCHMARK HBU, LLC
, a Delaware limited liability company (“
HBU
”),
CATCHMARK SOUTHERN TIMBERLANDS II, L.P.
, a Delaware limited partnership (“
Southern Timberlands
”),
CATCHMARK TRS HARVESTING OPERATIONS, LLC
, a Delaware limited liability company (“
TRS
”), and
CATCHMARK TEXAS TIMBERLANDS, L.P.
, a Texas limited partnership (“
Texas Timberlands
”, and collectively with HBU, TRS and Southern Timberlands, “
Seller
”),
and
FOREST INVESTMENT ASSOCIATES L.P.
, a Delaware limited partnership (hereinafter referred to as “
Purchaser
”) and
FIRST AMERICAN TITLE INSURANCE COMPANY
(hereinafter referred to as “
Title Company
” and “
Escrow Agent
”);
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, Seller is the owner of those certain tracts or parcels of land in Hardin, Jasper, Liberty, Newton, Orange, Polk and Tyler Counties, Texas, and Allen, Beauregard, Calcasieu, DeSoto, Natchitoches, Rapides, Sabine and Vernon Parishes, Louisiana containing approximately 55,702 acres, which tracts or parcels are more fully described in
Exhibit A
attached hereto and hereby made a part hereof, together with all buildings, structures, and other improvements located thereon, all tenements, hereditaments, easements, appurtenances and privileges thereto belonging, all trees, timber, sand, gravel and crops now located thereon or thereunder, and all oil, gas and mineral rights and interests not reserved or conveyed by Seller’s predecessors in title (hereinafter referred to collectively as the “
Property
”); and
WHEREAS, Purchaser desires to purchase and Seller desires to sell the Property;
NOW, THEREFORE, the parties have agreed and do hereby agree as follows:
1.
Agreement of Purchase and Sale
. Subject to the provisions of this Agreement, and for the consideration herein stated, Seller agrees to sell the Property to Purchaser and Purchaser agrees to buy the Property from Seller.
2.
Purchase Price
. The purchase price (subject to adjustment as provided herein, hereinafter referred to as the “
Purchase Price
”) to be paid by Purchaser for the Property shall be SEVENTY EIGHT MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($78,500,000.00), and shall be payable to Seller by wire transfer of immediately available funds at the date of Closing to an account designated by Seller. The purchase and sale pursuant to this Agreement is not based on a per-acre price, and the Purchase Price shall not be subject to adjustment if the acres within the Property are more or less than the above-stated number of acres.
3.
Earnest Money
. Within fifteen (15) business days after the Effective Date of this Agreement, Purchaser shall deliver to Escrow Agent the sum of $2,355,000.00 (said amount is hereinafter referred to as the “
Earnest Money
”). Escrow Agent agrees to hold the Earnest Money in a non-interest bearing account and disburse the Earnest Money in accordance with the terms hereof. At the Closing the Earnest Money shall be delivered to Seller and applied to the Purchase Price.
4.
Closing
.
(a)
The execution and delivery of the documents and instruments for the consummation of the purchase and sale pursuant hereto (herein referred to as the “
Closing
”) shall take place on the date which is fifteen (15) days after the expiration of the Inventory Period, but no earlier than November 29, 2018, at 10:00 a.m. through the escrow services of Escrow Agent, or such earlier date and time, and/or such other location, as may be mutually agreeable to Seller and Purchaser (the “
Closing Date
”).
(b)
At the Closing, Seller shall execute, or cause to be executed, the following:
(i)
one or more special or limited warranty deeds (warranting only against the claims of persons claiming by, through or under Seller) for each county or parish in which the Property is located, in the form of
Exhibit B
(Texas) and
Exhibit B-1
(Louisiana) attached hereto,
and subject only to the Unrecorded Encumbrances and the Permitted Encumbrances (both as hereinafter defined) (collectively, the “
Deed
”). The legal description of the Property to be contained in the Deed shall be the legal description of the Property as set forth in the instruments described on
Exhibit A
attached hereto and hereby made a part hereof (the “Property Descriptions”) (provided, however, Seller shall reasonably cooperate with Purchaser to retype and/or replace with historic legal descriptions such Property Descriptions as Purchaser may reasonably request, subject to Seller’s reasonable approval. In addition to the Deed, Seller shall provide to Purchaser at Closing quitclaim deeds without warranty using any such altered legal descriptions);
(ii)
an affidavit as to the non-foreign status of Seller in form satisfactory to Seller;
(iii)
an assignment and assumption of the Unrecorded Encumbrances (as hereinafter defined), in the form attached hereto as
Exhibit C
and hereby made a part hereof (the “
Unrecorded Encumbrances Assignment
”);
(iv)
an owner’s affidavit in form reasonably satisfactory to Seller and sufficient to cause the Title Company (as hereinafter defined) to issue an owner’s title insurance policy without exception for materialmen’s and mechanic’s liens, parties in possession, unrecorded agreements other than the Unrecorded Encumbrances, and any other title exception other than the Permitted Encumbrances, substantially in the form of
Exhibit D
attached hereto;
(v)
the Post-Closing Harvest Agreement (“Harvest Agreement”) in the form attached hereto as
Exhibit E
(the “Harvest Agreement Assignment”);
(vi)
a Closing statement; and
(vii)
Seller hereby agrees to execute such other certificates and affidavits, and do such other acts as may be reasonably necessary to consummate the purchase and sale contemplated hereby and to enable Purchaser to obtain the title insurance policy in accordance with this Agreement. The owner’s affidavit and any other affidavits or certificates executed by or on behalf of Seller at the Closing shall be given to the actual knowledge of the person or entity executing the same, without independent investigation or inquiry.
(c)
At the Closing, Purchaser shall execute the following:
(i)
the Unrecorded Encumbrances Assignment;
(ii)
the Harvest Agreement Assignment;
(iii)
a Closing statement; and
(iv)
Purchaser hereby agrees to execute such other certificates and affidavits, and do such other acts as may be reasonably necessary to consummate the purchase and sale contemplated hereby and to obtain the title insurance policy in accordance with this Agreement.
5.
Title
.
(a)
Seller agrees to convey to Purchaser fee simple title to the Property by the Deed, free and clear of all liens, encumbrances, mortgages, deeds of trust, deeds to secure debt, assessments, agreements, options and covenants arising by, through or under Seller, subject only to the Permitted Encumbrances, as hereinafter defined.
(b)
Purchaser shall obtain and provide to Seller, at Purchaser’s expense, current title commitments for the Property prepared by the Title Company (collectively the “Title Commitment”).
(c)
Purchaser shall have until 5:00 P.M. (EST) on the date which is seventy-five (75) days after the Effective Date (the “Due Diligence Period”) to deliver to Seller written notice of any objection to any matter affecting title and any Title Failures (as hereinafter defined) (each, a “Title Objection” and collectively, the “Title Objections”), together with the Title Commitment and any and all maps produced by Orbis, Inc. (“Orbis”) in connection with Purchaser’s title review (“Orbis Maps”). Purchaser shall have the right to object to any title matter, including any Permitted Encumbrance, as hereinafter defined; provided, however, that Purchaser shall not object to any title matter which does not, in Purchaser’s reasonable judgment, adversely affect the use or value of the Property as commercial timberlands or for resale. Purchaser shall have the right to object to any Title Failure for which Purchaser provides reasonable evidence and/or documentation clearly establishing the boundaries of such Title Failure on or before the expiration of the Due Diligence Period. Upon receipt of the Purchaser’s notice of Title Objections, Seller may elect (but shall not be obligated) to cure or cause to be cured any such Title Objection, and Seller shall notify Purchaser in writing within ten (10) days after receipt of the notice of Title Objections whether Seller elects to cure the same. Failure of Seller to respond in writing within such time period shall be deemed an election by Seller not to cure such Title Objections. Any Title Objection shall be deemed to be cured if Seller causes the Title Company, at no additional cost to Purchaser, to issue an owner’s title policy for the affected Property affirmatively insuring over such Title Objection in the owner’s title policy. Notwithstanding the foregoing, Seller shall be obligated to cure, on or before the Closing Date, all Liens against the Property evidencing a debt (other than Liens for non-delinquent real estate taxes or assessments) (“Monetary Liens”) created as a result of the acts or omissions of Seller or its affiliates. For the purposes of this Agreement, the term “Lien” means any mortgage, deed of trust or deed to secure debt securing a monetary obligation which was created or suffered by Seller. If Seller does not receive written notice of the Title Objections for any objection to matters reflected in the Title Commitment on or before the expiration of the Due Diligence Period, Purchaser shall be deemed to have waived its right to object to any and all matters reflected in the Title Commitment, and Purchaser shall be deemed to accept title to the Property encompassed within such Title Commitment subject to such matters. Any Title Objection waived (or deemed waived) by Purchaser shall be deemed to constitute
a Permitted Encumbrance, and the Closing shall occur as herein provided without any reduction of the Purchase Price therefor. For purposes of this Section 5, a “
Title Failure
” means any portion of the Property consisting of at least 10 acres shown on Seller’s GIS Data (as hereinafter defined) as being part of the Property that is not, or immediately prior to the Closing will not be, (i) owned in fee by Seller subject only to the Permitted Encumbrances or (ii) otherwise insurable by the Title Company without exception (other than the Permitted Encumbrances) at standard rates. Purchaser acknowledges and agrees that unmappable legal descriptions alone shall not constitute a Title Failure. Seller’s GIS Data means the StandSW shapefile dated 7-20-2018 that Seller previously delivered to Purchaser.
(d)
With regard to Title Objections timely raised by Purchaser as provided in this Section, Seller shall have the right, but not the obligation, to cure and remove such items within ten (10) days after Seller’s receipt of Purchaser’s written notice of Title Objections. In the event Seller elects not to cure a Title Objection timely made by Purchaser, Purchaser shall have the right, at its option exercised by notice to Seller delivered no later than three (3) days prior to Closing, to accept the Property subject to the uncured Title Objection or to reduce the Purchase Price by the fair market value of the affected parcel and require Seller to proceed to the Closing with those portions of the Property that are subject to the Title Objection excluded from the Property to be conveyed to Purchaser at Closing (a “Title Carveout”). Said fair market value shall be determined by Purchaser and Seller by reference to the agreed upon land and timber values for the Property, which values are set forth on
Exhibit F
attached hereto and hereby made a part hereof (the “Value Table”). If the Parties are unable to agree upon the fair market value of any Title Carveout, said fair market value shall be determined as provided in Section 23 below. Purchaser agrees to grant without cost to Seller access easements over and across any portion of the Property acquired by Purchaser upon reasonable terms and over reasonable routes as may be necessary for Seller’s access to any Title Carveouts, and Seller agrees to grant to Purchaser without cost access easements over and across the Title Carveouts upon reasonable terms and over reasonable routes as may be necessary for Purchaser’s access to the Property. The Closing Date shall be extended as needed to permit the compliance with all procedures set forth in this Section 5(d).
(e)
For purposes of this Agreement, “
Permitted Encumbrances
” shall mean those matters set forth on
Exhibit G
attached hereto and hereby made a part hereof, the Unrecorded Encumbrances and any other title matter to which Purchaser does not object, or for which Purchaser waives its objection pursuant to this Section 5.
6.
Inspection
.
(a)
Purchaser and its agents, representatives, employees, engineers and contractors shall have the right at any time during the term of this Agreement to enter upon the Property to inspect, examine, conduct GIS studies, survey and make timber cruises and other engineering tests or surveys, including a Phase I environmental site assessment (collectively, the “
Tests
”) which it may deem necessary or advisable, all at Purchaser’s sole cost and expense. Upon completion of the Tests, Purchaser shall repair, at its sole cost and expense, any physical damage caused to the Property by Purchaser’s inspection of the Property and the Tests, and shall remove all debris and materials placed on the Property in connection with Purchaser’s inspection of the Property and the Tests.
(b)
Purchaser hereby agrees to indemnify and hold Seller harmless from and against any and all causes, claims, demands, losses, liabilities, costs, damages, expenses and fees (including, but not limited to, reasonable attorney’s fees) incurred or suffered by or asserted against Seller caused by or related to Purchaser’s inspection of the Property or the Tests, with the exception of any causes, claims, demands, losses, liabilities, costs, damages, expenses and fees caused by the
gross negligence of Seller. The foregoing indemnification shall survive any termination, cancellation or expiration of this Agreement or the Closing of the purchase and sale contemplated hereby.
7.
Environmental
.
(a)
Intentionally Omitted
(b)
Purchaser shall have until the expiration of the Due Diligence Period, to obtain, at Purchaser’s sole option, cost and expense, a new or updated Phase I environmental site assessment or environmental audit of the Property from a licensed environmental consultant (the “
Environmental Due Diligence Period
”). With regard to the Tests, without Seller’s prior written consent, no secondary environmental reports, soil borings, groundwater samples, or other invasive or subsurface environmental investigations may be made of the Property and neither Purchaser nor its agents, representatives, employees, engineers or contractors may contact any federal, state, or local governmental agency or authority regarding the results of the Tests. In the event that Purchaser determines that disclosure by Purchaser of the results of any Tests is required by applicable law, regulation or court order, Purchaser shall notify Seller promptly in writing so that Seller may seek a protective order (at its own cost and expense) or other appropriate remedy. In the event that no such protective order or other appropriate remedy is obtained, or Seller waives compliance with the terms of this Section 7, Purchaser shall give Seller written notice of the information to be disclosed as far in advance of its disclosure as practicable. In the event any such assessment or audit reveals that any portion of the Property is impaired by a Recognized Environmental Condition or there is a reportable violation of Environmental Laws, Purchaser shall have until the expiration of the Environmental Due Diligence Period to deliver to Seller written notice of such impairment or such reportable violation (the “
Environmental Notice
”). The Environmental Notice shall include a copy of any report, notice, or correspondence by which Purchaser was made aware of the impairment or reportable violation. If Purchaser timely delivers the Environmental Notice, Seller shall have the right, but not the obligation, to attempt to cure and remove such Recognized Environmental Condition. If Seller fails to cure, or elects not to cure, any such Recognized Environmental Condition, ten (10) days prior to the Closing, Seller shall notify Purchaser of same, and Purchaser shall elect by delivering written notice to Seller delivered no later than three (3) days prior to Closing either (i) to proceed to Closing subject to such uncured or unsatisfied Recognized Environmental Conditions, with no adjustment in the Purchase Price, or (ii), proceed to Closing and purchase the Property exclusive of such portion or portions of the Property subject to such Recognized Environmental Condition (the “
Environmental Carve Out Property
”), provided such Environmental Carve Out Property is a Marketable Parcel, in which event the Purchase Price will be reduced by the fair market value of the Environmental Carve Out Property determined as set forth in Section 5(b) above. As used herein, “
Recognized Environmental Condition
” shall have the meaning set for the same in ASTM Practice E 2247-16. Notwithstanding anything to the contrary contained herein, if any portion or parcel of the Property is to be excluded from the transaction pursuant to this Section 7 and such parcel comprises less than all of a discrete parcel of land with an adequate, insurable legal description, Seller shall determine (subject to Purchaser’s right of reasonable approval as to shape or configuration and provided that the Environmental Carveout Property is a Marketable Parcel) the exact boundaries and dimensions of the portion of the Property to be retained by Seller, and Seller shall make arrangements to have said portion of the Property surveyed by a surveyor licensed to practice in the applicable State in order to produce an insurable legal description for said retained parcel. Seller shall pay all costs of any surveys so obtained. For purposes of this Agreement, “Marketable Parcel” means a parcel or tract of land containing at least forty (40) acres.
8.
Condition of Property; Damage; Condemnation
.
(a)
Seller agrees that at the Closing the Property shall be in the same condition as exists on the date hereof, subject to natural wear and tear, trespass, condemnation and casualties beyond Seller’s control, the Permitted Encumbrances and the Ongoing Harvest Operations (as hereinafter defined). During the term of this Agreement, Seller shall neither cut or remove nor permit the cutting or removal of any timber or trees which are included as part of the Property, subject to and excepting the Ongoing Harvest Operations and the rights of third parties, if any, pursuant to existing title matters of record listed in the Title Commitments.
(b)
If at any time prior to the Closing, the Property or any part thereof (including, but not limited to, any timber or trees which are included as part of the Property) is destroyed or damaged by fire or other Casualty (as hereinafter defined), Seller shall deliver to Purchaser prompt written notice of such destruction or damage along with the amount of such damage (calculated as the value of the destroyed or damaged Property less the salvage value of such destroyed or damaged Property), and the transactions contemplated by this Agreement shall be subject to the provisions of this Section 8(b). The date of the Closing shall be extended to the extent necessary to permit the compliance with all procedures set forth in this Section 8(b).
(i)
If the amount of such damage does not exceed $50,000 (the “
Threshold Amount
”), then Purchaser shall be required to purchase the Property in accordance with this Agreement without a reduction of the Purchase Price.
(ii)
If the amount of such damage exceeds the Threshold Amount but does not exceed $3,000,000, then Purchaser shall be required to purchase the Property in accordance with this Agreement, provided that the Purchase Price shall be reduced by an amount equal to the amount of such damage.
(iii)
If the amount of such damage exceeds $3,000,000, then Purchaser, at its sole option, shall elect by delivering written notice to Seller either (A) to cancel this Agreement, whereupon Escrow Agent shall promptly return the Earnest Money to Purchaser and no party hereto shall have any further rights or obligations hereunder (except as may otherwise be expressly provided herein), or (B) to purchase the Property in accordance with this Agreement, provided that the Purchase Price shall be reduced by an amount equal to the amount of such damage. Subject to Section 8(b)(iv), failure of Purchaser to deliver such written notice to Seller within fifteen (15) days following receipt of Seller’s written notice shall be deemed an election of clause (B).
(iv)
If Purchaser, by delivering written notice to Seller within fifteen (15) days following Seller’s delivery of written notice of the damage, disputes the amount of damage reported by Seller, Purchaser and Seller shall attempt in good faith to resolve such dispute and agree upon the amount of the damage. If Purchaser and Seller are unable to agree as to the amount of damage from fire or other Casualty on or before ten (10) days after Purchaser delivers to Seller written notice of its dispute, then the amount of damage will be determined in accordance with Section 23 of this Agreement.
(c)
If at any time prior to the Closing, any action or proceeding is filed or threatened under which any portion of the Property may be taken pursuant to any law, ordinance or regulation by condemnation or the right of eminent domain, Seller shall deliver to Purchaser prompt notice thereof. To the extent such action or proceeding would result in the taking of One Thousand Five Hundred (1,500) acres or more, then Purchaser at its sole option shall elect, by delivering written
notice to Seller within fifteen (15) days following Seller’s delivery of notice to Purchaser, either (i) to cancel this Agreement, whereupon Escrow Agent shall promptly return the Earnest Money to Purchaser and no party hereto shall have any further rights or obligations hereunder (except as may otherwise be expressly provided herein), or (ii) to purchase the Property pursuant to this Agreement, notwithstanding such action or proceeding. Failure by Purchaser to deliver written notice to Seller of its election within such fifteen (15) day period shall be deemed an election of clause (ii). If the action or proceeding would result in the taking of not more than One Thousand Five Hundred (1,500) acres, or if Purchaser elects or is deemed to elect clause (ii), then Purchaser shall receive a credit against the Purchase Price in the amount of all proceeds of any awards payable with respect to the Property, or, if such amount is not known at the time of the Closing, the Purchase Price shall not be reduced and Seller shall assign to Purchaser at the Closing all of Seller’s right to such proceeds from such action or proceeding. To the extent such action or proceeding would result in the taking of One Thousand Five Hundred (1,500) acres or more, the date of the Closing shall be extended to the extent necessary to permit the exercise of such election by Purchaser.
9.
Warranties and Representations
.
(a)
Seller hereby warrants and represents to Purchaser that as of the Effective Date and as of the date of Closing:
(i)
HBU is a limited liability company duly organized and validly existing under the laws of the State of Delaware, TRS is a limited liability company duly organized and validly existing under the laws of the State of Delaware, Southern Timberlands is a limited partnership duly organized and validly existing under the laws of the State of Delaware, Texas Timberlands is a limited partnership duly organized and validly existing under the laws of the State of Texas, and Seller is qualified to conduct business in the state of its organization and the states in which it is required to do so.
(ii)
Seller has the full right, power, and authority to enter into and perform this Agreement; and no consent, approval, order or authorization of any court or other governmental entity is required to be obtained by Seller in connection with the execution and delivery of this Agreement or the performance hereof by Seller.
(iii)
Attached hereto as
Exhibit I
is a true and accurate summary of all unrecorded encumbrances created by Seller and currently affecting the Property that will remain in effect as of the Closing Date (the “
Unrecorded Encumbrances
”). The Unrecorded Encumbrances remain in full force and effect and have not been modified or amended, except as indicated on said
Exhibit I
. To Seller’s knowledge, no event or condition exists or has occurred which with notice, the passage of time or otherwise would constitute a default or event of default under any of the Unrecorded Encumbrances.
(iv)
There is no pending or, to Seller’s knowledge, threatened litigation, action or proceeding (including, but not limited to, any condemnation or eminent domain action or proceeding or any litigation regarding the location of lines and corners of the Property or any dispute regarding adverse possession) before any court, governmental agency or arbitrator which may adversely affect Seller’s ability to perform this Agreement or which may affect the Property.
(v)
Seller has received no written notice of any threatened or contemplated actions against Seller or the Property based upon the presence on the Property of any species listed
as threatened or endangered under the Endangered Species Act of the United States or any law of the State of Texas or the State of Louisiana protecting endangered or threatened animal or plant species, and Seller has no knowledge of the current or past presence on the Property of any such threatened or endangered species.
(vi)
Seller (which for this purpose includes Seller’s partners, members, principal stockholders and any other constituent entities) (x) has not been designated as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, <http://www.treas.gov/ofac/t11sdn.pdf> or at any replacement website or other replacement official publication of such list and (y) is currently in compliance with and will at all times during the term of this Agreement remain in compliance with the regulations of the Office of Foreign Asset Control of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto.
(vii)
Neither Seller nor, to Seller’s knowledge, any other person has used any portion of the Property as a land fill or as a dump to receive garbage, refuse, or waste, whether or not hazardous (other than unauthorized household refuse dump sites typical of rural timberlands not more than 1/4 acre in size), and neither Seller nor, to Seller’s knowledge, any other person has stored, handled, installed or disposed in, on or about the Property any Hazardous Substance, except for, in accordance with applicable law, (A) the use of motor vehicle lubricants and fuels, and (B) the application of silvicultural and agricultural chemicals. For purposes of this warranty, the term “Hazardous Substance” means any chemical, compound, constituent, material, waste, contaminant (including petroleum, crude oil or any fraction thereof) or other substance, defined as hazardous or toxic, or otherwise regulated by any of the following laws and regulations promulgated thereunder as amended from time to time prior to the Effective Date: (1) the Comprehensive Environmental Response, Compensation and Liability Act (as amended by the Superfund Amendments and Reauthorization Act), 42 U.S.C. § 9601 et seq.; (2) the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq.; (3) the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.; (4) the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; (5) the Clean Water Act, 33 U.S.C. § 1251 et seq.; (6) the Clean Air Act, 42 U.S.C. § 1857 et seq.; and (7) all laws of the State of Texas or the State of Louisiana that are based on, or substantially similar to, the federal statutes listed in clauses (1) through (6) of this sentence.
(viii)
Except in connection with the Ongoing Harvest Operations: (A) no third party has any rights to enter upon the Property to harvest and remove any timber therefrom; and (B) no timber or trees have been removed or harvested from the Property or have been affected by any Casualty causing damage in excess of the Threshold Amount since June 30, 2018 (the “
Inventory Date
”). For purposes of this Agreement, “
Casualty
” shall mean any physical damage to or loss of the timber on any portion of the Property by fire, earthquake, flood, insects, disease or other calamity, or as a result of timber trespass or unauthorized harvest.
(ix)
Except for the Unrecorded Encumbrances, to Seller’s knowledge, there are no unrecorded contracts, leases, or other agreements that affect the ownership, use or operation of the Property and that would be binding on Purchaser after the Closing date.
(x)
To Seller’s knowledge, there have been no active mining operations conducted on the Property during the past ten (10) years, and Seller has no knowledge of any proposed mineral activity on the Property.
(xi)
To Seller’s knowledge, no trees or timber which were included in the timber inventory information in the Excel Spreadsheet titled SouthWestSalesPack e-mailed from Don Warden to Andrew Boutwell on July 19, 2018 at 11:46 a.m. (“Seller’s Inventory”) have been cut or removed from the Property, except in connection with the Ongoing Harvest Operations.
(b)
For purposes of this Agreement, “Seller’s knowledge” shall be defined as the present, actual knowledge possessed by Don Warden without any duty of inquiry.
(c)
Purchaser hereby warrants and represents to Seller that Purchaser is a limited partnership duly organized and validly existing under the laws of the State of Delaware.
(d)
Purchaser hereby warrants and represents to Seller that Purchaser has the full right, power and authority to enter into and perform this Agreement; and no consent, approval, order or authorization of any court or other governmental entity is required to be obtained by Purchaser in connection with the execution and delivery of this Agreement or the performance hereof by Purchaser.
(e)
Notwithstanding anything herein to the contrary, all representations and warranties made in this Section 9 shall survive the Closing and the delivery of the conveyance instruments to Purchaser for a period of one (1) year after the Closing Date (the “
Survival Period
”).
No claim for a breach of any Seller representation or warranty, or the failure or default of a covenant or agreement of Seller that survives Closing, shall be actionable or payable unless written notice containing a description of the specific nature of such breach shall have been delivered by Purchaser to Seller prior to the expiration of said Survival Period. The maximum amount that Purchaser shall be entitled to collect from Seller in connection with all suits, litigation or administrative proceedings resulting from all breaches by Seller of any Seller Representations or any covenants of Seller shall in no event exceed ten percent (10%) of the Purchase Price in the aggregate.
10.
Brokerage Commission
. Seller shall indemnify and hold Purchaser harmless from all claims, losses, liabilities and expenses (including but not limited to reasonable attorneys’ fees and court costs actually incurred) which Purchaser may incur on account of any claim which may be asserted against Purchaser, whether or not meritorious, by any broker or other person on the basis of any agreements made or alleged to have been made by or on behalf of Seller. Purchaser shall indemnify and hold Seller harmless from all claims, losses, liabilities and expenses (including but not limited to reasonable attorneys’ fees and court costs actually incurred) which Seller may incur on account of any claim which may be asserted against Seller, whether or not meritorious, by any broker or other person on the basis of any agreements made or alleged to have been made by or on behalf of Purchaser. This Section 10 shall survive the Closing or any termination, cancellation or expiration of this Agreement.
11.
Income; Taxes; Expenses
.
(a)
All rent and other income, other than amounts payable in connection with the Ongoing Harvest Operations, which shall be allocated in accordance with Section 35 hereof, and all expenses relating to the Property, shall be prorated as of the date of Closing. If the actual rent and other income and all expenses relating to the Property are not known as of the date of Closing, then within thirty (30) days after Closing, Seller and Purchaser shall reconcile such actual rent and other income and all expenses with the prorations done at Closing. This obligation shall survive the Closing.
(b)
Ad valorem real property taxes on the Property and special assessments shall be prorated as of the Closing Date. If actual tax bills for the calendar year of Closing are not available, said taxes shall be prorated based on tax bills for the previous calendar year and the parties hereto agree to cause a reproration of said taxes upon the receipt of tax bills for the calendar year of Closing. This obligation to reprorate shall survive the closing of the purchase and sale contemplated hereby. If the Property is not designated a separate tax parcel, said taxes shall be adjusted to an amount bearing the same relationship to the total tax bill which the acreage contained within the Property bears to the acreage contained within the property included within said tax bill.
(c)
Purchaser and Seller shall each pay one-half of all transfer taxes, documentary stamp taxes and other taxes, fees, costs and expenses in connection with the sale of the Property and the recordation of the Deed.
(d)
Purchaser shall pay any and all fees, costs and expenses for title searches and examinations and other title-related charges in connection with obtaining the Title Commitment. Purchaser shall pay all title insurance premiums for the issuance of Purchaser’s title insurance policy.
(e)
Each party shall pay its respective costs and expenses of legal representation.
(f)
Purchaser shall be solely responsible and liable for any deferred, rollback, recapture or other tax or assessment (“
Rollback Taxes
”) imposed or charged with respect to the Property or any part thereof for or relating to any periods prior to or subsequent to the Closing based on any change of use of the Property by Purchaser. Seller shall be responsible for any Rollback Taxes due based upon the actions of Seller, including but not limited to the sale of the Property to Purchaser. The provisions of this subparagraph (f) shall survive the Closing.
12.
Earnest Money; Default; Remedies
.
(a)
If the purchase and sale of the Property contemplated hereby is not consummated because of a default by Purchaser under this Agreement, then Seller shall have the right, as its sole and exclusive remedy, to require Escrow Agent to pay the Earnest Money to Seller as full liquidated damages and not as a penalty (the parties hereto acknowledging that Seller’s damages as a result of such default are not capable of exact ascertainment and that said liquidated damages are fair and reasonable).
(b)
If the purchase and sale of the Property contemplated hereby is not consummated because of a default by Seller under this Agreement, then Purchaser, as its sole and exclusive remedy, shall have the right either (i) to terminate this Agreement, whereupon Escrow Agent will return the Earnest Money to Purchaser, and the parties hereto will have no further rights or obligations hereunder (except as otherwise expressly provided herein), (ii) to waive any such default and proceed to Closing, (iii) to seek specific performance of this Agreement, or (iv) if specific performance is not available to Purchaser, Purchaser shall be entitled to reimbursement of up to, but not to exceed, $100,000, of its reasonable third party cost and expenses incurred in connection with this Agreement.
(c)
The duties of Escrow Agent shall be as follows:
(i)
During the term of this Agreement, Escrow Agent shall hold and deliver the Earnest Money in accordance with the terms and provisions of this Agreement.
(ii) I
f this Agreement shall be terminated by the mutual written agreement of Seller and Purchaser, or if Escrow Agent shall be unable to determine at any time to whom the Earnest Money should be delivered, or if a dispute shall develop between Seller and Purchaser concerning to whom the Earnest Money should be delivered, then in any such event, Escrow Agent may request joint written instructions from Seller and Purchaser and shall deliver the Earnest Money in accordance with such joint written instructions. In the event that such written instructions shall not be received by Escrow Agent within ten (10) days after Escrow Agent has served a written request for instructions upon Seller and Purchaser, Escrow Agent shall have the right to pay the Earnest Money into a court of competent jurisdiction and interplead Seller and Purchaser in respect thereof, and thereafter Escrow Agent shall be discharged of any obligations in connection with this Agreement.
(iii)
If costs or expenses are incurred by Escrow Agent because of litigation or a dispute between Seller and Purchaser arising out of the holding of the Earnest Money in escrow, Seller and Purchaser shall each pay Escrow Agent one-half of such costs and expenses. Except for such costs and expenses, no fee or charge shall be due or payable to Escrow Agent for its services as escrow holder.
(iv)
By joining herein, Escrow Agent undertakes only to perform the duties and obligations imposed upon it under the terms of this Agreement and expressly does not undertake to perform any of the other covenants, terms and provisions incumbent upon Seller and Purchaser hereunder.
(v)
Purchaser and Seller hereby agree and acknowledge that Escrow Agent assumes no liability in connection herewith except for any loss, costs or damage arising out of Escrow Agent’s own gross negligence or willful misconduct; that Escrow Agent shall not be liable or responsible for any loss occurring which arises from bank failure or error, insolvency or suspension, or a situation or event which falls under the Federal Deposit Insurance Corporation (FDIC) coverage (Seller and Purchaser are aware that FDIC coverage applies to a maximum amount of $250,000 per depositor, as may be modified by the FDIC from time to time); and that Escrow Agent may seek advice from its own counsel and shall be fully protected in any action taken by it or omitted to be taken by it in good faith in accordance with the opinion of its counsel.
13.
Assignment
. Except as otherwise expressly permitted in this Agreement, neither party hereto shall assign its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party, which written consent will not be unreasonably withheld of delayed. Notwithstanding the foregoing, (a) Purchaser shall have the right to assign its rights and obligations under this Agreement in whole or in part to any affiliate or affiliates of Purchaser, provided that Purchaser shall remain liable for all obligations under this Agreement prior to Closing; and (b) Purchaser may assign this Agreement at the Closing, but not earlier, to any institutional lender or lenders as security for obligations to such lender or lenders in respect of financing arrangements of Purchaser or any affiliates thereof with such lender or lenders. Without limiting the generality of the foregoing, Purchaser may elect to have some or all of the Property, and/or the timber located thereon, conveyed directly at Closing to one or more of Purchaser’s affiliates, provided, however, that Purchaser provides written notice to Seller at least five (5) days prior to Closing of such election and the names of such affiliates.
14.
No Waiver
. No action or failure to act by any party hereto shall constitute a waiver of any right or duty afforded to such party under this Agreement, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach of this Agreement except as may be specifically agreed in writing.
15.
Governing Law
. This Agreement shall be governed by the laws of the State of Georgia.
16.
Notice
. Any and all notices, elections and communications required or permitted by this Agreement shall be made or given in writing and shall be delivered in person or sent by postage, pre-paid, United States Mail, certified or registered, return receipt requested, or by a recognized overnight courier such as FedEx or UPS, or by facsimile or e-mail, to the other parties at the addresses set forth below, or such other address as may be furnished by notice in accordance with this paragraph. The date of notice given by personal delivery shall be the date of such delivery. The effective date of notice by mail, facsimile, email or overnight courier shall be the date such notice is mailed, faxed, emailed or deposited with such overnight courier. In the event that the last day for giving notice hereunder or for the performance of any obligation hereunder, including Closing, falls upon a Saturday, Sunday or a legal holiday, the last day for said notice or performance shall be deemed to be the next day which is neither a Saturday, Sunday nor a legal holiday.
Purchaser:
Forest Investment Associates L.P.
15 Piedmont Center
Suite 1250
Atlanta, 30305
Attention: Andrew Boutwell
Email: aboutwell@forestinvest.com
with a copy to:
Eversheds Sutherland (US) LLP
999 Peachtree Street, N.E., Suite 2300
Atlanta, Georgia 30309-3996
Attention: Kevin Thomas
Email: kevinthomas@eversheds-sutherland.com
Seller:
c/o CatchMark Timber Trust
Five Concourse Parkway
Suite 2325
Atlanta, Georgia 30328
Attention: Don Warden
Facsimile No.: (770) 243-8172
Email: don.warden@catchmark.com
with a copy to:
Smith, Gambrell & Russell, LLP
Suite 3100, Promenade II
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309-3592
Attention: Mark G. Pottorff
Facsimile: (404) 685-6897
Email: mpottorff@sgrlaw.com
Escrow Agent:
First American Title Insurance Company
Six Concourse Parkway, NE, Suite 2000
Atlanta, Georgia 30328
Attention: Kevin Wood
Email: kwwood@firstam.com
17.
Entire Agreement
. This Agreement contains the entire agreement among the parties hereto with respect to the subject matter hereof and cannot be amended or supplemented except by a written agreement signed by all parties.
18.
Captions
. The captions of paragraphs in this Agreement are for convenience and reference only and are not part of the substance hereof.
19.
Severability
. In the event that any one or more of the provisions, paragraphs, words, clauses, phrases or sentences contained in this Agreement, or the application thereof in any circumstance is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision, paragraph, word, clause, phrase or sentence in every other respect and of the remaining provisions, paragraphs, words, clauses, phrases or sentences of this Agreement, shall not be in any way impaired, it being the intention of the parties that this Agreement shall be enforceable to the fullest extent permitted by laws.
20.
Counterparts
. This Agreement may be executed in multiple counterparts which shall be construed together as one instrument. This Agreement, including any amendments thereto, may be executed and delivered by facsimile transmission, with the intention that such facsimile signature and delivery shall have the same effect as an original signature and actual delivery.
21.
Binding Effect
. This Agreement shall bind the parties hereto and their respective heirs, legal representatives, successors and assigns.
22.
Time; Business Day
.
(a)
Time is of the essence of this Agreement.
(b)
As used in this Agreement, the term “business day” shall mean any day that is not a Saturday, a Sunday, a legal holiday in the United States of America, or a legal holiday in the State of Georgia.
23.
Resolution of Disputes
. In the event that any provision of this Agreement refers to this Section 23 for a determination of the amount of any change in the value of the Property or the fair market value of any portion(s) of the Property or the timber on the Property, Seller and Purchaser will promptly make a good faith attempt to mutually agree upon such fair market value. In the event Seller and Purchaser are unable to so agree within five (5) days after notice of the event or circumstance necessitating the need for such determination from either party to the other party, Seller and Purchaser shall retain Forest Resource Consultants, or another independent forestry consultant acceptable to both parties (the “Forestry Consultant”) to determine the appropriate fair market valuation, and the decision of the Forestry Consultant as to the fair market valuation in dispute will be final. Seller and Purchaser shall each pay one-half (1/2) of the cost of the Forestry Consultant. The Closing Date shall be extended to the extent necessary for such Forestry Consultant to reach such decision.
24.
Public Announcements
.
Seller
and Purchaser hereby agree that prior to the Closing, except as required by applicable laws or any applicable stock exchange rules, all press releases and other public announcements with respect to the transactions contemplated by this Agreement, including the time, form and content of such release or announcement, shall be made only with the mutual written agreement of Purchaser
and Seller; provided, however, that any disclosure required to be made under applicable law may be made only if a party required to make such disclosure has determined in good faith that it is necessary to do so and has used reasonable efforts, prior to the
issuance of the disclosure, to provide the other party with a copy of the proposed disclosure and to discuss the proposed disclosure with the other party.
25.
Patriot Act Compliance
. Purchaser represents that neither Purchaser nor any of Purchaser’s affiliates, nor any of their respective partners, members, shareholders or other equity owners, and none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“
OFAC
”)
of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not attempt to assign this contract to, contract with or otherwise engage in any dealings or transactions or be otherwise associated with such persons or entities. Any assignee of this contract is deemed to make this representation upon acceptance of an assignment of this contract. Purchaser’s primary address is as set forth in the notice section of this Agreement. Purchaser hereby covenants and agrees that if Purchaser obtains knowledge that Purchaser or any owner of any controlling interest in Purchaser becomes listed on the foregoing or is indicted, arraigned, or custodially detained on charges involving money laundering or predicate crimes to money laundering, Purchaser will immediately notify Seller in writing, and in such event, Seller will have the right to terminate this Agreement without penalty or liability to Seller immediately upon delivery of written notice thereof to Purchaser, in which event the Earnest Money will be returned to Purchaser and neither party will have any further rights or obligations under this Agreement, except for such as specifically survive termination.
26.
Incorporation of Exhibits
. All exhibits referred to herein are hereby incorporated in this Agreement by this reference.
27.
AS IS
.
PURCHASER ACKNOWLEDGES THAT, EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 9, OR IN ANY OTHER DOCUMENT DELIVERED AT CLOSING, INCLUDING BUT NOT LIMITED TO Seller’s limited warranty of title in the Deed: (
I
) NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, HAVE BEEN OR ARE BEING MADE BY OR ON BEHALF OF SELLER OR ANY OTHER PERSON, INCLUDING WITH RESPECT TO THE CONDITION OR VALUE OF THE PROPERTY,
AND SELLER HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO THE PROPERTY, EITHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND SUITABILITY FOR ITS INTENDED USE, (
II
) IN ENTERING INTO THIS AGREEMENT, PURCHASER HAS NOT RELIED ON AND DOES NOT RELY ON ANY SUCH REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, BY OR ON BEHALF OF SELLER OR ANY OTHER PERSON, AND (III) PURCHASER SHALL ACQUIRE THE PROPERTY IN
“AS IS, WHERE IS, AND WITH ALL FAULTS”
CONDITION ON THE CLOSING DATE.
28.
Property Data and Materials; Confidentiality Agreement
. Purchaser acknowledges that, except as may otherwise be provided in Section 9, any information or materials provided or made available to Purchaser or its representatives in hard copy, by facsimile or electronic transmission or via the online data room, including, without limitation, any cost or other estimates, projections, acreage, and timber information, the existing ESA Report, and any title policies, are not and shall not be deemed representations or warranties by or on behalf of Seller. Purchaser acknowledges and agrees that Purchaser is and will remain, until the Closing, subject to and bound by all of the
prohibitions, requirements, restrictions and other provisions of that certain Confidentiality Agreement, dated as of July 10, 2018, between Forest Investment Associates, Inc. and CatchMark Timber Trust, Inc., and Purchaser reaffirms all of its obligations and liabilities thereunder. This Section 28 shall survive any termination, cancellation or expiration of this Agreement or the Closing of the purchase and sale contemplated hereby..
29.
No Survival
. Except as otherwise provided herein, the provisions of this Agreement shall not survive the Closing of the purchase and sale contemplated hereby and shall be merged into the delivery of the Deed and other documents and the payment of all monies pursuant hereto.
30.
No Solicitation
. Seller agrees that it shall not after the Effective Date, directly or indirectly, through any officer, director, employee, agent or otherwise, (a) solicit, initiate or encourage submission of proposals, offers or expressions of interest from any person or entity relating to any acquisition or purchase of all or a portion of the Property (any of the foregoing proposals, offers or expressions of interest being referred to herein as an “
Acquisition Proposal
”), or (b) participate in any negotiations or discussions regarding, or furnish to any person any nonpublic information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any Acquisition Proposal.
31.
Conditions
.
(a)
Unless waived by Purchaser, the obligations of Purchaser under this Agreement are expressly made subject to the fulfillment in all respects of the following conditions precedent:
(i)
the truth and accuracy in all material respects as of the date of Closing of each and every warranty and representation herein made by Seller; and
(ii)
Seller’s timely performance of and compliance with each and every term, condition, agreement, restriction and obligation to be performed and complied with by Seller under this Agreement.
In the event either of the conditions in (i) or (ii) above is not satisfied on or before the Closing, Purchaser will have the right, exercisable at Purchaser’s sole election, to exercise the remedies described in Section 12(b)
(b)
Unless waived by Seller, the obligations of Seller under this Agreement are expressly made subject to the fulfillment in all respects of the following conditions precedent:
(iii)
the truth and accuracy as of the date of Closing of each and every warranty and representation herein made by Purchaser; and
(iv)
Purchaser’s timely performance of and compliance with each and every term, condition, agreement, restriction and obligation to be performed and complied with by Purchaser under this Agreement.
In the event any of the above conditions is not satisfied on or before the Closing, Seller will have the right, exercisable at Seller’s sole election, to exercise the remedies described in Section 12(a).
32.
Inventory Verification
. The Purchase Price set forth herein is based in part on the assumption that the Property contains the volumes and classifications of timber as set forth in the
Value Table. At Purchaser’s sole option, Seller and Purchaser may employ the Forestry Consultant to undertake a timber cruise (the “
Cruise
”) of the Property, to be completed on or before the date that is seventy-five (75) days after the Effective Date (the “
Inventory Period
”). If Purchaser elects to complete the Cruise, the Cruise shall be performed in accordance with the specifications set forth in
Exhibit J
attached hereto and made a part hereof (the “
Cruise Specifications
”), and the costs and expenses of the Cruise shall be split equally between Seller and Purchaser up to $100,000 and any costs and expenses in excess of $100,000 shall be paid by Purchaser. If Purchaser elects to complete the Cruise, the Cruise data shall be used to determine the actual volumes of merchantable timber on the Property for the purpose of making adjustments to the Purchase Price. Both Seller and Purchaser agree to be bound by the findings of the Forestry Consultant. If Purchaser elects to complete the Cruise, the Purchase Price shall be adjusted in the following manner based on the results of the Cruise. The volumes of merchantable timber as determined by the Cruise shall be multiplied by the unit values for each category of merchantable timber as set forth in the Value Table and totaled to determine the actual value of merchantable timber contained in the Property (the “
Total Cruised Value
”). If the Cruise determines that the Total Cruised Value varies from the Estimated Timber Value by more than three percent (3%) the Purchase Price shall be adjusted upward or downward by the amount of such variation exceeds such three percent (3%) window (e.g. if the Total Cruised Value equal 104% of the Estimated Timber Value, then the Purchase Price shall be increased by an amount equal to 1% of the Estimated Timber Value). Each of the Parties shall be entitled to observe the Cruise. If either Party provides any written information or objections to the Forestry Consultant regarding the Cruise, such Party shall provide a copy to the other Party. If either Party believes that the Cruise prepared by the Forestry Consultant was not prepared in accordance with the Cruise Specifications, and the Parties are not able to resolve such dispute within seven (7) days after delivery of the Cruise report to the Parties by the Forestry Consultant, then each Party shall select an independent forestry consultant and the two independent forestry consultants will in turn select a third independent forestry consultant to act with them in a panel to determine whether the Cruise was prepared in accordance with the Cruise Specifications. The panel of consultants shall make a binding decision within twenty (20) days of the selection of the third consultant, and the decision of the consultants shall be final. Seller and Purchaser will each bear the cost of its respective consultant and one-half of the cost of the third consultant. If the panel of consultants determines that the Cruise was not prepared in accordance with the Cruise Specifications, the panel shall make such modification to the Cruise as it deems necessary, which modified Cruise shall be the basis of the Purchase Price adjustment pursuant to this Section 32. The Closing Date will be extended to the extent necessary to permit the final decision of the panel of consultants; provided, however, that if said final decision is not reached within thirty (30) days after the originally scheduled Closing Date, the Parties shall proceed to Closing pursuant to an escrow agreement reasonably acceptable to both Parties and place in escrow with the Escrow Agent the disputed amount as reasonably estimated by Seller.
33.
Post-Closing Conveyance
.
(a) In the event that, pursuant to Section 7, a portion of the Property is excluded from the transaction and prior to one (1) year after the Closing Seller is able to cure the Recognized Environmental Condition (including, without limitation, obtaining all applicable governmental permits, consents or approvals necessary to effect such cure) to the reasonable satisfaction of Purchaser, then Purchaser and Seller shall close the purchase and sale of such Environmental Carveout Property at the same price assigned to such parcel when such parcel was excluded, with the closing of such purchase and sale to occur within 15 days after such Recognized Environmental Condition is cured.
(b)
In the event that, pursuant to Sections 5, a portion of the Property is excluded from the transaction and prior to one (1) year after the Closing Seller is able to cure the Title Objection to the reasonable satisfaction of Purchaser, then Purchaser and Seller shall close the purchase and sale of such excluded parcel at the same price assigned to such parcel when such parcel was excluded, with the closing of such purchase and sale to occur within 15 days after such Title Objection is cured.
34.
Seller’s Termination Rights
. In the event that Purchaser gives notice(s) of its election to exclude from the purchase portions of the Property pursuant to Sections 5 and 7 (each, an “
Exclusion Notice
”), then Seller may with five (5) days of the effective date of the Exclusion Notice which Seller reasonably believes will cause, when combined with the adjustment to the Purchase Price provided for in Section 32, the Purchase Price to be reduced by more than $5,000,000, notify Purchaser that Seller is unwilling to close the transaction and retain all of said parcels (“
Seller’s Termination Notice
”). Within five (5) days of Purchaser’s receipt of Seller’s Termination Notice, Purchaser shall elect either a) to terminate the Agreement, in which case the Earnest Money Deposit shall be returned to Purchaser and neither party shall have any further rights, duties, or obligations hereunder (except as specifically set forth herein) or (b) to proceed to Closing with an adjustment to the Purchase Price limited to $5,000,000 pursuant to Section 5, 7 and 32.
35.
Harvest Parcels
. Purchaser acknowledges that Seller has conducted since the Inventory Date, and agrees that after the Effective Date Seller may continue to conduct ongoing timber harvesting operations (“
Ongoing Harvest Operations
”) until Closing on those harvest planning units identified in
Exhibit K-1
(the “
Reserved Thinning Harvest Stands
”) and in
Exhibit K-2
(the “
Reserved Clearcut Harvest Stands”
; and together with the Reserved Thinning Harvest Stands, the “
Reserved Harvest Stands
”). Seller shall conduct the Ongoing Harvest Operations in a manner complying with the access and harvest agreement at Closing in the form attached hereto as
Exhibit E
(the “
Post Closing Harvest Agreement
”).
|
|
(a)
|
Reserved Harvests
. If Seller is unable to complete such harvesting operations on the Reserved Harvest Stands by Closing, Seller shall reserve the unharvested timber on such Reserved Harvest Stands and the right to complete such harvesting operations on such Reserved Harvest Stands for eighteen (18) months after the Closing (or twenty four (24) months after the Closing for Reserved Harvest Stands totaling no more than twenty-five percent (25%) of the acreage of all Reserved Harvest Stands). If such harvesting operations are not completed by Closing, Seller shall reserve such timber in the Deed, and Purchaser and Seller shall enter into the Post Closing Harvest Agreement. Seller shall retain all rights to such timber and all proceeds therefrom until Closing, and through the term of the Post Closing Harvest Agreement, if applicable.
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(b)
|
Undisclosed Harvests
. Purchaser shall have the right to verify the existence of timber harvests from the Property, whether authorized or otherwise, which are not reflected in Seller’s Inventory (“
Undisclosed Harvests
”). In the event of any such Undisclosed Harvests, the Purchase Price shall be reduced dollar for dollar to reflect such reduced volume based on the planted stands value set forth on the Value Table, and the Value Table shall be revised to reflect such adjustments.
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(c)
|
Added Stands
. Seller shall have the one (1) time right to elect to remove entire stands from the list of Reserved Harvest Stands (individually, an “
Added Harvest Stand
”, and collectively “
Added Harvest Stands
”) on the following conditions:
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(i)
|
Seller shall notify of such Added Stands and the volumes and product classifications contained on each such Added Stands (the “
Added Volumes
”) no later than fifteen (15) days after the Effective Date;
|
|
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(ii)
|
Seller shall not have begun Ongoing Harvesting Operations on such Added Stands; and
|
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(iii)
|
the Added Stands shall consist of (A) the 1,241 acres of natural and planted pine stands identified on Exhibit “L” attached hereto and (B) up to an additional 1,000 acres of planted pine stands otherwise complying with the conditions for Added Stands set forth in this Section 35(c).
|
Upon agreement between Seller and Purchaser of the final list of Added Stands together with the Added Volumes, the Purchase Price shall be increased to reflect such Added Volume and the Value Table shall be revised to reflect such adjustments and the parties shall enter into a confirmatory amendment of this Purchase Agreement confirming the removal of the Added Stands from the Reserved Harvest Parcels and the adjustment of the Purchase Price and Value Tables.
36.
Liability of Individual Seller Entities
. HBU, TRS, Southern Timberlands and Texas Timberlands shall have no liability under any representation, warranty, covenant, agreement or any other provision of this Agreement, except only to the extent such representation, warranty, covenant, agreement or other provision applies to that portion of the Property owned by each such entity. HBU, TRS, Southern Timberlands and Texas Timberlands shall not be jointly and severally liable in any manner under this Agreement or under any closing documents executed pursuant hereto.
37.
Easement
s. To the extent it is reasonably necessary for Seller, Purchaser or any of their affiliates to cross the Property to access nearby property owned by such entity or to cross such nearby property to access the Property, at Closing and for a period of one (1) year following the Closing Date, Seller and Purchaser shall cooperate with each other to identify such access routes and shall grant the requesting party a permanent, non-exclusive easement for ingress and egress across such property, together with the right to locate utilities within the boundaries of ten (10) feet on either side of any such road used to exercise such easements, upon reasonable terms as may be reasonably necessary. The provisions of this Section 37 shall survive the Closing for a period of one (1) year.
[
Signatures commence on following page
]
IN WITNESS WHEREOF, this Agreement has been duly executed, sealed and delivered by the parties hereto the day and year first above written.
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Date of Seller’s Execution:
August 20, 2018
|
|
SELLER
:
CATCHMARK HBU, LLC
, a Delaware limited liability company
By:
/s/ Don Warden
Name:
Don Warden
Title:
Vice President
Real Estate and Alternative Income
(SEAL)
CATCHMARK SOUTHERN TIMBERLANDS II, L.P.
, a Delaware limited partnership
By:
/s/ Don Warden
Name:
Don Warden
Title:
Vice President
Real Estate and Alternative Income
(SEAL)
CATCHMARK TRS HARVESTING OPERATIONS, LLC
, a Delaware limited liability company
By:
/s/ Don Warden
Name:
Don Warden
Title:
Vice President
Real Estate and Alternative Income
(SEAL)
CATCHMARK TEXAS TIMBERLANDS, L.P.
, a Texas limited partnership
By:
/s/ Don Warden
Name:
Don Warden
Title:
Vice President
Real Estate and Alternative Income
(SEAL)
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Signature Page to Purchase & Sale Agreement
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Date of Purchaser’s Execution:
August 20, 2018
|
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PURCHASER
:
FOREST INVESTMENT ASSOCIATES L.P.
By: Forest Investment Associates, LLC
Its General Partner
__________
By:
/s/ Charles L. VanOver
(SEAL)
Name:
Charles L. VanOver
Title:
Vice President
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ESCROW AGENT
:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
/s/ Jennifer Shinholster
Name:
Jennifer Shinholster
Title:
Senior Title Officer
(SEAL)
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]
SGR/19065168.4
Schedule of Exhibits
Exhibit A
-
Property Descriptions
Exhibit B
-
Form of Deed (Texas)
Exhibit B-1
-
Form of Deed (Louisiana)
Exhibit C
-
Form Unrecorded Encumbrances Assignment
Exhibit D
-
Form of Owner’s Affidavit
Exhibit E
-
Form of Post-Closing Harvest Agreement
Exhibit F
-
Value Table
Exhibit G
-
Permitted Encumbrances
Exhibit H
-
Reserved
Exhibit I
-
Schedule of Unrecorded Encumbrances
Exhibit J
-
Cruise Specifications
Exhibit K-1
-
Reserved Thinning Harvest Stands
Exhibit K-2
-
Reserved Thinning Harvest Stands
EXHIBIT A
Property Descriptions
The property described in the following documents:
Texas
Hardin County
Special Warranty Deed, dated April 11, 2014, between ForesTree VI Texas LP, a Delaware limited partnership, as grantor, and CatchMark HBU, LLC, a Delaware limited liability company, as grantee, recorded on April 23, 2014 as Instrument No. 2014-46196 in the Official Public Records of Hardin County, Texas;
Special Warranty Deed, dated May 29, 2015, between Heartwood Forestland Fund III Limited Partnership, a North Carolina limited partnership, as grantor, and CatchMark Texas Timberlands, L.P., a Texas limited partnership, as grantee, recorded on June 24, 2015 as Instrument No. 2015-56500 in the aforesaid records;
Special Warranty Deed, dated November 12, 2015, between Miltex Properties, Inc., a Florida corporation, as grantor, and CatchMark Texas Timberlands, L.P., a Texas limited partnership, as grantee, recorded on November 18, 2015 as Instrument No. 2015-60458 in the aforesaid records; and
Special Warranty Deed, dated November 12, 2015, between Miltex Properties, Inc., a Florida corporation, as grantor, and CatchMark HBU, LLC, a Delaware limited liability company, as grantee, recorded on November 18, 2015 as Instrument No. 2015-60460 in the aforesaid records.
LESS AND EXCEPT
the property described in the following two (2) deeds:
Special Warranty Deed with Vendor’s Lien, dated August 10, 2015, between CatchMark HBU, LLC, a Delaware limited liability company, as seller, and S & M Affiliated, Inc., a Texas corporation, as purchaser; and
Special Warranty Deed with Vendor’s Lien, dated September 24, 2015, between CatchMark HBU, LLC, a Delaware limited liability company, as seller, and 418 Land Group, LLC, a Texas limited liability company, as purchaser.
Jasper County
Special Warranty Deed, dated April 11, 2014, between ForesTree VI Texas LP, a Delaware limited partnership, as grantor, and CatchMark HBU, LLC, a Delaware limited liability company, as grantee, recorded on April 22, 2014 as Instrument No. 255723 in Volume 997 at Page 534 of the Official Public Records of Jasper County, Texas; and
General Warranty Deed, dated May 30, 2014, between Timberlands II, LLC, a Delaware limited liability company, as grantor, and CatchMark Texas Timberlands, L.P., a Texas limited partnership, as grantee, recorded on June 17, 2014 as Instrument No. 257025 in Volume 1003 at Page 768 of the aforesaid records.
LESS AND EXCEPT
the property described in the following deed:
Special Warranty Deed, dated February 1, 2018, between CatchMark HBU, LLC, a Delaware limited liability company, as grantor, and Duncan-Two, Ltd., a Texas limited partnership, as grantee.
Liberty County
Special Warranty Deed, dated May 29, 2015, between Heartwood Forestland Fund III Limited Partnership, a North Carolina limited partnership, as grantor, and CatchMark Texas Timberlands, L.P., a Texas limited partnership, as grantee, recorded on June 5, 2015 as Instrument No. 2015008854 in the Official Public Records of Liberty County, Texas; as corrected by that certain Corrective Special Warranty Deed dated May 29, 2015, between Heartwood Forestland Fund III Limited Partnership, a North Carolina limited partnership, as grantor, and CatchMark Texas Timberlands, L.P., a Texas limited partnership, as grantee, recorded on November 9, 2015 as Instrument No. 2015020359 in the aforesaid records; and
Special Warranty Deed, dated November 12, 2015, between Miltex Properties, Inc., a Florida corporation, as grantor, and CatchMark Texas Timberlands, L.P., a Texas limited partnership, as grantee, recorded on November 18, 2015 as Instrument No. 2015021293 in the aforesaid records.
Newton County
Special Warranty Deed, dated April 11, 2014, between ForesTree VI Texas LP, a Delaware limited partnership, as grantor, and CatchMark HBU, LLC, a Delaware limited liability company, as grantee, recorded on April 24, 2014 as Instrument No. 156486 in Volume 646 at Page 666 of the Official Public Records of Newton County, Texas;
General Warranty Deed, dated May 30, 2014, between Timberlands II, LLC, a Delaware limited liability company, as grantor, and CatchMark Texas Timberlands, L.P., a Texas limited partnership, as grantee, recorded on June 18, 2014 as Instrument No. 156869 in Volume 649 at Page 421 of the aforesaid records; and
Special Warranty Deed, dated June 13, 2014, between ForesTree VI Texas LP, a Delaware limited partnership, as grantor, and CatchMark Texas Timberlands, L.P., a Texas limited partnership, as grantee, recorded on June 19, 2014 as Instrument No. 156873 in Volume 649 at Page 677 of the aforesaid records.
Orange County
General Warranty Deed, dated May 30, 2014, between Timberlands II, LLC, a Delaware limited liability company, as grantor, and CatchMark Texas Timberlands, L.P., a Texas limited partnership, as grantee, recorded on June 19, 2014 as Instrument No. 408236 in the Official Public Records of Orange County, Texas.
LESS AND EXCEPT
the property described in the following deed:
Special Warranty Deed, dated January 9, 2018, between CatchMark Texas Timberlands, L.P., a Texas limited partnership, as seller, and John Patrick Beggs, a resident of the State of Texas, as purchaser.
Polk County
General Warranty Deed, dated May 30, 2014, between Timberlands II, LLC, a Delaware limited liability company, as grantor, and CatchMark Texas Timberlands, L.P., a Texas limited partnership, as grantee, recorded on July 3, 2014 as Instrument No. 5427 in Volume 2014-1953 at Page 016 of the Official Public Records of Polk County, Texas.
Tyler County
Special Warranty Deed, dated April 11, 2014, between ForestTree VI Texas LP, a Delaware limited partnership, as grantor, and CatchMark HBU, LLC, as grantee, recorded on April 23, 2014 in Volume 1096 at Page 509 of the Official Public Records of Tyler County, Texas; and
General Warranty Deed, dated May 30, 2014, between Timberlands II, LLC, a Delaware limited liability company, as grantor, and CatchMark Texas Timberlands, L.P., a Texas limited partnership, as grantee, recorded on June 17, 2014 in Volume 1100 at Page 514 of the aforesaid records.
Louisiana
Allen Parish
Transfer and Assumption Agreement, dated December 23, 2015, between Timberlands II, LLC, a Delaware limited liability company, as transferor, and CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as transferee, recorded on January 21, 2016 under Registry No. 487281 in Book 516 at Page 515 of the Official Public Records of Allen Parish, Louisiana.
Beauregard Parish
Transfer and Assumption Agreement, dated December 23, 2015, between Timberlands II, LLC, a Delaware limited liability company, as transferor, and CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as transferee, recorded on January 15, 2016 under Instrument No. 531723 in Book 965 at Page 425 of the Official Public Records of Beauregard Parish, Louisiana.
LESS AND EXCEPT
the property described in the following deed:
Cash Sale Deed, dated February 21, 2017, between CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as vendor, and Joseph Andrew Haraminac and Rebecca Stark Haraminac, husband and wife, residents of the State of Louisiana, collectively, as vendee, recorded on February 23, 2017 under Instrument No. 539439 in Book 983 at Page 242 of the aforesaid records.
Calcasieu Parish
Transfer and Assumption Agreement, dated December 23, 2015, between Timberlands II, LLC, a Delaware limited liability company, as transferor, and CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as transferee, recorded on January 21, 2016 under Instrument No. 3214711 in Book 4089 at Page 817 of the Official Public Records of Calcasieu Parish, Louisiana.
DeSoto Parish
Transfer and Assumption Agreement, dated December 23, 2015, between Timberlands II, LLC, a Delaware limited liability company, as transferor, and CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as transferee, recorded on January 15, 2016 under Registry No. 734459 in Book 1287 at Page 191 of the Official Public Records of DeSoto Parish, Louisiana.
Natchitoches Parish
Transfer and Assumption Agreement, dated December 23, 2015, between Timberlands II, LLC, a Delaware limited liability company, as transferor, and CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as transferee, recorded on January 15, 2016 under Instrument No. 383225 in Book 699 at Page 590 of the Official Public Records of Natchitoches Parish, Louisiana.
LESS AND EXCEPT
the property described in the following deed:
Cash Sale Deed, dated March 9, 2017, between CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as vendor, and Sidney B. Evans, Jr. and Evelyn Maples Evans, husband and wife, residents of the State of Louisiana, collectively, as vendee, recorded on March 9, 2017 under Registry No. 392810 in Book 709 at Page 869 of the aforesaid records.
Rapides Parish
Transfer and Assumption Agreement, dated December 23, 2015, between Timberlands II, LLC, a Delaware limited liability company, as transferor, and CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as transferee, recorded on January 19, 2016 in Book 2027 at Page 637 of the Official Public Records of Rapides Parish, Louisiana.
Sabine Parish
Transfer and Assumption Agreement, dated December 23, 2015, between Timberlands II, LLC, a Delaware limited liability company, as transferor, and CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as transferee, recorded on January 21, 2016 under Instrument No. 454346 in Book 758 at Page 486 of the Official Public Records of Sabine Parish, Louisiana.
LESS AND EXCEPT
the property described in the following two (2) deeds:
Cash Sale Deed, dated March 15, 2018, by and between CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as vendor, and Raymond L. Brown, Jr., as vendee, recorded on March 16, 2018 under Instrument No. 464158 in Book 783 at Page 346 of the aforesaid records; and
Cash Sale Deed, dated June
, 2018, by and between CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as vendor, and Ronnie W. Borders, Ltd., a Texas limited partnership, as vendee.
Vernon Parish
Act of Conveyance, dated October 24, 2014, between ForesTree GM LLC, a Delaware limited liability company, as vendor, and CatchMark HBU, LLC, a Delaware limited liability company, as vendee, recorded on November 10, 2014 under Instrument No. 663630 in Book 1502 at Page 286 of the Official Public Records of Vernon Parish, Louisiana;
Act of Conveyance, dated July 14, 2015, between ForesTree GM LLC, a Delaware limited liability company, as vendor, and CatchMark HBU, LLC, a Delaware limited liability company, as vendee, recorded on August 3, 2015 under Instrument No. 668921 in Book 1512 at Page 205 of the aforesaid records; and
Transfer and Assumption Agreement, dated December 23, 2015, between Timberlands II, LLC, a Delaware limited liability company, as transferor, and CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as transferee, recorded on January 22, 2016 under Instrument No. 672432 in Book 1519 at Page 446 of the aforesaid records.
LESS AND EXCEPT
the property described in the following two (2) deeds:
Cash Sale Deed, dated March 16, 2017, by and between CatchMark HBU, LLC, a Delaware limited liability company, as vendor, and Stevens and Toney Land Development, LLC, a Louisiana limited liability company, as vendee, recorded on March 17, 2017 under Instrument No. 680955 in Book 1536 at Page 8 of the aforesaid records; and
Cash Sale Deed, dated January 31, 2018, by and between CatchMark Southern Timberlands II, L.P., a Delaware limited partnership, as vendor, and Mark E. Martin and Nancy A. Martin, husband and wife, residents of the State of Louisiana, collectively, as vendee, recorded on February 1, 2018 under Instrument No. 686940 in Book 1547 at Page 769 of the aforesaid records.
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EXHIBIT B
Form of Texas Deed
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE ITS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER.
SPECIAL WARRANTY DEED
R.E. No. ____________
THIS INDENTURE, made the ____ day of ______________, 2015, between __________, a __________ (the “
Grantor
”), having its principal place of business at __________, and ________________________________, a ______________________ (the “
Grantee
”), having its principal place of business at __________.
WITNESSETH, that the Grantor, for the sum of Ten and 00/100 ($10.00) Dollars, and other good and valuable consideration, to it paid by the Grantee, the receipt of which is hereby acknowledged, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY unto the said Grantee the following described land, situated in the
County of ______________
, and
State of Texas
, to wit (the “
Land
”):
See Exhibit “A” attached hereto and by this
reference made a part hereof.
Being part of the property conveyed to Grantor by that certain ________ Deed from ______________, a ______________, dated ______________, and filed for record in the Official Public Records of __________ County, Texas and recorded in Book ____ Page ____.
TOGETHER with (i) all down and standing trees or timber located thereon, (ii) all buildings thereon, (iii) all roads, bridges and other improvements and fixtures thereon, (iv) all right, title and interest in and to all gas, oil, minerals, coal, sand, gravel and all other substances or minerals of any kind or character underlying or relating to such Land to the extent not retained by, or conveyed out by, Grantor’s predecessors in title, and (v) all other privileges, appurtenances, easements and other rights appertaining to the Land (together with the Land collectively, the “Property”).
[Add timber reservation, if applicable]
TO HAVE AND TO HOLD the above-described Property in fee simple forever, subject only to those matters set forth on Exhibit “B” attached hereto and by this reference made a part hereof.
And Grantor, for itself and its successors and assigns, does hereby warrant the title to said Property, will defend the same against the lawful claims of all persons claiming by, through, or under Grantor, but not otherwise, and will execute such further assurances thereof as may be requisite.
IN WITNESS WHEREOF, the Grantor has caused this instrument to be executed in its name by its duly authorized representative the day and year first above written.
SELLER:
__________a__________
By:
Name:
Title:
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STATE OF
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ss
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COUNTY OF
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I, , a Notary Public in and for said County and State, hereby certify that , whose name as the of __________, the __________ of __________, the __________of __________, is signed to the foregoing instrument and who is known to me, acknowledged before me on this day that, being informed of the contents of the instrument, s/he, as such officer and with full authority, executed the same voluntarily (on the day the same bears date) on behalf of such entities for and as the act of said entities.
Given under my hand and official seal on ___________________.
Notary Public
My commission expires:
Prepared by:
Exhibit “A”
to
Texas Deed Form
Legal Description
SGR/19065168.4
Exhibit “B”
to
Texas Deed Form
PERMITTED ENCUMBRANCES FROM AGREEMENT
EXHIBIT B-1
Form of Louisiana Deed
ACT OF CONVEYANCE
UNITED STATES OF AMERICA
State of Louisiana
Parish of
__________
R.E. No. [___________]
BE IT KNOWN, that on this _____ day of the month of [______________] in the year 2018.
BEFORE ME,
__________
, a Notary Public duty commissioned and qualified in and for the State of
__________
, therein residing, and in the presence of the witnesses hereinafter named and undersigned, personally came and appeared:
__________
, organized under the laws of the State of
__________
, whose Federal Tax Identification Number is XX-XXX-
__________
, and who permanent mailing address is
__________
, duly authorized to do business in the State of Louisiana, and represented herein by
__________
of
__________
, its
__________
, who appeared and acknowledged that he has been duly authorized to action for and on behalf of said
__________
, acting in capacity for and on behalf of said
__________
, (hereafter called
“VENDOR”),
For the price and on the terms and conditions hereinafter set forth,
__________
VENDOR does by these presents GRANT, BARGAIN, SELL, CONVEY, TRANSFER, ASSIGN, SET OVER, ABANDON and DELIVER, with limited warranty of title,
and none other whatsoever, not even as to the return of the purchase price, such limited warranty of title applying only as to Vendor’s own acts and the acts of those claiming by, through or under Vendor, and not as to any acts of Vendor’s predecessors in title but with full substitution and subrogation in and to all rights and actions of warranty which it has or may have against all preceding owners and vendors, unto:
[_________________], a [___________________________], duly qualified as a foreign limited liability company with the Secretary of State of the State of Louisiana, whose Federal Employee Identification Number is [_____________] and whose permanent mailing address is [________________],
represented herein by [_____________________] its duly authorized representative pursuant to a resolution of its [members/managers], a certified copy of which is attached hereto, VENDEE;
On the date hereinafter indicated, appeared, accepted and purchased for themselves, their heirs/successors and assigns, and acknowledged due delivery and possession thereof, all and singular, that portion of the real estate lying, being and situated in the Parish of
__________
, State of Louisiana, being more particularly described as follows, to-wit (the “Property”):
See attached Exhibit “A”
Together with
(i)
all down and standing trees or timber located thereon, (
ii
) all buildings thereon, (
iii
) all roads, bridges and other improvements and fixtures thereon, (
iv
) without warranty, all right, title and interest in and to all gas, oil, minerals, coal, sand, gravel and all other substances or minerals of any kind or character underlying or related to such land to the extent not retained or conveyed out by VENDOR’S predecessors in title, (
v
) all other privileges, appurtenances, easements and other rights appertaining thereto, and (
vi
) any after-acquired title to any of the foregoing.
TO HAVE AND TO HOLD the above-described Property unto the said VENDEE, its heirs/successors and assigns, forever and VENDOR does hereby bind itself, its successors and assigns, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof, by, through and under VENDOR, but not otherwise.
This sale and the limited warranty of title set forth herein are made subject to the matters set forth on
Exhibit B
attached hereto and incorporated herein by reference for all purposes (collectively, the “Permitted Encumbrances”). VENDEE and VENDOR acknowledge and agree that the inclusion of the Permitted Encumbrances is for informational purposes only and shall not serve to (i) acknowledge, revive or re-inscribe such Permitted Encumbrances that may have prescribed under Louisiana law; (ii) interrupt or suspend the running of prescription as to the Permitted Encumbrances; or (iii) renounce the benefits of prescription that may have accrued under Louisiana law with respect to the Permitted Encumbrances.
This sale is made and accepted for and in consideration of the price and sum of ______________________________________ and No/100 ($______________) Dollars, which the said VENDEE has well and truly paid, in ready and current money, to the said VENDOR, who hereby acknowledges the receipt thereof and grants full acquittance and discharge therefor.
Except as set forth in Vendor’s limited warranty of title herein and except as may otherwise be provided in that certain Purchase and Sale Agreement dated as of ________________, 2018, between VENDOR and Vendee (the “Purchase Agreement”): (1) VENDOR does not make any representations or warranties of any kind whatsoever, either express or implied, with respect to and shall have no liability for the Property (or any related matters); and (2) the Property described hereunder is hereby conveyed to Vendee in an “
AS IS
” and “
WITH ALL FAULTS
” condition as of the date hereof, including, without limitation, (i) the existence or non-existence of legal access to or from the Property or any portion thereof; (ii) the number of acres comprising the Property; (iii) the volume, condition or quality of timber on the Property; (iv) logging conditions or feasibility; (v) the stability of soils; (vi) suitability, habitability, merchantability or fitness of the Property for any construction or development, or for the Vendee’s intended use; (vii) the condition of any other structure or improvements on the Property; (viii) encroachment or boundary questions; (ix) compliance with any laws; (x) drainage, availability or adequacy of water, sewer or other utilities, zoning, access and similar matters; and (xi) any other matters related to the Property.
[Add timber reservation, if applicable.]
VENDEE EXPRESSLY WAIVES THE WARRANTY OF FITNESS FOR INTENDED PURPOSES OR GUARANTEE AGAINST HIDDEN OR LATENT REDHIBITORY VICES UNDER LOUISIANA LAW, INCLUDING LOUISIANA CIVIL CODE ARTICLES 2520 (1870) THROUGH 2548 (1870), AND THE WARRANTY IMPOSED BY LOUISIANA CIVIL CODE ARTICLES 2476 AND 2478; VENDEE WAIVES ALL RIGHTS IN REDHIBITION PURSUANT TO LOUISIANA CIVIL CODE
ARTICLE 2520, ET SEQ; VENDEE ACKNOWLEDGES THAT THIS EXPRESS WAIVER IS A MATERIAL AND INTEGRAL PART OF THIS TRANSFER AND THE CONSIDERATION THEREFOR; VENDOR EXPRESSLY SUBROGATES VENDEE TO ALL RIGHTS, CLAIMS AND CAUSES OF ACTION VENDOR MAY HAVE ARISING FROM OR RELATING TO ANY HIDDEN OR LATENT DEFECTS IN THE PROPERTY; AND VENDEE ACKNOWLEDGES THAT THIS WAIVER HAS BEEN BROUGHT TO THE ATTENTION OF VENDEE AND EXPLAINED IN DETAIL AND THAT VENDEE HAS VOLUNTARILY AND KNOWINGLY CONSENTED TO THIS WAIVER OF WARRANTY OF FITNESS AND/OR WARRANTY AGAINST REDHIBITORY VICES AND DEFECTS FOR THE ABOVE DESCRIBED PROPERTY. NOTWITHSTANDING THE FOREGOING, TO THE EXTENT THE PURCHASE AGREEMENT PROVIDES FOR THE SURVIVAL OF ANY REPRESENTATIONS AND WARRANTIES, SUCH REPRESENTATIONS AND WARRANTIES SHALL SURVIVE TO THE EXTENT PROVIDED THEREIN.
In accordance with La. R.S. 9:2721(B), from and after the date of this Act of Conveyance, (a) the name of the person responsible for all property taxes and assessments is [_____________________________], and (b) all property tax and assessment notices should be mailed to the following address: [_________________________________________________________]. All ad valorem taxes payable on the Property for the current year shall be prorated by the VENDOR and the VENDEE.
The parties hereto hereby waive the production of mortgage, conveyance and other certificates and relieve me, the Notary from any and all responsibility in connection therewith.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Thus Done and Passed at
__________
County, State of
__________
, on the day and in the month and year first hereinabove written in the presence of ____________________ and ________________________, the undersigned competent. witnesses, who have signed these presents together with said appearers and me, Notary, after due reading of the whole.
VENDOR:
a __________
_______________________ By:
Print Name:______________ Name:
Title:
________________________
Print Name:______________
___________________________________
Print Name: _________________________
Notary Public of ______________________ County,
__________
My Commission Expires: _________________
[VENDOR’S SECRETARY’S CERTIFICATE]
[ATTACH]
THUS DONE AND PASSED by VENDEE at __________________, State of _______________, on this _______ day of ________________, 2018, in the presence of ________________ and _________________________, the undersigned competent witnesses, who have signed these presents together with appearers and me, Notary, after due reading of the whole.
VENDEE:
[_______________________________________],
a [_____________________________________]
Witnesses to all signatures:
By:______________________________
Print Name: _______________________
_____________________________ Its:_______________________________
Print Name: ___________________
_____________________________
Print Name: ___________________
Print Name:
Notary Number:
Notary Public in and for the
______________ County, State of ________________
My Commission Expires: _________________________
[AFFIX STATE REQUIRED AUTHORITY CERTIFICATE]
[VENDEE’S SECRETARY’S CERTIFICATE]
[ATTACH]
Exhibit A
(To Form Deed)
PROPERTY
LEGAL DESCRIPTION
(see attached)
Exhibit B
(To Form Deed)
PERMITTED ENCUMBRANCES FROM AGREEMENT
EXHIBIT C
Form of Unrecorded Encumbrances Assignment
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT
(“
Assignment
”) is made effective as of the _____ day of ________________, 2018, by ___________________________, a Delaware limited liability company (“
Assignor
”), and ______________________________, a _________________
(“
Assignee
”).
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A.
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Assignor and Assignee entered into that certain Purchase and Sale Agreement dated _____________________ (“
Agreement
”), pursuant to which Assignee agreed to purchase from Assignor certain property located in
Hardin, Jasper, Liberty, Newton, Orange, Polk and Tyler Counties, Texas, and Allen, Beauregard, Calcasieu, DeSoto, Natchitoches, Rapides, Sabine and Vernon Parishes, Louisiana
(the “Property”).
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B.
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Pursuant to the terms of the Agreement, Assignor desires to transfer to Assignee all of the rights, title and interest of Assignor in and to those leases, permits and unrecorded agreements set forth on
Exhibit A
attached hereto (the “Unrecorded Agreements”).
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NOW, THEREFORE,
in consideration of the foregoing recitals, and for other good and valuable consideration, the parties agree as follows:
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1.
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Assignment and Assumption
. Subject to the terms of the Agreement, Assignor hereby sells, assigns, conveys, transfers and delivers unto Assignee, and Assignee assumes from Assignor, all of Assignor’s rights, title, interests and obligations in and to the Unrecorded Agreements. Assignee hereby accepts the assignment and agrees to faithfully perform all covenants, stipulations, agreements and obligations of Assignor under the Unrecorded Agreements.
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2.
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Indemnification
.
Assignor agrees to indemnify, defend and hold Assignee harmless from and against any and all claims, damages, costs, expenses and liabilities (including, without being limited to, reasonable attorneys’ fees) of whatever kind or nature with respect to any claim, liability or obligation of the lessor thereunder accruing under the Unrecorded Agreements, to the extent such Unrecorded Agreements affect the Property, prior to the date hereof. Assignee agrees to indemnify, defend and hold Assignor harmless from and against any and all claims, damages, costs, expenses and liabilities (including, without being limited to, reasonable attorneys’ fees) of whatever kind or nature with respect to any claim, liability or obligation of the lessor thereunder accruing under the Unrecorded Agreements, to the extent such Unrecorded Agreements affect the Property, from and after the date hereof.
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3.
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Severability
. If any provision of this Assignment shall be held to be invalid or unenforceable, then the validity and enforceability of the remaining provisions shall not be affected thereby.
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4.
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Binding Effect
. This Assignment shall be binding upon the parties hereto and their respective successors and assigns and shall run with the title to the Property.
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5.
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Counterparts
. This Assignment may be signed in one or more counterparts which, together, shall constitute one agreement.
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6.
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Governing Law
. This Agreement shall be governed by and construed under the laws of the State of Georgia without regard to conflicts-of-law principles that would require the application of any other law.
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IN WITNESS WHEREOF
, this Assignment is entered into by the undersigned parties effective as of the date first above written.
Assignor:
___________________________, a Delaware limited liability company
By:________________________________
Name:______________________________
Title:_______________________________
Assignee:
By
:________________________________
Name:______________________________
Title:_______________________________
EXHIBIT A
to
Assignment and Assumption Agreement
[List of Unrecorded Agreements]
EXHIBIT D
Form of Owner’s Affidavit
FIRST AMERICAN TITLE INSURANCE COMPANY
STATE OF _____________
COUNTY OF____________
The undersigned ("Affiant") appearing before me, a notary public in and for the State or Commonwealth of __________________, authorized to take and administer oaths, having been duly sworn, deposes and says, that to the best of his actual knowledge, without independent investigation or inquiry:
1. Affiant is the duly elected and incumbent ___________________ of _____________________________ ("Owner"), having personal knowledge of the facts averred to herein;
and is authorized by Owner to make and deliver this Affidavit and the averments contained herein.
2. Owner is the owner of that certain real property, or interest therein (the "Property"), more particularly described on Exhibit "A", attached hereto and made a part hereof and referenced in First American Title Insurance Company's Commitment for Title Insurance No. NCS-__________________-ATL (the "Commitment"), subject to the matters shown on the Commitment.
3. No proceedings in bankruptcy or receivership have been instituted by or against Owner nor has Owner made an assignment for the benefit of creditors.
4. That to the knowledge of the undersigned there is no action or proceeding now pending or threatened in any state or Federal court in the United States to which Owner is a party and which affects the Property or Owner's right and authority to convey or encumber the same; nor is there any state or Federal court judgment; state or Federal tax lien, or any other state or Federal lien of any nature against Owner which may constitute a lien or charge upon the Property.
5. That to the knowledge of the undersigned there are no delinquent real estate taxes or unpaid current real estate taxes; nor any pending or levied assessments, whether imposed by a governmental authority or private entity, against the Property including, but not limited to, those for sidewalks, streets, curbs, gutters, sewers and water lines.
6. At no time within the preceding ____________ (____) days has any work, services, or labor been done, nor have any fixtures, apparatus or material been furnished in connection with or to the Property, except such fixtures, apparatus, materials, work, labor or services as have been fully and completely paid for; there is no claim or outstanding indebtedness to anyone for any fixtures, apparatus, materials, work, labor or services done to, upon, or in connection with the Property; and there are no mechanics' lien claims against the Property, of record or otherwise.
7. Except as set forth on Exhibit “B” attached hereto and made a part hereof, there are no tenants or parties who have leasehold or tenancy rights to occupy any portion of the Property under unrecorded leases or other occupancy agreements with Seller, and none of the tenants or other parties have any right to the Property other than as tenant, nor any optional right of first refusal to purchase the Property.
8. That to the best of Affiant’s knowledge, there are no current, uncured violations of any declarations, covenants, conditions, or restrictions affecting the Property, and Owner has received no notice or claim of any such violation.
The statements made herein are limited to matters arising by, through or under Owner.
This Affidavit is made and given to induce First American Title Insurance Company to issue its policies of title insurance to ___________________________,
and First American Title Insurance Company is entitled to rely on the facts herein stated in connection with the issuance of one or more title insurance policies pertaining to the Property. In consideration of First American Title Insurance Company issuing its policy effective as of the date closing occurs without making exception therein to encumbrances upon title which may be recorded between said date of closing and the date the documents creating the interest being insured have been filed for record, the Owner agrees to promptly defend, remove, bond or otherwise dispose of any encumbrance upon title executed by Seller which may be filed against the Property during the period of time between the date of closing and the date of recording of all closing instruments.
.
Further, Affiant sayeth not.
Owner:
___________________________, a Delaware limited liability company
By:________________________________
Name:______________________________
Title:_______________________________
Subscribed and Sworn to before me this
______ day of ________________, 20____.
_____________________________________
My Commission Expires:
EXHIBIT “A”
Property
EXHIBIT “B”
Tenants/Parties in Possession
EXHIBIT E
Form of Post-Closing Harvest Agreement
POST-CLOSING HARVESTING AGREEMENT
This Post-Closing Harvesting Agreement (the “Agreement”) is made by and between _______________, a ________________ (hereinafter referred to as “Owner”), and _______________, a ________________ (hereinafter referred to as “Seller”), as of the ___ day of __________, 2018.
W I T N E S S E T H:
For and in consideration of the mutual promises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, it is agreed by and between the parties hereto as follows:
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1.
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Timberland Sale and Timber Reservation
: Seller has sold to Owner on the date hereof certain timberland located in __________ Counties, __________ (the “Property”). Seller has reserved from said conveyance certain merchantable timber located on the Property as shown on Exhibit “A” attached hereto and hereby made a part hereof (the “Timber”). Seller has entered into those timber sale contracts listed on Exhibit “B” attached hereto (the “Timber Contracts”) pursuant to which the respective timber buyer under such contract has the right to harvest the Timber more particularly described in such Timber Contract. Seller and Owner are entering into this Agreement to define and acknowledge the responsibilities and obligations of Seller and Owner with respect to the harvesting of the Timber.
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2.
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Cutting & Access Rights
: Seller shall cut and remove 100% of the merchantable Timber that is accessible using commercially reasonable efforts on or before ____________, 2020, with the period from the date hereof through and including ____________, 2020 being hereinafter referred to as the “Term”. Seller shall have no further rights to enter the Property or cut the Timber after said date. Owner hereby grants to Seller rights of ingress and egress with workers, machinery and equipment on the Property and any Owner’s roads on adjoining property of Owner, but only to the extent necessary to conduct such timber cutting and removal. Seller’s use of Owner’s roads shall be at Seller’s own risk. Owner shall not be liable for any latent or patent defect in any roadway nor shall Owner be liable for any damages or injuries sustained by Seller or Seller’s agents, employees, contractors or assigns, or any other individual or entity acting by, for or under Seller hereunder, arising out of or resulting from the use of said roads, except to the extent such damages or injuries are caused by Owner’s gross negligence or willful misconduct. Seller agrees to conduct its activities at all times so as to minimize damage to Owner’s roads and agrees to repair any damage to Owner’s roads caused by Seller or Seller’s agents, employees, contractors or assigns.
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3.
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Seller’s Operations
: Seller shall conduct its timber cutting and removal under this Agreement in a prudent and responsible manner, using generally accepted and sound silvicultural and harvesting procedures and practices in order to protect and preserve in all respects the land upon which said timber is located and any adjoining timber and lands of Owner. For stands shown as thinnings, Seller shall ensure that each such thinned stand shall have an average basal area of no less than 60 square feet per acre. Trees shall be cut as low to the ground as practical in accordance with generally acceptable industry standards. Seller shall repair all fences or structures damaged by its operations. Seller shall leave all fire breaks, property lines, running streams and drainage ditches clear of logs, timber, limbs and debris. All oil drums, cans, bottles, cartons, limbing bars, loading decks, abandoned equipment and other debris shall be removed from the Property upon completion of Seller’s harvesting operations at Seller’s expense. If repairs are not made or if the debris is not removed and cleared promptly after notice from Owner, Owner may undertake such repair or removal for Seller’s account, and Seller shall be liable to Owner for any reasonable expenses incurred in repairing or removing same. Seller shall not, under any circumstances, bury any material underground.
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Seller acknowledges that a higher degree of care is required when the Property is abnormally wet and that such condition may require Seller to stop or interrupt its operations hereunder. Owner reserves the right to suspend Seller’s harvesting operations when Owner reasonably deems significant site damage will result from continued operations.
All timber harvesting operations shall be conducted in compliance with the Best Management Practices (BMP) guidelines of the States of Texas and Louisiana, and in compliance with applicable law.
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Owner’s Inspection
: Owner shall have the right, at any time, to inspect the Property upon which the Timber is located for the purpose of ascertaining whether the requirements of this Agreement are being met. In the event any violations are discovered or ascertained by Owner, then Owner shall provide written notice of such violations to Seller, and Seller shall have a reasonable amount of time thereafter to remedy such violations. If Seller fails to remedy such violations within a reasonable amount of time, Owner shall have the right to remedy the same, and Seller shall reimburse Owner for the cost thereof.
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2.
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Payment for Unauthorized Cutting
: The cutting or materially damaging of any trees not permitted to be cut hereunder shall be paid for by Seller at the rate of 150% of the then current market value of said timber.
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3.
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Indemnification & Hold Harmless
: Seller does hereby agree to indemnify and hold harmless Owner in connection with and from (a) any and all causes of action, liabilities, losses, damages, injuries, claims, costs (including reasonable attorney fees) or litigation, arising out of, attributable to, resulting from or due to the activities and operations of Seller, its contractors, agents and employees on the Property, except to the extent such are caused by the gross negligence or willful misconduct of Owner, or its agents or employees, and (b) any violation or default under any of the Timber Contracts.
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4.
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Insurance
: During the Term, Seller shall cause the timber Purchasers under the Timber Contracts to maintain a general liability insurance policy, with coverage in an amount not less than $2,000,000.00, insuring Seller’s presence and activities on the Property. In lieu of coverage in the amount of $2,000,000, such timber Purchasers may maintain general liability coverage on a per occurrence basis of $1,000,000 and excess umbrella coverage on a per occurrence basis of $1,000,000. The aforesaid insurance shall be obtained from a company reasonably satisfactory to Owner and licensed to do business in the States of Texas and Louisiana. Such insurance policy or policies shall name Owner as an additional insureds, and shall provide for at least thirty (30) days’ written notice to Owner prior to cancellation, termination, modification or change of any such policy. A certificate thereof, together with satisfactory evidence of payment of the premium thereon, shall be deposited with Owner on or before the date of this Agreement. Owner makes no representation that the limits of liability specified to be carried by Seller under the terms hereof are adequate to protect Seller. If Seller deems this insurance to be inadequate, Seller shall, at its own expense, provide such additional insurance as necessary.
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5.
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Fire Protection
: Seller shall use all reasonable and customary precautions and procedures to prevent fires on the Property or any adjacent lands of Owner. In the event of any such fire of which Seller is aware, Seller shall promptly notify Owner, and shall have Seller’s employees, agents, or assigns carrying on said timber operations, control or assist in controlling said fire. Owner specifically reserves the right to prohibit the making of fires on the Property if it is deemed advisable to do so, and further reserves the right to stop or interrupt Seller’s operations hereunder if conditions are such that, in Owner’s discretion, continued operations are reasonably likely to start forest fires.
|
|
|
6.
|
Compliance with Laws, Etc.
: Seller shall comply with all federal, state and local laws, rules, and regulations applicable to the operations contemplated by this Agreement, including, without limitation, environmental protection/pollution laws and regulations, workmen’s compensation laws and regulations, and the securing by Seller of all necessary licenses and permits incidental to said operations. Seller further covenants and agrees that it will not conduct its operations in a
|
manner which could cause Owner to be in violation of any federal, state or local law, rule or regulation. Seller covenants and agrees to hold Owner harmless from and/or reimburse Owner from any costs including fees imposed by any federal, state or local agency and attorney fees which may result from Seller’s failure to fully comply with such laws, rules and regulations or from any cost which may result from Seller’s conduct which exposes Owner to a violation of such laws, rules and regulations.
|
|
7.
|
Severance Taxes
: Seller shall pay such severance tax and all assessments as may now or hereafter be required to be paid by the laws of the States of Texas and Louisiana, if any, in connection with its operations hereunder.
|
|
|
8.
|
Default
: Either party may exercise any rights or remedies available to it in any court of law or equity. In addition to all other remedies, Owner, in the event of Seller’s default in any provision of this Agreement, shall have the right to order that Seller immediately stop its harvesting operations whereupon Seller will cease its operations until the default is corrected. If the default is not corrected within thirty (30) days, at Owner’s option this Agreement may be terminated; provided, however, in the event such default cannot be corrected within thirty (30) days, such thirty (30) day period shall be extended for a reasonable amount of time so long as Seller is diligently pursuing correction thereof. No extension of the cutting period will be granted in the event of such default and extension of operations.
|
Owner’s right to terminate as set forth in this Paragraph 11 shall be a right in addition to collection of any damages, including costs of repair, sustained by Owner which arise out of or result from Seller’s breach of the provisions contained in this Agreement. The remedies provided for in this paragraph are in addition to any other remedies permitted in this Agreement or allowed by law.
|
|
9.
|
Notice
: Seller shall notify Owner at the address listed in Paragraph 16 below, with regard to cutting activity as follows:
|
|
|
a.
|
At the beginning of the cutting of the Timber.
|
|
|
b.
|
Of any event of discontinued cutting for a period of more than four (4) weeks.
|
|
|
c.
|
At the beginning of resumed cutting activity.
|
|
|
d.
|
Upon completion of the cutting operation.
|
|
|
10.
|
Assignment
: This Agreement shall not be assigned by Seller, in whole or in part, without the prior written consent of Owner.
|
|
|
11.
|
Bankruptcy, etc.
: This Agreement may be terminated by Owner in the event of the filing of any bankruptcy or insolvency action or proceedings by or against Seller.
|
|
|
12.
|
Owner’s Retained Rights; Warranty
: Title to the Property on which the Timber is located shall remain vested in Owner. This Agreement is made subject to any rights outstanding under any existing oil, gas or any other mineral leases or contracts covering all or any part of the Property, whether the same be recorded or otherwise, and to any rights outstanding under any other contracts, leases, easements, rights-of-way or roads as may be evidenced by possession, use, survey or which are of record.
|
|
|
a.
|
This Agreement contains the entire agreement of the parties hereto, and both parties acknowledge that neither party has made any promise or representations or offered any
|
inducement, except as herein set forth with regard to the subject matter of this Agreement. There shall be no alteration or modification of this Agreement, other than by an appropriate written instrument executed by the parties hereto or their respective successors in interest.
|
|
b.
|
The paragraph titles herein are for purposes of convenience only and shall in no way be held to explain, modify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
|
|
|
c.
|
The terms Seller and Owner shall and do include and extend to the contractors, representatives, successors, heirs and assigns of the parties hereto. The rights of Seller under this Agreement extend to the respective timber buyers under the Timber Contracts, and each of such timber buyer’s contractors, agents and employees.
|
|
|
d.
|
Any delay or failure by Owner in the strict enforcement of the provisions of this Agreement with respect to any default by Seller hereunder shall not constitute a waiver of Owner’s rights respecting such default or any other default hereunder. All indemnities, rights and remedies provided for herein shall survive the expiration or earlier termination of this Agreement.
|
|
|
e.
|
This Agreement shall be construed under the laws of the States of Texas.
|
|
|
f.
|
Time is of the essence of this Agreement.
|
|
|
g.
|
Any notices contemplated under this Agreement shall be deemed sufficient if mailed to the Owner at ____________________, and Seller at ____________________________.
|
IN WITNESS WHEREOF, Owner and Seller have caused this Agreement to be duly executed by authorized representatives as of the date first written above.
[Signatures begin on following page]
“OWNER”
________________________, a_______________________
By: ________________________
Name: ______________________
Title: _______________________
[Signatures continue on following page]
“SELLER”
______________________
,
a ________________________
By:___________________________________
Name:_________________________________
Title:__________________________________
Exhibit “A”
to Post-Closing Harvest Agreement
Exhibit “B”
to Post-Closing Harvest Agreement
Portions of the exhibit, indicated by the mark “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
EXHIBIT F
Value Table
|
|
|
|
|
|
|
Land
|
Acres
|
Per Acre Value
|
Total Value
|
|
Total
|
[***]
|
$ [***]
|
$ [***]
|
|
|
|
|
|
|
Merchantable Timber (Planted Stands)
|
|
|
|
Product
|
Volume (tons)
|
Unit Value
|
Total Value
|
|
Pine Pulpwood
|
[***]
|
$ [***]
|
$ [***]
|
|
Pine Chip-n-saw
|
[***]
|
$ [***]
|
$ [***]
|
|
Pine Sawtimber
|
[***]
|
$ [***]
|
$ [***]
|
|
Hardwood Pulpwood
|
[***]
|
$ [***]
|
$ [***]
|
|
Hardwood Sawtimber
|
[***]
|
$ [***]
|
$ [***]
|
|
Total
|
[***]
|
|
$ [***]
|
|
|
|
|
|
|
Merchantable Timber (Natural Stands)
|
|
|
|
Product
|
Volume (tons)
|
Unit Value
|
Total Value
|
|
Pine Pulpwood
|
[***]
|
$ [***]
|
$ [***]
|
|
Pine Chip-n-saw
|
[***]
|
$ [***]
|
$ [***]
|
|
Pine Sawtimber
|
[***]
|
$ [***]
|
$ [***]
|
|
Hardwood Pulpwood
|
[***]
|
$ [***]
|
$ [***]
|
|
Hardwood Sawtimber
|
[***]
|
$ [***]
|
$ [***]
|
|
Total
|
[***]
|
|
$ [***]
|
|
|
|
|
|
|
Premerchantable Timber (Age 0-14)
|
|
|
|
Age
|
Acres
|
Per Acre Value
|
Total Value
|
|
CC
|
[***]
|
$ [***]
|
$ [***]
|
|
0
|
[***]
|
$ [***]
|
$ [***]
|
|
1
|
[***]
|
$ [***]
|
$ [***]
|
|
2
|
[***]
|
$ [***]
|
$ [***]
|
|
3
|
[***]
|
$ [***]
|
$ [***]
|
|
4
|
[***]
|
$ [***]
|
$ [***]
|
|
5
|
[***]
|
$ [***]
|
$ [***]
|
|
6
|
[***]
|
$ [***]
|
$ [***]
|
|
7
|
[***]
|
$ [***]
|
$ [***]
|
|
8
|
[***]
|
$ [***]
|
$ [***]
|
|
9
|
[***]
|
$ [***]
|
$ [***]
|
|
10
|
[***]
|
$ [***]
|
$ [***]
|
|
11
|
[***]
|
$ [***]
|
$ [***]
|
|
12
|
[***]
|
$ [***]
|
$ [***]
|
|
13
|
[***]
|
$ [***]
|
$ [***]
|
|
14
|
[***]
|
$ [***]
|
$ [***]
|
|
Total
|
[***]
|
|
$ [***]
|
|
|
|
|
|
|
Total Value
|
|
|
$
[***]
|
|
Total Value Per Acre
|
|
|
$
[***]
|
EXHIBIT G
Permitted Encumbrances
|
|
1.
|
Ad valorem taxes not yet due and payable.
|
|
|
2.
|
All previous reservations, exceptions and conveyances of record by Seller’s predecessors in title of oil, gas, associated hydrocarbons, minerals and mineral substances, and royalty and other minerals rights and interests.
|
|
|
3.
|
All matters that would be revealed by a current and accurate survey or inspection of the Property.
|
|
|
4.
|
Any loss or claim due to lack of access to any portion of the Property.
|
|
|
5.
|
Existing zoning and land use restrictions.
|
|
|
6.
|
Rights of parties in possession pursuant to the Unrecorded Encumbrances.
|
|
|
7.
|
Riparian rights of others in and to any creeks, rivers, lakes or streams located on or adjoining the Property.
|
|
|
8.
|
The Post-Closing Harvest Agreement.
|
|
|
9.
|
Existing road rights of way and the right of the public to use such roads.
|
|
|
10.
|
Existing railroad rights of way and easements.
|
|
|
11.
|
Existing utility easements and rights of way.
|
|
|
12.
|
All other matters appearing of record which do not materially and adversely affect the use of the Property as commercial timberlands.
|
|
|
13.
|
[List specific exceptions listed in Purchaser’s final title commitment].
|
EXHIBIT H
N/A
EXHIBIT I
Schedule of Unrecorded Encumbrances
|
|
|
|
|
|
|
License#
|
Tract
|
LeasedAc
|
LeasedCo
|
LeasedState
|
ClubName
|
HD-0036
|
HD06
|
401
|
Hardin Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD07
|
819
|
Hardin Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD08
|
764
|
Hardin Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD78
|
426
|
Liberty Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD79
|
394
|
Liberty Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD80
|
83
|
Liberty Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD82
|
11
|
Liberty Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD83
|
190
|
Liberty Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD84
|
345
|
Liberty Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD86
|
716
|
Liberty Co.
|
TX
|
DEVERS HUNTING CLUB
|
|
|
|
|
|
|
|
HD-0036
|
HD87
|
561
|
Liberty Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD87 SOUTH
|
61
|
Liberty Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD89
|
987
|
Liberty Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD94
|
1069
|
Liberty Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0036
|
HD96
|
698
|
Liberty Co.
|
TX
|
DEVERS HUNTING CLUB
|
HD-0037
|
HD45
|
62
|
Liberty Co.
|
TX
|
BLAU GULLY HUNTING CLUB
|
HD-0037
|
HD90
|
155
|
Liberty Co.
|
TX
|
BLAU GULLY HUNTING CLUB
|
MT-001
|
MT003
|
889
|
Hardin Co.
|
TX
|
MOSS BRANCH HUNTING CLUB
|
MT-002
|
MT005
|
1110
|
Hardin Co.
|
TX
|
BLACK CREEK HUNTING CLUB
|
MT-003
|
MT011
|
702
|
Hardin Co.
|
TX
|
CROOKED HORN HUNTING CLUB
|
MT-004
|
MT010
|
277
|
Hardin Co.
|
TX
|
LaFLEUR HUNTING CLUB
|
MT-005
|
MT009
|
1433
|
Hardin Co.
|
TX
|
JOHNSON HUNTING CLUB
|
MT-006
|
MT007
|
698
|
Hardin Co.
|
TX
|
S3 HUNTING CLUB
|
MT-007
|
MT002
|
3724
|
Hardin Co.
|
TX
|
WILDERNESS HUNTING CLUB
|
MT-008
|
MT004
|
1031
|
Hardin Co.
|
TX
|
DUSTY BUCK HUNTING CLUB
|
PA-0001
|
PA6015
|
411
|
Tyler Co.
|
TX
|
BILLIAMS CREEK I
|
PA-0002
|
PA6009
|
38
|
Tyler Co.
|
TX
|
BILLIAMS CREEK IV
|
PA-0002
|
PA6015
|
195
|
Tyler Co.
|
TX
|
BILLIAMS CREEK IV
|
PA-0003
|
PA6720
|
876
|
Jasper Co.
|
TX
|
BUCKSHOT HUNTING CLUB
|
PA-0004
|
PA6827
|
391
|
Jasper Co.
|
TX
|
C & I HUNT CLUB
|
PA-0005
|
PA6922
|
88
|
Newton Co.
|
TX
|
CHRIS JONES HUNTING CLUB
|
PA-0006
|
PA6827
|
280
|
Jasper Co.
|
TX
|
DUPUY FAMILY CIRCLE
|
PA-0007
|
PA6819
|
40
|
Newton Co.
|
TX
|
F B S HUNTING CLUB
|
PA-0007
|
PA6825
|
1216
|
Newton Co.
|
TX
|
F B S HUNTING CLUB
|
PA-0038
|
PA6009
|
1012
|
Tyler Co.
|
TX
|
BILLIAMS CREEK V
|
PA-0009
|
PA6921
|
153
|
Newton Co.
|
TX
|
ARTESIAN SPRINGS RIDGE HUNTING CLUB
|
PA-0009
|
PA6922
|
163
|
Newton Co.
|
TX
|
ARTESIAN SPRINGS RIDGE HUNTING CLUB
|
PA-0010
|
PA7004
|
237
|
Jasper Co.
|
TX
|
HAUCK HUNTING CLUB
|
PA-0012
|
PA6245
|
97
|
Tyler Co.
|
TX
|
KIMBLE CREEK HUNTING CLUB
|
PA-0013
|
PA6245
|
823
|
Tyler/Polk Co.
|
TX
|
L & T HUNTING CLUB
|
PA-0014
|
PA6911
|
1154
|
Newton Co.
|
TX
|
LEE'S MILL HUNTING CLUB
|
PA-0015
|
PA6922
|
466
|
Newton Co.
|
TX
|
GALLIER HUNTING CLUB
|
PA-0016
|
PA7003
|
594
|
Jasper Co.
|
TX
|
HONEY BADGER HUNTING CLUB
|
PA-0017
|
PA7026
|
426
|
Jasper Co.
|
TX
|
MAGNOLIA HUNTING CLUB
|
PA-0018
|
PA6825
|
74
|
Newton Co.
|
TX
|
MORGAN HUNTING CLUB
|
PA-0019
|
PA6141
|
150
|
Tyler Co.
|
TX
|
MURPHY'S HUNTING CLUB
|
|
PA6701
|
|
Jasper Co.
|
TX
|
POUNCEY HUNTING CLUB
|
PA-0023
|
PA6021
|
79
|
Tyler Co.
|
TX
|
RAIDERS HUNTING CLUB
|
PA-0024
|
PA6245
|
216
|
Tyler Co.
|
TX
|
TRIANGLE H/C & W/L CONSERVATION
|
PA-0025
|
PA6004
|
1202
|
Tyler Co.
|
TX
|
TY-HARD GAME CLUB
|
PA-0025
|
PA6008
|
647
|
Tyler Co.
|
TX
|
TY-HARD GAME CLUB
|
PA-0025
|
PA6009
|
174
|
Tyler Co.
|
TX
|
TY-HARD GAME CLUB
|
PA-0027
|
PA7003
|
403
|
Jasper Co.
|
TX
|
ZION HILL HUNT CLUB
|
PA-0027
|
PA7004
|
424
|
Jasper Co.
|
TX
|
ZION HILL HUNT CLUB
|
PA-0027
|
PA7008
|
79
|
Jasper Co.
|
TX
|
ZION HILL HUNT CLUB
|
PA-0029
|
PA7350
|
800
|
Orange Co.
|
TX
|
DIXIE DRIVE HUNTING CLUB
|
PA-0032
|
PA6008
|
8
|
Tyler Co.
|
TX
|
BILLIAMS CREEK V
|
PA-0032
|
PA6009
|
298
|
Tyler Co.
|
TX
|
BILLIAMS CREEK V
|
PA-0033
|
PA6004
|
50
|
Tyler Co.
|
TX
|
MC2 HUNTING CLUB
|
PA-0033
|
PA6008
|
64
|
Tyler Co.
|
TX
|
MC2 HUNTING CLUB
|
|
|
|
|
|
|
|
PA-0036
|
PA7348
|
651
|
Orange Co.
|
TX
|
BLACK WATER SOUTH HUNT CLUB
|
PA-0039
|
PA6921
|
708
|
Newton Co.
|
TX
|
ARROWHEAD HUNTING CLUB
|
|
|
|
|
|
|
LOUISIANA
|
|
|
|
|
|
License#
|
Tract
|
LeasedAc
|
LeasedCo
|
LeasedState
|
ClubName
|
BD-001
|
BD6010
|
243
|
Beauregard
|
LA
|
Bear Head Creek Hunting Club
|
BD-001
|
BD6010
|
40
|
Beauregard
|
LA
|
Bear Head Creek Hunting Club
|
BD-001
|
BD6076
|
43
|
Beauregard
|
LA
|
Bear Head Creek Hunting Club
|
BD-001
|
BD6135
|
672
|
Beauregard
|
LA
|
Bear Head Creek Hunting Club
|
BD-001
|
BD7016
|
84
|
Beauregard
|
LA
|
Bear Head Creek Hunting Club
|
BD-002
|
BD4148
|
334
|
Vernon
|
LA
|
Bear Slough Hunting Club, Inc.
|
BD-003
|
BD7069
|
429
|
Calcasieu
|
LA
|
Beauregard & Carter Hunting Club
|
BD-004
|
BD6300
|
633
|
Beauregard
|
LA
|
Blue Springs Hunting Club, Inc.
|
BD-005
|
BD8090
|
81
|
Vernon
|
LA
|
Bradley C. Cooper Hunting Club
|
BD-006
|
BD2758
|
392
|
Sabine
|
LA
|
Briar Patch Hunting Club, Inc.
|
BD-006
|
BD2759
|
748
|
Sabine
|
LA
|
Briar Patch Hunting Club, Inc.
|
BD-006
|
BD2761
|
394
|
Sabine
|
LA
|
Briar Patch Hunting Club, Inc.
|
BD-007
|
BD9505
|
79
|
Vernon
|
LA
|
Bucks Only Hunting Club, Inc.
|
BD-007
|
BD9549
|
453
|
Vernon
|
LA
|
Bucks Only Hunting Club, Inc.
|
BD-008
|
BD2911
|
41
|
Natchitoches
|
LA
|
Cajun Swamp Hunting Club II, Inc.
|
BD-009
|
BD6126
|
143
|
Beauregard
|
LA
|
Carter Creek Hunting Club, Inc.
|
BD-010
|
BD7089
|
161
|
Beauregard
|
LA
|
Cross-Cut Hunting Club, Inc.
|
BD-011
|
BD1013
|
82
|
Sabine
|
LA
|
Dennis Foster Hunting Club
|
BD-013
|
BD9560
|
50
|
Vernon
|
LA
|
Edward Neal West Hunting Club
|
BD-014
|
BD1634
|
121
|
Sabine
|
LA
|
Ezernack Hunting Club
|
BD-015
|
BD9512
|
43
|
Vernon
|
LA
|
Cooper Hunt Club
|
BD-016
|
BD1633
|
39
|
Sabine
|
LA
|
Pattison Hunt Club
|
BD-017
|
BD1716
|
41
|
Sabine
|
LA
|
H B O+ Hunting Club, Inc.
|
BD-018
|
BD6303
|
946
|
Beauregard
|
LA
|
Hi Hope Hunting Club, Inc.
|
BD-019
|
BD7040
|
74
|
Calcasieu
|
LA
|
High Jack Hamm Road Hunting Club, Inc.
|
BD-020
|
BD7067
|
553
|
Calcasieu
|
LA
|
Horse Thief Island Hunting Club, Inc.
|
BD-020
|
BD7073
|
606
|
Calcasieu
|
LA
|
Horse Thief Island Hunting Club, Inc.
|
BD-020
|
BD7076
|
759
|
Calcasieu
|
LA
|
Horse Thief Island Hunting Club, Inc.
|
BD-021
|
BD1719
|
350
|
De Soto
|
LA
|
Hudson Hunting Club, Inc.
|
BD-024
|
BD7134
|
112
|
Beauregard
|
LA
|
Thompson Hunt Club
|
BD-025
|
BD2751
|
405
|
Natchitoches
|
LA
|
Joseph Schexneider Consulting LLC
|
BD-025
|
BD2761
|
71
|
Natchitoches
|
LA
|
Joseph Schexneider Consulting LLC
|
BD-026
|
BD6208
|
43
|
Beauregard
|
LA
|
Cooley Hunt Club
|
BD-027
|
BD7064
|
1104
|
Calcasieu
|
LA
|
Loose Tacks
|
BD-028
|
BD1013
|
74
|
Sabine
|
LA
|
Lucius Hunt Club
|
BD-029
|
BD9588
|
89
|
Vernon
|
LA
|
Nichols Hunt Club
|
BD-030
|
BD7061
|
739
|
Calcasieu
|
LA
|
Old Sulphur Mine Hunting Club, Inc.
|
BD-031
|
BD2735
|
241
|
Natchitoches
|
LA
|
Dry Creek Sportsman Club
|
BD-032
|
BD8156
|
100
|
Vernon
|
LA
|
Ricky Addison Hunting Club
|
BD-033
|
BD1006
|
69
|
Sabine
|
LA
|
Gilmore Hunting Club
|
BD-034
|
BD1209
|
100
|
Sabine
|
LA
|
Salter Creek Hunting Club, Inc.
|
BD-047
|
BD8115
|
82
|
Vernon
|
LA
|
Sandy Creek Hunting Club
|
BD-035
|
BD8144
|
846
|
Vernon
|
LA
|
Sandy Creek Hunting Club
|
BD-035
|
BD8146
|
902
|
Vernon
|
LA
|
Sandy Creek Hunting Club
|
|
|
|
|
|
|
|
BD-035
|
BD8148
|
759
|
Vernon
|
LA
|
Sandy Creek Hunting Club
|
BD-036
|
BD5525
|
43
|
Allen
|
LA
|
Squirrel Camp Hunting Club, Inc.
|
BD-037
|
BD6126
|
502
|
Beauregard
|
LA
|
T M T Hunting Club
|
BD-037
|
BD6128
|
798
|
Beauregard
|
LA
|
T M T Hunting Club
|
|
BD9595
|
40
|
Vernon
|
LA
|
The Bone Collector Hunting Club
|
BD-039
|
BD8156
|
41
|
Vernon
|
LA
|
The Riverband Hunting Club, Inc.
|
BD-040
|
BD8083
|
189
|
Vernon
|
LA
|
Timber Rattlers Hunting Club, Inc.
|
BD-040
|
BD9591
|
39
|
Vernon
|
LA
|
Timber Rattlers Hunting Club, Inc.
|
BD-041
|
BD1006
|
139
|
Sabine
|
LA
|
Toro Hunting Club, Inc.
|
BD-042
|
BD6304
|
297
|
Beauregard
|
LA
|
Triple 3-M Hunting Club, Inc.
|
BD-043
|
BD7046
|
628
|
Calcasieu
|
LA
|
Triple L Hunting Club, Inc.
|
BD-044
|
BD1706
|
365
|
Natchitoches
|
LA
|
Westside Deer Club, Inc.
|
BD-045
|
BD9593
|
41
|
Vernon
|
LA
|
White Oak Hunting Club of Pickering, Inc.
|
BD-046
|
BD6114
|
42
|
Beauregard
|
LA
|
Wide Horn Hunting Club, Inc.
|
BD-049
|
BD7042
|
358
|
Calcasieu
|
LA
|
Lucky Does Hunt Club
|
BD-051
|
BD6302
|
160
|
Beauregard
|
LA
|
Buck Masters Hunting Club
|
BD-052
|
BD9102
|
62
|
Vernon
|
LA
|
McLain Hunting Club
|
BD-053
|
BD6130
|
130
|
Beauregard
|
LA
|
Chasin' Tail Hunting Club
|
BD-053
|
BD6131
|
271
|
Beauregard
|
LA
|
Chasin' Tail Hunting Club
|
BD-053
|
BD6138
|
42
|
Beauregard
|
LA
|
Chasin' Tail Hunting Club
|
BD-054
|
BD9102
|
574
|
Vernon
|
LA
|
Double Barrel Hunting Club
|
BD-056
|
BD7042
|
336
|
Calcasieu
|
LA
|
Lucky Does Hunt Club
|
BD-057
|
BD4137
|
39
|
Vernon
|
LA
|
Twin Pines Hunting Club
|
BD-058
|
BD6133
|
166
|
Beauregard
|
LA
|
Scott Bonvillain Hunting Club
|
BD-059
|
BD7040
|
257
|
Calcasieu
|
LA
|
Lucky Does Hunt Club
|
BD-059
|
BD7042
|
336
|
Calcasieu
|
LA
|
Lucky Does Hunt Club
|
BD-060
|
BD7084
|
464
|
Calcasieu
|
LA
|
Swamp Hole Hunting Club
|
EXHIBIT J
Cruise Specifications
Purchaser and Seller shall use commercially reasonable efforts to agree upon the Cruise Specifications no later than 5:00 p.m. (Atlanta time), August 30, 2018. Upon such agreement, the parties shall enter into a confirmatory amendment adding such cruise specifications to this Agreement as this Exhibit J. If the parties are unable to agree upon such Cruise Specifications by 5:00 p.m. (Atlanta time), August 30, 2018, then Purchaser and Seller shall each have the right to terminate this Agreement by written notice to the other party and Escrow Agent, whereupon Escrow Agent will return the Earnest Money to Purchaser, and the parties hereto will have no further rights or obligations hereunder (except as otherwise expressly provided herein).
Portions of the exhibit, indicated by the mark “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
EXHIBIT K-1
Reserved Thinning Harvest Stands
[***]
Portions of the exhibit, indicated by the mark “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
EXHIBIT K-2
Reserved Clearcut Harvest Stands
[***]
EXHIBIT L
Added Stands
|
|
|
|
|
|
|
Tract
|
StandKey
|
UniqueID
|
Acres
|
Update Status
|
|
HD96
|
104001889
|
HD96-104001889
|
5.00
|
Remove From Plan
|
|
HD96
|
104001876
|
HD96-104001876
|
48.19
|
Remove From Plan
|
|
HD94
|
104001868
|
HD94-104001868
|
176.23
|
Remove From Plan
|
|
HD45
|
104001689
|
HD45-104001689
|
61.76
|
Remove From Plan
|
|
HD89
|
104001841
|
HD89-104001841
|
30.30
|
Remove From Plan
|
|
HD89
|
104001833
|
HD89-104001833
|
6.72
|
Remove From Plan
|
|
HD89
|
104001832
|
HD89-104001832
|
95.76
|
Remove From Plan
|
|
HD87
|
104001805
|
HD87-104001805
|
51.26
|
Remove From Plan
|
|
HD86
|
104001797
|
HD86-104001797
|
1.81
|
Remove From Plan
|
|
HD86
|
104001796
|
HD86-104001796
|
2.39
|
Remove From Plan
|
|
HD86
|
104001795
|
HD86-104001795
|
1.40
|
Remove From Plan
|
|
HD86
|
104001794
|
HD86-104001794
|
10.62
|
Remove From Plan
|
|
HD86
|
104001792
|
HD86-104001792
|
33.64
|
Remove From Plan
|
|
HD80
|
104001732
|
HD80-104001732
|
61.62
|
Remove From Plan
|
Thinned
|
HD79
|
104001718
|
HD79-104001718
|
3.01
|
Remove From Plan
|
|
HD79
|
104001713
|
HD79-104001713
|
59.41
|
Remove From Plan
|
|
HD79
|
104001712
|
HD79-104001712
|
16.54
|
Remove From Plan
|
|
HD84
|
104001767
|
HD84-104001767
|
4.33
|
Remove From Plan
|
|
HD84
|
104001766
|
HD84-104001766
|
112.18
|
Remove From Plan
|
|
HD84
|
104001764
|
HD84-104001764
|
4.20
|
Remove From Plan
|
Thinned
|
HD84
|
104001763
|
HD84-104001763
|
7.15
|
Remove From Plan
|
|
HD83
|
104001751
|
HD83-104001751
|
3.08
|
Remove From Plan
|
|
HD83
|
104001749
|
HD83-104001749
|
13.28
|
Remove From Plan
|
|
|
|
|
|
|
|
|
HD78
|
104001699
|
HD78-104001699
|
203.00
|
Remove From Plan
|
|
HD78
|
104001698
|
HD78-104001698
|
1.43
|
Remove From Plan
|
|
HD08
|
104001302
|
HD08-104001302
|
25.92
|
Remove From Plan
|
|
MT002
|
104001900
|
MT002-104001900
|
76.06
|
Remove From Plan
|
|
MT002
|
104001899
|
MT002-104001899
|
1.32
|
Remove From Plan
|
|
MT002
|
104001897
|
MT002-104001897
|
10.64
|
Remove From Plan
|
|
MT009
|
104001481
|
MT009-104001481
|
4.30
|
Remove From Plan
|
|
MT009
|
104001479
|
MT009-104001479
|
3.75
|
Remove From Plan
|
|
MT009
|
104001455
|
MT009-104001455
|
4.46
|
Remove From Plan
|
|
MT008
|
104001448
|
MT008-104001448
|
21.25
|
Remove From Plan
|
|
MT008
|
104001447
|
MT008-104001447
|
21.88
|
Remove From Plan
|
|
MT008
|
104001446
|
MT008-104001446
|
11.87
|
Remove From Plan
|
|
MT001
|
104001312
|
MT001-104001312
|
15.77
|
Remove From Plan
|
|
MT004
|
104001388
|
MT004-104001388
|
8.17
|
Remove From Plan
|
Thinned
|
MT004
|
104001376
|
MT004-104001376
|
7.38
|
Remove From Plan
|
|
MT003
|
104001347
|
MT003-104001347
|
8.81
|
Remove From Plan
|
|
MT003
|
104001333
|
MT003-104001333
|
5.33
|
Remove From Plan
|
|
|
|
|
1,241.22
|
|
|
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This First Amendment to Purchase and Sale Agreement (this “Amendment”) is entered into and effective as of October 4, 2018, by and among
CATCHMARK HBU, LLC
, a Delaware limited liability company (“
HBU
”),
CATCHMARK SOUTHERN TIMBERLANDS II, L.P.
, a Delaware limited partnership (“
Southern Timberlands
”),
CATCHMARK TRS HARVESTING OPERATIONS, LLC
, a Delaware limited liability company (“
TRS
”), and
CATCHMARK TEXAS TIMBERLANDS, L.P.
, a Texas limited partnership (“
Texas Timberlands
”, and collectively with HBU, TRS and Southern Timberlands, “
Seller
”),
and
FOREST INVESTMENT ASSOCIATES L.P.
,
a Delaware limited partnership (hereinafter referred to as “
Purchaser
”).
W I T N E S S E T H
:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement dated effective August 20, 2018 (with all exhibits, addenda and amendments thereto, the “
Contract
”), covering certain real property located in Hardin, Jasper, Liberty, Newton, Orange, Polk and Tyler Counties, Texas, and Allen, Beauregard, Calcasieu, DeSoto, Natchitoches, Rapides, Sabine and Vernon Parishes, Louisiana containing approximately 55,702 acres, (the “
Property
”), as more particularly described in the Contract; and
WHEREAS, Seller and Purchaser have agreed to Cruise Specifications as set forth on
Exhibit J
attached hereto and hereby made a part hereof; and
WHEREAS, pursuant to Section 35(c) of the Contract, Seller has exercised its one (1) time right to elect to remove certain entire stands from the list of Reserved Harvest Stands, and
Exhibit K-2
attached hereto and hereby made a part hereof reflects the so updated Reserved Clearcut Harvest Stands, and there was no change in the Reserved Thinning Harvest Stands resulting from such removal; and
WHEREAS, pursuant to the last paragraph of Section 35 of the Contract, as a result of the update of the list of Reserved Clearcut Harvest Stands, the Value Table has been updated to
Exhibit F
attached hereto and hereby made a part hereof and the Purchase Price has been updated to $80,401,422.88; and
WHEREAS, Seller and Purchaser have agreed to enter into this Amendment on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned parties hereby agree to amend the Contract as follows:
1.
The phrase “SEVENTY EIGHT MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($78,500,000.00)” in Section 2 of the Contract is hereby deleted in its entirety and the following is inserted in lieu thereof:
“EIGHTY MILLION FOUR HUNDRED ONE THOUSAND FOUR HUNDRED TWENTY-TWO AND 88/100 DOLLARS ($80,401,422.88)”
2.
Exhibit F
of the Contract is hereby deleted in its entirety and
Exhibit F
attached hereto is inserted in lieu thereof.
3.
Exhibit J
of the Contract is hereby deleted in its entirety and
Exhibit J
attached hereto is inserted in lieu thereof.
4.
Exhibit K-2
of the Contract is hereby deleted in its entirety and
Exhibit K-2
attached hereto is inserted in lieu thereof.
5.
The parties acknowledge and agree that Seller has used its one (1) time right to remove entire stands from the list of Reserved Harvest Stands and Section 35(c) and the last paragraph of Section 35 of the Contract are of no further force or effect.
Exhibit L
of the Contract is hereby deleted in its entirety.
6.
In the event of any conflict between the terms of this Amendment and the terms of the Contract, the terms of this Amendment shall control.
7. Except as otherwise amended hereby, all of the other terms and provisions of the Contract are and shall remain in full force and effect and are hereby ratified by the parties hereto. All capitalized but undefined terms used in this Amendment shall have the meanings ascribed in the Contract.
8. This Amendment may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument. The delivery of counterpart signatures by facsimile transmission or e-mail of PDF format electronic copy shall have the same force and effect as the delivery of a signed hard copy.
[Signatures begin on following page]
WITNESS THE EXECUTION HEREOF as of the date first set forth above.
SELLER
:
CATCHMARK HBU, LLC
, a Delaware limited liability company
By:
/s/ Don Warden
Name:
Don Warden
Title:
Vice President
Real Estate and Alternative Income
(SEAL)
CATCHMARK SOUTHERN TIMBERLANDS II, L.P.
, a Delaware limited partnership
By:
/s/ Don Warden
Name:
Don Warden
Title:
Vice President
Real Estate and Alternative Income
(SEAL)
CATCHMARK TRS HARVESTING OPERATIONS, LLC
, a Delaware limited liability company
By:
/s/ Don Warden
Name:
Don Warden
Title:
Vice President
Real Estate and Alternative Income
(SEAL)
CATCHMARK TEXAS TIMBERLANDS, L.P.
, a Texas limited partnership
By:
/s/ Don Warden
Name:
Don Warden
Title:
Vice President
Real Estate and Alternative Income
(SEAL)
PURCHASER
:
FOREST INVESTMENT ASSOCIATES L.P.
By: Forest Investment Associates, LLC
Its General Partner
By:
/s/ Charles L. VanOver
(SEAL)
Name:
Charles L. VanOver
Title:
Vice President
Portions of the exhibit, indicated by the mark “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
Exhibit F
|
|
|
|
|
Land
|
Acres
|
Per Acre Value
|
Total Value
|
Total
|
[***]
|
$
[***]
|
$
[***]
|
|
|
|
|
Merchantable Timber (Planted Stands)
|
|
|
Product
|
Volume (tons)
|
Unit Value
|
Total Value
|
Pine Pulpwood
|
[***]
|
$
[***]
|
$
[***]
|
Pine Chip-n-saw
|
[***]
|
$
[***]
|
$
[***]
|
Pine Sawtimber
|
[***]
|
$
[***]
|
$
[***]
|
Hardwood Pulpwood
|
[***]
|
$
[***]
|
$
[***]
|
Hardwood Sawtimber
|
[***]
|
$
[***]
|
$
[***]
|
Total
|
[***]
|
|
$
[***]
|
|
|
|
|
Merchantable Timber (Natural Stands)
|
|
|
Product
|
Volume (tons)
|
Unit Value
|
Total Value
|
Pine Pulpwood
|
[***]
|
$
[***]
|
$
[***]
|
Pine Chip-n-saw
|
[***]
|
$
[***]
|
$
[***]
|
Pine Sawtimber
|
[***]
|
$
[***]
|
$
[***]
|
Hardwood Pulpwood
|
[***]
|
$
[***]
|
$
[***]
|
Hardwood Sawtimber
|
[***]
|
$
[***]
|
$
[***]
|
Total
|
[***]
|
|
$
[***]
|
|
|
|
|
Premerchantable Timber (Age 0-14)
|
|
|
Age
|
Acres
|
Per Acre Value
|
Total Value
|
CC
|
[***]
|
$
[***]
|
$
[***]
|
0
|
[***]
|
$
[***]
|
$
[***]
|
1
|
[***]
|
$
[***]
|
$
[***]
|
2
|
[***]
|
$
[***]
|
$
[***]
|
3
|
[***]
|
$
[***]
|
$
[***]
|
4
|
[***]
|
$
[***]
|
$
[***]
|
5
|
[***]
|
$
[***]
|
$
[***]
|
6
|
[***]
|
$
[***]
|
$
[***]
|
7
|
[***]
|
$
[***]
|
$
[***]
|
8
|
[***]
|
$
[***]
|
$
[***]
|
9
|
[***]
|
$
[***]
|
$
[***]
|
10
|
[***]
|
$
[***]
|
$
[***]
|
11
|
[***]
|
$
[***]
|
$
[***]
|
12
|
[***]
|
$
[***]
|
$
[***]
|
13
|
[***]
|
$
[***]
|
$
[***]
|
14
|
[***]
|
$
[***]
|
$
[***]
|
Total
|
[***]
|
|
$
[***]
|
|
|
|
|
Total Value
|
|
|
$
[***]
|
Total Value Per Acre
|
|
|
$
[***]
|
Exhibit J
(see attached)
INVENTORY VERIFICATION OF THE CTT SOUTHWEST PROPERTY
LOCATED IN LOUISIANA AND TEXAS
SEPTEMBER 6, 2018
PREPARED BY:
FORESTECH INTERNATIONAL, LLC
INTRODUCTION
ForesTech International (FTI) was retained by Forest Investment Associates (FIA) to design and conduct a verification inventory on the CTT Southwest property located in Louisiana and Texas. The CTT Southwest property is located centrally between Beaumont, TX and Natchitoches, LA and consists of +/- 55,702 acres (Figure 1). FTI was tasked with designing an inventory to target the property total value within the allowable error (AE) target of 5%. The approach that FTI felt would achieve the desired statistics targets and time constraints motivated our decision to perform a two-stage list sample. A total of 8 strata were created to accurately quantify attributes such as origin, age class, thin classification, and species group. Overall, the inventory project will sample 242 stands (5,496 plots over 13,706 acres).
STRATIFIED TWO-STAGE LIST SAMPLING
Stratified two-stage list sampling is a cost and time efficient sampling scheme that has application for forest level inventories, particularly when time or budget constraints are important. Before discussing stratified two-stage sampling, we will first discuss conventional inventory and then how two-stage sampling differs from conventional inventory.
In a conventional stand inventory, sample plots are established, typically on a grid across the stand area, and tree attributes (i.e. dbh, species, tqi, stopper heights, total heights, etc.) are measured on the plots. The volume or other attributes needed for the trees measured at those plots are used to estimate the volume per acre represented at that location in the stand. The average of those volumes per acre at the sample plots represents the estimated volume per acre in the stand. The assumption, often not explicitly stated, is that the plots selected represent the average conditions found throughout the stand and therefore their average is an accurate estimate of the average volume per acre in the stand. For a conventional forest inventory, each stand receives an inventory from which an average volume per acre and total volume based on the measured plot values within the stand are calculated. To get an estimate of the forest total, the stand total volume estimates are simply added since every stand has an estimated total volume. It should be noted that there is no requirement that each stand be inventoried the same way.
Two-stage sampling involves selecting stands first (“primaries”) and then within the selected stands a conventional inventory is conducted by putting in a grid of sample plots and measuring tree attributes of interest on these plots. The plots are called “secondaries” in the sampling literature since they are only chosen and installed in the selected primaries. The estimated average volume/value per acre and total volume for the stand are obtained in exactly the same way as for conventional inventory. The only problem is that it is not possible to add all the stand estimates to obtain the forest level estimate because every stand does not have an estimate (not every stand had plot/points installed in it).
The assumption being made is that the stands selected for the inventory as primaries represent the average condition of stands in the forest
. Thinking back to conventional inventory, this is exactly the same intuitive logic used to estimate stand averages from plots. The assumption there is that the plots chosen within a stand represent the average condition of the stand. With two-stage sampling the assumption is that the stands chosen within the forest represent the average condition of the forest.
While all of this sounds logical in theory, how well has it worked in practice? It has actually worked very well. Borders
et al
. (2005) provided a framework and example from actual inventory comparing conventional and two-stage sampling. This Southern Journal of Applied Forestry article was peer reviewed and provided added detail to the textbook discussion on two-stage sampling in Shiver and Borders (1996). Their discussion was a refinement of two-stage sampling published by Cochran (1977) and DeVries (1986). The idea of inventorying in the manner being described here has been thoroughly reviewed in the forestry sampling literature and found to be sound.
The CTT Southwest property of roughly +/- 55,702 acres, is located in southern Louisiana and Texas with a geographic distribution across fifteen counties. In this case, an accurate forest level estimate is needed in a short time and it would be difficult to physically go to every stand and sample it within the desired time constraints. In regular two-stage sampling, primaries are selected at random. This means that large stands and small stands have the same chance of appearing in the sample. While it is possible to obtain a sample of stands that is representative of the forest using random sampling, it takes a larger sample of stands to ensure a representative sample. Borders
et al.
(2005) discuss the disadvantages of such a sampling scheme on the first page of their article. Fortunately most forest landowners keep an information database for their properties in which they have relatively recent acreage, stand type, product volume estimates, etc. This data, which exists for the CTT Southwest property, allows for an inventory design that takes advantage of this information.
A two-stage list sample is a specific application of two-stage sampling that replaces the random sampling with sampling in which the larger “size” stands have a greater probability of being included in the first stage (where primaries or stands are chosen) than smaller “size” stands. Size can refer to acres or if another stand characteristic that is correlated with size may be calculated, the probability may be in proportion to those values. In the case of the CTT Southwest property, the estimated total value of each stand was calculated by applying realistic stumpage rates (Table 1) to the product volumes per acre to get an estimated value per acre and then multiplying by the acres to obtain an estimate of total stand value. With list sampling, the stands are placed in a list and are selected from the list with probability proportional to their total value.
Table 1. FIA Market Inventory Product Specifications and Stumpage Prices
|
|
|
|
|
|
|
|
|
Planted Stands
|
Product
|
Min DBH
|
Max DBH
|
Min. Length
|
Top Dob
|
Height Meas.
|
Topwood
|
Stumpage
|
PTOP
|
-
|
-
|
-
|
3.0
|
Total
|
No
|
$ [***]
|
PPWD
|
3.6
|
21.6
|
21.0
|
3.0
|
Total
|
No
|
$ [***]
|
PCNS
|
8.6
|
11.6
|
20.0
|
5.0
|
Total
|
Yes
|
$ [***]
|
PSAW
|
12.6
|
-
|
17.0
|
8.0
|
Total
|
Yes
|
$ [***]
|
HTOP
|
-
|
|
-
|
-
|
Total
|
No
|
$ [***]
|
HPWD
|
4.6
|
21.6
|
20.0
|
4.0
|
Total
|
No
|
$ [***]
|
HSAW
|
12.6
|
|
17.0
|
9.0
|
Total
|
No
|
$ [***]
|
|
|
|
|
|
|
|
|
Natural Stands
|
Product
|
Min DBH
|
Max DBH
|
Min. Length
|
Top Dob
|
Height Meas.
|
Topwood
|
Stumpage
|
PTOP
|
-
|
-
|
-
|
3.0
|
Total
|
No
|
$ [***]
|
PPWD
|
3.6
|
21.6
|
21.0
|
3.0
|
Total
|
No
|
$ [***]
|
PCNS
|
8.6
|
11.6
|
20.0
|
5.0
|
Total
|
Yes
|
$ [***]
|
PSAW
|
12.6
|
-
|
17.0
|
8.0
|
Total
|
Yes
|
$ [***]
|
HTOP
|
-
|
|
-
|
-
|
Total
|
No
|
$ [***]
|
HPWD
|
4.6
|
21.6
|
20.0
|
4.0
|
Total
|
No
|
$ [***]
|
HSAW
|
12.6
|
|
17.0
|
9.0
|
Total
|
No
|
$ [***]
|
It should be noted that even though more valuable stands have a higher probability of selection to be inventoried, this does not imply that the estimate of total value will be biased upward. In fact, the estimator used in this sampling procedure produces unbiased estimates of value. De Vries (1986) and Cochran (1977) both show proof that the estimator is unbiased. This is similar to another estimator that foresters commonly use. Within a stand, foresters often use point sampling. Point sampling selects trees with probability proportional to their basal areas. Larger trees have a higher probability of selection than smaller trees. This allows foresters to focus their time on measuring mostly larger, more valuable trees. In stands with a wide diameter distribution this results in a more efficient inventory. The resulting point sampling estimators also produce unbiased estimates.
The ability of a two-stage sample to produce accurate estimates depends on choosing stands that represent the average condition of the forest. Partitioning the forest into more uniform strata to select stands that represent the average of the stratum should logically allow for more efficient sampling. Stratifying also allows for different sampling intensities within strata that can later be combined into an overall forest level estimate. Stratification with two-stage list sampling is discussed in Borders
et al
. (2005) and in Shiver and Borders (1996).
When conducting a two-stage stratified list sample, the first operation is to remove any stands that will not be part of the inventory. This may include pre-merchantable stands. For the CTT Southwest property, removal of stands that did not have significant merchantable volume was the first step. This resulted in 638 stands covering 26,519 acres. This defines the “forest” for this sampling design.
The second step when conducting a two-stage stratified list sample is to define strata. While strata definitions are somewhat arbitrary, they should be chosen with an objective of forming more consistent sets of stands than what would be present in the forest as a whole. For the CTT Southwest property 8 strata were defined (Table 2).
Table 2. Strata Descriptions for inventory of CTT Southwest property
|
|
|
StrataOrder
|
Description
|
1
|
PPN_UT_15-19 consisted of all unthinned pine plantations age 15 to 19
|
2
|
PPN_TH_15-19 consisted of all thinned pine plantations age 15 to 19
|
3
|
PPN_UT_20-24 consisted of all unthinned pine plantations age 20 to 24
|
4
|
PPN_TH_20-24 consisted of all thinned pine plantations age 20 to 24
|
5
|
PPN_UT_25+ consisted of all unthinned pine plantations age 25+
|
6
|
PPN_TH_25+ consisted of all thinned pine plantations age 25+
|
7
|
NPN_20+ consisted of all natural pine stands age 20+
|
8
|
NHD_20+ consisted of all natural hardwood stands age 20+
|
Table 3 shows the general characteristics of these eight strata. Table 4 shows the total value of stands in each stratum as estimated using the CTT Southwest product tons provided in each stand multiplied by the following product prices according to stand origin. Planted pine – pine pulpwood $9/ton, hardwood pulpwood $7.5/ton, pine chip-n-saw $15/ton, pine sawtimber $25/ton, and hardwood sawtimber $21/ton. Natural stands – pine pulpwood $6/ton, hardwood pulpwood $5/ton, pine chip-n-saw $10/ton, pine sawtimber $16.67/ton, and hardwood sawtimber $14/ton. The variance (S^2) for each stratum was estimated from the value per stratum data using equations (3) and (4) of the Borders et al. (2005).
Table 3. General characteristics of the 8 strata on the CTT Southwest property.
|
|
|
|
|
|
|
|
Strata
|
N_Stands
|
Avg_StandSize
|
Sum_NetAcres
|
Avg_ValuePerAcre
|
PPN_UT_15-19
|
92
|
48
|
4,398
|
|
$1,043
|
|
PPN_TH_15-19
|
47
|
51
|
2,408
|
|
$690
|
|
PPN_UT_20-24
|
14
|
24
|
338
|
|
$1,512
|
|
PPN_TH_20-24
|
31
|
47
|
1,447
|
|
$1,087
|
|
PPN_UT_25+
|
14
|
21
|
288
|
|
$1,704
|
|
PPN_TH_25+
|
88
|
41
|
3,569
|
|
$1,396
|
|
NPN_20+
|
50
|
28
|
1,421
|
|
$756
|
|
NHD_20+
|
302
|
42
|
12,649
|
|
$688
|
|
|
638
|
|
26,519
|
|
$1,109
|
|
Table 4. Estimated total values by stratum and overall and variances of value (S^2) by stratum.
|
|
|
|
|
|
|
|
|
|
|
|
Strata
|
N_Stands
|
Sum_TotalValue
|
S^2 WithinStrata
|
S^2 OfTotal
|
PPN_UT_15-19
|
92
|
|
$4,272,948
|
|
|
$174,880
|
|
|
$36,770,607,716
|
|
PPN_TH_15-19
|
47
|
|
$1,554,735
|
|
|
$65,965
|
|
|
$8,141,137,114
|
|
PPN_UT_20-24
|
14
|
|
$393,900
|
|
|
$832,031
|
|
|
$6,805,691,025
|
|
PPN_TH_20-24
|
31
|
|
$1,541,574
|
|
|
$88,087
|
|
|
$5,947,790,363
|
|
PPN_UT_25+
|
14
|
|
$510,491
|
|
|
$654,467
|
|
|
$3,881,474,995
|
|
PPN_TH_25+
|
88
|
|
$4,874,546
|
|
|
$316,989
|
|
|
$45,881,290,043
|
|
NPN_20+
|
50
|
|
$1,246,468
|
|
|
$228,331
|
|
|
$9,227,466,805
|
|
NHD_20+
|
302
|
|
$8,193,714
|
|
|
$183,442
|
|
|
$97,178,934,867
|
|
|
638
|
|
$22,588,376
|
|
|
|
$213,834,392,928
|
|
The third step in conducting a stratified two-stage list sample is to select primaries in each of the strata. A two-stage list sample was carried out for each of the eight strata. Simulated results were made using the values constructed from the product values assumed and the acreage and product tons in the CTT Southwest database (Table 5). For field inventory sampling efficiency, all stands that fell below the 15 acre minimum threshold were excluded from being selected but will be included in the overall strata totals. Sample sizes were changed as needed to obtain a stratum AE around 20%, if achievable. Some of the smaller sized strata naturally had higher variability within the strata and thus were harder to reduce the AE. For some of the less variable strata, the AE is considerably lower than 20%. It should be noted that the variances used in this inventory design depend entirely on the product values and acreages in the CTT Southwest database. Deviations from those stand product volumes or from the acreages by stand in the actual inventory once conducted will result in deviations from these projected AEs.
Table 5. Simulated results of a two-stage list sample assuming perfect reproduction of acres and product volumes in the CTT Southwest database.
|
|
|
|
|
|
|
|
|
|
Strata
|
N_Stands
|
Sum_NetAcres
|
SE OfTotal
|
AE
|
Sample Value
|
PPN_UT_15-19
|
54
|
2,907
|
227,549
|
11
|
%
|
|
$4,245,155.64
|
|
PPN_TH_15-19
|
26
|
1,532
|
124,007
|
15
|
%
|
|
$1,645,365.75
|
|
PPN_UT_20-24
|
4
|
247
|
220,206
|
82
|
%
|
|
$535,948.54
|
|
PPN_TH_20-24
|
27
|
1,403
|
76,557
|
10
|
%
|
|
$1,535,004.76
|
|
PPN_UT_25+
|
5
|
240
|
89,570
|
35
|
%
|
|
$513,743.06
|
|
PPN_TH_25+
|
50
|
3,358
|
239,103
|
9
|
%
|
|
$5,057,323.04
|
|
NPN_20+
|
18
|
986
|
104,718
|
18
|
%
|
|
$1,195,646.57
|
|
NHD_20+
|
58
|
3,034
|
562,722
|
13
|
%
|
|
$8,446,548.04
|
|
|
242
|
13,706
|
|
|
|
$23,174,735
|
|
Note the advantages for obtaining an efficient estimate. Even though there are 638 stands in the forest, only 242 of them (about 38% of stands but 52% of the area in acres) will be inventoried. Though only one third of all stands will be inventoried, over half the acreage (13,706 out of 26,519) will be inventoried. The stands chosen for selection contain a total estimated value of $13,206,632 of the estimated $22,588,376 total in all stands. This emphasizes the efficiency of list sampling in placing plots in stands that are more important to obtaining a good estimate of the total value by sampling higher value stands with higher probability. These stratum totals are not of particular interest in and of themselves. They were rather arbitrarily chosen and the AE for the totals only serves as a barometer of how well the inventory within each stratum estimates the stratum total. The variance of the total for each stratum is added to obtain the variance of the forest total. The square root of this value is the standard error of the estimate of the forest total and is used in estimating the realized allowable error (RAE). For this simulation the RAE was about 6%. Again, it cannot be overemphasized that changes in product tons within the selected stands to be inventoried in the actual inventory versus the values in the database along with changes in acres can change the RAE in the actual inventory significantly. However, in the absence of other data from which to design the inventory, the data provided must be assumed to be reasonably accurate until proven otherwise.
The fourth step in conducting a stratified two-stage list sample is to assign plots (secondaries) in each of the chosen stands (primaries). The actual inventory intensity within each selected primary for the CTT Southwest project varies by stratum. All strata will be inventoried using a predetermined basal area factor to target a minimum 6 tree average per plot. Planted pine stands age 25 and greater (PN_TH_25+ and PPN_UT_25+) will have a cruise intensity of 1 plot per 2 acres with a minimum of 20 plots per stand and a maximum of 40 plots per stand. Planted pine stands 15 to 20 years of age (PPN_UT_15-19, PPN_TH_15-19, PPN_UT_20-24 and PPN_TH_20-24) will have a cruise intensity of 1 plot per 3 acres with a minimum of 20 plots per stand and a maximum of 40 plots per stand. Natural pine and hardwood stands will have a cruise intensity of 1 plot per 5 acres with a minimum of 15 plots per stand and a maximum of 40 plots per stand. The result is 5,496 points (Table 6). Points will be installed by FTI according to the
inventory cruise specifications and instructions (FIA_CTT_Southwest_Inventory_Specifications_20180906.pdf).
A subsample of points will be audited by FTI personnel to ensure inventory foresters adhere to the cruise specifications and quality expectations. The audit parameters are also included in the inventory cruise specifications. Data will be compiled and estimates calculated by estimating product volumes through FTI’s SiMS system. It will be possible to evaluate pre-inventory database values versus inventory estimates for each of the 242 stands selected if that is desired.
Table 6. Inventory selected stands summary by Strata.
|
|
|
|
|
Strata
|
N_Stands
|
N_Plots
|
N_NetAcres
|
PPN_UT_15-19
|
54
|
1,272
|
2,907
|
PPN_TH_15-19
|
26
|
607
|
1,532
|
PPN_UT_20-24
|
4
|
100
|
247
|
PPN_TH_20-24
|
27
|
616
|
1,403
|
PPN_UT_25+
|
5
|
124
|
240
|
PPN_TH_25+
|
50
|
1,480
|
3,358
|
NPN_20+
|
18
|
316
|
986
|
NHD_20+
|
58
|
981
|
3,034
|
|
242
|
5,496
|
13,706
|
Two-stage stratified list sampling is an efficient inventory method when the objective is an estimate of forest level value. It does not provide an estimate of every stand, but in many acquisition situations the overall value is the value needed. This efficient sampling design should be more widely used in acquisition inventories.
INVENTORY VERIFICATION CRITERIA
The inventory verification results will be compiled as follows:
Step 1: Estimate the Stand Level Volume for the Cruised Stands:
The raw data from the field will be imported into FTI’s SiMS system for the cruise workup (Appendix 1. SiMS2012_SystemInfo_20180906.pdf). The inventory design product specifications for pine and hardwood will be utilized from earlier in document (Table 1). Tons by product will be estimated for each tree in the raw data and expanded to a per acre basis for each point. Estimated product tons per acre for each stand will be calculated using the standard methodology for point samples. The tons per acre will be multiplied by the acres to determine the total stand level volumes.
Step 2: Within Each Strata, Compare the Total Value of Cruised Stands to the Total Estimated Value of Cruised Stands based on Seller Data
For each stand the total volumes for the cruised stands will be multiplied by the unit values from the value table to determine the verification value of cruised stands. Within each strata, this value will be summed for all cruised stands and this value will be compared to the estimated value of cruised stands based on seller’s volume data to determine a percent difference for each strata. Baseline values were estimated from the seller provided volumes expanded by acres and stumpage prices for a property level value of $22,588,376 (Table 7).
Table 7. Property level summary values by products and values for the CTT Southwest Property.
|
|
|
|
Products
|
Tons
|
Value
|
PTOP_T + PPWD_T
|
[***]
|
$ [***]
|
PCNS_T
|
[***]
|
$ [***]
|
PSAW_T
|
[***]
|
$ [***]
|
ALL PINE
|
[***]
|
$ [***]
|
|
|
|
HPWD_T
|
[***]
|
$ [***]
|
HSAW_T
|
[***]
|
$ [***]
|
ALL HARDWOOD
|
[***]
|
$ [***]
|
|
|
|
ALL TONS
|
[***]
|
$
[***]
|
Step 3: Expand the Value Comparison for the Cruised Stands within Each Strata to the Entire Strata:
For each strata, the Percent Difference for the cruised stands within the strata will be applied to all stands included within the strata. For example, if the verification value of cruised stands for the 50 stands cruised in the PPN_TH_25+ is found to be 108% of the
estimated value for the same 50 stands using seller data, then a 108% value adjustment will be applied to all of the 88 stands within this strata. (At the strata level, these adjustments will be applied without regards to the 3% threshold that will be used for the overall comparison).
Step 4: Sum the Strata Level Results to get the Timber Verification Inventory Value of the Property:
All eight strata will be compiled using the same methodology for adjustment. The sum of these adjusted values for the eight strata will be the Timber Verification Inventory Value. The Timber Verification Inventory Value for all stands will be compared to the Total Estimated Merchantable Timber Value from the value table to determine the purchase price adjustment, if required.
Borders, B. E., B. D. Shiver, and M. L. Clutter. 2005. Timber Inventory of Large Acreages
Using Stratified Two-Stage List Sampling. South. J. Appl. For. 29(3): 152-157.
Cochran, W. G. 1977. Sampling techniques, 3
rd
Edition. John Wiley & Sons, New York, 428 p.
DeVries, P. G. 1986. Sampling theory for forest inventory. Springer-Verlag, New York. 399 p.
Shiver, B. D. and B. E. Borders. 1996. Sampling techniques for forest inventory. John Wiley &
Sons, New York, 356 p.
FIA INVENTORY VERIFICATION
CRUISE INSTRUCTIONS
SEPTEMBER 6, 2018
PREPARED BY:
FORESTECH INTERNATIONAL
P.O. BOX 1819
WATKINSVILLE, GEORGIA 30677
Table of Contents
INVENTORY
Overall objectives are to provide stand level assessments and to collect accurate plot and tree level data. ForesTech (FTI) provides digital copies of location maps (e.g. overview map, tract maps, and stand maps) and shapefiles. Inventory foresters are expected to record plot and tree level data using TCruise software. FTI provides the TCruise templates (TCC files). Stand level assessments will be recorded using the provided Microsoft Excel template (FTI_Stand_Template.xlsx). Contractors must use a GPS device to navigate to pre-numbered plots using the coordinates provided by FTI.
The document defines cruise design, stand level data to summarize, plot attributes and tree measurements to capture at each sample point, and how to handle plot irregularities. Screenshots of the TCruise templates, limiting distance tables, tree measurement diagrams, and audit expectations are provided.
Cruise Design
|
|
•
|
Sampling Intensity
- Excel document, StandLister.xlsx, provides detail for individual stands.
|
|
|
a.
|
All stands within a strata must use the same prism throughout strata, no exceptions.
|
|
|
|
|
|
Strata
|
StrataOrder
|
PlotType
|
PlotSize
|
PPN_UT_15-19
|
1
|
BAF
|
20
|
PPN_TH_15-19
|
2
|
BAF
|
10
|
PPN_UT_20-24
|
3
|
BAF
|
20
|
PPN_TH_20-24
|
4
|
BAF
|
15
|
PPN_UT_25+
|
5
|
BAF
|
20
|
PPN_TH_25+
|
6
|
BAF
|
15
|
NPN_20+
|
7
|
BAF
|
15
|
NHD_20+
|
8
|
BAF
|
15
|
|
|
a.
|
Tally ALL PINE
3.6”
(4” class) and greater in 1” DBH classes
|
|
|
b.
|
Tally ALL HARDWOOD
4.6”
(5” class) and greater in 1” DBH classes
|
|
|
•
|
Tree Quality Index
(TQI) - TQI (1, 3, or 4) will be utilized to determine a stem’s future potential.
|
|
|
a.
|
PINE -
Total height
to nearest foot. Minimum of 30 total heights (minimum of two per plot) per stand to be measured. This
includes
one site index tree per plot.
|
|
|
b.
|
HARDWOOD - Heights measurements to 4” top to nearest foot. All hardwood stems tallied require a
4” top
height.
No hardwood
site trees to be measured.
|
|
|
•
|
Stopper Heights (sawtimber and pulpwood)
- Each stem should be assessed for stoppers. Measure stoppers to nearest foot interval for all trees.
|
|
|
i.
|
Sawtimber potential stems
|
|
|
1.
|
Pine - Each tallied tree should have a minimum of
16’
of clear log in the first 24’ and have sawtimber potential.
|
|
|
2.
|
Hardwood - Each tallied tree should have a minimum of
16’
of clear log (above butt swell).
|
|
|
ii.
|
Always pulpwood stems - No minimum length required. No sawtimber stopper allowed.
|
DATA DELIVERY
Completed data to be uploaded daily
. FTI will only accept completed stands. A “Dropbox” account will be available to upload completed data sets.
File naming: StandName_PlotType&PlotSize_CruiserInitials_PlotCount.tce
Example: BD7061-0338_BAF 15_RDC_48.tce
Data submissions to include:
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Stand Template Excel spreadsheet (FTI_Stand_Template.xlsx) -
Professional comments for each stand are required for payment
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Completed stand maps (only ones with annotations).
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From time to time cruisers are given options on sample sizes (e.g. BAF 10, 15 or 20) for different stand types; therefore, FTI has applied three (3) ways to assure that the correct sample size is being identified for processing.
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1.
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The cruiser selects the appropriate TCruise TCC file. The parameters are set to the BAF selection that the cruiser chooses.
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2.
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The TCE file name includes the plot type and plot size in its title.
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3.
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The Microsoft Excel Template is completed by the cruiser after the stand is inventoried and the cruiser fills in the plot type and plot size used.
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A work order will be provided that details zip folder names for uploaded files. If maps cannot be sent electronically, please mail them to:
ForesTech International
1800 Hog Mountain Road
Building 600, Suite 101
Watkinsville, GA 30677
GENERAL INSTRUCTIONS
Navigation
Inventory foresters are required to use GPS navigation to locate sample plots. A 33 foot tolerance from desired plot location is allowed. For sample points outside tolerance, cruisers are required to record and provide new coordinates for purposes of relocation.
With different navigation software (SOLO Forest) and hardware available, FTI require inventory foresters to use available versions that log exact coordinates where the sample plot is taken.
Plot Monument
Orange or pink vinyl flagging (fluorescent) is requested to be used in this cruise. Identify the exact plot center with a ground flag by
exposing
bare soils and staking a flag
in the ground
leaving 12”-18” left visible (pin flags are the preferred marking method for centers but ground flags are acceptable if installed appropriately). Tie a vertical flag at eye-level or higher as close to plot center as possible.
Write cruiser initials (3 letters) and point number on the vertical flag
. (Ex: RDC 100) Failing to correctly monument point (i.e. missing or inadequate flagging) can result in deductions during an audit.
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a.
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Double-band
one dominant/co-dominant tree on the plot to represent a site index tree. Tree selected should be the dominant species in the stand and represent the stand age. Use this tree as the first tally tree.
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b.
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Single-band
additional pine trees to represent
height
trees. These trees should also be the dominant species and represent the stand age.
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a.
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Double-band
one dominant/co-dominant pine tree on the plot to represent a site index tree. Tree selected should be the dominant pine species in the stand and representative of the stand age. If no pine is available then
double-band
a dominant/co-dominant crown class tree as close to plot center as possible. Use the double banded tree as the first tally tree on the plot.
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b.
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Identify additional pine
height
trees in natural stands with a
single band of flagging
. No need to identify hardwood trees with flagging (unless tally begins with a hardwood tree).
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a.
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After recording the first measured tree (identified with double flagging), move in a
clockwise
manner around the plot recording tree data.
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b.
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If a tree is tallied out of order, please note in the TNote box with “ooo” to signal that the tree was tallied out of order.
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Plot Type and Plot Size
Cruisers should load the appropriate TCC file for the intended plot type and size of the stand to be inventoried. Note, TCC parameters are reflected in their respective names (origin, plot type, plot size) and should be loaded for each stand individually (i.e. each stand should have its own TCC file loaded). Once a TCC file is loaded, cruisers should rename and save the file to reflect the stand that is being inventoried. Refer to page 2 of this document for file naming.
FTI stand maps provide history detail with the intended plot type and plot size; however, stand history may not be current. For example, an expected unthinned plantation has been recently thinned. Furthermore, the unexpected thinned plantation needs to be updated in the Excel template that accompanies the TCE file submitted.
Both fixed radius and prism plots are utilized.
Table 1
. Sampling protocol for intended strata type.
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Strata
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StrataOrder
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PlotType
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PlotSize
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PPN_UT_15-19
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1
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BAF
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20
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PPN_TH_15-19
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2
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BAF
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10
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PPN_UT_20-24
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3
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BAF
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20
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PPN_TH_20-24
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4
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BAF
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15
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PPN_UT_25+
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5
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BAF
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20
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PPN_TH_25+
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6
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BAF
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15
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NPN_20+
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7
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BAF
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15
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NHD_20+
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8
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BAF
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15
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*No minimum tree requirement for BAF 10.
For a variable radius plot, the limiting distance is calculated using the tree’s DBH and a plot radius factor (PRF). This measured distance is compared to the calculated limiting distance (DBH*PRF) for that tree. If the measured distance is less than or equal to the limiting distance, then the tree is counted. Refer to Appendix for limiting distance tables. To determine if a candidate tree is in or out of a both plot types, the cruiser measures the horizontal distance from the plot center to the tree’s pith.
Table 2
. Basal area factor and corresponding plot radius factor to determine limiting distance calculations.
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Basal Area Factor
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Plot Radius Factor
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10
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2.750
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15
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2.245
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20
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1.944
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Limiting distance (feet) = Diameter Breast Height (DBH inches) * PRF
If slope is encountered and influences plot sampling then refer to Table 3 for critical distance measurements.
Table 3
. Slope Correction Table
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% Slope
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Correction Factor
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% Slope
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Correction Factor
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% Slope
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Correction Factor
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10
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1.005
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45
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1.097
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80
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1.281
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15
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1.011
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50
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1.118
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85
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1.312
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20
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1.020
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55
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1.141
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90
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1.345
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25
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1.031
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60
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1.166
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95
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1.379
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30
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1.044
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65
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1.193
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100
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1.414
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35
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1.059
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70
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1.221
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40
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1.077
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75
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1.250
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Example:
BAF = 10
DBH = 20.0
Slope = 20%
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Slope Corrected Plot Radius Factor
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= Slope Correction Factor * Plot Radius Factor = 1.020 * 2.750
= 2.805
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Limited Distance
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= Slope Corrected Plot Radius Factor * DBH
= 2.805 * 20.0 = 56.1 feet
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Stand Level Data
Stand level data will be recorded in a separate Microsoft Excel template provided in the cruiser’s project folder. The template is to summarize the stand, post-cruise. Cruisers should verify a stand’s cover type, stand lines, non-productive areas, age, etc. Any discrepancies or issues should be notated on the stand maps as well as noted in the
Stand Templat
e ‘
Comments
’ field (FTI_Stand_Template.xlsx). Stand maps should be submitted if edits are necessary.
The
Stand Template
is a required submission and is needed for processing.
DATA SUBMISSIONS ARE INCOMPLETE WITHOUT STAND TEMPLATE AND ARE REQUIRED FOR PAYMENT
. Most cells can be filled using the drop down selections. FTI requires stand comments. The ‘
Comments
’ field is intended for cruisers to expand on what was seen in the field. Even if the stand is “normal”, commenting about a stand’s overall health and tree form within the stand is good information to pass along. Noting crown development, site conditions, access roads, insect damage, thinning potential, understory species, logging damage, site cleanup, SMZ’s, etc. are beneficial to forest management. Each column heading in the
Stand Template
is further explained below. (Figure 1)
Stand Level Attributes recorded in Microsoft Excel template
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ID
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StandID
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CruiseDate
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Cruiser
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Stand Type
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PlotType
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PlotSize
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N_Plots
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Comments
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GISEdits
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1
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T20120-0050
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2/27/2017
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FTI-MAA
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Natural - Unthinned
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BAF
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15
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25
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The stand was totally flooded. Coul
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No
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2
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T20120-0973
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2/27/2017
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FTI-MAA
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Planted - Thinned
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BAF
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10
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11
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Trees look good, however, the stand
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No
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3
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T20120-0969
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2/27/2017
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FTI-MAA
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Planted - Thinned
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BAF
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20
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12
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Trees look good, however, the stand
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No
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4
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T11210-0402
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3/1/2017
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FTI-MAA
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Natural - Unthinned
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BAF
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15
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5
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Stand is very steep, hard to access,
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No
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5
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T11210-0503
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3/1/2017
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FTI-MAA
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Natural - Unthinned
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BAF
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15
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5
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Beautiful stand, park like, very tall
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No
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6
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T11456-0202
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3/1/2017
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FTI-MAA
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Planted - Thinned
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BAF
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15
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3
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Small stand, harvested really close
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No
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Figure 1
. Example stand data entry in Stand Template.
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ID
- Denotes entry number.
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CruiseDate (Cruise Date)
- Enter the cruise date for the stand. If the stand is cruised over multiple days, use the last date cruiser visited the stand in the month/day/year format (Ex. 8/28/2018).
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Cruiser (Cruiser)
- Enter the “contractor-cruiser” abbreviation for the plot. The format is 7 characters total in length. Three character abbreviation for the contractor name and the cruiser’s three initials. Separate contractor and cruiser with a hyphen (Ex: FTI-RDC). If multiple cruisers are within a single stand, enter each cruiser’s 7 character abbreviations separated with a comma (
only one stand entry needed
).
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Stand Type
- Select from the drop down menu the stand type cruised:
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PlotType
(Plot Type) - Enter the three letter abbreviation plot type selected for the inventory cruise. (BAF)
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PlotSize
(Plot Size) -BAF used (10, 15 or 20).
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N Plots
(Number of Plots) - Enter the total number of inventory plots collected during the cruise. If multiple cruisers are within a single stand, enter only one stand record in spreadsheet and provide the total plot count for the stand.
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Comments
(Comments) - Enter comments for each stand to provide information for future management. Notes about beetles, access, stand boundaries, dropped plots, poor logging, etc. are all topics worthy of comment. One to two sentences.
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GIS Edits
- Select ‘Yes’ or ‘No’ to indicate if edits to the shapefiles are needed due to stand delineation issues encountered.
Completed stand map is required with data submission if edits are required
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DATA COLLECTION WITH TCRUISE
Plot Level Data
Cruisers will navigate to a predetermined plot location with a GPS device and locate the plot center. There are two levels of plot data collection in TCruise: plot identification (screen 1) and plot assessment attributes (screen 2).
Plot Identification collected with TCruise (Screen 1)
For inventory foresters using Real Time Inventory, the Plot Info fields will populate automatically once the plot is located within the tolerance desired. For cruisers navigating with alternative GPS hardware, they will need to fill the plot identification fields manually. Template examples of the plot identification are shown in Figure 2 below.
TCruise Plot Info Screen (Screen 1)
Figure 2
. TCruise plot information screen (screen 1).
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Stratum
(StandName) - Input the stand number provided in the GIS database from the StandName field for the stand. The StandName is used to map the stand to the GIS database.
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Plot ID
(Plot identification number) - Enter the appropriate plot identification provided by PCH personnel. The value is this field should only be an integer number, no text or characters are allowed.
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Cruiser
(Cruiser) - Enter the “contractor-cruiser” abbreviation for the plot. The format is seven (7) characters total in length, including the dash. Three character abbreviation for the contractor name and the cruiser’s three initials. Separate contractor and cruiser with a hyphen (Ex: FTI-RDC).
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Custom Info
(Plot Attributes) - Opens Screen 2 (Plot Attributes).
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OK
- Opens Screen 3 (Tree Attributes).
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Plot Level Attributes collected with TCruise (Screen 2)
After the waypoint is logged and identification recorded, the cruiser will assess and select the attributes for each sample point. Refer to Figure 3 for example data entry required. Explanations for each attribute follow. These must be recorded for each sample point before logging tree data.
TCruise Plot Info Screen (Screen 2)
Figure 3
. Custom plot info screen. (Screen 2)
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Plot Status
- Indicates plot status/location. Selections other than “
Normal
” may be necessary when the plot does not conform to normal stand conditions. Please provide a comment in PNote that may help explain a selection that deviates from the default setting “
Normal
”.
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a.
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Normal
- (Default) - No attributes in the list apply to the plot. Normal plot location identified and installed.
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b.
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Offset
- Selection made if the plot had to be moved. For example, a plot may need offsetting for safety reasons. If a plot is intentionally moved outside the 33 feet tolerance, then please provide the reason for the offset and the new location as it relates to the original plot coordinates in PNote.
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c.
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Road
- Selection for a plot that falls in an unmapped road. Describe road type (e.g. gravel, ATV, etc.) and enter width (in feet) (Ex: “ATV 10FT”)
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d.
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Deck
- Plot fell in an unmapped deck. Enter approximate rectangular dimensions (in feet). (Ex: “150X200”)
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e.
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Cut
- Plot fell in an unmapped cut area. Enter approximate rectangular dimensions (in feet). (Ex: “150X200”)
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f.
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Beaver
- Plot fell in an area affected by beaver activity.
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g.
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Sensitive
- Plot fell in an unmapped SMZ or plot fell in an area where grades are erodible.
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h.
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EndSpecies
(Endangered Species) - Plot either included or was in view of an endangered species (includes both flora and fauna). Please comment in PNote.
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i.
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Dropped
- Plot was not sampled. Notate in PNote and provide a comment in the Stands Excel Template.
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j.
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Other
- Category used if none of the above apply. Please use PNote to explain.
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NoTally
- Answer the question, “Is this plot a ‘No Tally’?” (Yes or No) (Default ‘No’)
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Woody
(Woody Competition) - In pine plantations, an evaluation of the woody competition growing on each plot will be assessed (Table 4).
Include both pine and hardwood, below the minimum diameter thresholds, in the woody assessment
. Note, all stems will be considered woody competition if they fall below the lower diameter threshold for the stand, but certain noncommercial species will always be considered woody competition regardless of diameter size (Appendix H).
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Table 4
. Woody competition level assessment.
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Comp Level
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Measurement
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Low
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0-1 woody competitors per planted tallied stem
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Mod
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2-3 woody competitors per planted tallied stem
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High
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4 or more woody competitors per planted tallied stem
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PNote
(Plot Note) - Plot comments.
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Tree Level Data
Using the TCruise template (TCC file) selected at the stand level, tree data will be captured. Several attributes will be recorded for each sample tree. Cruisers will identify tree species, measure DBH’s, grade a tree’s future potential using a tree quality index scale, and measure heights. Cruisers will verify and record age for site index trees. Remnant trees are categorized and tallied. Also, when applicable, the cruiser selects a defect from a dropdown menu. Figure 4 shows example tree entries in TCruise. Further discussion about each attribute follows the screenshot.
Tree Level Attributes collected with TCruise (Screen 3)
Figure 4
. TCruise tree information screen (screen 3).
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Spec
(Species) - Record species for every tree tallied. Default code is LB (Loblolly Pine). There is no differentiation between Planted and Natural Pine.
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a.
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Pine Plantations - Hardwood tally is not species specific, rather tally by group Hard Hardwood (HH) or Soft Hardwood (HS) (Appendix G).
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b.
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Natural Stands - There are several natural species selections available in Table 4. However, if a particular hardwood species is not available in the table, please use a group code of Hard Hardwood (HH) or Soft Hardwood (HS) (Appendix G).
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Table 4
. Species List.
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Pine Species List
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Code
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Species
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LB
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Loblolly Pine
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SL
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Slash Pine
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LL
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Longleaf Pine
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SP
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Sand Pine
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VP
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Virginia Pine
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SF
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Shortleaf Pine
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OP
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Other Pine
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Hardwood Species List
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Code
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Species
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Code
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Species
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Code
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Species
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HH
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Hard Hardwood
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EL
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Elm
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SG
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Sweetgum
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HS
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Soft Hardwood
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HB
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Hackberry
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SO
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Shumard Oak
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AS
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Ash
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HK
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Hickory
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SY
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Sycamore
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BE
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Beech
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NO
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Nuttall Oak
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WA
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Water Oak
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BG
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Blackgum
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OO
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Overcup Oak
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WI
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Willow Oak
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CD
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E Red Cedar
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OR
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Other Red Oak
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WL
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Walnut
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CH
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Black Cherry
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OW
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Other White Oak
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WO
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White Oak
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CO
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Cherrybark Oak
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PO
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Post Oak
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WT
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Water Tupelo
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CY
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Cypress
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QM
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Chestnut Oak
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YP
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Yellow Poplar
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EH
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Hemlock
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RO
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Red Oak
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DBH
(Diameter Breast Height) - Enter DBH in 1” classes for each tree tallied. Measure and record all pine 3.6” and greater, (4” class). Measure and record all hardwood 4.6” and greater, (5” class). Encountering stem variability is not uncommon when measuring a tree’s DBH. A diagram is included for ways to measure DBH on trees with irregularities (Appendix D).
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TQI
(Tree Quality Index) - Enter tree TQI (1, 3, or 4) on each tree tallied. (Default ‘1’). Tree Quality Index is assigned to all sample trees. There are three different values which are independent of time, size, or position in the canopy. The purpose of this designation is not only to assess current quality or form but to also consider the future for growing volume as well. Tree Quality refers to the form of the entire tree and is NOT to be confused with log quality. TQI is assigned to each tree based on its potential use now or in the future and is not based on its current size. This is very important to keep in mind as you are determining the appropriate TQI value for a given tree. For example, a very high quality tree that is currently a 6” DBH tree should be assigned TQI = 1 even though it does not currently qualify as sawtimber in the market place. The three different categories used are as follows:
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a.
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Tree Quality 1
: Sawtimber potential. Tree has good form and quality consistent with producing a sawlog now or within the rotation cycle of the stand. These trees need not be perfect and can contain some minor defects including sweep, crook, knots, etc. A pine stem should have the potential to produce at least one 16 foot log within the first 24 feet of the stem. A hardwood stem should have at minimum 16 feet of clear log above the butt swell. A sawtimber stopper height (SST) should be determined by the cruiser when the sawlog portion of the stem is ‘stopped’ by any single or combination of defects that preclude the stem from being used for sawn material above that point.
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b.
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Tree Quality 3
: Always pulpwood. These trees have poor quality and/or some type of defect that will limit them to always being a pulpwood product. Using this code will flag the tree as always pulpwood to be utilized for fiber volume only. TQI should not be confused with pulpwood stopper. A TQI 3 code quantifies the entire stem as pulpwood. A pulpwood stopper height (PST) should be determined by the cruiser when one or more defects will preclude the stem from being used for fiber above that defect (e.g. broken top).
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c.
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Tree Quality 4
: Cull, trees that are not capable of producing any product. These trees usually have extremely poor form or some type of major defect. Cull trees are not dead trees. Do NOT tally dead trees.
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HGT
(Height) - Enter tree height to the nearest foot. The ‘HGT’ field in the TCruise template will be used to record the height of candidate trees. ‘HGT’ measurements vary based on species (pine or hardwood) (Table 5).
The ‘HGT’ field in the TCruise templates will be utilized to accept both the total height measurements for pine and the 4” height measurements for hardwood trees
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Table 5
. Site Tree and Height Tree (HGT) measurements by species and DBH.
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Species Group
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DBH (in.)
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Tree Classification
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Num of Height Trees per Plot
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Site Tree Measurement
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Height Tree Measurement
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Pine
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>
3.6
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Total
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Total
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See Stand Map
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Hardwood
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>
4.6
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NA
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4” DOB*
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ALL
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*Refer to Appendix F for 4” top diagram
Stand maps give reference to a number of ‘Height Trees’ to be measured.
This number applies to only PINE
and informs a cruiser of the number of sample pine heights to measure on each plot.
For example, the map for a planted pine stand may state that two (2) ‘Height Trees’ should be collected on each plot. This means, that in addition to the ‘Site Tree’ height measurement, one more height will need to be collected on each plot for a total of two (2) height measurements for each plot
. Cruisers should target trees that are relatively straight and free of major defect (i.e. forks and broken tops). Also, Pine ‘Height Trees’ should represent the varying diameter classes represented in the stand.
Note, ‘Height Trees’ does not apply to hardwood trees.
All hardwood trees
, whether they are in plantations or natural stands,
require height measurements
. The only time a hardwood tree would not have a height measurement is if it has a TQI value 4, cull.
If a pine tree other than the dominant species in the stand (both plantation and natural stands) is encountered in the plot then the first occurrence of this “Other” pine species requires a height measurement. For example, when cruising a planted loblolly stand a natural shortleaf pine is tallied then a height measurement is required (only the first occurrence).
Stopper Heights
Each sample tree should be assessed for stoppers (sawtimber and/or pulpwood). For example, a pine height tree may require only one height which will be a total height measurement, but a hardwood height tree may have a sawtimber stopper height, a pulpwood stopper height, and a 4” DOB height measured because of a forked bole and excessive branching in the crown (Appendix F).
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SST
(Sawtimber Stopper Height) - Enter height to nearest foot where sawtimber merchantability ends. The material above this point will not be used for solid wood material. The minimum length is 16 feet of usable sawtimber potential in the first 24 feet of the tree. TQI 1 trees may have an SST measurement; however, TQI 3 trees should not have an SST measurement because these trees will never have sawtimber potential.
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PST
(Pulpwood Stopper Height) - Enter height to nearest foot where pulpwood merchantability ends. The pulpwood stopper height is the height to the nearest foot where material above this point cannot be used for pulpwood (e.g. broken top pines or decurrent branching in hardwood crowns (Appendix F)). TQI 1 trees and TQI 3 trees can both have a PST.
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Site Tree Designation
One
PINE
site index tree per plot is required in both pine plantations and natural stands. The site index tree chosen should be a dominant or co-dominant crown class sample and represent both the dominant pine species in the stand as well as represent the stand’s age (i.e. not a remnant tree). The tree selected should represent the “site” and preferably free of disease or any major defects (i.e. forks, broken tops, excessive branching, etc.).
For all site index trees, record its
AGE
and its
TOTAL HEIGHT
in the TCruise template.
Note
:
The dominant pine species selected for the site tree should be used throughout the stand (i.e. do not mix species for site index trees).
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Age
- Enter age for ONLY the “Site Index Tree” in years. Stand age is represented from the site tree’s age. Planted pine ages will be on the respective stand map and site trees do not need to be cored unless the cruiser disagrees with the age printed. Verify stand age in natural stands as well.
|
If the cruiser disagrees with the stand age then coring the site tree at breast height and recording the new age is needed. Please do not replace core in the bore hole, but rather tie the core to the site tree flagging on the trunk. Record site tree ages in the Age field of the TCruise template. A minimum of five (5) site trees will need to be cored for age. Notate in the TNote field of the TCruise template that the tree was cored. Site tree ages on other plots can be estimated.
Note
: Recording an age is the only identifier for the Site Index Tree in the template. Please do not omit
.
|
|
•
|
Remn
- Remnant refers to a pine tree left from a previous harvest. This tree represents an older age class in a
planted stand
and needs identifying. If tallied, the cruiser classifies this stem in the ‘Remn’ field of the TCruise template with a “Yes” indicator.
Indicator is applicable to only pine plantations
.
|
|
|
•
|
Defect
- Select from the list the tree defect that represents the downgrade of the stem or influences a ‘HGT’ measurement (Table 6). Note, for any tree that is “jump/junk butted” record the measurement, in feet, in the TNote column.
|
Table 6
. Abbreviations for tree defects.
|
|
|
|
|
Code
|
Tree Note
|
Code
|
Tree Note
|
CR
|
crook
|
BT
|
broken top
|
SW
|
sweep
|
JB
|
jump butt
|
RU
|
rust
|
WH
|
whorl
|
FK
|
fork
|
OT
|
other
|
|
|
•
|
TNote
- Tree level comment.
|
Plot Irregularities
Due to inconsistencies with shapefile stand line edits, cruisers may encounter plots that do not coincide with map layers. Plots may fall entirely out of stand boundaries, in unmapped SMZs, cut areas, etc. We have tried to be proactive and alleviate as much as possible before the inventory but undoubtedly situations will arise. The following examples will answer ways best to handle such encounters; however, if a cruiser gets to an area and cannot determine the best action on how to handle the plot, then please contact ForesTech personnel. With any of these situations, please use your stand maps to notate edits, record new GPS coordinates and use the “Offset” selection in the PlotStatus field of the TCruise template.
Different Forest Type
If sample plots fall in an unmapped area within the stand that is a different forest type than the main stand being cruised, then measure the plots. Use the PNote field to comment as well as make stand map edits. Use the same plot type/size as the main stand.
Unmapped SMZ
Collect the plot where it falls as it relates to an unmapped or mistyped SMZ. These riparian sample areas will be included as valid plots and should not be offset. Use the PNote field to comment as well as make stand map edits. Use the same plot type/size as the main stand.
Plot Falls outside Stand Boundary
If a plot falls clearly outside actual stand boundaries move the plot into the appropriate stand type. Use ‘Offset’ in the PlotStatus field of the TCruise template and record new coordinates if location exceeds the 33 feet tolerance. Move far enough in the stand to not take an edge plot.
Unmapped Utility Corridors / Roads
If a plot falls on the edge or entirely within unmapped transmission lines, ROWs, etc. that are encountered within a stand, then consider these areas as parts of the stand and take the sample plot. Please add a Plot Comment that the plot fell in a utility corridor, etc.
Non-Stocked Areas
If sample plots falls in an area that is non-stocked (including clearcuts), record the plots in the area as ‘No Tally’ plots. Measure all remaining forested plots in the stand. Use the No Tally indicator and the PNote field in the TCruise template to explain. Please monument plot center.
Edge Plots
If a plot falls at the edge of a stand boundary and prevents a plot from being sampled in its entirety, then move the plot to be able to capture a full sample. If the plot needs to be offset by more than the 33 feet allowable tolerance please capture the new GPS coordinates.
Dropped Plots
Drop plots only for safety concerns. Please note why the plot was dropped.
Mistyped Stands
If the entire stand is mistyped, then use the following protocol. Cruisers need to make stand map edits and contact ForesTech with questions if they are uncertain on how to proceed.
Do not cruise
|
|
2.
|
If the stand was intended to be a planted stand and turns out to be a natural stand.
|
Cruise
|
|
1.
|
If a pine plantation was noted as an unthinned (UT) stand and intended to be cruised but was discovered to be thinned (TH). Document in the
Stand Template
Excel document.
|
|
|
2.
|
If the stand was expected to be a natural stand and turns out to be a planted stand - use cruise protocol for forest type. Consult with FTI for sampling intensity.
|
|
|
3.
|
If the stand was a mistyped natural stand. Ex: stand was intended to be a mature Pine Hardwood stand and turns out be a mature Bottomland.
|
TCruise Error Checks Setting
In order for TCruise to accept sawtimber stopper height measurements on smaller diameter stems, the error check setting for merchantable height - top should be
unchecked
. After loading the TCruise template at the stand level, select ‘Opts’ then ‘Error Checks’. Next, deselect ‘Merchantable height - top’ (Figure 5).
TCruise Error Check
Figure 5
. TCruise Error Checks setting.
QUALITY CONTROL
Check cruising will follow the scoring system in Table 7. A cruiser’s understanding of the job control document will be scrutinized. Check cruising is to be used as a teaching tool to ensure that the cruise instructions and measurement standards are understood and the data collection is consistent from cruiser to cruiser.
Table 7
. Check cruising tolerances for accepting/rejecting a cruiser’s work.
|
|
|
|
|
|
|
Stand Penalties
|
Penalty
1
|
Penalty
2
|
Tolerance
|
Measurement
|
Additional Penalty Comments
|
Plot Type and Size Selection
1
|
10
|
-
|
-
|
N/A
|
None
|
|
|
|
|
|
|
|
Stand Penalties
|
Penalty
1
|
Penalty
2
|
Tolerance
|
Measurement
|
Additional Penalty Comments
|
Plot Type and Size Selection
1
|
10
|
-
|
-
|
N/A
|
None
|
Plot Flagged Correctly
|
5
|
-
|
-
|
N/A
|
None
|
Woody Comp
|
2
|
-
|
1
|
N/A
|
None
|
|
|
|
|
|
|
|
Stand Penalties
|
Penalty
1
|
Penalty
2
|
Tolerance
|
Measurement
|
Additional Penalty Comments
|
MissedAdded Tree
|
8
|
-
|
0.3
|
feet
|
None
|
SpeciesPenalty
|
3
|
-
|
-
|
species
|
None
|
DBH
|
2
|
-
|
0.4
|
inches
|
None
|
TQIPenalty
|
1
|
-
|
-
|
N/A
|
None
|
Missed/Add Saw Stop
|
2
|
-
|
5
|
feet
|
None
|
Missed/Add Pulp Stop
|
2
|
-
|
5
|
feet
|
None
|
Heights (Pine Site Trees)
|
2
|
0.5
|
3
|
feet
|
0.5*ft outside tolerance
|
Heights (All Pine)
|
1
|
0.25
|
5
|
feet
|
0.25*ft outside tolerance
|
Heights (Hardwoods)
|
1
|
0.25
|
8
|
feet
|
0.25*ft outside tolerance
|
SiteTreeAge
|
1
|
-
|
2
|
years
|
None
|
Remn Penalty (Remnant)
|
1
|
-
|
-
|
Indicator variable
|
None
|
1
Plot Type and Size Selection - cruiser will be penalized if auditor disagrees with BAF selection. For example, cruiser selected a BAF20 in a thinned pine plantation and not able to average a minimum of 6 trees per plots. The check cruiser felt that a BAF10 should have been selected. Please use the comments in TCRUISE (PNote) to explain your decision process.
2
Penalty 2 - this is an additional point penalty that applies if the recorded measurement is out of tolerance. For example, if the check cruise determines that a pine tree height is 10 feet off, the penalty would be 2.25 points. One point for being
>
5 feet different plus 1.25 points (10’ - 5’ = 5’ x 0.25 points = 1.25 points).
Stands will be assessed based on a batch of three plots per stand. The total point deduction will be calculated on each plot. Then, the simple average of the point deduction is calculated across the three plot batch. This yields the average point deduction per plot. If there was a stand deduction, it is added to the average point deduction per plot. This yields the total point deduction for the stand. Using a scale of 100, if the total point value in the stand is
>
80, the stand passes. Table 8 shows an example calculation. In the example, the average point deduction per plot = 17.2. There was no stand level penalty added, so the total point deduction for the stand = 17.2. The stand would pass since 100 - 17.2 = 82.8 which is
>
80.
Table 8
. Example Check Cruising Analysis
|
|
|
|
Stand
|
Plot
|
Plot and Tree Penalties
|
1
|
1
|
19.3
|
1
|
2
|
24.3
|
1
|
3
|
8.0
|
Average Penalty
|
17.2
|
Stand Level Penalty
|
-
|
Total Penalty
|
17.2
|
Check cruising is part of a larger quality control effort, which also includes the following:
|
|
1.
|
Sufficient training
of all cruisers at the start of a project to ensure that the cruise instructions, measurement standards, and other protocols are understood, and that work will be consistent from cruiser to cruiser.
|
|
|
2.
|
Actions in the event of substandard work by any cruiser, including:
|
|
|
a.
|
On-site training of cruisers and review of the instructions and protocols.
|
|
|
b.
|
Return to cruised plots in the audited stand to redo some or all measurements.
|
|
|
c.
|
Removal of a cruiser from the project.
|
Work that is deemed as unacceptable will require the check-cruiser to decide how much of the cruiser’s work must be discarded and redone. To minimize the likelihood of rejecting a large amount of work, check cruising will be done frequently, and results will be shared with the cruiser in a timely manner.
In addition to the check cruising, we will also be reviewing the cruise data to determine the following:
|
|
1.
|
Total height measurement distribution across pine tree diameter classes.
|
|
|
2.
|
Average number of trees per plot. This will be used to determine if too many or too few trees are being measured.
|
|
|
3.
|
Plantation age is consistent with inventory data.
|
Appendix A
BAF 10 Limiting Distance Table
Limiting Distance for Tree Inclusion w/ Point Cruising
(BAF 10 Prism in Feet -- Multiplier Value of 2.750)
DBH Tenths of an Inch
|
|
|
|
|
|
|
|
|
|
|
|
DBH
|
0
|
0.1
|
0.2
|
0.3
|
0.4
|
0.5
|
0.6
|
0.7
|
0.8
|
0.9
|
0
|
0.0
|
0.3
|
0.6
|
0.8
|
1.1
|
1.4
|
1.7
|
1.9
|
2.2
|
2.5
|
1
|
2.8
|
3.0
|
3.3
|
3.6
|
3.9
|
4.1
|
4.4
|
4.7
|
5.0
|
5.2
|
2
|
5.5
|
5.8
|
6.1
|
6.3
|
6.6
|
6.9
|
7.2
|
7.4
|
7.7
|
8.0
|
3
|
8.3
|
8.5
|
8.8
|
9.1
|
9.4
|
9.6
|
9.9
|
10.2
|
10.5
|
10.7
|
4
|
11.0
|
11.3
|
11.6
|
11.8
|
12.1
|
12.4
|
12.7
|
12.9
|
13.2
|
13.5
|
5
|
13.8
|
14.0
|
14.3
|
14.6
|
14.9
|
15.1
|
15.4
|
15.7
|
16.0
|
16.2
|
6
|
16.5
|
16.8
|
17.1
|
17.3
|
17.6
|
17.9
|
18.2
|
18.4
|
18.7
|
19.0
|
7
|
19.3
|
19.5
|
19.8
|
20.1
|
20.4
|
20.6
|
20.9
|
21.2
|
21.5
|
21.7
|
8
|
22.0
|
22.3
|
22.6
|
22.8
|
23.1
|
23.4
|
23.7
|
23.9
|
24.2
|
24.5
|
9
|
24.8
|
25.0
|
25.3
|
25.6
|
25.9
|
26.1
|
26.4
|
26.7
|
27.0
|
27.2
|
10
|
27.5
|
27.8
|
28.1
|
28.3
|
28.6
|
28.9
|
29.2
|
29.4
|
29.7
|
30.0
|
11
|
30.3
|
30.5
|
30.8
|
31.1
|
31.4
|
31.6
|
31.9
|
32.2
|
32.5
|
32.7
|
12
|
33.0
|
33.3
|
33.6
|
33.8
|
34.1
|
34.4
|
34.7
|
34.9
|
35.2
|
35.5
|
13
|
35.8
|
36.0
|
36.3
|
36.6
|
36.9
|
37.1
|
37.4
|
37.7
|
38.0
|
38.2
|
14
|
38.5
|
38.8
|
39.1
|
39.3
|
39.6
|
39.9
|
40.2
|
40.4
|
40.7
|
41.0
|
15
|
41.3
|
41.5
|
41.8
|
42.1
|
42.4
|
42.6
|
42.9
|
43.2
|
43.5
|
43.7
|
16
|
44.0
|
44.3
|
44.6
|
44.8
|
45.1
|
45.4
|
45.7
|
45.9
|
46.2
|
46.5
|
17
|
46.8
|
47.0
|
47.3
|
47.6
|
47.9
|
48.1
|
48.4
|
48.7
|
49.0
|
49.2
|
18
|
49.5
|
49.8
|
50.1
|
50.3
|
50.6
|
50.9
|
51.2
|
51.4
|
51.7
|
52.0
|
19
|
52.3
|
52.5
|
52.8
|
53.1
|
53.4
|
53.6
|
53.9
|
54.2
|
54.5
|
54.7
|
20
|
55.0
|
55.3
|
55.6
|
55.8
|
56.1
|
56.4
|
56.7
|
56.9
|
57.2
|
57.5
|
21
|
57.8
|
58.0
|
58.3
|
58.6
|
58.9
|
59.1
|
59.4
|
59.7
|
60.0
|
60.2
|
22
|
60.5
|
60.8
|
61.1
|
61.3
|
61.6
|
61.9
|
62.2
|
62.4
|
62.7
|
63.0
|
23
|
63.3
|
63.5
|
63.8
|
64.1
|
64.4
|
64.6
|
64.9
|
65.2
|
65.5
|
65.7
|
24
|
66.0
|
66.3
|
66.6
|
66.8
|
67.1
|
67.4
|
67.7
|
67.9
|
68.2
|
68.5
|
25
|
68.8
|
69.0
|
69.3
|
69.6
|
69.9
|
70.1
|
70.4
|
70.7
|
71.0
|
71.2
|
26
|
71.5
|
71.8
|
72.1
|
72.3
|
72.6
|
72.9
|
73.2
|
73.4
|
73.7
|
74.0
|
27
|
74.3
|
74.5
|
74.8
|
75.1
|
75.4
|
75.6
|
75.9
|
76.2
|
76.5
|
76.7
|
28
|
77.0
|
77.3
|
77.6
|
77.8
|
78.1
|
78.4
|
78.7
|
78.9
|
79.2
|
79.5
|
29
|
79.8
|
80.0
|
80.3
|
80.6
|
80.9
|
81.1
|
81.4
|
81.7
|
82.0
|
82.2
|
30
|
82.5
|
82.8
|
83.1
|
83.3
|
83.6
|
83.9
|
84.2
|
84.4
|
84.7
|
85.0
|
31
|
85.3
|
85.5
|
85.8
|
86.1
|
86.4
|
86.6
|
86.9
|
87.2
|
87.5
|
87.7
|
32
|
88.0
|
88.3
|
88.6
|
88.8
|
89.1
|
89.4
|
89.7
|
89.9
|
90.2
|
90.5
|
33
|
90.8
|
91.0
|
91.3
|
91.6
|
91.9
|
92.1
|
92.4
|
92.7
|
93.0
|
93.2
|
34
|
93.5
|
93.8
|
94.1
|
94.3
|
94.6
|
94.9
|
95.2
|
95.4
|
95.7
|
96.0
|
35
|
96.3
|
96.5
|
96.8
|
97.1
|
97.4
|
97.6
|
97.9
|
98.2
|
98.5
|
98.7
|
36
|
99.0
|
99.3
|
99.6
|
99.8
|
100.1
|
100.4
|
100.7
|
100.9
|
101.2
|
101.5
|
37
|
101.8
|
102.0
|
102.3
|
102.6
|
102.9
|
103.1
|
103.4
|
103.7
|
104.0
|
104.2
|
38
|
104.5
|
104.8
|
105.1
|
105.3
|
105.6
|
105.9
|
106.2
|
106.4
|
106.7
|
107.0
|
39
|
107.3
|
107.5
|
107.8
|
108.1
|
108.4
|
108.6
|
108.9
|
109.2
|
109.5
|
109.7
|
40
|
110.0
|
110.3
|
110.6
|
110.8
|
111.1
|
111.4
|
111.7
|
111.9
|
112.2
|
112.5
|
Appendix B
BAF 15 Limiting Distance Table
Limiting Distance for Tree Inclusion w/ Point Cruising
(BAF 15 Prism in Feet -- Multiplier Value of 2.245)
DBH Tenths of an Inch
|
|
|
|
|
|
|
|
|
|
|
|
DBH
|
0
|
0.1
|
0.2
|
0.3
|
0.4
|
0.5
|
0.6
|
0.7
|
0.8
|
0.9
|
0
|
0.0
|
0.2
|
0.4
|
0.7
|
0.9
|
1.1
|
1.3
|
1.6
|
1.8
|
2.0
|
1
|
2.2
|
2.5
|
2.7
|
2.9
|
3.1
|
3.4
|
3.6
|
3.8
|
4.0
|
4.3
|
2
|
4.5
|
4.7
|
4.9
|
5.2
|
5.4
|
5.6
|
5.8
|
6.1
|
6.3
|
6.5
|
3
|
6.7
|
7.0
|
7.2
|
7.4
|
7.6
|
7.9
|
8.1
|
8.3
|
8.5
|
8.8
|
4
|
9.0
|
9.2
|
9.4
|
9.7
|
9.9
|
10.1
|
10.3
|
10.6
|
10.8
|
11.0
|
5
|
11.2
|
11.4
|
11.7
|
11.9
|
12.1
|
12.3
|
12.6
|
12.8
|
13.0
|
13.2
|
6
|
13.5
|
13.7
|
13.9
|
14.1
|
14.4
|
14.6
|
14.8
|
15.0
|
15.3
|
15.5
|
7
|
15.7
|
15.9
|
16.2
|
16.4
|
16.6
|
16.8
|
17.1
|
17.3
|
17.5
|
17.7
|
8
|
18.0
|
18.2
|
18.4
|
18.6
|
18.9
|
19.1
|
19.3
|
19.5
|
19.8
|
20.0
|
9
|
20.2
|
20.4
|
20.7
|
20.9
|
21.1
|
21.3
|
21.6
|
21.8
|
22.0
|
22.2
|
10
|
22.5
|
22.7
|
22.9
|
23.1
|
23.3
|
23.6
|
23.8
|
24.0
|
24.2
|
24.5
|
11
|
24.7
|
24.9
|
25.1
|
25.4
|
25.6
|
25.8
|
26.0
|
26.3
|
26.5
|
26.7
|
12
|
26.9
|
27.2
|
27.4
|
27.6
|
27.8
|
28.1
|
28.3
|
28.5
|
28.7
|
29.0
|
13
|
29.2
|
29.4
|
29.6
|
29.9
|
30.1
|
30.3
|
30.5
|
30.8
|
31.0
|
31.2
|
14
|
31.4
|
31.7
|
31.9
|
32.1
|
32.3
|
32.6
|
32.8
|
33.0
|
33.2
|
33.5
|
15
|
33.7
|
33.9
|
34.1
|
34.3
|
34.6
|
34.8
|
35.0
|
35.2
|
35.5
|
35.7
|
16
|
35.9
|
36.1
|
36.4
|
36.6
|
36.8
|
37.0
|
37.3
|
37.5
|
37.7
|
37.9
|
17
|
38.2
|
38.4
|
38.6
|
38.8
|
39.1
|
39.3
|
39.5
|
39.7
|
40.0
|
40.2
|
18
|
40.4
|
40.6
|
40.9
|
41.1
|
41.3
|
41.5
|
41.8
|
42.0
|
42.2
|
42.4
|
19
|
42.7
|
42.9
|
43.1
|
43.3
|
43.6
|
43.8
|
44.0
|
44.2
|
44.5
|
44.7
|
20
|
44.9
|
45.1
|
45.3
|
45.6
|
45.8
|
46.0
|
46.2
|
46.5
|
46.7
|
46.9
|
21
|
47.1
|
47.4
|
47.6
|
47.8
|
48.0
|
48.3
|
48.5
|
48.7
|
48.9
|
49.2
|
22
|
49.4
|
49.6
|
49.8
|
50.1
|
50.3
|
50.5
|
50.7
|
51.0
|
51.2
|
51.4
|
23
|
51.6
|
51.9
|
52.1
|
52.3
|
52.5
|
52.8
|
53.0
|
53.2
|
53.4
|
53.7
|
24
|
53.9
|
54.1
|
54.3
|
54.6
|
54.8
|
55.0
|
55.2
|
55.5
|
55.7
|
55.9
|
25
|
56.1
|
56.3
|
56.6
|
56.8
|
57.0
|
57.2
|
57.5
|
57.7
|
57.9
|
58.1
|
26
|
58.4
|
58.6
|
58.8
|
59.0
|
59.3
|
59.5
|
59.7
|
59.9
|
60.2
|
60.4
|
27
|
60.6
|
60.8
|
61.1
|
61.3
|
61.5
|
61.7
|
62.0
|
62.2
|
62.4
|
62.6
|
28
|
62.9
|
63.1
|
63.3
|
63.5
|
63.8
|
64.0
|
64.2
|
64.4
|
64.7
|
64.9
|
29
|
65.1
|
65.3
|
65.6
|
65.8
|
66.0
|
66.2
|
66.5
|
66.7
|
66.9
|
67.1
|
30
|
67.4
|
67.6
|
67.8
|
68.0
|
68.2
|
68.5
|
68.7
|
68.9
|
69.1
|
69.4
|
31
|
69.6
|
69.8
|
70.0
|
70.3
|
70.5
|
70.7
|
70.9
|
71.2
|
71.4
|
71.6
|
32
|
71.8
|
72.1
|
72.3
|
72.5
|
72.7
|
73.0
|
73.2
|
73.4
|
73.6
|
73.9
|
33
|
74.1
|
74.3
|
74.5
|
74.8
|
75.0
|
75.2
|
75.4
|
75.7
|
75.9
|
76.1
|
34
|
76.3
|
76.6
|
76.8
|
77.0
|
77.2
|
77.5
|
77.7
|
77.9
|
78.1
|
78.4
|
35
|
78.6
|
78.8
|
79.0
|
79.2
|
79.5
|
79.7
|
79.9
|
80.1
|
80.4
|
80.6
|
36
|
80.8
|
81.0
|
81.3
|
81.5
|
81.7
|
81.9
|
82.2
|
82.4
|
82.6
|
82.8
|
37
|
83.1
|
83.3
|
83.5
|
83.7
|
84.0
|
84.2
|
84.4
|
84.6
|
84.9
|
85.1
|
38
|
85.3
|
85.5
|
85.8
|
86.0
|
86.2
|
86.4
|
86.7
|
86.9
|
87.1
|
87.3
|
39
|
87.6
|
87.8
|
88.0
|
88.2
|
88.5
|
88.7
|
88.9
|
89.1
|
89.4
|
89.6
|
40
|
89.8
|
90.0
|
90.2
|
90.5
|
90.7
|
90.9
|
91.1
|
91.4
|
91.6
|
91.8
|
Appendix C
BAF 20 Limiting Distance Table
Limiting Distance for Tree Inclusion w/ Point Cruising
(BAF 20 Prism in Feet -- Multiplier Value of 1.944)
DBH Tenths of an Inch
|
|
|
|
|
|
|
|
|
|
|
|
DBH
|
0
|
0.1
|
0.2
|
0.3
|
0.4
|
0.5
|
0.6
|
0.7
|
0.8
|
0.9
|
0
|
0.0
|
0.2
|
0.4
|
0.6
|
0.8
|
1.0
|
1.2
|
1.4
|
1.6
|
1.7
|
1
|
1.9
|
2.1
|
2.3
|
2.5
|
2.7
|
2.9
|
3.1
|
3.3
|
3.5
|
3.7
|
2
|
3.9
|
4.1
|
4.3
|
4.5
|
4.7
|
4.9
|
5.1
|
5.2
|
5.4
|
5.6
|
3
|
5.8
|
6.0
|
6.2
|
6.4
|
6.6
|
6.8
|
7.0
|
7.2
|
7.4
|
7.6
|
4
|
7.8
|
8.0
|
8.2
|
8.4
|
8.6
|
8.7
|
8.9
|
9.1
|
9.3
|
9.5
|
5
|
9.7
|
9.9
|
10.1
|
10.3
|
10.5
|
10.7
|
10.9
|
11.1
|
11.3
|
11.5
|
6
|
11.7
|
11.9
|
12.1
|
12.2
|
12.4
|
12.6
|
12.8
|
13.0
|
13.2
|
13.4
|
7
|
13.6
|
13.8
|
14.0
|
14.2
|
14.4
|
14.6
|
14.8
|
15.0
|
15.2
|
15.4
|
8
|
15.6
|
15.7
|
15.9
|
16.1
|
16.3
|
16.5
|
16.7
|
16.9
|
17.1
|
17.3
|
9
|
17.5
|
17.7
|
17.9
|
18.1
|
18.3
|
18.5
|
18.7
|
18.9
|
19.1
|
19.2
|
10
|
19.4
|
19.6
|
19.8
|
20.0
|
20.2
|
20.4
|
20.6
|
20.8
|
21.0
|
21.2
|
11
|
21.4
|
21.6
|
21.8
|
22.0
|
22.2
|
22.4
|
22.6
|
22.7
|
22.9
|
23.1
|
12
|
23.3
|
23.5
|
23.7
|
23.9
|
24.1
|
24.3
|
24.5
|
24.7
|
24.9
|
25.1
|
13
|
25.3
|
25.5
|
25.7
|
25.9
|
26.0
|
26.2
|
26.4
|
26.6
|
26.8
|
27.0
|
14
|
27.2
|
27.4
|
27.6
|
27.8
|
28.0
|
28.2
|
28.4
|
28.6
|
28.8
|
29.0
|
15
|
29.2
|
29.4
|
29.5
|
29.7
|
29.9
|
30.1
|
30.3
|
30.5
|
30.7
|
30.9
|
16
|
31.1
|
31.3
|
31.5
|
31.7
|
31.9
|
32.1
|
32.3
|
32.5
|
32.7
|
32.9
|
17
|
33.0
|
33.2
|
33.4
|
33.6
|
33.8
|
34.0
|
34.2
|
34.4
|
34.6
|
34.8
|
18
|
35.0
|
35.2
|
35.4
|
35.6
|
35.8
|
36.0
|
36.2
|
36.4
|
36.5
|
36.7
|
19
|
36.9
|
37.1
|
37.3
|
37.5
|
37.7
|
37.9
|
38.1
|
38.3
|
38.5
|
38.7
|
20
|
38.9
|
39.1
|
39.3
|
39.5
|
39.7
|
39.9
|
40.0
|
40.2
|
40.4
|
40.6
|
21
|
40.8
|
41.0
|
41.2
|
41.4
|
41.6
|
41.8
|
42.0
|
42.2
|
42.4
|
42.6
|
22
|
42.8
|
43.0
|
43.2
|
43.4
|
43.5
|
43.7
|
43.9
|
44.1
|
44.3
|
44.5
|
23
|
44.7
|
44.9
|
45.1
|
45.3
|
45.5
|
45.7
|
45.9
|
46.1
|
46.3
|
46.5
|
24
|
46.7
|
46.9
|
47.0
|
47.2
|
47.4
|
47.6
|
47.8
|
48.0
|
48.2
|
48.4
|
25
|
48.6
|
48.8
|
49.0
|
49.2
|
49.4
|
49.6
|
49.8
|
50.0
|
50.2
|
50.3
|
26
|
50.5
|
50.7
|
50.9
|
51.1
|
51.3
|
51.5
|
51.7
|
51.9
|
52.1
|
52.3
|
27
|
52.5
|
52.7
|
52.9
|
53.1
|
53.3
|
53.5
|
53.7
|
53.8
|
54.0
|
54.2
|
28
|
54.4
|
54.6
|
54.8
|
55.0
|
55.2
|
55.4
|
55.6
|
55.8
|
56.0
|
56.2
|
29
|
56.4
|
56.6
|
56.8
|
57.0
|
57.2
|
57.3
|
57.5
|
57.7
|
57.9
|
58.1
|
30
|
58.3
|
58.5
|
58.7
|
58.9
|
59.1
|
59.3
|
59.5
|
59.7
|
59.9
|
60.1
|
31
|
60.3
|
60.5
|
60.7
|
60.8
|
61.0
|
61.2
|
61.4
|
61.6
|
61.8
|
62.0
|
32
|
62.2
|
62.4
|
62.6
|
62.8
|
63.0
|
63.2
|
63.4
|
63.6
|
63.8
|
64.0
|
33
|
64.2
|
64.3
|
64.5
|
64.7
|
64.9
|
65.1
|
65.3
|
65.5
|
65.7
|
65.9
|
34
|
66.1
|
66.3
|
66.5
|
66.7
|
66.9
|
67.1
|
67.3
|
67.5
|
67.7
|
67.8
|
35
|
68.0
|
68.2
|
68.4
|
68.6
|
68.8
|
69.0
|
69.2
|
69.4
|
69.6
|
69.8
|
36
|
70.0
|
70.2
|
70.4
|
70.6
|
70.8
|
71.0
|
71.2
|
71.3
|
71.5
|
71.7
|
37
|
71.9
|
72.1
|
72.3
|
72.5
|
72.7
|
72.9
|
73.1
|
73.3
|
73.5
|
73.7
|
38
|
73.9
|
74.1
|
74.3
|
74.5
|
74.6
|
74.8
|
75.0
|
75.2
|
75.4
|
75.6
|
39
|
75.8
|
76.0
|
76.2
|
76.4
|
76.6
|
76.8
|
77.0
|
77.2
|
77.4
|
77.6
|
40
|
77.8
|
78.0
|
78.1
|
78.3
|
78.5
|
78.7
|
78.9
|
79.1
|
79.3
|
79.5
|
Appendix D
DBH Measurements
Appendix E
Crown Classes
Appendix F
Estimating 4 Inch Top in Hardwood Trees with Decurrent Branching
Appendix G
Hardwood Groupings
|
|
|
|
|
|
|
|
Species
|
General Species
|
Type
|
|
Species
|
General Species
|
Type
|
American Holly
|
Hard Hardwoods, Other
|
Hard Hardwood
|
|
American Elm
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Birch Sp.
|
Hard Hardwoods, Other
|
Hard Hardwood
|
|
Black Cherry
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Black Locust
|
Hard Hardwoods, Other
|
Hard Hardwood
|
|
Black Willow
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Black Oak
|
Red Oaks, Other
|
Hard Hardwood
|
|
Boxelder
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Blackjack Oak
|
Red Oaks, Other
|
Hard Hardwood
|
|
Cypress
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Cherrybark Oak
|
Red Oaks, Select
|
Hard Hardwood
|
|
Elm
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Chestnut Oak
|
White Oaks, Other
|
Hard Hardwood
|
|
Gray Birch
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Chinkapin Oak
|
White Oaks, Select
|
Hard Hardwood
|
|
Hackberry
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Common Persimmon
|
Hard Hardwoods, Other
|
Hard Hardwood
|
|
Hackberry Sp.
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Flowering Dogwood
|
Hard Hardwoods, Other
|
Hard Hardwood
|
|
Magnolia Sp.
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Honeylocust
|
Hard Hardwoods, Other
|
Hard Hardwood
|
|
Paper Birch
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Laurel Oak
|
Red Oaks, Other
|
Hard Hardwood
|
|
Redbay
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Live Oak
|
White Oaks, Other
|
Hard Hardwood
|
|
River Birch
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Northern Red Oak
|
Red Oaks, Select
|
Hard Hardwood
|
|
Sassafras
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Nuttall Oak
|
Red Oaks, Other
|
Hard Hardwood
|
|
Slippery Elm
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Overcup Oak
|
White Oaks, Other
|
Hard Hardwood
|
|
Southern Magnolia
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Pin Oak
|
Red Oaks, Other
|
Hard Hardwood
|
|
Sugarberry
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Post Oak
|
White Oaks, Other
|
Hard Hardwood
|
|
Sweetbay
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Red Mulberry
|
Hard Hardwoods, Other
|
Hard Hardwood
|
|
Sycamore
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Rock Elm
|
Hard Hardwoods, Other
|
Hard Hardwood
|
|
Willow
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Scarlet Oak
|
Red Oaks, Other
|
Hard Hardwood
|
|
Winged Elm
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Shumard Oak
|
Red Oaks, Select
|
Hard Hardwood
|
|
Yellow Buckeye
|
Soft Hardwoods, Other
|
Soft Hardwood
|
Southern Red Oak
|
Red Oaks, Other
|
Hard Hardwood
|
|
|
|
|
Swamp Chestnut Oak
|
White Oaks, Select
|
Hard Hardwood
|
|
|
|
|
Swamp White Oak
|
White Oaks, Select
|
Hard Hardwood
|
|
|
|
|
Sweet Birch
|
Hard Hardwoods, Other
|
Hard Hardwood
|
|
|
|
|
Water Oak
|
Red Oaks, Other
|
Hard Hardwood
|
|
|
|
|
White Mulberry
|
Hard Hardwoods, Other
|
Hard Hardwood
|
|
|
|
|
White Oak
|
White Oaks, Select
|
Hard Hardwood
|
|
|
|
|
Willow Oak
|
Red Oaks, Other
|
Hard Hardwood
|
|
|
|
|
Noncommercial species to be considered in woody competition assessment
.
(Not to be tallied as Hardwood)
|
|
|
|
|
|
Species
|
General Species
|
|
Species
|
General Species
|
Bamboo
|
noncommercial
|
|
Sparkleberry
|
noncommercial
|
Gallberry
|
noncommercial
|
|
Tallow Tree
|
noncommercial
|
Palmetto spp.
|
noncommercial
|
|
Titi
|
noncommercial
|
Privet
|
noncommercial
|
|
Wax myrtle
|
noncommercial
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Redbud
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noncommercial
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Yaupon
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noncommercial
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Sabal palm
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noncommercial
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SiMS 2012 Suite of Software Products - Growth Model Documentation
Stand Type Growth Modules Currently Available Within SiMS_2012
Cutover Loblolly Pine (
Pinus taeda
L.) Plantations (Southeast)
Cutover Loblolly Pine (
Pinus taeda
L.) Plantations (West Gulf)
Oldfield Loblolly Pine (
Pinus taeda
L.) Plantations (CRP type stands)
Cutover Slash Pine (
Pinus elliottii
Engelm) Plantations (Southeast)
Cutover Slash Pine (
Pinus elliottii
Engelm) Plantations (West Gulf)
Oldfield Slash Pine (
Pinus elliottii
Engelm) Plantations (CRP type stands)
Longleaf Pine (
Pinus palustris
Mill.) Plantations
Natural Loblolly Pine (
Pinus taeda
L.) Stands
Natural Slash Pine (
Pinus elliottii
Engelm) Stands
Natural Longleaf Pine (
Pinus palustris
Mill.) Stands
Natural Mixed Pine-Hardwood Stands
Natural Mixed Hardwood Stands
Sand Pine (
Pinus clausa
) Plantations
Detailed discussion of model architecture along with references is given below for each of the growth modules.
Modeling Architecture
The underlying modeling architecture used in SiMS_2012 products is described as a hybrid modeling system that makes use of the best traits of both whole-stand and individual-tree models. Whole-stand models are used to predict and project estimates of surviving stems/acre, stand dominant height (ft) and stand basal area (ft
2
/acre). If the user does not have a current estimate of the associated stand table then a stand table is predicted using a Weibull (Bailey and Dell 1973) probability distribution function or percentile-based system developed for the stand type in question. See individual stand type model descriptions below for specific citations. If a stand table is available from a cruise then this stand table is input into the SiMS_2012 system and a projection is made from this beginning stand table using generalized stand table projection methodology of Pienaar and Harrison (1988). This procedure projects from the current stand table condition to the expected future stand table condition such that the projected stand table is compatible with the projected whole stand estimates of stems/acre and basal area/acre. Once a predicted and/or projected stand table is available, a height – diameter function is used to obtain heights for each diameter class. Diameter class volume and/or weight per acre is then obtained using individual tree volume and/or weight equations appropriate for the stand type.
Growth projections for thinned stands are accomplished using the concept of a competition index originally presented by O’Connor (1935) modified by Pienaar (1979) and discussed by Harrison and Borders (1996). This methodology makes use a an “unthinned counterpart” to project growth for thinned stands and assures that projections are logical and reasonable relative to expected development of unthinned stands (the case which is best understood).
Growth responses to cultural treatments such as chemical site preparation (based on expected residual hardwood levels), mechanical site preparation treatments that improve tillage (e.g. ripping, bedding, etc.), herbaceous weed control, woody understory release, level of genetic improvement in seedlings used for plantation establishment, and fertilization are obtained using the approach of Pienaar and Rheney (1995).
This approach makes use of an additive growth response term that is used with whole-stand models for dominant height and stand basal area. This approach is very flexible and, based on ForesTech’s proprietary modifications of Pienaar and Rheney’s (1995) published approach, can be used to model expected stand response for treatments that exhibit different long-term response patterns (e.g. 1: treatments that are expected to show increased growth relative to untreated conditions for some number of years after which the cumulated difference between treated and untreated stands is expected to dissipate, 2: treatments that are expected to show an increased growth rate relative to untreated conditions for some number of years and then maintain the cumulated difference through the rotation). Note that ForesTech personnel have been instrumental in the development of this modeling architecture (which is used in many proprietary models developed by individual forest products companies and organizations) and have modified the approach to be consistent with the best understanding available concerning expected responses to silvicultural treatments used singly and in various combinations. Proprietary modifications that adjust expected treatment responses relative to underlying site quality and expected understory competition levels are also built into the system. All silvicultural treatment adjustments are based on the latest information from studies across the southeastern U.S. (e.g. Martin
et al.
1999, Amateis
et al
. 2000, NCSFNC 2000, Borders and Bailey 2001, Lauer and Zutter, 2001, Martin and Shiver 2002, Martin and Shiver 2002, NCSFNC 2002, Miller
et al
. 2003).
Individual Stand Type Models
When searching the scientific literature for growth and yield systems for various stand types that are managed in the southern U.S. it is rare to find complete systems that allow for the capability and flexibility to make projections under various types of management. Typically, pieces of complete growth and yield systems are developed and published separately by various individuals and organizations. Such individual growth and yield model components are often times not only published separately by different individuals and organizations but they are calibrated with different data. This “piece meal” model development and publication makes for many problems in implementation and logical growth and yield prediction and projection capability. For example, many models have been developed for dominant height development of loblolly pine plantations in the southern U.S. However, they all exhibit different characteristics and can lead to very different projections of dominant height development for the same stand. Furthermore, when growth projections of various species are made using models taken “as is” from the literature many illogical results can be obtained if one chooses to compare projections for the various stand types. For example, for a given set of stand conditions a model for a longleaf pine plantation may project a stand characteristic such as dominant height or basal area/acre that is totally illogical when compared to what actually happens on the ground in longleaf pine stands and/or when compared to what happens in a loblolly pine stand on a similar site with similar management. This is because both the model form and associated parameter estimates (and hence model behavior) are unique to the data used for model development and calibration. Since data available for model development and calibration are limited to the specific set of conditions represented by the data then many situations exist for which growth projections represent extrapolations of both the model form and the data used to calibrate the model.
Prior to the development of the SiMS_2012 system the problem of illogical projections of individual stands as well as illogical properties of how projections of one stand type relate to other stand types have been ignored. However, with the expertise of ForesTech personnel we have modified base model forms taken from the literature and built a modeling architecture that produces growth and yield projections of individual stands that are logical across a wide array of stand conditions and cultural treatments as well as among
stand types. These proprietary modifications and modeling approaches make the SiMS_2012 system the most powerful and realistic growth and yield simulator available for southern pine stand types.
Literature Cited
Amateis, R.L., J. Liu, M.J. Ducey, and H. Lee Allen. 2000. Modeling response to midrotation nitrogen and phosphorous fertilization in loblolly pine plantations. Southern Journal of Applied Forestry 24(4):207-212.
Bailey, R.L. and T.R. Dell. 1973. Quantifying diameter distributions with the Weibull function. Forest Science19:97-104.
Borders, B.E. and R.L. Bailey. 2001. Loblolly pine – pushing the limits of growth. Southern Journal of Applied Forestry 25(2): 69-74.
Harrison, W.M. and B.E. Borders. 1996. Yield prediction and growth projection for site-prepared loblolly pine plantations in the Carolinas, Georgia, Alabama, and Florida. PMRC Technical Report 1996-1. D.B. Warnell School of Forest Resources. The University of Georgia. Athens, GA. 59pp.
Lauer, D.K. and B.R. Zutter. 2001. Vegetation cover response and second-year loblolly and slash pine response following bedding and pre- and post-plant herbicide applications in Florida. Southern Journal of Applied Forestry 25(2):75-83.
O’Connor, A.J. 1935. Forest research with special reference to planting densities and thinning. Br. Emp. For. Conf. South Africa. 30pp.
Martin, S.W., R.L. Bailey, and E.J. Jokela. 1999. Growth and yield predictions for lower coastal plain slash pine plantations fertilized at mid-rotation. Southern Journal of Applied Forestry 23(1):39-45.
Martin, S.W. and B.D. Shiver. 2002. Impacts of vegetation control, genetic improvement and their interaction on loblolly pine growth in the southern United States – age 12 results. Southern Journal of Applied Forestry 26(1):37-42.
Martin, S.W. and B.D. Shiver, B.D. 2002. Twelve-year results of a loblolly site preparation study in the piedmont and upper coastal plain of South Carolina, Georgia, and Alabama. Southern Journal of Applied Forestry 26(1):32-36.
Miller, J.H., B.R. Zutter, S.M. Zedaker, M.B. Edwards, and R.A. Newbold. 2003. Growth and yield relative to competition for loblolly pine plantations to midrotation – a southeastern United States regional study. Southern Journal of Applied Forestry 27(4): 237-252.
NCSFNC. 2000. Eight-Year Responses of Young Loblolly Pine to Nitrogen, Phosphorus, and Potassium Fertilization. NCSFNC Report No. 45. Dept. of Forestry. North Carolina State Univ., Raleigh, NC.
NCSFNC. 2002 Responses to Nutrient Additions in Young Loblolly Pine Plantations: Regionwide 18 Third Report. NCSFNC Report No. 49. Dept. of Forestry. North Carolina State Univ., Raleigh, NC.
Pienaar, L.V. 1979. An approximation of basal area growth after thinning based on growth in unthinned plantations. Forest Science 25(2): 223-232.
Pienaar, L.V. and W.M. Harrison. 1988. A stand table projection approach to yield prediction in unthinned even-aged stands. Forest Science 34(3): 804-808.
Pienaar, L.V. and J.W. Rheney. 1995. Modeling stand level growth and yield response to silvicultural treatments. Forest Science 41(3):629-638.
Literature for Individual Stand Type Models
Pertinent literature for each stand type available in the SiMS_2012 system is cited below. A short description of the data used for model development is also given. As discussed in detail above, the publications cited below provided individual model components that were combined as necessary and adjusted to develop full growth and yield functionality for each stand type.
Cutover Loblolly Pine (
Pinus taeda
L.) Plantations (Southeast)
Harrison, W.M. and B.E. Borders. 1996. Yield prediction and growth projection for site-prepared loblolly pine plantations in the Carolinas, Georgia, Alabama and Florida. PMRC Technical Report 1996-1. D.B. Warnell School of Forest Resources. The University of Georgia. Athens, GA. 59pp.
Data are from a total of 805 temporary and permanent sample plots located throughout the lower coastal plain, upper coastal plain and piedmont of North Carolina, South Carolina, Georgia, Florida and Alabama.
Cutover Slash Pine (
Pinus elliottii
Engelm) Plantations (Southeast)
Pienaar, L.V., B.D. Shiver and J.W. Rheney. 1996. Yield prediction for mechanically site-prepared slash pine plantations in the Southeastern Coastal Plain. PMRC Technical Report 1996-3. D.B. Warnell School of Forest Resources. The University of Georgia. Athens, GA. 57pp.
Data are from a total of 691 temporary plots and 254 permanent plots located in the lower coastal plain of South Carolina, Georgia and north Florida. Additional data come from a regionwide (lower coastal plain) planting density study with 114 installations that has planting densities of 100 to 900 trees/acre that were measured up to 8 times at 3 year intervals beginning at age 5 years.
Old-Field Loblolly Pine (
Pinus taeda
L.) Plantations (CRP-type stands)
Lenhart, J.D. and J.L. Clutter. 1971. Cubic-foot yield tables for oldfield loblolly pine plantations in the Georgia piedmont. GA For. Res. Council Rep. No. 22. 12pp.
Data are from 226 sample plots distributed throughout the piedmont of Georgia.
Pienaar, L.V. and J.W. Rheney. 1998. An evaluation of the potential productivity of intensively managed pine plantations in Georgia. Final Report of a study funded by The Georgia Consortium for Technological Competitiveness in Pulp and Paper. 41pp.
Data obtained from 37 randomly chosen loblolly pine plantations throughout Georgia established under the Conservation Reserve Program as well as from designed studies associated with the Plantation Management Research Cooperative at the D.B. Warnell School of Forest Resources at the University of Georgia.
Old-Field Slash Pine (
Pinus elliottii
Engelm) Plantations (CRP-type stands)
Bennett, F.A. 1970. Yields and stand structure patterns for old-field plantations of slash pine. USDA For. Serv. Res. Paper SE-60. 81pp.
Clutter, J.L. and E.P. Jones. 1980. Prediction of growth after thinning in oldfield slash pine plantations. USDA For. Serv. Res. Paper SE-217. Southeast For. Exp. Stn. Asheville, NC. 14pp.
Data for the above two publications are from 212 permanent sample plots distributed through north Florida, south Georgia, southern Alabama and Mississippi.
Pienaar, L.V. and J.W. Rheney. 1998. An evaluation of the potential productivity of intensively managed pine plantations in Georgia. Final Report of a study funded by The Georgia Consortium for Technological Competitiveness in Pulp and Paper. 41pp.
Data from 23 oldfield slash pine plantations established under the Conservation Reserve Program as well as from designed studies associated with the Plantation Management Research Cooperative at the D.B. Warnell School of Forest Resources at the University of Georgia.
Cutover Loblolly Pine (
Pinus taeda
L.) Plantations (West Gulf)
Baldwin, V.C., Jr. and D.P. Feduccia. 1987. Loblolly pine growth and yield prediction for managed west gulf plantations. USDA For. Serv. Res. Paper SO-236. Southern For. Exp. Station. New Orleans, LA. 27pp.
Data are from 85 unthinned and 167 thinned permanent plots distributed through Louisiana, a single county in southwestern Mississippi and two counties in eastern Texas.
Cutover Slash Pine (
Pinus elliottii
Engelm) Plantations (West Gulf)
Zarnoch, S.J., D.P. Feduccia, V.C. Baldwin, Jr, and T.R. Dell. 1991. Growth and yield model predictions for thinned and unthinned slash pine plantations on cutover sites in the west gulf region. USDA For. Serv. Res. Paper SO-264. Southern For. Exp. Station. New Orleans, LA. 32 pp.
Data consist of 507 unthinned stand yield observations and 543 thinned stand growth period observations from permanent sample plots distributed in the West Gulf region as well as 530 residual stand observations of post-thinning conditions from permanent sample plots distributed in the West Gulf region.
Longleaf Pine (
Pinus palustris
Mill.) Plantations
In the SiMS_2012 system a single model is used for longleaf pine plantation growth and yield across the entire southern U.S. Models available in the published literature for planted longleaf pine stands are produce illogical and biologically unreasonable long-term growth projections outside of the limited range of data used to develop available models. Therefore, a study of how longleaf pine growth and yield relates to the growth and yield of slash pine plantations was carried out. Based on the results of this internal study ForesTech has developed a growth and yield system for longleaf pine plantations that are a variation of the slash pine plantation models discussed above. This model produces biologically reasonable growth and yield projections for this stand type. Estimates of per acre yield in terms of volume and/or weight is obtained using the individual tree volume and weight equations cited below.
Baldwin, V.C., Jr., and J.R. Saucier. 1983. Aboveground weight and volume of unthinned, planted longleaf pine on West Gulf Forest Sites. USDA For. Serv. Res. Paper SO-191. Southern For. Exp. Station. New Orleans, LA. 8pp.
Natural Loblolly Pine (
Pinus taeda
L.) Stands
In the SiMS_2012 system a single model is used for natural loblolly pine stands across the entire southern U.S. Several published and unpublished models were evaluated for extrapolative properties and biological reasonableness. The best model available was developed by Souter (1986) and is cited below.
Souter, Ray Albert. 1986. Dynamic Stand Structure in Thinned Stands of Naturally-Regenerated Loblolly Pine in the Georgia Piedmont. PhD Dissertation. School of Forest Resources, University of Georgia. Athens, GA.
Data come from 71 permanent sample plots located on the Hitchiti Experimental Forest in the Piedmont of Georgia (the Growing Space Study). These research plots were established in 1948 and remeasured six times through 1982. Even though the data used in the development of this model are limited geographically, the models behave very well and produce reasonable growth projections for naturally regenerated loblolly pine stands.
Natural Slash Pine (
Pinus elliottii
Engelm) Stands
In the SiMS_2012 system a single model is used for natural slash pine stands across the entire southern U.S. The models are based on the publications by Frank Bennett.
Bennett, Frank A. 1970. Variable-density yield tables for managed stands of natural slash pine. USDA For. Serv. Res. Note SE-141. Southeastern For. Exp. Station. Asheville, NC. 7pp.
Data are from 82 permanent sample plots that had initial measurement and one five year re-measurement. Plots were distributed throughout north Florida and southeastern Georgia.
Bennett, Frank A. 1981. Growth and yield in natural stands of slash pine and suggested management alternatives. USDA For. Serv. Res. Paper SE-211. Southeastern For. Exp. Station. Asheville, NC. 8pp.
Data are the same data as in the 1970 paper with additional sample plots for a total of 176 permanent sample plots distributed throughout north Florida and southeastern Georgia.
Natural Longleaf Pine (
Pinus palustris
Mill.) Stands
In the SiMS_2012 system a single model is used for natural longleaf pine stand growth and yield across the entire southern U.S. Models available in the published literature for natural longleaf pine stands are produce illogical and biologically unreasonable growth projections outside of the limited range of data used to develop available models. Therefore, a study of how natural longleaf pine growth and yield relates to the growth and yield of natural slash pine stands was carried out. Based on the results of this internal study ForesTech has developed a growth and yield system for natural longleaf pine plantations that are a variation of the natural slash pine models discussed above. This model produces biologically reasonable growth and yield projections for this stand type. Individual tree volume and weight equations are those used for planted longleaf stands (see citation for Longleaf Pine Plantations above).
Natural Mixed Pine-Hardwood Stands
There are very few models available for growth and yield of mixed pine-hardwood stands that provide estimates of how pine growth and yield changes relative to the amount of hardwood present in the stand.
The SiMS_2012 system uses models from a recent study in Georgia that provides such capability. All models were evaluated and adjusted as needed to obtain logical and biologically reasonable growth patterns.
Martin, S.W. and G.H. Brister. 1999. A growth and yield model incorporating hardwood competition for natural loblolly pine stands in the Georgia piedmont. Southern Journal of Applied Forestry 23(3):179-185.
Data are from 75 permanent sample plots located in the Piedmont of Georgia.
Natural Hardwood Stands
Very few models exist for growth and yield of natural hardwood stands. Most hardwood projections are made using a simplifying assumption such as hardwood yield is expected to grow at 2 to 3% per year. To obtain more flexibility and perhaps more realistic hardwood stand projections ForesTech has evaluated models from the scientific literature and put them together in a workable and complete growth and yield system.
Bowling, E.H., H.E. Burkhart, T.E. Burk and D.E. Beck. 1989. A stand level growth model for Appalachian hardwoods. Canadian Journal of Forest Research 19:405-412.
Graney, D.L. and P.A. Murphy. 1994. Growth and yield of thinned upland oak stands in the Boston Mountains of Arkansas. Southern Journal of Applied Forestry 18(1):10-14.
Zahner, R. and M.K. Myers. 1984. Productivity of young Piedmont oak stands of sprout origin. Southern Journal of Applied Forestry 8(2):102-108.
Olson, D. J., Jr. 1959. Site index curves for upland oak in the Southeast. USDA Forest Service Research Note SE-125. 2p.
Data are varied. Please see publications for data descriptions.
Sand Pine (
Pinus clausa
) Plantations
Brendemuehl, R. H. 1981. Options for Management of Sandhill Forest Land. Southern Journal Of Applied Forestry 5(4): 216-222.
Burns, Russell M., and R. H. Brendemuehl. 1969. Yield of a Choctawhatchee Sand Pine Plantation at Age 28. USDA Forest Service Research Note SE-103. 4pp.
Outcalt, Kenneth W. 1986. Stand Density Affects Growth of Choctawhatchee Sand Pine. Southern Journal of Applied Forestry 10(3): 128-131.
McNab, W.H., K.W. Outcalt, R.H. Brendemuehl. 1985. Weight and Volume of Plantation-Grown Choctawhatchee Sand Pine. USDA Forest Service Research Paper SE-252. 44pp.
Data are varied. Please see publications for data descriptions.
Individual-Tree Taper, Volume and Weight
Individual-tree stem profiles and cubic-foot volumes are estimated using a form class based, segmented taper equation described in Clark
et.al
, 1991. Coefficients are available for most commercial and non-commercial tree species encountered in the southeastern U.S. The coefficients were updated using FIA data in 2001 (Souter and Clark, 2001).
To calculate total-stem and merchantable green weights for individual trees, pound-per-cubic-foot conversion factors are calculated using associated weight and volume tables in Clark
et al.
, 1986 and Clark
et al.
, 1990.
Clark Alexander; Saucier, Joseph R.; McNab, W. Henry. 1986. Total-tree weight, stem weight, and volume tables for hardwood species in the southeast. Georgia Forest Research Paper GF-RP-60. Georgia Forestry Commission. 44 p.
Clark, Alexander; Saucier, Joseph R. 1990. Tables for estimating total-tree weights, stem weights, and volumes of planted and natural southern pine in the southeast. Georgia Forest Research Paper GF-RP-79. Georgia Forestry Commission. 23 p.
Clark, Alexander, III; Souter, Ray A.; Schlaegel, Bryce E. 1991. Stem Profile for Southern Equations for Southern Tree Species. Res. Pap. SE-282. Asheville, NC: U.S. Department of Agriculture, Forest Service, Southeastern Forest Experiment Station. 117 p.
Souter, R.A. and A. Clark III. 2001. Taper and volume prediction in southern tree species. USDA For. Serv. Southern Research Station. FIA Work Unit Administrative Report.
Portions of the exhibit, indicated by the mark “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
Exhibit K-2
[***]
Execution Version
OPTION AGREEMENT
THIS OPTION AGREEMENT (this “
Agreement
”), made as of the Effective Date (as defined in paragraph 26 below), by and among
FIA TIMBER PARTNERS II, L.P.,
a Delaware limited partnership (hereinafter referred to as “
Seller
”),
CATCHMARK TIMBER TRUST, INC.
, a Maryland corporation (hereinafter referred to as “
Purchaser
”).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, Seller is the owner of those certain tracts or parcels of land in Coos and Curry Counties, Oregon, containing approximately ± 5,239 acres, which tracts or parcels are more fully described in
Exhibit A-1
and which are identified as being owned by Seller as approximately depicted on the maps in
Exhibit A-
2
, each attached hereto and hereby made a part hereof (the “
Real Property
”), together with Seller’s right, title and interest in the following: all buildings, structures, and other improvements located thereon, all tenements, hereditaments, easements, appurtenances and privileges thereto belonging, all trees, timber, sand, gravel, rock and crops now located thereon or thereunder, and all oil, gas and mineral rights and interests in the Real Property not reserved or conveyed by Seller or Seller’s predecessors in title prior to the Effective Date, and, to the extent assignable, Seller’s interests under the Unrecorded Encumbrances set forth on attached
Exhibit D
, less any of the Unrecorded Encumbrances that expire prior to Closing (the foregoing hereinafter referred to collectively with the Real Property and the Personal Property as defined in Section 4(b)(vi) below as the “
Property
”); and
WHEREAS, Purchaser desires to acquire an option to purchase the Property, and Seller is willing to grant to Purchaser an option sell the Property on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, the parties have agreed and do hereby agree as follows:
1.
Grant and Terms of Option
. Subject to the provisions of this Agreement, and for the consideration herein stated, Seller hereby grants to Purchaser an exclusive and irrevocable option to purchase the Property (the “
Option
”). The Option shall be effective as of the Effective Date and shall continue in effect until 5:00 pm Eastern Time on June 29, 2018 (such date and time the “
Option Expiration Time
” and the period running between the Effective Date and the Option Expiration Time, the “
Option Period
”). Purchaser shall exercise the Option, if at all, by giving written notice to Seller within the Option Term stating that the Option is exercised (the “
Exercise Notice
”). Purchaser may exercise the Option only as to all of the Property and no partial exercise of the Option shall be permitted. Upon timely exercise of the Option, Seller shall be obligated to sell, and Purchaser shall be obligated to purchase, the Property for the price and on the terms and conditions set forth in this Agreement. If Purchaser fails to exercise the Option within the Option
Term, this Agreement will automatically terminate, Seller will retain the Option Consideration and Purchaser will have no further right to acquire the Property.
2.
Purchase Price; Assumed Liabilities
. If Purchaser timely exercises the Option, the purchase price (subject to adjustment as provided herein, hereinafter referred to as the “
Purchase Price
”) to be paid by Purchaser for the Property shall be TWENTY-FIVE MILLION THREE HUNDRED NINETY-EIGHT THOUSAND FOUR HUNDRED SEVENTY-FOUR AND 45/100 DOLLARS ($25,398,474.45), and shall be payable to Seller by wire transfer of immediately available funds at the date of Closing to an account designated by Seller. The purchase and sale pursuant to this Agreement is not based on a per-acre price and the Purchase Price shall not be subject to adjustment if the acres within the Property are more or less than the above-stated numbers of acres. The Purchase Price shall be allocated between the Personal Property and the Real Property as set forth on attached
Exhibit K
. Any subsequent adjustment to the Purchase Price under this Agreement shall be deemed an adjustment to the amount allocated to the Real Property. The portion of the Purchase Price which is allocated to the Real Property pursuant to
Exhibit K
(as such allocation may be subsequently adjusted pursuant to this Agreement) shall be used as the consideration required to be stated on the face of the Deed. As additional consideration for the purchase and sale transaction contemplated by this Agreement, Purchaser shall assume from Seller at Closing: (a) all liabilities and obligations of Seller arising on or after the Closing Date (as defined herein) under easements and other matters of record affecting the Real Property which impose obligations on the owner thereof and under the Unrecorded Encumbrances (as defined herein)
other than
the Timber Cutting Agreements set forth on
Exhibit D
(the “
Timber Cutting Agreements
”, which Timber Cutting Agreements are being retained by Seller); and (b) all Continuing Obligations as defined in Section 36 below (collectively, the “
Assumed Liabilities
”).
3.
Option Consideration
. Contemporaneously with Purchaser’s execution of this Agreement, Purchaser has delivered to Seller by wire transfer of immediately available funds the sum of $1,015,938,98 as non-refundable option consideration (said amount is hereinafter referred to as the “
Option Consideration
”). The Option Consideration is non-refundable except as otherwise provided in this Agreement and shall be considered earned by Seller on receipt, but shall be credited against the Purchase Price at Closing (if Closing occurs).
4.
Closing
.
(a)
If the Option is exercised, the delivery of the funds, documents and instruments for the consummation of the purchase and sale pursuant hereto (herein referred to as the “
Closing
”) shall take place on July 13, 2018 at 10:00 a.m. Pacific Time through the escrow services of First American Title Insurance Company, Six Concourse Parkway, Suite 2000, Atlanta, Georgia 30328
(hereinafter referred to as “
Title Company
” and "
Escrow Agent
"), or on such earlier date and time, and/or such other location, as may be mutually agreeable to Seller and Purchaser (the “
Closing Date
”).
2
97087663.1 0067129-00001
(b)
At the Closing, Seller shall deliver the following:
(i)
one or more (at Purchaser’s election) Statutory Special Warranty Deeds (warranting only against the claims of persons claiming by, through or under Seller) for each county in which the Real Property is located, in the form of
Exhibit B
attached hereto,
and subject only to the Unrecorded Encumbrances and the Permitted Encumbrances (both as hereinafter defined) and further excepting from Seller’s warranties contained in such deed(s) those certain matters affecting Seller’s title set forth on attached
Exhibit C
(collectively, the “
Deed
”); and, to the extent the Seller or its timber buyers under the Timber Cutting Agreements have not, by Closing, completed harvesting and removal of the timber from the Harvest Parcels identified on
Exhibit E
(the “
Unharvested Timber
”), the Deed shall contain a reservation of the Unharvested Timber in favor of Seller. The legal description of the Real Property to be contained in the Deed shall be the legal description of the Real Property as set forth on
Exhibit A
attached hereto and hereby made a part hereof (as the same description may have been modified in connection with the Title Commitment or any Update thereto);
(ii)
an affidavit as to the non-foreign status of Seller in form satisfactory to Seller;
(iii)
a certificate or other documentary evidence complying with ORS 314.258 that is reasonably acceptable to the Title Company and sufficient to assure the Title Company that no withholding is required under ORS 314.258;
(iv)
an assignment and assumption agreement with respect to Purchaser’s assumption of the Assumed Liabilities from Seller, in form attached as
Exhibit F
(the “
Assignment and Assumption Agreement
”);
(v)
if Purchaser elects to purchase loan policy coverage or extended coverage or endorsements to the Basic Title Policy (as defined herein), an owner’s affidavit in the form attached hereto as
Exhibit I
(the “
Owner’s Affidavit
”);
(vi)
a bill of sale, substantially in the form of attached
Exhibit J
, with respect to the crushed rock culvert stock listed on
Schedule 4(b)(vi)
(the “
Personal Property
”);
3
97087663.1 0067129-00001
(vii)
a Closing statement; and
(viii)
Seller hereby agrees to execute such other certificates, and do such other acts as may be reasonably necessary to consummate the purchase and sale contemplated hereby and to enable Purchaser to obtain the Basic Title Policy in accordance with this Agreement. The Owner’s Affidavit contemplated by Section 4(b)(v) above and any other affidavits or certificates executed by or on behalf of Seller at the Closing shall be given to the actual knowledge of the person or entity executing the same, without independent investigation or inquiry.
(c)
At the Closing, Purchaser shall deliver the following:
(i)
the Assignment and Assumption Agreement;
(ii)
a Closing statement; and
(iii)
Purchaser hereby agrees to deliver the Purchase Price (as it may be adjusted for the prorations and other adjustments required by this Agreement) less the credit for the Option Consideration and to execute such other certificates and affidavits, and do such other acts as may be reasonably necessary to consummate the purchase and sale contemplated hereby and to obtain the Basic Title Policy in accordance with this Agreement.
5.
Title
.
(a)
If the Option is timely exercised, Seller agrees to convey to Purchaser at Closing fee simple title to the Real Property by the Deed, free and clear of all liens, encumbrances, mortgages, deeds of trust, deeds to secure debt, assessments, agreements, options and covenants created or suffered by, through or under Seller, except for and subject to the Permitted Encumbrances, as hereinafter defined, and the matters set forth on attached
Exhibit C
.
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97087663.1 0067129-00001
(b)
To the extent not previously provided, contemporaneously with Seller’s execution of this Agreement, Seller will, at Seller’s cost, cause to be delivered to Purchaser a title insurance commitment, or similar title report sufficient to allow the Title Company to issue the Basic Title Policy, together with complete and legible copies of all documentary title exceptions listed or referred to therein, (the “
Title Commitment
”) issued by the Title Company. During the Option Period, Purchaser shall have the right to review Seller’s title to the Real Property and provide Seller with written notice (the “
Title Objection Notice
”) of Purchaser’s objections, if any, to Seller’s title. Purchaser shall have the right to object to any title matter affecting Seller’s title to the Real Property;
provided
, however, that Purchaser shall not object to (i) the lien of real property taxes not yet due and payable and additional taxes which may be assessed if the Real Property is disqualified for assessment as forest or farm land; and (ii) any title matter which does not adversely affect the use or value of the Property as commercial timberlands or for resale as timberlands. Failure of Purchaser to provide the Title Objection Notice to Seller within the Option Period will be deemed an election by Purchaser to waive any objection to the matters disclosed in such Title Commitment (in which case all liens, encumbrances, or other defects or special exceptions to coverage in such Title Commitment will thereafter be Permitted Encumbrances) and to accept such title as Seller is able to convey without any reduction in the Purchase Price.
(c)
If Purchaser delivers the Title Objection Notice to Seller within the Option Period, Seller shall give written notice to Purchaser of its response to such objections indicating whether or not Seller will cure the matters objected to by Purchaser (the “
Title Objection Response
”);
provided
, however, that Seller shall at its sole cost secure the release of any monetary liens or encumbrances created by Seller and of a definite or ascertainable amount by Seller’s payment or bonding against the same at or prior to Closing other than the lien of real property taxes not yet due and payable and additional taxes which may be assessed if the Real Property is disqualified for assessment as forest or farm land (“
Required Cure Matters
”). Any failure of Seller to deliver a Title Objection Response within the Option Period shall be deemed an election by Seller not to cure any title objections raised in Purchaser’s Title Objection Notice. Other than with respect to Required Cure Matters, if Seller fails to, or elects not to, cure or satisfy any objections contained in the Title Objection Notice (a “
Title Defect
”) then Purchaser’s exercise of the Option shall be deemed Purchaser’s waiver of such Title Defect(s) and Purchaser will be required to close the sale without regard to said Title Defect(s) and without an adjustment to the Purchase Price (in which event such Title Defect(s) shall become Permitted Encumbrances for all purposes).
In the event that Seller delivers the Title Objection Response indicating that Seller will cure some or all of the Title Defects, Seller shall cure such Title Defects prior to Closing and, Seller, in its sole discretion, may extend the Closing Date for so many days as Seller may elect in order to cure such Title Defects, but in no event shall the aggregate number of days of extension exceed thirty (30) calendar days.
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97087663.1 0067129-00001
(d)
If Purchaser timely exercises the Option, within three (3) days following Purchaser’s receipt of any update to the Title Commitment disclosing any title matter which first appears in said updated Title Commitment or Purchaser’s receipt of notice of any unrecorded encumbrance affecting Seller’s title to the Real Property which comes into existence after Purchaser’s exercise of the Option (as applicable, an “
Update
”), in each case
other than
(i) any Pre-Closing Easements permitted under Section 5(e) below, (ii) any matter which has become a Permitted Encumbrance pursuant to Section 5(b) or 5(c) above, (iii) any title matter which does not adversely affect the use or value of the Property as commercial timberlands or for resale as timberlands, and (iv) the lien of real property taxes not yet due and payable and additional taxes which may be assessed if the Real Property is disqualified for assessment as forest or farm land, Purchaser shall have the right to notify Seller in writing of Purchaser’s objection to such new matter (a “
Supplemental Title Objection Notice
”). Failure of Purchaser to provide Seller with a Supplemental Title Objection Notice within such 3-day period will be deemed an election by Purchaser to waive any objection to the additional matters disclosed in such Update (in which case all liens, encumbrances, or other defects or special exceptions to coverage in such Update will thereafter be Permitted Encumbrances) and to accept such title as Seller is able to convey without any reduction in the Purchase Price. If Purchaser delivers a Supplemental Title Objection Notice to Seller within such 3-day period, Seller shall give written notice to Purchaser of its response to such objections within three (3) days after Seller’s receipt of Purchaser’s notice indicating whether Seller will cure the matters objected to by Purchaser (a “
Supplemental Title Objection Response
”);
provided
, however, that Seller shall at its sole cost secure the release of any Required Cure Matters appearing in the Update. Any failure of Seller to deliver a Supplemental Title Objection Response within the foregoing 3-day period shall be deemed an election by Seller not to cure any title objections raised in Purchaser’s Supplemental Title Objection Notice. Other than with respect to Required Cure Matters, if Seller fails to, or elects not to, cure or satisfy any objections contained in the Supplemental Title Objection Notice then Purchaser shall, as its sole and exclusive remedy, elect either to: (i) waive such objection and close the sale without an adjustment to the Purchase Price (in which event the matters set forth in the Supplemental Title Objection Notice shall become Permitted Encumbrances for all purposes); or (ii) terminate this Agreement and receive a refund of the Option Consideration.
In the event that Seller delivers the Supplemental Title Objection Response indicating that Seller will cure some or all of the matters set forth in the Supplemental Title Objection Notice, Seller shall cure such matters prior to Closing and, Seller, in its sole discretion, may extend the Closing Date for so many days as Seller may elect in order to cure such matters, but in no event shall the aggregate number of days of extension exceed thirty (30) calendar days.
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97087663.1 0067129-00001
(e)
For so long as this Agreement remains in force, Seller shall not lease, encumber or convey all or part of the Property or any interest therein, or enter into any agreement granting to any person any right with respect to the Property or any portion thereof, without the prior written consent of Purchaser;
provided
, however, that prior to Closing Seller shall be entitled to enter into (i) renewals or replacements of the Unrecorded Encumbrances listed on attached
Exhibit D
on substantially the same terms as existing on the Effective Date (except that Seller shall not, without the prior consent of Purchaser, enter into any renewals, extensions or replacements of any Timber Cutting Agreement that are not already permitted by the terms of such Timber Cutting Agreement, as amended through the Effective Date), and (ii) reciprocal or unilateral road easement agreements as more particularly outlined for Seller on attached
Schedule 5(e)
, pursuant to which Seller, as applicable, may (a) as a grantor, grant to third parties access rights over existing roads located on the Real Property for purposes of transporting forest products and rock, timber management (including fire protection and suppression), and access to identified lands of such third parties; (b) as a grantee, be granted access over and across certain lands of third parties for purposes of transporting forest products and rock to and from, timber management (including fire protection and suppression) on, and access to and from portions of the Real Property (the foregoing collectively, the “
Pre-Closing Easements
”).
(f)
For purposes of this Agreement, “
Permitted Encumbrances
” shall mean, collectively, (i) the Unrecorded Encumbrances; and (ii) and any other title matter to which Purchaser does not object, or for which Purchaser waives its objection or is deemed to have accepted pursuant to this Section 5.
(g)
Purchaser acknowledges and agrees that Seller may continue to conduct ongoing timber harvesting operations until Closing on those harvest planning units identified in
Exhibit E
(the “
Harvest Parcels
”). If Seller is unable to complete such harvesting operations by Closing, Seller shall reserve in the Deed all right and title to the Unharvested Timber on such Harvest Parcels together with the right to complete such harvesting operations on such Harvest Parcels for one (1) year after the Closing (as such time for removal may be further extended under the terms of the Post Closing Harvest Agreement defined below). In such event, Purchaser and Seller shall enter into an access and harvest agreement at Closing in the form attached hereto as
Exhibit H
(the “
Post Closing Harvest Agreement
”). Seller shall retain all rights to such timber and all proceeds therefrom until Closing, and through the term of the Post Closing Harvest Agreement, if applicable.
6.
Inspection
.
(a)
Purchaser and its agents, representatives, employees, engineers and contractors (“
Purchaser Representatives
”)
shall have the right at any time during the term of this Agreement to enter upon the Real Property at their own risk to inspect, examine, survey and make
7
97087663.1 0067129-00001
timber cruises and other engineering tests or surveys, including a Phase I environmental site assessment (collectively, the “
Tests
”) which it may deem necessary or advisable, all at Purchaser’s sole cost and expense. Purchaser and the Purchaser Representatives will comply with such reasonable restrictions and requirements as Seller may impose in connection with their activities on the Real Property and, if so required by Seller, Purchaser will, prior to Purchaser or the Purchaser Representatives entering the Real Property, provide Seller with evidence of liability insurance in an amount and issued by an insurer reasonably satisfactory to Seller, covering the activities of Purchaser and the Purchaser Representatives on the Real Property and naming Seller as an additional insured. Upon completion of the Tests, Purchaser shall repair, at its sole cost and expense, any physical damage caused to the Real Property by Purchaser’s (or any Purchaser Representative’s) inspection of the Real Property and the Tests, and shall remove all debris and materials placed on the Real Property in connection with Purchaser’s inspection of the Real Property and the Tests. Purchaser shall keep the Real Property free of any liens resulting from Purchaser’s inspection of the Real Property and the Tests.
(b)
Purchaser hereby agrees to indemnify, defend and hold Seller harmless from and against, and will compensate and reimburse Seller for, any and all causes, claims, demands, losses, liabilities, costs, damages, expenses and fees (including, but not limited to, reasonable attorney’s fees incurred at any level of proceedings including appeal) incurred or suffered by or asserted against Seller caused by or related to Purchaser’s or the Purchaser Representatives inspection of the Real Property or the Tests, with the exception of any causes, claims, demands, losses, liabilities, costs, damages, expenses and fees caused by the gross negligence of Seller. The foregoing indemnification shall survive any termination, cancellation or expiration of this Agreement or the Closing of the purchase and sale contemplated hereby.
7.
[
Intentionally Deleted
]
8.
Condition of Property; Damage; Condemnation
.
(a)
Seller agrees that at the Closing the Property shall be in the same condition as exists on the date hereof, subject to natural wear and tear, trespass, condemnation, removal of timber from the Harvest Parcels or pursuant to rights granted to third parties under the Unrecorded Encumbrances or under recorded instruments disclosed in the Title Commitment and any Updates thereto, Casualty (as defined herein), and the Permitted Encumbrances. During the term of this Agreement, Seller shall neither cut or remove nor permit the cutting or removal of any timber or trees which are included as part of the Property subject to and excepting from the foregoing prohibition any removal of timber from the Harvest Parcels or other Real Property pursuant to rights granted to third parties under the Unrecorded Encumbrances or under recorded instruments disclosed in the Title Commitment and any Updates thereto.
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97087663.1 0067129-00001
(b)
If at any time prior to the Closing, the Property or any part thereof (including, but not limited to, any timber or trees which are included as part of the Property) is destroyed or damaged by fire or other Casualty (as hereinafter defined), Seller shall deliver to Purchaser prompt written notice of such destruction or damage along with Seller’s good faith calculation of the amount of such damage resulting from the Casualty (calculated as the fair market value of the destroyed or damaged Property less the salvage value of such destroyed or damaged Property), and the transactions contemplated by this Agreement shall be subject to the provisions of this Section 8(b). The Closing Date shall be extended to the extent necessary to permit the compliance with all procedures set forth in this Section 8(b).
(i)
If the amount of such damage (as finally determined pursuant to this Section 8) does not exceed $50,000 (the “
Threshold Amount
”), and Purchaser exercises the Option, or has previously exercised the Option, then Purchaser shall be required to purchase the Property in accordance with this Agreement without a reduction of the Purchase Price.
(ii)
If the amount of such damage (as finally determined pursuant to this Section 8) exceeds the Threshold Amount but does not exceed $3,000,000, then, if Purchaser exercises the Option, or has previously exercised the Option, Purchaser shall be required to purchase the Property in accordance with this Agreement, provided that the Purchase Price shall be reduced by an amount equal to the amount of such damage (as finally determined pursuant to this Section 8).
(iii)
If the amount of such damage (as finally determined pursuant to this Section 8) exceeds $3,000,000, then either party may, at its sole option, elect to cancel this Agreement by delivering written notice to the other party, whereupon Seller shall promptly return the Option Consideration to Purchaser and no party hereto shall have any further rights or obligations hereunder (except as may otherwise be expressly provided herein). If neither party elects to cancel this Agreement in accordance with the foregoing sentence, and Purchaser exercises the Option, or has previously exercised the Option, then the parties will proceed to Closing (subject to the other terms and conditions set forth in this Agreement) and the Purchase Price shall be reduced at Closing by an amount equal to the amount of such damage (as finally determined pursuant to this Section 8).
(iv)
If Purchaser, by delivering written notice to Seller within fifteen (15) days following Seller’s delivery of written notice of any Casualty, disputes the amount of damage reported by Seller, Purchaser and Seller shall attempt in good faith to resolve such dispute and agree upon the amount of the damage. If Purchaser and Seller agree upon the amount of the damage resulting from the Casualty, such agreed amount shall be final and binding on the parties for purposes of this Section 8. However, if Purchaser and
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Seller are unable to agree as to the amount of damage from fire or other Casualty on or before ten (10) days after Purchaser delivers to Seller written notice of its dispute, then the amount of damage will be determined in accordance with Section 23 of this Agreement.
(c)
If at any time prior to the Closing, any action or proceeding is filed or threatened under which any portion of the Property may be taken pursuant to any law, ordinance or regulation by condemnation or the right of eminent domain, Seller shall deliver to Purchaser prompt notice thereof. To the extent such action or proceeding would result in the taking of one thousand (1,000) acres or more, then Purchaser at its sole option shall elect, by delivering written notice to Seller within fifteen (15) days following Seller’s delivery of notice to Purchaser, either (i) to cancel this Agreement, whereupon Seller shall promptly return the Option Consideration to Purchaser and no party hereto shall have any further rights or obligations hereunder (except as may otherwise be expressly provided herein), or (ii) to purchase the Property pursuant to this Agreement, notwithstanding such action or proceeding. Failure by Purchaser to deliver written notice to Seller of its election within such fifteen (15) day period shall be deemed an election of clause (ii). If the action or proceeding would result in the taking of less than one thousand (1,000) acres, or if Purchaser elects or is deemed to elect clause (ii) above, then Purchaser shall receive a credit against the Purchase Price at Closing in the amount of all proceeds of any awards actually paid to Seller prior to Closing with respect to the Property so taken (less the costs of Seller incurred in procuring such proceeds or awards), or, if such amount is not known or received at the time of the Closing, the Purchase Price shall not be reduced and Seller shall instead assign to Purchaser at the Closing all of Seller’s right to such proceeds from such action or proceeding to the extent not yet received by Seller. To the extent such action or proceeding would result in the taking of one thousand (1,000) acres or more, the Closing Date shall be extended to the extent necessary to permit the exercise of such election by Purchaser.
9.
Warranties and Representations; Indemnification
.
(a)
Seller hereby warrants and represents to Purchaser that as of the Effective Date and as of the date of Closing:
(i)
Seller is a limited partnership duly registered and validly existing under the laws of the State of Delaware.
(ii)
Seller has the full right, power, and authority to enter into and perform its obligations under this Agreement; and no consent, approval, order or authorization of any court or other governmental entity is required to be obtained by Seller in connection with the execution and delivery of this Agreement or the performance hereof by Seller.
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97087663.1 0067129-00001
(iii)
Attached hereto as
Exhibit D
is a true and accurate summary of all unrecorded agreements, Timber Cutting Agreements and other unrecorded licenses created by Seller that currently affect the Real Property that will remain in effect as of the Closing Date (the “
Unrecorded Encumbrances
”). The Unrecorded Encumbrances remain in full force and effect and have not been modified or amended, except as indicated on said
Exhibit D
. To Seller’s knowledge, no event or condition exists or has occurred which with notice, the passage of time or otherwise would constitute a material default or event of default under any of the Unrecorded Encumbrances.
(iv)
There is no pending or, to Seller’s knowledge, threatened litigation, action or proceeding (including, but not limited to, any condemnation or eminent domain action or proceeding or any litigation regarding the location of lines and corners of the Property or any action or proceeding regarding adverse possession by third parties of any Real Property) before any court, governmental agency or arbitrator which may adversely affect Seller’s ability to perform this Agreement or which may affect the Property.
(v)
To Seller’s knowledge, (i) Seller’s use of the Real Property is in material compliance with all statutes, ordinances, rules, regulations, orders and requirements of all federal, state and local authorities and any other governmental entity having jurisdiction over the Property (“
Laws
”), and (ii) no condition exists on the Property which violates any Laws in any material respect. Seller has not received any notice from any such governmental entity of any violation of any Laws.
(vi)
Seller has received no written notice of any pending or threatened actions against Seller or the Real Property based upon the presence on the Real Property of any species listed as threatened or endangered under the Endangered Species Act of the United States or any law of the State of Oregon protecting endangered or threatened animal or plant species, and Seller has no knowledge of the current or past presence on the Real Property of any such threatened or endangered species that would adversely affect the Purchaser’s ability to conduct commercial timber operations on the Real Property.
(vii)
Seller (which for this purpose includes Seller’s partners, members, principal stockholders and managers) (x) has not been designated as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, <http://www.treas.gov/ofac/t11sdn.pdf> or at any replacement website or other replacement official publication of such list and (y) is currently in compliance with and will at all times during the term of this Agreement remain in compliance with the regulations of the Office of Foreign Asset Control of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto.
11
97087663.1 0067129-00001
(viii)
Except as disclosed in the Phase I, Neither Seller nor, to Seller’s knowledge, any other person has used any portion of the Real Property as a land fill or as a dump to receive garbage, refuse, or waste, whether or not hazardous (other than unauthorized household refuse dump sites typical of rural timberlands not more than 1/4 acre in size), and, except as disclosed in the Phase I, neither Seller nor, to Seller’s knowledge, any other person has stored, handled, installed or disposed in, on or about the Real Property any Hazardous Substance, except for, in accordance with applicable Law, (A) the use of motor vehicle lubricants and fuels, and (B) the application of silvicultural and agricultural chemicals. For purposes of this warranty, the term “
Hazardous Substance
” means any chemical, compound, constituent, material, waste, contaminant (including petroleum, crude oil or any fraction thereof) or other substance, defined as hazardous or toxic, or otherwise regulated by any of the following laws and regulations promulgated thereunder as amended from time to time prior to the Effective Date: (1) the Comprehensive Environmental Response, Compensation and Liability Act (as amended by the Superfund Amendments and Reauthorization Act), 42 U.S.C. § 9601 et seq.; (2) the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq.; (3) the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.; (4) the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; (5) the Clean Water Act, 33 U.S.C. § 1251 et seq.; (6) the Clean Air Act, 42 U.S.C. § 1857 et seq.; and (7) all laws of the State of Oregon that are based on, or substantially similar to, the federal statutes listed in clauses (1) through (6) of this sentence.
(ix)
Except as provided under the Unrecorded Encumbrances (including the Timber Cutting Agreements) and under recorded instruments disclosed in the Title Commitment and any Updates thereto: (A) to Seller’s knowledge, no third party has any rights to enter upon the Real Property to harvest and remove any timber therefrom; and (B) no timber or trees have been removed or harvested from the Real Property or affected by any Casualty causing damage in excess of the Threshold Amount since February 2, 2018 (the “
Inventory Date
”). For purposes of this Agreement, “
Casualty
” shall mean any physical damage to or loss of the timber on any portion of the Property by fire, earthquake, flood, insects, disease or other calamity, or as a result of timber trespass or unauthorized harvest.
(x)
except for the Unrecorded Encumbrances, to Seller’s knowledge, there are no unrecorded contracts, leases, or other agreements that affect the ownership, use or operation of the Real Property and that would be binding on Purchaser after the Closing date.
(xi)
to Seller’s knowledge, except as disclosed in the Title Commitment and any Updates thereto, (A) no taxes or assessments relating to the Property are delinquent, and (B) there are no special taxes, assessments or charges proposed, pending or threatened against the Property. During the period of Seller’s ownership of the Real
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97087663.1 0067129-00001
Property, neither Seller nor, to the best of Seller’s knowledge, any other person or entity has caused any portion of the Real Property to violate the terms and conditions of any program in which such portion is enrolled that allows reduced ad valorem real property tax assessments for agricultural or silvicultural use.
(xii)
to Seller’s knowledge, there have been no active mining operations conducted on the Real Property during the period in which Seller has owned the Real Property, and Seller has no knowledge of any proposed mineral activity on the Real Property.
(xiii)
Subject to the limitations set forth in Section 9(d) and 9(e) below, if Purchaser exercises the Option, Seller will hold harmless, indemnify and defend Purchaser from and against any and all obligations, liabilities, claims, liens or damages suffered or incurred by Purchaser or imposed against the Property on account of any breach of any representation or warranty of Seller set forth in this Section 9(a).
(b)
For purposes of this Agreement, “
Seller’s knowledge
” and similar phrases with respect to matters known by Seller shall be defined as the present, actual knowledge possessed by Sarah Hall and Jack Stover, without any duty of inquiry.
(c)
Purchaser hereby warrants and represents to Seller, as of the Effective Date and as of Closing, that:
(i)
Purchaser is a corporation duly organized and validly existing under the laws of the State of Maryland.
(ii)
Purchaser has the full right, power and authority to enter into and perform its obligations under this Agreement; and no consent, approval, order or authorization of any court or other governmental entity is required to be obtained by Purchaser in connection with the execution and delivery of this Agreement or the performance hereof by Purchaser.
13
97087663.1 0067129-00001
(d)
Notwithstanding anything herein to the contrary, all representations and warranties contained in this Section 9 shall survive the Closing and the delivery of the conveyance instruments to Purchaser for a period of one (1) year after the Closing Date (the “
Survival Period
”).
No claim for a breach of any
Seller
representation or warranty, or the failure or default of a covenant or
agreement
of
Seller
that survives
Closing
, shall be actionable or payable unless written notice containing a description of the specific nature of such breach shall have been delivered by
Purchaser
to
Seller
prior to the expiration of the
Survival Period
. The maximum amount that
Purchaser
shall be entitled to collect from
Seller
in connection with all suits, litigation or administrative proceedings resulting from all breaches by
Seller
of any
Seller
representations or any covenants of
Seller
shall in no event exceed ten percent (10%) of the
Purchase Price
in the aggregate.
(e)
The indemnification provisions set forth in this Section 9 shall provide the parties’ exclusive post-Closing remedy for breach of any representation or warranty set forth in this Agreement. Notwithstanding anything in this Agreement to the contrary, the limitations on remedies set forth in this Section and elsewhere in this Agreement shall not apply to or limit in any way any post-Closing rights or remedies (i) contained in or derived from the Deed or the other conveyance documents delivered at Closing, (ii) arising out of any fraud or intentional misconduct on the part of either party hereto, or (iii) any right of contribution or indemnification existing under any statute or law resulting from the existence on the Closing date of any “Recognized Environmental Condition” (as such term is defined in ASTM Practice E 2247-16
Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property
) affecting the Property.
10.
Brokerage Commission
. Seller shall indemnify and hold Purchaser harmless from all claims, losses, liabilities and expenses (including but not limited to reasonable attorneys’ fees and court costs actually incurred) which Purchaser may incur on account of any claim which may be asserted against Purchaser, whether or not meritorious, by any broker or other person on the basis of any agreements made or alleged to have been made by or on behalf of Seller for commissions or other compensation for bringing about the transaction contemplated by this Agreement. Purchaser shall indemnify and hold Seller harmless from all claims, losses, liabilities and expenses (including but not limited to reasonable attorneys’ fees and court costs actually incurred) which Seller may incur on account of any claim which may be asserted against Seller, whether or not meritorious, by any broker or other person on the basis of any agreements made or alleged to have been made by or on behalf of Purchaser for commissions or other compensation for bringing about the transaction contemplated by this Agreement. This Section 10 shall survive the Closing or any termination, cancellation or expiration of this Agreement.
11.
Prorations of Income; Taxes; Expenses
.
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97087663.1 0067129-00001
(a)
All rent and other income and all expenses relating to the Property (other than any deficit or surplus balances under BLM road use agreements) shall be prorated as of the date of Closing. If the actual rent and other income and all expenses relating to the Property are not known as of the date of Closing, then within thirty (30) days after Closing or the date such amounts became known (whichever is later), Seller and Purchaser shall reconcile such actual rent and other income and all expenses with the prorations done at Closing, and an adjusting payment shall be made between the parties to effectuate the final prorated amounts. This obligation shall survive the Closing.
(b)
Ad valorem real property taxes on the Property and special assessments (including, without limitation, fire protection district assessments) shall be prorated as of the Closing Date. If actual tax bills for the calendar year of Closing are not available, said taxes shall be prorated based on tax bills for the previous calendar year and the parties hereto agree to cause a reproration of said taxes upon the receipt of tax bills for the calendar year of Closing and an adjusting payment shall be made between the parties to effectuate the final prorated amounts. This obligation to reprorate shall survive the closing of the purchase and sale contemplated hereby. If the Real Property is not designated a separate tax parcel from any real property which is not being purchased by Purchaser under this Agreement, the taxes for such tax parcel shall be adjusted to an amount bearing the same relationship to the total tax bill which the acreage contained within the Real Property bears to the acreage contained within the total real property included within said tax bill.
(c)
Purchaser and Seller shall each pay one-half of the Escrow Agent’s standard closing fees for the transaction. Purchaser shall pay the costs of recordation of the Deed.
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(d)
Seller shall pay any and all fees, costs and expenses for title searches and examinations and other title-related charges in connection with obtaining the initial Title Commitment (if any charged separately from the Basic Title Policy premium), and the premium for the issuance of a single standard coverage owner’s policy of title policy in the amount of the Purchase Price and without endorsements or extended coverage insuring Purchaser of good and marketable title to the Real Property, subject only to the Permitted Encumbrances and the standard printed exceptions appearing in such policy form (the “
Basic Title Policy
”). Purchaser shall pay any and all fees, costs and expenses for any additional title searches and examinations and other title-related charges (if any charged separately from the Basic Title Policy premium) in connection with the issuance of any Updates or any title search and examination which is required in connection with any Title Objection Notice or Supplemental Title Objection Notice delivered by Purchaser. Purchaser shall also pay the premium and title related charges for any loan policies and extended coverage form policies of title insurance and any endorsements thereto or to the Basic Title Policy, if requested by Purchaser, and for any loan title policy required by Purchaser’s lender;
provided
, however, that a commitment to issue any such loan policies and extended coverage or endorsements shall not be a condition precedent to Purchaser’s obligations to close the transactions contemplated by this Agreement and Seller shall not be obligated in any event to indemnify the Title Company to induce it to issue the Basic Title Policy or any extended coverage or endorsements requested by Purchaser (other than a standard “gap” indemnity, if required by the Title Company, and delivery of the Owner’s Affidavit contemplated by Section 4(b)(v) above).
(e)
Each party shall pay its respective costs and expenses of legal representation.
(f)
Purchaser shall be solely responsible and liable for any deferred, rollback, recapture or other tax or assessment (“
Rollback Taxes
”) imposed or charged with respect to the Property or any part thereof for or relating to any periods prior to or subsequent to the Closing based on any change of use of the Property by Purchaser. Seller shall be responsible for any Rollback Taxes based upon the actions of Seller, including but not limited to the sale of the Property to Purchaser. The provisions of this subparagraph (f) shall survive the Closing.
12.
Default; Remedies
.
(a)
If Purchaser timely exercises the Option, and the purchase and sale of the Property contemplated hereby is not thereafter consummated on or prior to the Closing Date (as it may be extended under this Agreement) because of a default by Purchaser under this Agreement, then, in addition to Seller retaining the Option Consideration, Purchaser shall reimburse Seller on demand for Seller’s reasonable and documented third party cost and expenses incurred in connection with this Agreement, provided said reimbursement obligation under this Agreement
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97087663.1 0067129-00001
shall not exceed $100,000.00 in the aggregate. Purchaser’s payment of Seller’s expenses as provided above shall be Seller’s sole remedy.
(b)
If Purchaser timely exercises the Option, and the purchase and sale of the Property contemplated hereby is not thereafter consummated on or prior to the Closing Date (as it may be extended under this Agreement) because of a default by Seller under this Agreement, then Purchaser shall have the right, as its sole and exclusive remedy, either (i) to terminate this Agreement, whereupon Seller will return the Option Consideration to Purchaser, and the parties hereto will have no further rights or obligations hereunder (except as otherwise expressly provided herein), (ii) to waive any such default and proceed to Closing, (iii) to seek specific performance of this Agreement, or (iv) if specific performance is not available to Purchaser, Seller shall reimburse Purchaser on demand for Purchaser’s reasonable and documented third party cost and expenses incurred in connection with this Agreement, provided said reimbursement obligation under this Agreement shall not exceed $100,000.00 in the aggregate.
13.
Assignment
. Except as otherwise expressly permitted in this Agreement, neither party hereto shall assign its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party, which written consent will not be unreasonably withheld of delayed. Notwithstanding the foregoing, (a) Purchaser shall have the right, upon written notice given to Seller not less than five (5) days prior to the Closing Date, to assign its rights and obligations under this Agreement in whole or in part to any affiliate or affiliates of Purchaser, provided that Purchaser shall remain liable for all obligations under this Agreement to the extent arising out of or relating to performance, acts or omissions occurring prior to Closing; and (b) Purchaser may assign this Agreement at the Closing, but not earlier, to any institutional lender or lenders as security for obligations to such lender or lenders in respect of financing arrangements of Purchaser or any affiliates thereof with such lender or lenders. Without limiting the generality of the foregoing, Purchaser may elect to have some or all of the Property, and/or the timber located thereon, conveyed directly at Closing to one or more of Purchaser’s affiliates and in such event the Deed shall be delivered to, and the applicable instruments of conveyance and assumption delivered at Closing shall be executed by, such affiliate or affiliates, as applicable.
14.
No Waiver
. No action or failure to act by any party hereto shall constitute a waiver of any right or duty afforded to such party under this Agreement, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach of this Agreement except as may be specifically agreed in writing.
15.
Governing Law
. This Agreement shall be governed by the laws of the State of Oregon.
17
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16.
Notice
. Any and all notices, elections and communications required or permitted by this Agreement shall be made or given in writing and shall be delivered in person or sent by postage, pre-paid, United States Mail, certified or registered, return receipt requested, or by a recognized overnight courier such as FedEx or UPS, or by facsimile or e-mail, to the other parties at the addresses set forth below, or such other address as may be furnished by notice in accordance with this paragraph. The date of notice given by personal delivery shall be the date of such delivery. The effective date of notice by mail, facsimile, email or overnight courier shall be the date such notice is mailed, faxed, emailed or deposited with such overnight courier. In the event that the last day for giving notice hereunder or for the performance of any obligation hereunder, including Closing, falls upon a Saturday, Sunday or a legal holiday, the last day for said notice or performance shall be deemed to be the next day which is neither a Saturday, Sunday nor a legal holiday.
Seller: FIA Timber Partners II, L.P.
c/o Forest Investment Associates L.P.
15 Piedmont Center
Suite 1250
Atlanta, Georgia 30305
Attention: Sarah Hall
Email: shall@forestinvest.com
with a copy to: Stoel Rives LLP
760 SW Ninth Ave., Suite 3000
Portland, OR 97205
Attention: Adam H. Dittman
Attention: Mark A. Norby
Facsimile: (503) 220-2480
Email: adam.dittman@stoel.com
Email: mark.norby@stoel.com
Purchaser: c/o CatchMark Timber Trust
Five Concourse Parkway
Suite 2325
Atlanta, Georgia 30328
Attention: John D. Capriotti
Facsimile No.: (770) 243-8172
Email: john.capriotti@catchmark.com
with a copy to: Smith, Gambrell & Russell, LLP
Suite 3100, Promenade II
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309-3592
Attention: Mark G. Pottorff
Facsimile: (404) 685-6897
Email: mpottorff@sgrlaw.com
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17.
Entire Agreement
. This Agreement and the Confidentiality Agreement contain the entire agreement among the parties hereto with respect to the subject matter hereof and cannot be amended or supplemented except by a written agreement signed by Seller and Purchaser.
18.
Captions
. The captions of paragraphs in this Agreement are for convenience and reference only and are not part of the substance hereof.
19.
Severability
. In the event that any one or more of the provisions, paragraphs, words, clauses, phrases or sentences contained in this Agreement, or the application thereof in any circumstance is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision, paragraph, word, clause, phrase or sentence in every other respect and of the remaining provisions, paragraphs, words, clauses, phrases or sentences of this Agreement, shall not be in any way impaired, it being the intention of the parties that this Agreement shall be enforceable to the fullest extent permitted by laws.
20.
Counterparts
. This Agreement may be executed in multiple counterparts which shall be construed together as one instrument. This Agreement, including any amendments thereto, may be executed and delivered by facsimile transmission, with the intention that such facsimile signature and delivery shall have the same effect as an original signature and actual delivery.
21.
Binding Effect
. This Agreement shall bind the parties hereto and their respective heirs, legal representatives, successors and assigns.
22.
Time; Business Day
.
(a) Time is of the essence of this Agreement; provided that in the event that the last day for performance of any obligation hereunder falls upon a day that is not a business day (as defined below), the last day for said performance shall be deemed to be the next business day.
(b) As used in this Agreement, the term “business day” shall mean any day that is not a Saturday, a Sunday, a legal holiday in the United States of America, or a legal holiday in the State of Oregon.
19
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23.
Resolution of Disputes
. In the event that any provision of this Agreement refers to this Section 23 for a determination of the amount of any change in the value of the Property or the fair market value of any portion(s) of the Property or the timber on the Property or to resolve a disagreement between the parties with respect to the allocation of the Purchase Price, Seller and Purchaser will promptly make a good faith attempt to mutually agree upon such fair market value or allocation. In the event Seller and Purchaser are unable to so agree within the time period specified in this Agreement after notice of the event or circumstance necessitating the need for such determination from either party to the other party, Seller and Purchaser will each promptly appoint an independent forestry consultant, each of which may be a consultant previously engaged by the appointing party with respect to the Property, and such two consultants will in turn promptly select a third independent forestry consultant (which third consultant may not be a consultant previously engaged by either party) to act with them in a panel to determine the appropriate fair market valuation or allocation. The panel of consultants will reach a binding decision within thirty (30) days of the selection of the third consultant, and the decision of the panel of consultants as to the fair market valuation or the amount of the Purchase Price to be allocated to Real Property or Personal Property that is in dispute will be final. Each party will submit its determination of value or, in the case of a dispute regarding the allocation of the Purchase Price, its position regarding the amount to be allocated to the item(s) in dispute to the panel of consultants within three (3) days of selection of the third consultant. When making is determination of value or of the proper allocation to attribute to a disputed allocation to Real Property or Personal Property, as applicable, the panel of consultants shall select the submission of the party that the panel determines most closely represents the fair market valuation of the Real Property or Personal Property for which the allocation of value is disputed taking into account any guidelines set forth in the applicable section of this Agreement, but the panel shall not be authorized to select a different amount. Seller shall pay the cost of its appointed consultant; Purchaser shall pay the cost of its appointed consultant; and Seller and Purchaser shall each pay one-half (1/2) of the cost of the third consultant. The Closing Date shall be extended to the extent necessary for such consultants to reach such decision but not by more than forty-five (45) days.
24.
Public Announcements
.
Seller
and Purchaser hereby agree that prior to the Closing, except as required by applicable laws or any applicable stock exchange rules, all press releases and other public announcements with respect to the transactions contemplated by this Agreement, including the time, form and content of such release or announcement, shall be made only with the prior mutual written agreement of Purchaser
and Seller; provided, however, that any disclosure required to be made under applicable law may be made only if a party required to make such disclosure has determined in good faith and upon advice of legal counsel that it is necessary to do so and such party has used reasonable efforts, prior to the issuance of the disclosure, to provide the other party with a copy of the proposed disclosure and to discuss the proposed disclosure with the other party.
25.
Patriot Act Compliance
. Purchaser represents that neither Purchaser nor any of Purchaser’s affiliates, nor any of their respective partners, members, shareholders or other equity owners, and none of their respective employees, officers, directors, representatives or agents is, nor
20
97087663.1 0067129-00001
will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“
OFAC
”)
of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not attempt to assign this contract to, contract with or otherwise engage in any dealings or transactions or be otherwise associated with such persons or entities. Any assignee of this contract is deemed to make this representation upon acceptance of an assignment of this contract. Purchaser’s primary address is as set forth in the notice section of this Agreement. Purchaser hereby covenants and agrees that if Purchaser obtains knowledge that Purchaser or any owner of any controlling interest in Purchaser becomes listed on the foregoing or is indicted, arraigned, or custodially detained on charges involving money laundering or predicate crimes to money laundering, Purchaser will immediately notify Seller in writing, and in such event, Seller will have the right to terminate this Agreement without penalty or liability to Seller immediately upon delivery of written notice thereof to Purchaser, in which event the Earnest Money will be returned to Purchaser and neither party will have any further rights or obligations under this Agreement, except for such as specifically survive termination.
26.
Effective Date
. The “
Effective Date
” of this Agreement will be the date the later of Seller and Purchaser has executed this Agreement, as indicated on the signature page(s) below.
27.
Incorporation of Exhibits
. All exhibits referred to herein are hereby incorporated in this Agreement by this reference.
28.
AS IS
. PURCHASER ACKNOWLEDGES THAT, EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES SET FORTH IN SELLER’S SPECIAL WARRANTY OF TITLE IN THE DEED AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 9 OF THIS AGREEMENT: (
I
) NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, HAVE BEEN OR ARE BEING MADE BY OR ON BEHALF OF SELLER OR ANY OTHER PERSON, INCLUDING WITH RESPECT TO THE CONDITION OR VALUE OF THE PROPERTY OR THE TIMBER THEREON,
AND SELLER HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND SUITABILITY FOR ITS INTENDED USE, (
II
) IN ENTERING INTO THIS AGREEMENT, PURCHASER HAS NOT RELIED ON AND DOES NOT RELY ON ANY SUCH REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, BY OR ON BEHALF OF SELLER OR ANY OTHER PERSON, AND (III) PURCHASER SHALL ACQUIRE THE PROPERTY IN
“AS IS, WHERE IS, AND WITH ALL FAULTS”
CONDITION ON THE CLOSING DATE.
21
97087663.1 0067129-00001
29.
Property Data and Materials; Confidentiality Agreement
. Purchaser acknowledges that, except as may otherwise be provided in Section 9, any information or materials provided or made available to Purchaser or its representatives in hard copy, by facsimile or electronic transmission or via the online data room managed by Forest Investment Associates L.P., including, without limitation, any cost or other estimates, projections, acreage, and timber information, the Title Commitment, other title commitments, and other title policies, are not and shall not be deemed representations or warranties by or on behalf of Seller. Purchaser acknowledges and agrees that Purchaser is and will remain, until the Closing, subject to and bound by all of the prohibitions, requirements, restrictions and other provisions of that certain Confidentiality Agreement, dated as of February 16, 2018, between Forest Investment Associates L.P., in its capacity as investment manager, on behalf of Seller and Purchaser (the “
Confidentiality Agreement
”), and Purchaser reaffirms all of its obligations and liabilities thereunder.
30.
No Survival
. Except as otherwise provided herein, the provisions of this Agreement shall not survive the Closing of the purchase and sale contemplated hereby and shall be merged into the delivery of the Deed and other documents and the payment of all monies pursuant hereto.
31.
No Solicitation
. Seller agrees that it shall not after the Effective Date and until this Agreement is terminated, directly or indirectly, through any officer, director, employee, agent or otherwise, (a) solicit, initiate or encourage submission of proposals, offers or expressions of interest from any person or entity other than Purchaser relating to any acquisition or purchase of all or a portion of the Property (any of the foregoing proposals, offers or expressions of interest being referred to herein as an “
Acquisition Proposal
”), or (b) participate in any negotiations or discussions with any person other than Purchaser regarding, or furnish to such person any nonpublic information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any Acquisition Proposal.
32.
[
Intentionally Deleted
]
33.
Property Information
. To the extent not already delivered to Purchaser, and to the extent transferrable, Seller shall make available to Purchaser within ten (10) days of the date hereof copies of all title information owned by Seller and within Seller’s possession relating the Real Property, inventory information, GIS information, current third party contracts for silvicultural activities with respect to the Property, and plot data from Seller’s latest cruise of the Property (the “
Property Information
”). At Closing, Seller shall deliver both hard copies and electronic versions (to the extent in existence and to the extent transferrable) of the Property Information as Purchaser may reasonably request;
provided
,
however
, that Seller shall have no obligation to provide or make available to Purchaser at any time, and the term “Property Information” shall not include: (a) any information that is subject to the attorney-client, attorney work product doctrine or other privilege (as reasonably and in good faith determined by Seller), (b) any information regarding the pricing
22
97087663.1 0067129-00001
of timber, internal or external appraisals of the Real Property, other valuations or similar pricing or financial records, or any other information that is confidential and proprietary to Seller, (c) all communications by Seller personnel prior to the Closing Date regarding the transactions contemplated by this Agreement and any other documentation relating to the negotiation, documentation, and consummation of the transactions contemplated by this Agreement, (d) Seller’s investor and manager communications and (e) any document or item which Seller is contractually bound to keep confidential.
34.
Statutory Notice
. THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS THAT, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND THAT LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930, IN ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON’S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO VERIFY THE EXISTENCE OF FIRE PROTECTION FOR STRUCTURES AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010.
35.
Post-Closing Permit Transfer
. Upon Seller’s completion, after Closing, of the harvest of Unharvested Timber, if any, from the Harvest Parcels listed on
Exhibit E
, or, if earlier, the date that Seller’s reservation of the Unharvested Timber expires (such date, as to each permit, the “
Post-Closing Permit Transfer Date
”), Seller shall assign the notifications of operations/permits for such harvest unit to Purchaser and Purchaser shall be deemed to have assumed the obligations arising under such permits, and such permits shall thereafter be Assumed Liabilities, except that Purchaser is not assuming, and shall not be liable for, any liabilities or obligations of Seller under such permits arising prior to the Post-Closing Permit Transfer Date other than unperformed reforestation obligations under such permits.
36.
Continuing Obligations
. Purchaser acknowledges that the Real Property is subject to certain reforestation and/or slash removal obligations imposed by applicable law or governmental regulations, including, without limitation, the Oregon Forest Practices Act,
23
97087663.1 0067129-00001
concerning the Real Property, including but not limited to the continuing obligations under the notifications listed on attached
Exhibit G
(collectively, the “
Continuing Obligations
”). The parties acknowledge that the disclosures set forth in
Exhibit G
satisfy the statutory requirements of ORS 527.665. As of the Closing, Purchaser assumes and agrees to perform the Continuing Obligations at Purchaser’s sole cost and expense in a timely fashion, and to indemnify, defend and hold Seller harmless from and against the Continuing Obligations and any claim, loss, damage, cost or expense arising from Purchaser’s failure to perform the same. The obligations under this Section shall survive Closing.
37.
Fees and Expenses; Attorney’s Fees
. Except as expressly provided in this Agreement to the contrary, whether or not the transactions contemplated by this Agreement are consummated, all legal and other costs and expenses incurred in connection the due diligence, preparation, negotiation and execution of this Agreement and in connection with the transactions contemplated hereby shall be paid by the party incurring such costs and expenses. Should any legal action or proceeding be commenced by either party in order to enforce this Agreement or any provision hereof or any agreement or instrument executed and delivered in connection with this Agreement, or in connection with any alleged dispute, breach, default, or misrepresentation in connection with any provision herein or therein contained, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, including reasonable title insurance company charges or fees and reasonable and necessary expert witness fee and costs of pursuing or defending any legal action, including, without limitation, any on appeal, discovery or negotiation and preparation of settlement arrangements, in addition to such other relief as may be granted.
38.
Conditions
.
(a) Unless waived by Purchaser, if the Option is exercised, the obligations of Purchaser to purchase the Property under this Agreement are expressly made subject to the fulfillment in all respects of the following conditions precedent:
(i)
the truth and accuracy as of the date of Closing of each and every warranty and representation herein made by Seller; and
(ii)
Seller’s timely performance of and compliance with each and every term, condition, agreement, restriction and obligation to be performed and complied with by Seller prior to Closing under this Agreement; and
(iii)
Purchaser shall have received, in the form of a “marked binder” delivered at Closing, an irrevocable commitment by the Title Company to issue to Purchaser the Basic Title Policy subject only to the payment of the premiums therefor
24
97087663.1 0067129-00001
at Closing (but, for the avoidance of doubt, the Title Company’s commitment to issue any extended coverage or endorsements to the Basic Title Policy or to issue loan policies to Purchaser’s lenders shall not be a condition to Closing).
In the event that Purchaser has exercised the Option, if any of the above conditions is not satisfied on or before the Closing, Purchaser will have the right, exercisable at Purchaser’s sole election, to exercise the remedies described in Section 12(b), provided however, that Purchaser shall not be entitled to exercise the remedies described in Section 12(b) if the failure of any such condition to be satisfied is on account of any fault of Purchaser or breach of this Agreement by Purchaser.
(b) Unless waived by Seller, upon exercise of the Option, the obligations of Seller to sell the Property under this Agreement are expressly made subject to the fulfillment in all respects of the following conditions precedent:
(i)
the truth and accuracy as of the date of Closing of each and every warranty and representation herein made by Purchaser; and
(ii)
Purchaser’s timely performance of and compliance with each and every term, condition, agreement, restriction and obligation to be performed and complied with by Purchaser prior to Closing under this Agreement.
In the event that Purchaser has exercised the Option, if any of the above conditions is not satisfied on or before the Closing, Seller will have the right, exercisable at Seller’s sole election, to exercise the remedies described in Section 12(a) provided however, that Seller shall not be entitled to exercise the remedies described in Section 12(a) if the failure of any such condition to be satisfied is on account of any fault of Seller or breach of this Agreement by Seller.
39.
[signatures commence on following page]
25
97087663.1 0067129-00001
IN WITNESS WHEREOF, this Agreement has been duly executed, sealed and delivered by the parties hereto the day and year first above written.
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Date of Seller’s Execution:
________________________
|
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SELLER
:
FIA TIMBER PARTNERS II, L.P.
, a Delaware limited partnership
By: FIA Timber Management II, LLC, its General Partner
By:
Name: Charles L. VanOver
Title: Vice President
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[signatures continue on following page]
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Date of Purchaser’s Execution:
________________________
|
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PURCHASER
:
CATCHMARK TIMBER TRUST, INC., a
Maryland corporation
By: _________________________ (SEAL)
Name: _______________________
Title: _________________________
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[end of signatures]
Schedule of Exhibits
Exhibit A-1 - Real Property Descriptions
Exhibit A-2 - Maps Depicting Real Property
Exhibit B - Form of Deed
Exhibit C - Certain Title Matters
Exhibit D - Schedule of Unrecorded Encumbrances
Exhibit E - Harvest Parcels
Exhibit F - Form of Assignment and Assumption Agreement
Exhibit G - Continuing Obligations
Exhibit H - Form of Post-Closing Harvest Agreement
Exhibit I - Form of Owner’s Affidavit
Exhibit J - Form of Bill of Sale
Exhibit K - Allocation
EXHIBIT A-1
Real Property Descriptions
Real property in the County of Coos, State of Oregon, described as follows:
TOWNSHIP 30 SOUTH, RANGE 12 WEST and
TOWNSHIP 30 SOUTH, RANGE 13 WEST
Parcel 54
Secitons 13 and 18: All thoase portion of the NE 1/4, the NW 1/4, the SW 1/4 of Section 18, Township 30 South, Range 12 West of the Willamette Meridian, Coos County, Oregon and the SE 1/4, the SE 1/4 of the SW 1/4 of Section 13, Township 30 South, Range 13 West of the Willamette Meridian, Coos County, Oregon, lying Northwesterly of a line beginning at an iron pipe on the Section line between Sections 13 and 24, Townsip 30 South, Range 13 West of the Willamette Meridian, Coos County, Oregon 451.7 feet West from the South quarter corner of said Section 13; thence North 17° 13’ East 188.8 feet; thence North 23° 13’ East 351.7 feet to a iron pipe; thence North 35° 06’ East 1171.2 feet to an iron pipe on the West edge of a road; thence along the Northwesterly edge of said road North 17° 50’ East 142.8 feet; North 05° 32’ West 191.6 feet; North 30° 21’ East 133.2 feet North 54° 52’ East 263.6 feet; South 72° 07’ East 124.7 feet; South 51° 36’ East 160.2 feet; South 77° 22’ East 150.8 feet; South 87° 38’ East 281.2 feet; South 60° 45’ East 128.3 feet; North 63° 22’ East 310.8 feet; South 57° 47’ East 131.7 feet to an iron pipe on the Westelry edge of said road; thence South 80° 05’ East 324.3 feet to an iron pipe; thence North 44° 48’ East 210.5 feet to an iron pipe; thence North 42° 17’ East 404.0 feet to an iron pipe; thence North 40° 22’ East 546.2 feet to an iron pipe; thence North 71° 36’ East 205.3 feet to an iron pipe; thence North 44° 04’ East 411.8 feet to an iron pipe; thence North 33° 17’ East 129.6 feet to an iron pipe; thence North 42° 31’ East 218.5 feet to an iron pipe; thence North 36° 44’ East 196.8 feet to an iron pipe; thence North 29° 09’ East 240.6 feet to an iron pipe; thence North 51° 40’ East 150.8 feet to an iron pipe; thence North 63° 08’ East 313.1 feet to an iron pipe; thence North 65° 23’ East 135.7 feet to an iron pipe; thence North 76° 46’ East 160.8 feet to an iron pipe; thence North 77° 14’ East 245.4 feet to an iron pipe; thence North 39° 42’ East 199.7 feet to an iron pipe; thence North 67° 15’ East 306.2 feet to an iron pipe; thence North 39° 35’ East 247.7 feet to an iron pipe; thence South 85° 03’ East 185.7 feet to an iron pipe; thence South 40° 23’ East 148.3 feet to an iron pipe; thence South 39° 29’ East 124.1 feet to an iron pipe; thence South 86° 09’ East 154.1 feet to an iron pipe; thence North 64° 39’ East 187.9 feet to an iron pipe; thence North 41° 49’ East 291.6 feet to an iron pipe; thence North 28° 49’ East 87.2 feet to an iron pipe; thence North 47° 28’ East 149.8 feet to an iron pipe; thence North 38° 17’ East 93.8 feet to an iron pipe; thence North 21° 58’ East 115.7 feet to an iron pipe; thence North 03° 48 East 328.6 feet to an iron pipe on the Section line between Sections 7 and 18, Townsip 30 South, Range 12 West of the Willamette Meridian, Coos County, Oregon, 60.0 feet West from the East 1/16
th
corner between said Sections 7 and 18.
TOGETHER WITH access easement rights reserved in instrument recorded as Document No. 75-2-110740, Coos County, Oregon records.
South 47° 06’ 19” West 63.10 feet; thence North 72° 20’ 22” West 76.24 feet; thence
South 82° 28’ 19” West 88.27 feet; thence South 04° 30’ 41” West 125.94 feet; thence
South 29° 31’ 31” East 56.95 feet; thence South 12° 05’ 18” West 70.96 feet; thence
South 73° 53’ 11” West 244.04 feet; thence North 77° 53’ 55” West 70.92 feet; thence
South 55° 39’ 18” West 81.99 feet; thence South 02° 44’ 10” West 86.74 feet; thence
South 32° 46’ 09” East 158.73 feet; thence South 00° 44’ 37” East 174.20 feet; thence
South 41° 17’ 32” West 99.36 feet; thence South 88° 05’ 23” West 67.86 feet; thence
North 32° 43’ 13” West 75.29 feet; thence North 10° 32’ 00” East 197.42 feet; thence
North 62° 38’ 12” West 74.21 feet; thence South 56° 02’ 53” West 291.64 feet; thence
South 27° 48’ 38” West 92.07 feet; thence South 09° 39’ 16” East 107.85 feet; thence
South 87° 30’ 32” West 52.05 feet; thence South 27° 44’ 42” West 48.57 feet; thence
Parcel 60
Section 11: The S 1/2 of the NE 1/4; the NW 1/4 of the NE 1/4; the N 1/2 of the SE 1/4; the SE 1/4 of the SE 1/4; the NE 1/4 of the SW 1/4; the SE 1/4 of the NW 1/4.
PARCEL 61
Section 13: The N 1/2; the N 1/2 of the SW 1/4; the SW 1/4 of the SW 1/4.
Parcel 62
Section 14: The E 1/2; the SW 1/4 and that portion of the NW 1/4 lying South of that boundary line described in Property Line Adjustment Deed recorded in Coos County Microfilm Reel No. 94-05-0751.
Parcel 63
Section 15: The SE 1/4 of the SE 1/4; the S 1/2 of the SW 1/4.
thence South 34° 16’ 46” West 55.32 feet; thence South 48° 38’ 28” West 52.52 feet;
thence South 89° 06’ 09” West 55.56 feet; thence North 77° 59’ 44” West 135.45 feet;
thence South 74° 35’ 54” West 67.00 feet; thence South 72° 46’ 04” West 64.23 feet;
thence South 56° 28’ 57” West 73.26 feet; thence South 63° 05’ 11” West 65.70 feet;
thence South 78° 44’ 49” West 69.13 feet; thence South 88° 46’ 33” West 76.31 feet;
thence South 78° 19’ 46” West 69.20 feet; thence South 79° 16’ 54” West 71.32 feet;
thence South 81° 04’ 10” West 72.26 feet; thence South 62° 11’ 57” West 67.86 feet;
thence South 60° 44’ 45” West 73.19 feet; thence South 53° 41’ 22” West 49.85 feet;
thence South 46° 20’ 51” West 5.53 feet; thence South 46° 20’ 51” West 58.84 feet;
thence South 45° 37’ 10” West 67.32 feet; thence South 45° 42’ 31” West 58.71 feet;
thence South 26° 27’ 40” West 62.97 feet; thence South 13° 46’ 17” West 68.24 feet;
thence South 25° 14’ 45” West 133.33 feet; thence South 17° 47’ 43” West 1.17 feet;
thence South 67° 57’ 47” West 53.17 feet; thence South 54° 10’ 19” West 52.03 feet;
thence South 59° 44’ 53” West 54.94 feet; thence South 85° 51’ 50” West 64.71 feet;
thence South 89° 51’ 10” West 67.65 feet; thence South 80° 17’ 10” West 66.53 feet;
thence North 83° 12’ 14” West 55.96 feet; thence North 87° 57’ 55” West 54.79 feet;
thence South 67° 22’ 29” West 56.80 feet; thence South 56° 58’ 00” West 59.43 feet;
thence South 66° 45’ 36” West 56.38 feet; thence North 74° 47’ 28” West 49.20 feet;
thence North 47° 14’ 06” West 31.87 feet; thence North 50° 23’ 12” West 51.32 feet;
thence North 75° 23’ 23” West 47.13 feet; thence North 88° 09’ 18” West 48.96 feet;
thence South 63° 13’ 58” West 50.80 feet; thence South 60° 22’ 23” West 51.83 feet;
thence South 85° 36’ 55” West 53.89 feet; thence North 88° 57’ 19” West 57.48 feet;
thence North 74° 03’ 03” West 53.54 feet; thence North 62° 16’ 25” West 57.09 feet;
thence North 52° 32’ 38” West 57.84 feet; thence North 63° 51’ 21” West 76.66 feet;
EXHIBIT A-2
Maps Depicting Real Property
(See attached)
EXHIBIT B
FORM OF SPECIAL WARRANTY DEED
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After Recording, Return To:
[_____________]
[_____________]
[_____________]
Until A Change Is Requested,
Send All Tax Statements To:
[_____________]
[_____________]
[_____________]
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Space above reserved for recorder
STATUTORY SPECIAL WARRANTY DEED
FIA TIMBER PARTNERS II, L.P., a Delaware limited partnership (“
Grantor
”), conveys and specially warrants to
[_______________], a [_______________] (“
Grantee
”), the real property located in [Coos]/[Curry] County, Oregon, described on the attached
Exhibit A
, together with Grantor’s right, title and interest in the following: all buildings, structures, and other improvements located thereon, all tenements, hereditaments, easements, appurtenances and privileges thereto belonging, all trees, timber, sand, gravel, rock and crops now located thereon or thereunder, and all oil, gas and mineral rights and interests in said real property not reserved or conveyed by Grantor or Grantor’s predecessors in title (collectively, the “
Property
”), free of encumbrances created or suffered by the Grantor except as specifically set forth herein.
SUBJECT TO, and excepting and excluding from the covenants and warranties described herein and in ORS 93.855, the matters set forth on attached
Exhibit B
.
The true consideration for this conveyance is $_______________.
[TIMBER RESERVATION TO BE INSERTED IF THERE IS UNHARVESTED TIMBER ON HARVEST PARCELS]
Grantor hereby excepts from the conveyance made herein and reserves for itself and for the benefit of Grantor’s successors, assigns and contract timber buyers all timber standing or fallen and located on the portions of the Property which are cross-hatched on
Exhibit C
attached hereto for a period not to exceed one (1) year from the date of this Deed, as such time for removal may be
further extended pursuant to the terms of the Post Closing Harvest Agreement defined below (the “
Timber Reservation
”). Grantor’s reserved rights to enter the Property and to remove the timber reserved to Grantor under the foregoing Timber Reservation is governed by the terms and conditions of a separate unrecorded Post Closing Harvest Agreement entered into between Grantor and Grantee of even date with this deed (the “
Post Closing Harvest Agreement
”). Upon the expiration of the time for removal of timber subject to the foregoing Timber Reservation, all rights, title and interest to all such timber remaining on the Property shall automatically pass to Grantee.
BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON’S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010. THIS INSTRUMENT DOES NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930, AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010.
DATED as of [_____________________], 2018.
FIA TIMBER PARTNERS II, L.P.,
a Delaware limited partnership
By: FIA Timber Management II, LLC,
its General Partner
By:
Name:
Title:
STATE OF OREGON )
)ss.
County of __________ )
The foregoing instrument is acknowledged before on [_______________], 2018, by [__________________], as [____________________] of FIA Timber Management II, LLC, the General Partner of FIA Timber Partners II, L.P., a Delaware limited partnership.
Notary Public for Oregon
Commission No.:
My commission expires:
Exhibit A
Legal Description of Property
[
Insert legal description
]
Exhibit B
Exceptions to Title
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1.
|
[INSERT PERMITTED ENCUMBRANCES THAT BECOME PERMITTED ENCUMBRANCES UNDER THE AGREEMENT AND EXHIBIT C (OF OPTION AGREEMENT) MATTERS]
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EXHIBIT C
Certain Title Matters
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1.
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Liens for taxes, assessments and other governmental charges which are not yet due and payable.
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2.
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Rights of third parties in and to any oil, gas and other minerals or other substances of any kind or character as may have been reserved by or conveyed to others prior to the Effective Date and any leases concerning any of such previously reserved or conveyed oil, gas, other minerals or other substances in, on or under the Real Property.
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3.
|
All matters that would be revealed by a current and accurate survey or inspection of the Real Property.
|
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|
4.
|
Any loss or claim due to lack of access to any portion of the Real Property.
|
|
|
5.
|
Existing zoning, forestry, building and land use restrictions, codes, ordinances, rules and regulations affecting the Real Property or the use thereof.
|
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6.
|
Rights of parties in possession pursuant to the Unrecorded Encumbrances.
|
|
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7.
|
Rights of others in and to any creeks, rivers, lakes or streams located on or adjoining the Real Property, including any rights of the United States of America, of the State of Oregon or any other parties whatsoever, in the use and continuous flow of any brooks, streams or other natural water courses or water bodies, riparian rights, navigational servitudes, or right to the beds and banks of such water courses below the ordinary high-water mark thereof.
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8.
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Existing road rights of way and the right of the public to use such roads.
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9.
|
Existing railroad rights of way and easements.
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10.
|
Existing utility easements and rights of way.
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11.
|
Rights, if any, relating to the construction and maintenance in connection with any public utility of wires, poles, pipes, conduits and appurtenances thereto, on, under, above or across the Real Property.
|
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12.
|
Indian treaty or aboriginal rights, including easements and equitable servitudes.
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13.
|
All water districts, water rights, restrictions or reservations outstanding in third parties.
|
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14.
|
Possible additional taxes and penalties that may be assessed if the Real Property is disqualified for assessment on the basis of forestland or farmland use.
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15.
|
Reservations in federal patents and acts authorizing the same.
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16.
|
If applicable, the Timber Reservation to be contained in the Deed.
|
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17.
|
Any Pre-Closing Easements which are entered by Seller pursuant to Section 5(e) of this Agreement.
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EXHIBIT D
Schedule of Unrecorded Encumbrances
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•
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Timber Cutting Agreements
|
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1.
|
Pay as Cut Timber Cutting Right Contract No. 567-17-24 dated November 28, 2017, between FIA Timber Partners II, L.P., as seller, and Scott Timber Co., as purchaser.
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2.
|
Pay as Cut Timber Cutting Right Contract No. 567-17-26 dated November 30, 2017, between FIA Timber Partners II, L.P., as seller, and G & D Timber Inc., as purchaser.
|
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|
•
|
Temporary Access Licenses
|
|
|
1.
|
Temporary Access Letter Agreement for Beaver Dam Road dated April 14, 2018, between FIA Timber Partners II, LP, and Mt. Scott Holding Co.
|
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1.
|
Grazing Lease dated October 6, 2017, between FIA Timber Partners II, L.P., as lessor and Mark Isenhart, as lessee.
|
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|
•
|
Hunting License Agreements
|
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|
1.
|
Hunting License Agreement dated February 9, 2018, between FIA Timber Partners II, L.P., as licensor, and Wilderness Unlimited, as licensee.
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1.
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Contract for Patrol of Timberlands (Sheriff’s Office) dated effective July 1, 2017 between FIA Timber Partners II, L.P. and the Board of Commissioners of Coos County, Oregon
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EXHIBIT E
Harvest Parcels
The Harvest Parcels shall include the parcels depicted on the following maps, each such map being the map attached as Exhibit A to the applicable Timber Cutting Agreement and identifying the “Sale Area” as defined therein. The acreage shown on each of the following maps is an approximation determined by GIS mapping.
FIA Timber Partners II, L.P.
FIA Timber Partners II, L.P.
FIA Timber Partners II, L.P.
EXHIBIT F
Form of Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this “
Agreement”
), dated as of _______________ ___, 2018, is by and between FIA Timber Partners II, L.P., a Delaware limited partnership (“
Assignor”
), and ________________, a _________________ (“
Assignee”
).
Assignor and CatchMark Timber Trust, Inc., a Maryland corporation (“
CTT
”) have entered into that certain Option Agreement, dated as of _____________ ____, 2018, by and between Assignor, as seller, and CTT, as buyer, as assigned by CTT to Assignee (as it may have been amended, the “
Option Agreement”
). All capitalized terms used in this Agreement but not otherwise defined herein are given the meanings set forth in the Option Agreement.
For good and valuable consideration as recited in the Option Agreement, the receipt and adequacy of which are hereby acknowledged, Assignor and Assignee agree as follows:
1.
Assignment
. Effective as of the Closing Date, Assignor, to the extent of its interest therein, hereby sells, assigns, transfers and conveys to Assignee, to the extent assignable, all of Assignor’s right, title and interest in, to and under the Unrecorded Encumbrances set forth on attached
Exhibit A
(the “
Assignment”
).
2.
Assumption
. Effective as of the Closing Date, Assignee hereby purchases, acquires and accepts the foregoing Assignment from Seller, and Assignee further hereby assumes and agrees to pay, honor and discharge when due the Assumed Liabilities.
3.
Indemnification
.
(a)
Assignee hereby agrees to indemnify, defend and hold harmless Assignor for, from and against, and will reimburse Assignor for, any and all actions, claims, costs, damages, demands, expenses (including reasonable attorneys’ fees), loss and liability, of any nature whatsoever, arising out of or in any way related to the Assumed Liabilities and to the failure of Assignee to pay and perform the obligations under the Unrecorded Encumbrances set forth on attached
Exhibit A
, arising on or after the Closing Date.
(b)
Assignor hereby agrees to indemnify, defend and hold harmless Assignee for, from and against, and will reimburse Assignee for, any and all actions, claims, costs, damages, demands,
expenses (including reasonable attorneys’ fees), loss and liability, of any nature whatsoever, arising out of or in any way related to the failure of Assignor to pay and perform the obligations under the Unrecorded Encumbrances set forth on attached
Exhibit A
arising prior to the Closing Date.
4.
Governing Law
. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule (whether of the State of Oregon or any other jurisdiction).
5.
Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement notwithstanding that all parties are not signatories to the same counterpart. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
6.
General
. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
[
Signatures on following pages.
]
IN WITNESS WHEREOF, each of Assignor and Assignee has caused this Assignment and Assumption Agreement to be executed by its duly authorized representative with the intent that it be effective as of the date set forth above.
Assignor
:
FIA Timber Partners II, L.P.,
a Delaware limited partnership
By: FIA Timber Management II, LLC,
its General Partner
By:
Name:
Title:
Assignee
:
_____________________,
a ________________________
By:
Name:
Title:
EXHIBIT A
To
Assignment and Assumption Agreement
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•
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Temporary Access Licenses
|
|
|
1.
|
Temporary Access Letter Agreement for Beaver Dam Road dated April 14, 2018, between FIA Timber Partners II, LP, and Mt. Scott Holding Co.
|
|
|
1.
|
Grazing Lease dated October 6, 2017, between FIA Timber Partners II, L.P., as lessor and Mark Isenhart, as lessee.
|
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|
•
|
Hunting License Agreements
|
|
|
1.
|
Hunting License Agreement dated February 9, 2018, between FIA Timber Partners II, L.P., as licensor, and Wilderness Unlimited, as licensee.
|
|
|
1.
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Contract for Patrol of Timberlands (Sheriff’s Office) dated effective July 1, 2017 between FIA Timber Partners II, L.P. and the Board of Commissioners of Coos County, Oregon
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EXHIBIT G
Continuing Obligations
Reforestation and slash disposal obligations in connection with the following operations on the Real Property:
|
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1.
|
Notification of Operations/Permit # 2017-740-13703 with respect to Pay as Cut Timber Cutting Right Contract No. 567-17-24 dated November 28, 2017, between FIA Timber Partners II, L.P., as seller, and Scott Timber Co., as purchaser.
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2.
|
Notification of Operations/Permit # 2017-740-13432 with respect to Pay as Cut Timber Cutting Right Contract No. 567-17-26 dated November 30, 2017, between FIA Timber Partners II, L.P., as seller, and G & D Timber Inc., as purchaser.
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97087663.1 0067129-
00001
EXHIBIT H
Form of Post Closing Harvest Agreement
POST-CLOSING HARVESTING AGREEMENT
This Post-Closing Harvesting Agreement (the "Agreement") is made by and between _______________, a ________________ (hereinafter referred to as "Owner"), and FIA Timber Partners II, L.P., a Delaware limited partnership (hereinafter referred to as "Seller"), as of the ___ day of __________, 2018.
W I T N E S S E T H:
For and in consideration of the mutual promises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, it is agreed by and between the parties hereto as follows:
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1.
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Timberland Sale and Timber Reservation
: Seller has conveyed to Owner by Statutory Special Warranty Deed dated on the date hereof certain timberland located in Coos and Curry Counties, Oregon (the "Property"). Seller has reserved from Seller’s conveyance to Owner all timber standing and fallen and located on the portions of the Property shown on Exhibit “A” attached hereto and hereby made a part hereof (such reserved timber, the “Timber” and such reservation, the “Timber Reservation”). Seller has entered into those timber sale contracts listed on Exhibit “B” attached hereto (the “Timber Contracts”) pursuant to which the respective timber buyers under such contracts have the right to harvest the Timber more particularly described in such Timber Contract. Seller and Owner are entering into this Agreement to define and acknowledge the responsibilities and obligations of Seller and Owner with respect to the harvesting of the Timber reserved to Seller in the Timber Reservation.
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2.
|
Cutting & Access Rights
: Seller, its timber buyers under the Timber contracts, and their respective employees, contractors, agents and assigns (collectively, “Permittees”) shall be entitled to enter the Property and to cut and remove the Timber on or before ____________, 2019 (as it may be extended as provided herein, the “Removal Date”, with the period from the date hereof through and including the Removal Date being hereinafter referred to as the “Term”. Seller and its Permittees shall have no further rights to enter the Property or cut the Timber after the Removal Date. Owner hereby grants to Seller and its Permittees rights of ingress and egress with workers, machinery and equipment on the Property and any adjoining property of Owner, but only to the extent necessary to conduct such timber cutting and removal. Seller’s and its Permittees’
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97087663.1 0067129-
00001
use of Owner’s existing roads or any new roads permitted to be constructed by the terms of the Timber Contracts shall be at Seller’s and such Permittees’ own risk. Seller and its Permittees shall be entitled to construct such new roads as are contemplated under the Timber Contracts. Owner shall not be liable for any latent or patent defect in any roadway nor shall Owner be liable for any damages or injuries sustained by Seller or Seller’s Permittees, or any other individual or entity acting by, for or under Seller or its Permittees hereunder, arising out of or resulting from the use of said roads, except to the extent such damages or injuries are caused by Owner’s gross negligence or willful misconduct. Seller agrees to conduct its activities at all times so as to minimize damage to Owner’s roads and agrees to repair any damage to Owner’s roads caused by Seller or Seller’s Permittees.
|
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3.
|
Seller’s Operations
: Seller shall conduct its timber cutting and removal under this Agreement in the manner provided in the Timber Contracts and otherwise in a prudent and responsible manner, using generally accepted and sound silvicultural and harvesting procedures and practices in order to protect and preserve in all respects the land upon which said timber is located and any adjoining timber and lands of Owner. Trees shall be cut as low to the ground as practical in accordance with generally acceptable industry standards. Seller shall repair all fences or structures damaged by its operations. Seller shall leave all fire breaks, property lines, running streams and drainage ditches clear of logs, timber, limbs and debris. All oil drums, cans, bottles, cartons, limbing bars, loading decks, abandoned equipment and other debris shall be removed from the Property upon completion of Seller’s harvesting operations at Seller’s expense. If repairs are not made or if the debris is not removed and cleared promptly after notice from Owner, Owner may undertake such repair or removal for Seller’s account, and Seller shall be liable to Owner for any reasonable expenses incurred in repairing or removing same. Seller shall not, under any circumstances, bury any material underground.
|
Seller acknowledges that a higher degree of care is required when the Property is abnormally wet and that such condition may require Seller to stop or interrupt its operations hereunder. Owner reserves the right to suspend Seller’s harvesting operations when Owner reasonably deems significant site damage will result from continued operations;
provided
that in the event of any such suspension, the Removal Date shall automatically be extended for the same number of days that such suspension was in effect.
All timber harvesting operations shall be conducted in compliance with the Best Management Practices (BMP) guidelines of the State of Oregon and in compliance with applicable law.
97087663.1 0067129-
00001
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4.
|
Owner’s Inspection
: Owner shall have the right, at any time, to inspect the Property upon which the Timber is located for the purpose of ascertaining whether the requirements of this Agreement are being met. In the event any violations are discovered or ascertained by Owner, then Owner shall provide written notice of such violations to Seller, and Seller shall have a reasonable amount of time thereafter to remedy such violations. If Seller fails to remedy such violations within a reasonable amount of time, Owner shall have the right to remedy the same, and Seller shall reimburse Owner for the cost thereof.
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5.
|
Payment for Unauthorized Cutting
: The cutting or materially damaging of any trees not permitted to be cut hereunder shall be paid for by Seller at the rate of 150% of the then current market value of said timber.
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6.
|
Indemnification & Hold Harmless
: Seller does hereby agree to indemnify and hold harmless Owner in connection with and from any and all causes of action, liabilities, losses, damages, injuries, claims, costs (including reasonable attorney fees) or litigation, arising out of, attributable to, resulting from or due to: (a) the activities and operations of Seller or its Permittees on the Property, except to the extent such are caused by the gross negligence or willful misconduct of Owner, or its agents or employees; and (b) any violation or default under any of the Timber Contracts.
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7.
|
Insurance
: During the Term, Seller shall maintain a general liability insurance policy, with coverage in an amount not less than $2,000,000.00, insuring for covered losses arising out of Seller’s presence and activities on the Property. In lieu of coverage in the amount of $2,000,000, Seller may maintain general liability coverage on a per occurrence basis of $1,000,000 and excess umbrella coverage on a per occurrence basis of $1,000,000. The aforesaid insurance shall be obtained from a company reasonably satisfactory to Owner and licensed to do business in the State of Oregon. Such insurance policy or policies shall name Owner and Owner’s manager, CatchMark Timber Operating Partnership, L.P., as additional insureds, and shall provide for at least thirty (30) days’ written notice to Owner prior to cancellation, termination, modification or change of any such policy. A certificate thereof, together with satisfactory evidence of payment of the premium thereon, shall be deposited with Owner on or before the commencement of harvest by Seller or any timber buyer or, if later, the date of this Agreement. Owner makes no representation that the limits of liability specified to be carried by Seller under the terms hereof are adequate to protect Seller. If Seller deems this insurance to be inadequate, Seller shall, at its own expense, provide such additional insurance as necessary.
|
97087663.1 0067129-
00001
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8.
|
Fire Protection
: Seller shall use all reasonable and customary precautions and procedures to prevent fires on the Property or any adjacent lands of Owner. In the event of any such fire caused by Seller or its Permittees of which Seller is aware, Seller shall promptly notify Owner, and shall use reasonable efforts to cause Seller’s Permittees carrying on said timber operations, to assist in controlling said fire. Owner specifically reserves the right to prohibit the making of fires on the Property if it is deemed advisable to do so, and further reserves the right to temporarily stop or interrupt Seller’s operations hereunder if conditions are such that, in Owner’s discretion, continued operations are reasonably likely to start forest fires. In the event Owner so requires suspension of harvesting, or suspension of harvesting is required by the Oregon Department of Forestry or other agency due to fire risk, the Removal Date shall automatically be extended for the same number of days that such stoppage or suspension was in effect.
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9.
|
Compliance with Laws, Etc.
: Seller shall comply with all federal, state and local laws, rules, and regulations applicable to the operations contemplated by this Agreement, including, without limitation, environmental protection/pollution laws and regulations, workmen’s compensation laws and regulations, and the securing by Seller of all necessary licenses and permits incidental to said operations,
provided
, that Owner shall be responsible for complying with any reforestation and slash disposal requirements with respect to the Property. Seller further covenants and agrees that it will not conduct its operations in a manner which could cause Owner to be in violation of any federal, state or local law, rule or regulation. Except with respect to reforestation and slash disposal obligations, Seller covenants and agrees to hold Owner harmless from and/or reimburse Owner from any costs including fees imposed by any federal, state or local agency and attorney fees which may result from Seller’s failure to fully comply with such laws, rules and regulations or from any cost which may result from Seller’s conduct which exposes Owner to a violation of such laws, rules and regulations.
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10.
|
Severance Taxes
: Seller shall pay such severance tax and all assessments as may now or hereafter be required to be paid by the laws of the State of Oregon, if any, in connection with its removal of the Timber hereunder.
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11.
|
Default
: Either party may exercise any rights or remedies available to it in any court of law or equity. In addition to all other remedies, Owner, in the event of Seller’s default in any provision of this Agreement, shall have the right to order that Seller immediately stop its harvesting operations whereupon Seller will cease its operations until the default is corrected. If the default is not corrected within thirty (30) days, at Owner’s option this Agreement may be terminated; provided, however, in the event such default cannot be corrected within thirty (30) days, such thirty (30) day period shall be extended for a reasonable amount of time so long as Seller is diligently pursuing correction thereof.
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97087663.1 0067129-
00001
No extension of the cutting period will be granted in the event of such default and extension of operations.
Owner’s right to terminate as set forth in this Paragraph 11 shall be a right in addition to collection of any damages, including costs of repair, sustained by Owner which arise out of or result from Seller’s breach of the provisions contained in this Agreement. The remedies provided for in this paragraph are in addition to any other remedies permitted in this Agreement or allowed by law.
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12.
|
Notice
: Seller shall notify Owner at the address listed in Paragraph 16 below, with regard to cutting activity as follows:
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|
|
a.
|
At the beginning of any road construction or the cutting of the Timber.
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|
|
b.
|
Upon completion of the cutting operation or when the cutting operation moves onto or off of the Property.
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13.
|
Assignment
: This Agreement shall not be assigned by Seller, in whole or in part, without the prior written consent of Owner.
|
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14.
|
Bankruptcy, etc.
: This Agreement may be terminated by Owner in the event of the filing of any bankruptcy or insolvency action or proceedings by or against Seller.
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15.
|
Owner’s Retained Rights; Warranty
: Title to the Property on which the Timber is located shall remain vested in Owner. This Agreement is made subject to any rights outstanding under any existing oil, gas or any other mineral leases or contracts covering all or any part of the Property, whether the same be recorded or otherwise, and to any rights outstanding under any other contracts, leases, easements, rights-of-way or roads as may be evidenced by possession, use, survey or which are of record.
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a.
|
This Agreement contains the entire agreement of the parties hereto, and both parties acknowledge that neither party has made any promise or representations or offered any inducement, except as herein set forth with regard to the subject matter of this Agreement. There shall be no alteration or modification of this Agreement, other than by an appropriate written instrument executed by the parties hereto or their respective successors in interest.
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97087663.1 0067129-
00001
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b.
|
The paragraph titles herein are for purposes of convenience only and shall in no way be held to explain, modify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
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c.
|
The terms Seller and Owner shall and do include and extend to the contractors, representatives, successors, heirs and assigns of the parties hereto. The rights of Seller under this Agreement extend to the respective timber buyers under the Timber Contracts, and each of such timber buyer’s contractors, agents and employees.
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d.
|
Any delay or failure by Owner in the strict enforcement of the provisions of this Agreement with respect to any default by Seller hereunder shall not constitute a waiver of Owner’s rights respecting such default or any other default hereunder. All indemnities, rights and remedies provided for herein shall survive the expiration or earlier termination of this Agreement.
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e.
|
This Agreement shall be construed under the laws of the State of Oregon.
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f.
|
Time is of the essence of this Agreement.
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g.
|
Any notices contemplated under this Agreement shall be deemed sufficient if mailed to the Owner at c/o CatchMark Timber Trust, Inc., Five Concourse Parkway, Suite 2325, Atlanta, Georgia 30328, Attn: John D. Capriotti, and Seller at c/o Forest Investment Associates L.P., 15 Piedmont Center, Suite 1250, Atlanta, Georgia 30305, Attn: Sarah Hall.
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IN WITNESS WHEREOF, Owner and Seller have caused this Agreement to be duly executed by authorized representatives as of the date first written above.
[Signatures begin on following page]
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"OWNER"
________________________, a_______________________
By: ________________________
Name: ______________________
Title: _______________________
[Signatures continue on following page]
97087663.1 0067129-
00001
“SELLER”
FIA Timber Partners II, L.P.,
a Delaware limited partnership
By: FIA Timber Management II, LLC,
its General Partner
By:___________________________________
Name:_________________________________
Title:__________________________________
97087663.1 0067129-
00001
97087663.1 0067129-
00001
EXHIBIT "A"
to Post Closing Harvest Agreement
1.
97087663.1 0067129-
00001
EXHIBIT "B"
to Post Closing Harvest Agreement
1.
EXHIBIT I
Form of Owner’s Affidavit
Owner’s Affidavit
State of
County of
|
|
Property:
|
Certain real property located in Coos and Curry Counties, Oregon and commonly known as a portion of the Dement Creek Management Unit and more particularly described in the First American Title Commitment No. NCS‑903759DEM-ATL dated ______________
(such property, the
“Property
” and such commitment, the “
Title Commitment
”)
|
I,
_____________, as _____________ of Forest Investment Associates, L.P., the duly authorized investment manager of FIA Timber Partners II, L.P., a Delaware limited partnership
("Seller"),
in such representative capacity and not in my individual capacity, having personal knowledge of the facts averred to herein and being first duly sworn, on oath depose and state that Seller is the owner of the Property and during all the time that Seller has owned the Property, Seller has received no written notice to Seller’s knowledge that record title to the Property has been disputed and more particularly:
1.
The Seller, at present, and for a period of seventy-five (75) days prior to the date of this Affidavit, (a) has not caused construction, erection, alteration or repairs of any structures or improvements on the Property to be done
(“Improvements”),
nor has Seller contracted for any material to be delivered to the Property
(“Materials”)
or (b) if it has so caused Improvements on or delivery of Materials to the Property within the foregoing period, the charges therefor have been paid or will be fully paid for when due.
2.
The undersigned has no knowledge of any unpaid real estate taxes or installments of special assessments for the Property which are currently due and payable.
3.
The Seller has received no written notice of any uncured violations of any covenants, restrictions, agreements, or conditions affecting title to the Property during Seller’s ownership of the Property.
4.
The Seller has received no written notice of pending suits, proceedings, judgments, bankruptcies, liens or executions against the Property and the Seller either in the aforesaid county or any other county in the aforesaid state.
5.
To Seller’s knowledge, except for the agreements described in
Exhibit A
attached hereto and incorporated herein by this reference, and except as provided in the above-described Title Commitment (excluding the standard or general exceptions set forth in Schedule B of the Title Commitment), there are no unrecorded agreements, encumbrances, easements, licenses or permits granting to third parties any tenancy, possessory or other occupancy rights in the Property. For purposes of this Affidavit, the term “to Seller’s knowledge” shall mean the present, actual knowledge of ______________, ________________ of Forest Investment Associates, L.P., the authorized investment manager of Seller, with no further duty to investigate or inquire.
This affidavit is given to induce First American Title Insurance Company to issue its title insurance policy or policies in reliance upon any of the statements contained herein.
Dated as of _____________, 2018
[Signature and notary appear on the following page]
AFFIANT:
Name : ____________________, in his/her capacity as _________________ of Forest Investment Associates, L.P., as authorized investment manager of the herein named Seller.
Subscribed and Sworn to before me this
______ day of ________________, 2018.
_____________________________________
My Commission Expires:
EXHIBIT J
Bill of Sale
BILL OF SALE
This Bill of Sale is executed by
FIA Timber Partners II, L.P., a Delaware limited partnership
, and delivered to
[●]
, a(n) __________ __________ (“
Purchaser
”), pursuant to that certain Option Agreement dated __________ ___, 2018 (“
Option Agreement
”), by and between Seller and [Purchaser]/[ CatchMark Timber Trust, Inc., a Maryland corporation (“
CTT
”), as assigned by CTT to Purchaser]. Unless otherwise defined herein, capitalized terms used in this Bill of Sale shall have the meanings ascribed to them in the Option Agreement.
KNOW ALL MEN BY THESE PRESENTS, that Seller for the consideration stated in the Option Agreement and other good and valuable consideration paid to Seller by Purchaser, the receipt and sufficiency of which are hereby acknowledged, hereby sells and delivers unto Purchaser the Personal Property more particularly described on attached
Exhibit A
.
TO HAVE AND TO HOLD all the Personal Property unto Purchaser, its successors and assigns, forever. Seller hereby represents, covenants, and warrants to Purchaser that Seller is the lawful owner of the Personal Property; that the Personal Property is free from all monetary encumbrances; that Seller has a right to sell the Personal Property to Purchaser; and that Seller shall warrant and forever defend title to the Personal Property unto Purchaser, its successors and assigns, against the lawful claims and demands of all persons.
DATED as of this ___ day of _______________, 2018.
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SELLER:
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FIA Timber Partners II, L.P., a Delaware limited partnership
|
By: FIA Timber Management II, LLC,
its General Partner
By: ______________________________
Name:
Title:
EXHIBIT K
Purchase Price Allocation
The parties’ initial allocation of the Purchase Price between the Real Property and the Personal Property is as follows:
Real Property
|
|
|
County
|
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Coos
|
$24,605,939.32
|
Curry
|
$582,105.33
|
TOTAL
|
$25,188,044.65
|
Personal Property
|
|
|
Crushed Rock
|
$204,250.00
|
Culverts
|
$6,179.80
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TOTAL
|
$210,429.80
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Not later than fifteen (15) days following the Effective Date (the “
Allocation Date”)
, Purchaser shall have the right to provide Seller with written notice of any proposed revisions to the above allocations based on Purchaser’s further review of the Real Property and Personal Property. Failure of Purchaser to provide such notice by the close of business on the Allocation Date shall be deemed an acceptance of the initial allocation set forth above. If Purchaser timely notifies Seller in writing of any proposed revisions to one or more items reflected in the above allocations prior to the close of business on the Allocation Date, and Seller does not agree with Purchaser’s proposed revisions, then Seller and Purchaser shall negotiate in good faith to resolve such disagreement; provided, however, that if Seller and Purchaser are unable to resolve any disagreement with respect to the proposed revisions to the above allocation within three (3) business days following the Allocation Date, then such dispute shall be resolved in accordance with the procedures set forth in Section 23 of this Agreement. Purchaser and Seller shall file all tax returns (including amended returns and claims for refund) and information reports in a manner consistent with the allocation schedule as finally determined herein. Any adjustments to the Purchase Price pursuant to this Agreement shall be allocated in the manner described in Section 2 of this Agreement.
Schedule 4(b)(vi)
Personal Property
Schedule 5(e)
Pre-Closing Access Easements
Execution Version
OPTION AGREEMENT
THIS OPTION AGREEMENT (this “
Agreement
”), made as of the Effective Date (as defined in paragraph 26 below), by and among
LRT III LLC
,
a Delaware limited liability company (hereinafter referred to as “
Seller
”),
CATCHMARK TIMBER TRUST, INC.
, a Maryland corporation (hereinafter referred to as “
Purchaser
”).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, Seller is the owner of those certain tracts or parcels of land in Coos County, Oregon, containing approximately ±5,424 acres, which tracts or parcels are more fully described in
Exhibit A-1
and which are identified as being owned by Seller as approximately depicted on the maps in
Exhibit A-
2
, each attached hereto and hereby made a part hereof (the “
Real Property
”), together with Seller’s right, title and interest in the following: all buildings, structures, and other improvements located thereon, all tenements, hereditaments, easements, appurtenances and privileges thereto belonging, all trees, timber, sand, gravel, rock and crops now located thereon or thereunder, and all oil, gas and mineral rights and interests in the Real Property not reserved or conveyed by Seller or Seller’s predecessors in title prior to the Effective Date, and, to the extent assignable, Seller’s interests under the Unrecorded Encumbrances set forth on attached
Exhibit D
, less any of the Unrecorded Encumbrances that expire prior to Closing (the foregoing hereinafter referred to collectively with the Real Property as the “
Property
”); and
WHEREAS, Purchaser desires to acquire an option to purchase the Property, and Seller is willing to grant to Purchaser an option sell the Property on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, the parties have agreed and do hereby agree as follows:
1.
Grant and Terms of Option
. Subject to the provisions of this Agreement, and for the consideration herein stated, Seller hereby grants to Purchaser an exclusive and irrevocable option to purchase the Property (the “
Option
”). The Option shall be effective as of the Effective Date and shall continue in effect until 5:00 pm Eastern Time on June 29, 2018 (such date and time the “
Option Expiration Time
” and the period running between the Effective Date and the Option Expiration Time, the “
Option Period
”). Purchaser shall exercise the Option, if at all, by giving written notice to Seller within the Option Term stating that the Option is exercised (the “
Exercise Notice
”). Purchaser may exercise the Option only as to all of the Property and no partial exercise of the Option shall be permitted. Purchaser’s exercise of the Option under this Agreement shall only be effective if Purchaser simultaneously exercises the option granted to Purchaser pursuant to the Other Option Agreement (as defined herein), and Purchaser may not exercise the Option without also exercising the option granted under the Other Option Agreement. Upon timely exercise of the Option, Seller shall be obligated to sell, and Purchaser shall be obligated to purchase, the Property
for the price and on the terms and conditions set forth in this Agreement. If Purchaser fails to exercise the Option within the Option Term, this Agreement will automatically terminate, Seller will retain the Option Consideration and Purchaser will have no further right to acquire the Property.
2.
Purchase Price; Assumed Liabilities
. If Purchaser timely exercises the Option, the purchase price (subject to adjustment as provided herein, hereinafter referred to as the “
Purchase Price
”) to be paid by Purchaser for the Property shall be TWENTY-FIVE MILLION ONE HUNDRED SEVENTEEN THOUSAND THIRTY-FIVE AND 46/100 DOLLARS ($25,117,035.46), and shall be payable to Seller by wire transfer of immediately available funds at the date of Closing to an account designated by Seller. The purchase and sale pursuant to this Agreement is not based on a per-acre price and the Purchase Price shall not be subject to adjustment if the acres within the Property are more or less than the above-stated numbers of acres. As additional consideration for the purchase and sale transaction contemplated by this Agreement, Purchaser shall assume from Seller at Closing: (a) all liabilities and obligations of Seller arising on or after the Closing Date (as defined herein) under easements and other matters of record affecting the Real Property which impose obligations on the owner thereof and under the Unrecorded Encumbrances (as defined herein)
other than
the Timber Cutting Agreements set forth on
Exhibit D
(the “
Timber Cutting Agreements
”, which Timber Cutting Agreements are being retained by Seller); and (b) all Continuing Obligations as defined in Section 36 below (collectively, the “
Assumed Liabilities
”).
3.
Option Consideration
. Contemporaneously with Purchaser’s execution of this Agreement, Purchaser has delivered to Seller by wire transfer of immediately available funds the sum of $1,004,681.42 as non-refundable option consideration (said amount is hereinafter referred to as the “
Option Consideration
”). The Option Consideration is non-refundable except as otherwise provided in this Agreement and shall be considered earned by Seller on receipt, but shall be credited against the Purchase Price at Closing (if Closing occurs).
4.
Closing
.
(a)
If the Option is exercised, the delivery of the funds, documents and instruments for the consummation of the purchase and sale pursuant hereto (herein referred to as the “
Closing
”) shall take place on July 13, 2018 at 10:00 a.m. Pacific Time through the escrow services of First American Title Insurance Company, Six Concourse Parkway, Suite 2000, Atlanta, Georgia 30328
(hereinafter referred to as “
Title Company
” and "
Escrow Agent
"), or on such earlier date and time, and/or such other location, as may be mutually agreeable to Seller and Purchaser (the “
Closing Date
”).
(b)
At the Closing, Seller shall deliver the following:
97085121.1 0067129-00001
2
(i)
one or more (at Purchaser’s election) Statutory Special Warranty Deeds (warranting only against the claims of persons claiming by, through or under Seller) for each county in which the Real Property is located, in the form of
Exhibit B
attached hereto,
and subject only to the Unrecorded Encumbrances and the Permitted Encumbrances (both as hereinafter defined) and further excepting from Seller’s warranties contained in such deed(s) those certain matters affecting Seller’s title set forth on attached
Exhibit C
(collectively, the “
Deed
”); and, to the extent the Seller or its timber buyers under the Timber Cutting Agreements have not, by Closing, completed harvesting and removal of the timber from the Harvest Parcels identified on
Exhibit E
(the “
Unharvested Timber
”), the Deed shall contain a reservation of the Unharvested Timber in favor of Seller. The legal description of the Real Property to be contained in the Deed shall be the legal description of the Real Property as set forth on
Exhibit A
attached hereto and hereby made a part hereof (as the same description may have been modified in connection with the Title Commitment or any Update thereto);
(ii)
an affidavit as to the non-foreign status of Seller in form satisfactory to Seller;
(iii)
a certificate or other documentary evidence complying with ORS 314.258 that is reasonably acceptable to the Title Company and sufficient to assure the Title Company that no withholding is required under ORS 314.258;
(iv)
an assignment and assumption agreement with respect to Purchaser’s assumption of the Assumed Liabilities from Seller, in form attached as
Exhibit F
(the “
Assignment and Assumption Agreement
”);
(v)
if Purchaser elects to purchase loan policy coverage or extended coverage or endorsements to the Basic Title Policy (as defined herein), an owner’s affidavit in the form attached hereto as
Exhibit I
(the “
Owner’s Affidavit
”);
(vi)
a Closing statement; and
(vii)
Seller hereby agrees to execute such other certificates, and do such other acts as may be reasonably necessary to consummate the purchase and sale contemplated hereby and to enable Purchaser to obtain the Basic Title Policy in accordance with this Agreement. The Owner’s Affidavit contemplated by Section 4(b)(v) above and any other affidavits or certificates executed by or on behalf of Seller at the Closing shall be given to the actual knowledge of the person or entity executing the same, without independent investigation or inquiry.
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(c)
At the Closing, Purchaser shall deliver the following:
(i)
the Assignment and Assumption Agreement;
(ii)
a Closing statement; and
(iii)
Purchaser hereby agrees to deliver the Purchase Price (as it may be adjusted for the prorations and other adjustments required by this Agreement) less the credit for the Option Consideration and to execute such other certificates and affidavits, and do such other acts as may be reasonably necessary to consummate the purchase and sale contemplated hereby and to obtain the Basic Title Policy in accordance with this Agreement.
5.
Title
.
(a)
If the Option is timely exercised, Seller agrees to convey to Purchaser at Closing fee simple title to the Real Property by the Deed, free and clear of all liens, encumbrances, mortgages, deeds of trust, deeds to secure debt, assessments, agreements, options and covenants created or suffered by, through or under Seller, except for and subject to the Permitted Encumbrances, as hereinafter defined, and the matters set forth on attached
Exhibit C
.
(b)
To the extent not previously provided, contemporaneously with Seller’s execution of this Agreement, Seller will, at Seller’s cost, cause to be delivered to Purchaser a title insurance commitment, or similar title report sufficient to allow the Title Company to issue the Basic Title Policy, together with complete and legible copies of all documentary title exceptions listed or referred to therein, (the “
Title Commitment
”) issued by the Title Company. During the Option Period, Purchaser shall have the right to review Seller’s title to the Real Property and provide Seller with written notice (the “
Title Objection Notice
”) of Purchaser’s objections, if any, to Seller’s title. Purchaser shall have the right to object to any title matter affecting Seller’s title to the Real Property;
provided
, however, that Purchaser shall not object to (i) the lien of real property taxes not yet due and payable and additional taxes which may be assessed if the Real Property is disqualified for assessment as forest or farm land; and (ii) any title matter which does not adversely affect the use or value of the Property as commercial timberlands or for resale as timberlands. Failure of Purchaser to provide the Title Objection Notice to Seller within the Option Period will be deemed an election by Purchaser to waive any objection to the matters disclosed in such Title Commitment (in which case all liens, encumbrances, or other defects or special exceptions to coverage in such Title Commitment will thereafter be Permitted Encumbrances) and to accept such title as Seller is able to convey without any reduction in the Purchase Price.
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(c)
If Purchaser delivers the Title Objection Notice to Seller within the Option Period, Seller shall give written notice to Purchaser of its response to such objections indicating whether or not Seller will cure the matters objected to by Purchaser (the “
Title Objection Response
”);
provided
, however, that Seller shall at its sole cost secure the release of any monetary liens or encumbrances created by Seller and of a definite or ascertainable amount by Seller’s payment or bonding against the same at or prior to Closing other than the lien of real property taxes not yet due and payable and additional taxes which may be assessed if the Real Property is disqualified for assessment as forest or farm land (“
Required Cure Matters
”). Any failure of Seller to deliver a Title Objection Response within the Option Period shall be deemed an election by Seller not to cure any title objections raised in Purchaser’s Title Objection Notice. Other than with respect to Required Cure Matters, if Seller fails to, or elects not to, cure or satisfy any objections contained in the Title Objection Notice (a “
Title Defect
”) then Purchaser’s exercise of the Option shall be deemed Purchaser’s waiver of such Title Defect(s) and Purchaser will be required to close the sale without regard to said Title Defect(s) and without an adjustment to the Purchase Price (in which event such Title Defect(s) shall become Permitted Encumbrances for all purposes).
In the event that Seller delivers the Title Objection Response indicating that Seller will cure some or all of the Title Defects, Seller shall cure such Title Defects prior to Closing and, Seller, in its sole discretion, may extend the Closing Date for so many days as Seller may elect in order to cure such Title Defects, but in no event shall the aggregate number of days of extension exceed thirty (30) calendar days.
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(d)
If Purchaser timely exercises the Option, within three (3) days following Purchaser’s receipt of any update to the Title Commitment disclosing any title matter which first appears in said updated Title Commitment or Purchaser’s receipt of notice of any unrecorded encumbrance affecting Seller’s title to the Real Property which comes into existence after Purchaser’s exercise of the Option (as applicable, an “
Update
”), in each case
other than
(i) any Pre-Closing Easements permitted under Section 5(e) below, (ii) any matter which has become a Permitted Encumbrance pursuant to Section 5(b) or 5(c) above, (iii) any title matter which does not adversely affect the use or value of the Property as commercial timberlands or for resale as timberlands, and (iv) the lien of real property taxes not yet due and payable and additional taxes which may be assessed if the Real Property is disqualified for assessment as forest or farm land, Purchaser shall have the right to notify Seller in writing of Purchaser’s objection to such new matter (a “
Supplemental Title Objection Notice
”). Failure of Purchaser to provide Seller with a Supplemental Title Objection Notice within such 3-day period will be deemed an election by Purchaser to waive any objection to the additional matters disclosed in such Update (in which case all liens, encumbrances, or other defects or special exceptions to coverage in such Update will thereafter be Permitted Encumbrances) and to accept such title as Seller is able to convey without any reduction in the Purchase Price. If Purchaser delivers a Supplemental Title Objection Notice to Seller within such 3-day period, Seller shall give written notice to Purchaser of its response to such objections within three (3) days after Seller’s receipt of Purchaser’s notice indicating whether Seller will cure the matters objected to by Purchaser (a “
Supplemental Title Objection Response
”);
provided
, however, that Seller shall at its sole cost secure the release of any Required Cure Matters appearing in the Update. Any failure of Seller to deliver a Supplemental Title Objection Response within the foregoing 3-day period shall be deemed an election by Seller not to cure any title objections raised in Purchaser’s Supplemental Title Objection Notice. Other than with respect to Required Cure Matters, if Seller fails to, or elects not to, cure or satisfy any objections contained in the Supplemental Title Objection Notice then Purchaser shall, as its sole and exclusive remedy, elect either to: (i) waive such objection and close the sale without an adjustment to the Purchase Price (in which event the matters set forth in the Supplemental Title Objection Notice shall become Permitted Encumbrances for all purposes); or (ii) terminate this Agreement and receive a refund of the Option Consideration.
In the event that Seller delivers the Supplemental Title Objection Response indicating that Seller will cure some or all of the matters set forth in the Supplemental Title Objection Notice, Seller shall cure such matters prior to Closing and, Seller, in its sole discretion, may extend the Closing Date for so many days as Seller may elect in order to cure such matters, but in no event shall the aggregate number of days of extension exceed thirty (30) calendar days.
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(e)
For so long as this Agreement remains in force, Seller shall not lease, encumber or convey all or part of the Property or any interest therein, or enter into any agreement granting to any person any right with respect to the Property or any portion thereof, without the prior written consent of Purchaser;
provided
, however, that prior to Closing Seller shall be entitled to enter into (i) renewals or replacements of the Unrecorded Encumbrances listed on attached
Exhibit D
on substantially the same terms as existing on the Effective Date (except that Seller shall not, without the prior consent of Purchaser, enter into any renewals, extensions or replacements of any Timber Cutting Agreement that are not already permitted by the terms of such Timber Cutting Agreement, as amended through the Effective Date), and (ii) reciprocal or unilateral road easement agreements as more particularly outlined for Seller on attached
Schedule 5(e)
, pursuant to which Seller, as applicable, may (a) as a grantor, grant to third parties access rights over existing roads located on the Real Property for purposes of transporting forest products and rock, timber management (including fire protection and suppression), and access to identified lands of such third parties; (b) as a grantee, be granted access over and across certain lands of third parties for purposes of transporting forest products and rock to and from, timber management (including fire protection and suppression) on, and access to and from portions of the Real Property (the foregoing collectively, the “
Pre-Closing Easements
”).
(f)
For purposes of this Agreement, “
Permitted Encumbrances
” shall mean, collectively, (i) the Unrecorded Encumbrances; and (ii) and any other title matter to which Purchaser does not object, or for which Purchaser waives its objection or is deemed to have accepted pursuant to this Section 5.
(g)
Purchaser acknowledges and agrees that Seller may continue to conduct ongoing timber harvesting operations until Closing on those harvest planning units identified in
Exhibit E
(the “
Harvest Parcels
”). If Seller is unable to complete such harvesting operations by Closing, Seller shall reserve in the Deed all right and title to the Unharvested Timber on such Harvest Parcels together with the right to complete such harvesting operations on such Harvest Parcels for one (1) year after the Closing (as such time for removal may be further extended under the terms of the Post Closing Harvest Agreement defined below). In such event, Purchaser and Seller shall enter into an access and harvest agreement at Closing in the form attached hereto as
Exhibit H
(the “
Post Closing Harvest Agreement
”). Seller shall retain all rights to such timber and all proceeds therefrom until Closing, and through the term of the Post Closing Harvest Agreement, if applicable.
6.
Inspection
.
(a)
Purchaser and its agents, representatives, employees, engineers and contractors (“
Purchaser Representatives
”)
shall have the right at any time during the term of this Agreement to enter upon the Real Property at their own risk to inspect, examine, survey and make
97085121.1 0067129-00001
7
timber cruises and other engineering tests or surveys, including a Phase I environmental site assessment (collectively, the “
Tests
”) which it may deem necessary or advisable, all at Purchaser’s sole cost and expense. Purchaser and the Purchaser Representatives will comply with such reasonable restrictions and requirements as Seller may impose in connection with their activities on the Real Property and, if so required by Seller, Purchaser will, prior to Purchaser or the Purchaser Representatives entering the Real Property, provide Seller with evidence of liability insurance in an amount and issued by an insurer reasonably satisfactory to Seller, covering the activities of Purchaser and the Purchaser Representatives on the Real Property and naming Seller as an additional insured. Upon completion of the Tests, Purchaser shall repair, at its sole cost and expense, any physical damage caused to the Real Property by Purchaser’s (or any Purchaser Representative’s) inspection of the Real Property and the Tests, and shall remove all debris and materials placed on the Real Property in connection with Purchaser’s inspection of the Real Property and the Tests. Purchaser shall keep the Real Property free of any liens resulting from Purchaser’s inspection of the Real Property and the Tests.
(b)
Purchaser hereby agrees to indemnify, defend and hold Seller harmless from and against, and will compensate and reimburse Seller for, any and all causes, claims, demands, losses, liabilities, costs, damages, expenses and fees (including, but not limited to, reasonable attorney’s fees incurred at any level of proceedings including appeal) incurred or suffered by or asserted against Seller caused by or related to Purchaser’s or the Purchaser Representatives inspection of the Real Property or the Tests, with the exception of any causes, claims, demands, losses, liabilities, costs, damages, expenses and fees caused by the gross negligence of Seller. The foregoing indemnification shall survive any termination, cancellation or expiration of this Agreement or the Closing of the purchase and sale contemplated hereby.
7.
[
Intentionally Deleted
]
8.
Condition of Property; Damage; Condemnation
.
(a)
Seller agrees that at the Closing the Property shall be in the same condition as exists on the date hereof, subject to natural wear and tear, trespass, condemnation, removal of timber from the Harvest Parcels or pursuant to rights granted to third parties under the Unrecorded Encumbrances or under recorded instruments disclosed in the Title Commitment and any Updates thereto, Casualty (as defined herein), and the Permitted Encumbrances. During the term of this Agreement, Seller shall neither cut or remove nor permit the cutting or removal of any timber or trees which are included as part of the Property subject to and excepting from the foregoing prohibition any removal of timber from the Harvest Parcels or other Real Property pursuant to rights granted to third parties under the Unrecorded Encumbrances or under recorded instruments disclosed in the Title Commitment and any Updates thereto.
97085121.1 0067129-00001
8
(b)
If at any time prior to the Closing, the Property or any part thereof (including, but not limited to, any timber or trees which are included as part of the Property) is destroyed or damaged by fire or other Casualty (as hereinafter defined), Seller shall deliver to Purchaser prompt written notice of such destruction or damage along with Seller’s good faith calculation of the amount of such damage resulting from the Casualty (calculated as the fair market value of the destroyed or damaged Property less the salvage value of such destroyed or damaged Property), and the transactions contemplated by this Agreement shall be subject to the provisions of this Section 8(b). The Closing Date shall be extended to the extent necessary to permit the compliance with all procedures set forth in this Section 8(b).
(i)
If the amount of such damage (as finally determined pursuant to this Section 8) does not exceed $50,000 (the “
Threshold Amount
”), and Purchaser exercises the Option, or has previously exercised the Option, then Purchaser shall be required to purchase the Property in accordance with this Agreement without a reduction of the Purchase Price.
(ii)
If the amount of such damage (as finally determined pursuant to this Section 8) exceeds the Threshold Amount but does not exceed $3,000,000, then, if Purchaser exercises the Option, or has previously exercised the Option, Purchaser shall be required to purchase the Property in accordance with this Agreement, provided that the Purchase Price shall be reduced by an amount equal to the amount of such damage (as finally determined pursuant to this Section 8).
(iii)
If the amount of such damage (as finally determined pursuant to this Section 8) exceeds $3,000,000, then either party may, at its sole option, elect to cancel this Agreement by delivering written notice to the other party, whereupon Seller shall promptly return the Option Consideration to Purchaser and no party hereto shall have any further rights or obligations hereunder (except as may otherwise be expressly provided herein). If neither party elects to cancel this Agreement in accordance with the foregoing sentence, and Purchaser exercises the Option, or has previously exercised the Option, then the parties will proceed to Closing (subject to the other terms and conditions set forth in this Agreement) and the Purchase Price shall be reduced at Closing by an amount equal to the amount of such damage (as finally determined pursuant to this Section 8).
(iv)
If Purchaser, by delivering written notice to Seller within fifteen (15) days following Seller’s delivery of written notice of any Casualty, disputes the amount of damage reported by Seller, Purchaser and Seller shall attempt in good faith to resolve such dispute and agree upon the amount of the damage. If Purchaser and Seller agree upon the amount of the damage resulting from the Casualty, such agreed amount shall be final and binding on the parties for purposes of this Section 8. However, if Purchaser and
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Seller are unable to agree as to the amount of damage from fire or other Casualty on or before ten (10) days after Purchaser delivers to Seller written notice of its dispute, then the amount of damage will be determined in accordance with Section 23 of this Agreement.
(c)
If at any time prior to the Closing, any action or proceeding is filed or threatened under which any portion of the Property may be taken pursuant to any law, ordinance or regulation by condemnation or the right of eminent domain, Seller shall deliver to Purchaser prompt notice thereof. To the extent such action or proceeding would result in the taking of one thousand (1,000) acres or more, then Purchaser at its sole option shall elect, by delivering written notice to Seller within fifteen (15) days following Seller’s delivery of notice to Purchaser, either (i) to cancel this Agreement, whereupon Seller shall promptly return the Option Consideration to Purchaser and no party hereto shall have any further rights or obligations hereunder (except as may otherwise be expressly provided herein), or (ii) to purchase the Property pursuant to this Agreement, notwithstanding such action or proceeding. Failure by Purchaser to deliver written notice to Seller of its election within such fifteen (15) day period shall be deemed an election of clause (ii). If the action or proceeding would result in the taking of less than one thousand (1,000) acres, or if Purchaser elects or is deemed to elect clause (ii) above, then Purchaser shall receive a credit against the Purchase Price at Closing in the amount of all proceeds of any awards actually paid to Seller prior to Closing with respect to the Property so taken (less the costs of Seller incurred in procuring such proceeds or awards), or, if such amount is not known or received at the time of the Closing, the Purchase Price shall not be reduced and Seller shall instead assign to Purchaser at the Closing all of Seller’s right to such proceeds from such action or proceeding to the extent not yet received by Seller. To the extent such action or proceeding would result in the taking of one thousand (1,000) acres or more, the Closing Date shall be extended to the extent necessary to permit the exercise of such election by Purchaser.
9.
Warranties and Representations; Indemnification
.
(a)
Seller hereby warrants and represents to Purchaser that as of the Effective Date and as of the date of Closing:
(i)
Seller is a limited liability company duly organized and validly existing under the laws of the State of Delaware.
(ii)
Seller has the full right, power, and authority to enter into and perform its obligations under this Agreement; and no consent, approval, order or authorization of any court or other governmental entity is required to be obtained by Seller in connection with the execution and delivery of this Agreement or the performance hereof by Seller.
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(iii)
Attached hereto as
Exhibit D
is a true and accurate summary of all unrecorded agreements, Timber Cutting Agreements and other unrecorded licenses created by Seller that currently affect the Real Property that will remain in effect as of the Closing Date (the “
Unrecorded Encumbrances
”). The Unrecorded Encumbrances remain in full force and effect and have not been modified or amended, except as indicated on said
Exhibit D
. To Seller’s knowledge, no event or condition exists or has occurred which with notice, the passage of time or otherwise would constitute a material default or event of default under any of the Unrecorded Encumbrances.
(iv)
There is no pending or, to Seller’s knowledge, threatened litigation, action or proceeding (including, but not limited to, any condemnation or eminent domain action or proceeding or any litigation regarding the location of lines and corners of the Property or any action or proceeding regarding adverse possession by third parties of any Real Property) before any court, governmental agency or arbitrator which may adversely affect Seller’s ability to perform this Agreement or which may affect the Property.
(v)
To Seller’s knowledge, (i) Seller’s use of the Real Property is in material compliance with all statutes, ordinances, rules, regulations, orders and requirements of all federal, state and local authorities and any other governmental entity having jurisdiction over the Property (“
Laws
”), and (ii) no condition exists on the Property which violates any Laws in any material respect. Seller has not received any notice from any such governmental entity of any violation of any Laws.
(vi)
Seller has received no written notice of any pending or threatened actions against Seller or the Real Property based upon the presence on the Real Property of any species listed as threatened or endangered under the Endangered Species Act of the United States or any law of the State of Oregon protecting endangered or threatened animal or plant species, and Seller has no knowledge of the current or past presence on the Real Property of any such threatened or endangered species that would adversely affect the Purchaser’s ability to conduct commercial timber operations on the Real Property.
(vii)
Seller (which for this purpose includes Seller’s partners, members, principal stockholders and managers) (x) has not been designated as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, <http://www.treas.gov/ofac/t11sdn.pdf> or at any replacement website or other replacement official publication of such list and (y) is currently in compliance with and will at all times during the term of this Agreement remain in compliance with the regulations of the Office of Foreign Asset Control of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto.
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(viii)
Except as disclosed in the Phase I, Neither Seller nor, to Seller’s knowledge, any other person has used any portion of the Real Property as a land fill or as a dump to receive garbage, refuse, or waste, whether or not hazardous (other than unauthorized household refuse dump sites typical of rural timberlands not more than 1/4 acre in size), and, except as disclosed in the Phase I, neither Seller nor, to Seller’s knowledge, any other person has stored, handled, installed or disposed in, on or about the Real Property any Hazardous Substance, except for, in accordance with applicable Law, (A) the use of motor vehicle lubricants and fuels, and (B) the application of silvicultural and agricultural chemicals. For purposes of this warranty, the term “
Hazardous Substance
” means any chemical, compound, constituent, material, waste, contaminant (including petroleum, crude oil or any fraction thereof) or other substance, defined as hazardous or toxic, or otherwise regulated by any of the following laws and regulations promulgated thereunder as amended from time to time prior to the Effective Date: (1) the Comprehensive Environmental Response, Compensation and Liability Act (as amended by the Superfund Amendments and Reauthorization Act), 42 U.S.C. § 9601 et seq.; (2) the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq.; (3) the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.; (4) the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; (5) the Clean Water Act, 33 U.S.C. § 1251 et seq.; (6) the Clean Air Act, 42 U.S.C. § 1857 et seq.; and (7) all laws of the State of Oregon that are based on, or substantially similar to, the federal statutes listed in clauses (1) through (6) of this sentence.
(ix)
Except as provided under the Unrecorded Encumbrances (including the Timber Cutting Agreements) and under recorded instruments disclosed in the Title Commitment and any Updates thereto: (A) to Seller’s knowledge, no third party has any rights to enter upon the Real Property to harvest and remove any timber therefrom; and (B) no timber or trees have been removed or harvested from the Real Property or affected by any Casualty causing damage in excess of the Threshold Amount since February 2, 2018 (the “
Inventory Date
”). For purposes of this Agreement, “
Casualty
” shall mean any physical damage to or loss of the timber on any portion of the Property by fire, earthquake, flood, insects, disease or other calamity, or as a result of timber trespass or unauthorized harvest.
(x)
except for the Unrecorded Encumbrances, to Seller’s knowledge, there are no unrecorded contracts, leases, or other agreements that affect the ownership, use or operation of the Real Property and that would be binding on Purchaser after the Closing date.
(xi)
to Seller’s knowledge, except as disclosed in the Title Commitment and any Updates thereto, (A) no taxes or assessments relating to the Property are delinquent, and (B) there are no special taxes, assessments or charges proposed, pending or threatened against the Property. During the period of Seller’s ownership of the Real
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12
Property, neither Seller nor, to the best of Seller’s knowledge, any other person or entity has caused any portion of the Real Property to violate the terms and conditions of any program in which such portion is enrolled that allows reduced ad valorem real property tax assessments for agricultural or silvicultural use.
(xii)
to Seller’s knowledge, there have been no active mining operations conducted on the Real Property during the period in which Seller has owned the Real Property, and Seller has no knowledge of any proposed mineral activity on the Real Property.
(xiii)
Subject to the limitations set forth in Section 9(d) and 9(e) below, if Purchaser exercises the Option, Seller will hold harmless, indemnify and defend Purchaser from and against any and all obligations, liabilities, claims, liens or damages suffered or incurred by Purchaser or imposed against the Property on account of any breach of any representation or warranty of Seller set forth in this Section 9(a).
(b)
For purposes of this Agreement, “
Seller’s knowledge
” and similar phrases with respect to matters known by Seller shall be defined as the present, actual knowledge possessed by Sarah Hall and Jack Stover, without any duty of inquiry.
(c)
Purchaser hereby warrants and represents to Seller, as of the Effective Date and as of Closing, that:
(i)
Purchaser is a corporation duly organized and validly existing under the laws of the State of Maryland.
(ii)
Purchaser has the full right, power and authority to enter into and perform its obligations under this Agreement; and no consent, approval, order or authorization of any court or other governmental entity is required to be obtained by Purchaser in connection with the execution and delivery of this Agreement or the performance hereof by Purchaser.
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(d)
Notwithstanding anything herein to the contrary, all representations and warranties contained in this Section 9 shall survive the Closing and the delivery of the conveyance instruments to Purchaser for a period of one (1) year after the Closing Date (the “
Survival Period
”).
No claim for a breach of any
Seller
representation or warranty, or the failure or default of a covenant or
agreement
of
Seller
that survives
Closing
, shall be actionable or payable unless written notice containing a description of the specific nature of such breach shall have been delivered by
Purchaser
to
Seller
prior to the expiration of the
Survival Period
. The maximum amount that
Purchaser
shall be entitled to collect from
Seller
in connection with all suits, litigation or administrative proceedings resulting from all breaches by
Seller
of any
Seller
representations or any covenants of
Seller
shall in no event exceed ten percent (10%) of the
Purchase Price
in the aggregate.
(e)
The indemnification provisions set forth in this Section 9 shall provide the parties’ exclusive post-Closing remedy for breach of any representation or warranty set forth in this Agreement. Notwithstanding anything in this Agreement to the contrary, the limitations on remedies set forth in this Section and elsewhere in this Agreement shall not apply to or limit in any way any post-Closing rights or remedies (i) contained in or derived from the Deed or the other conveyance documents delivered at Closing, (ii) arising out of any fraud or intentional misconduct on the part of either party hereto, or (iii) any right of contribution or indemnification existing under any statute or law resulting from the existence on the Closing date of any “Recognized Environmental Condition” (as such term is defined in ASTM Practice E 2247-16
Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property
) affecting the Property.
10.
Brokerage Commission
. Seller shall indemnify and hold Purchaser harmless from all claims, losses, liabilities and expenses (including but not limited to reasonable attorneys’ fees and court costs actually incurred) which Purchaser may incur on account of any claim which may be asserted against Purchaser, whether or not meritorious, by any broker or other person on the basis of any agreements made or alleged to have been made by or on behalf of Seller for commissions or other compensation for bringing about the transaction contemplated by this Agreement. Purchaser shall indemnify and hold Seller harmless from all claims, losses, liabilities and expenses (including but not limited to reasonable attorneys’ fees and court costs actually incurred) which Seller may incur on account of any claim which may be asserted against Seller, whether or not meritorious, by any broker or other person on the basis of any agreements made or alleged to have been made by or on behalf of Purchaser for commissions or other compensation for bringing about the transaction contemplated by this Agreement. This Section 10 shall survive the Closing or any termination, cancellation or expiration of this Agreement.
11.
Prorations of Income; Taxes; Expenses
.
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14
(a)
All rent and other income and all expenses relating to the Property (other than any deficit or surplus balances under BLM road use agreements) shall be prorated as of the date of Closing. If the actual rent and other income and all expenses relating to the Property are not known as of the date of Closing, then within thirty (30) days after Closing or the date such amounts became known (whichever is later), Seller and Purchaser shall reconcile such actual rent and other income and all expenses with the prorations done at Closing, and an adjusting payment shall be made between the parties to effectuate the final prorated amounts. This obligation shall survive the Closing.
(b)
Ad valorem real property taxes on the Property and special assessments (including, without limitation, fire protection district assessments) shall be prorated as of the Closing Date. If actual tax bills for the calendar year of Closing are not available, said taxes shall be prorated based on tax bills for the previous calendar year and the parties hereto agree to cause a reproration of said taxes upon the receipt of tax bills for the calendar year of Closing and an adjusting payment shall be made between the parties to effectuate the final prorated amounts. This obligation to reprorate shall survive the closing of the purchase and sale contemplated hereby. If the Real Property is not designated a separate tax parcel from any real property which is not being purchased by Purchaser under this Agreement, the taxes for such tax parcel shall be adjusted to an amount bearing the same relationship to the total tax bill which the acreage contained within the Real Property bears to the acreage contained within the total real property included within said tax bill.
(c)
Purchaser and Seller shall each pay one-half of the Escrow Agent’s standard closing fees for the transaction. Purchaser shall pay the costs of recordation of the Deed.
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(d)
Seller shall pay any and all fees, costs and expenses for title searches and examinations and other title-related charges in connection with obtaining the initial Title Commitment (if any charged separately from the Basic Title Policy premium), and the premium for the issuance of a single standard coverage owner’s policy of title policy in the amount of the Purchase Price and without endorsements or extended coverage insuring Purchaser of good and marketable title to the Real Property, subject only to the Permitted Encumbrances and the standard printed exceptions appearing in such policy form (the “
Basic Title Policy
”). Purchaser shall pay any and all fees, costs and expenses for any additional title searches and examinations and other title-related charges (if any charged separately from the Basic Title Policy premium) in connection with the issuance of any Updates or any title search and examination which is required in connection with any Title Objection Notice or Supplemental Title Objection Notice delivered by Purchaser. Purchaser shall also pay the premium and title related charges for any loan policies and extended coverage form policies of title insurance and any endorsements thereto or to the Basic Title Policy, if requested by Purchaser, and for any loan title policy required by Purchaser’s lender;
provided
, however, that a commitment to issue any such loan policies and extended coverage or endorsements shall not be a condition precedent to Purchaser’s obligations to close the transactions contemplated by this Agreement and Seller shall not be obligated in any event to indemnify the Title Company to induce it to issue the Basic Title Policy or any extended coverage or endorsements requested by Purchaser (other than a standard “gap” indemnity, if required by the Title Company, and delivery of the Owner’s Affidavit contemplated by Section 4(b)(v) above).
(e)
Each party shall pay its respective costs and expenses of legal representation.
(f)
Purchaser shall be solely responsible and liable for any deferred, rollback, recapture or other tax or assessment (“
Rollback Taxes
”) imposed or charged with respect to the Property or any part thereof for or relating to any periods prior to or subsequent to the Closing based on any change of use of the Property by Purchaser. Seller shall be responsible for any Rollback Taxes based upon the actions of Seller, including but not limited to the sale of the Property to Purchaser. The provisions of this subparagraph (f) shall survive the Closing.
12.
Default; Remedies
.
(a)
If Purchaser timely exercises the Option, and the purchase and sale of the Property contemplated hereby is not thereafter consummated on or prior to the Closing Date (as it may be extended under this Agreement) because of a default by Purchaser under this Agreement, then, in addition to Seller retaining the Option Consideration, Purchaser shall reimburse Seller on demand for Seller’s reasonable and documented third party cost and expenses incurred in connection with this Agreement, provided said reimbursement obligation under this Agreement, when taken collectively with the corresponding reimbursement obligations of the seller under
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16
Section 12(a) of the Other Option Agreement (as defined herein), shall not exceed $100,000.00 in the aggregate. Purchaser’s payment of Seller’s expenses as provided above shall be Seller’s sole remedy.
(b)
If Purchaser timely exercises the Option, and the purchase and sale of the Property contemplated hereby is not thereafter consummated on or prior to the Closing Date (as it may be extended under this Agreement) because of a default by Seller under this Agreement, then Purchaser shall have the right, as its sole and exclusive remedy, either (i) to terminate this Agreement, whereupon Seller will return the Option Consideration to Purchaser, and the parties hereto will have no further rights or obligations hereunder (except as otherwise expressly provided herein), (ii) to waive any such default and proceed to Closing, (iii) to seek specific performance of this Agreement, or (iv) if specific performance is not available to Purchaser, Seller shall reimburse Purchaser on demand for Purchaser’s reasonable and documented third party cost and expenses incurred in connection with this Agreement, provided said reimbursement obligation under this Agreement, when taken collectively with the corresponding reimbursement obligations of the seller under Section 12(b)(iv) of the Other Option Agreement (as defined herein), shall not exceed $100,000.00 in the aggregate.
(c)
If the Other Option Agreement (as defined in Section 38(b) below) is terminated for any reason, then this Agreement will automatically terminate, with the following effect: (i) if the termination of such Other Option Agreement was for a cause which would require the Option Consideration under such Other Option Agreement to be returned to the purchaser thereunder, then the Seller shall refund the Option Consideration under this Agreement to the Purchaser herein upon termination of this Agreement; and (ii) if the termination of such Other Option Agreement was for a cause which would permit the seller under such Other Option Agreement to retain the Option Consideration and seek expense reimbursement under such Other Option Agreement, then Seller shall retain the Option Consideration under this Agreement to the Seller herein upon termination of this Agreement and shall be entitled to expense reimbursement as provided in Section 12(a). In the event of any such termination, neither Seller nor Purchaser will have any further rights, duties or obligations hereunder other than those which expressly survive a termination hereof. If the Other Option Agreements is terminated due to a default of the seller thereunder, then Purchaser shall have the rights set forth in Section 12(b) of this Agreement.
13.
Assignment
. Except as otherwise expressly permitted in this Agreement, neither party hereto shall assign its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party, which written consent will not be unreasonably withheld of delayed. Notwithstanding the foregoing, (a) Purchaser shall have the right, upon written notice given to Seller not less than five (5) days prior to the Closing Date, to assign its rights and obligations under this Agreement in whole or in part to any affiliate or affiliates of Purchaser, provided that Purchaser shall remain liable for all obligations under this Agreement to the extent arising out of or relating to performance, acts or omissions occurring prior to Closing; and (b) Purchaser may
97085121.1 0067129-00001
17
assign this Agreement at the Closing, but not earlier, to any institutional lender or lenders as security for obligations to such lender or lenders in respect of financing arrangements of Purchaser or any affiliates thereof with such lender or lenders. Without limiting the generality of the foregoing, Purchaser may elect to have some or all of the Property, and/or the timber located thereon, conveyed directly at Closing to one or more of Purchaser’s affiliates and in such event the Deed shall be delivered to, and the applicable instruments of conveyance and assumption delivered at Closing shall be executed by, such affiliate or affiliates, as applicable.
14.
No Waiver
. No action or failure to act by any party hereto shall constitute a waiver of any right or duty afforded to such party under this Agreement, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach of this Agreement except as may be specifically agreed in writing.
15.
Governing Law
. This Agreement shall be governed by the laws of the State of Oregon.
16.
Notice
. Any and all notices, elections and communications required or permitted by this Agreement shall be made or given in writing and shall be delivered in person or sent by postage, pre-paid, United States Mail, certified or registered, return receipt requested, or by a recognized overnight courier such as FedEx or UPS, or by facsimile or e-mail, to the other parties at the addresses set forth below, or such other address as may be furnished by notice in accordance with this paragraph. The date of notice given by personal delivery shall be the date of such delivery. The effective date of notice by mail, facsimile, email or overnight courier shall be the date such notice is mailed, faxed, emailed or deposited with such overnight courier. In the event that the last day for giving notice hereunder or for the performance of any obligation hereunder, including Closing, falls upon a Saturday, Sunday or a legal holiday, the last day for said notice or performance shall be deemed to be the next day which is neither a Saturday, Sunday nor a legal holiday.
Seller: LRT III LLC
c/o Forest Investment Associates L.P.
15 Piedmont Center
Suite 1250
Atlanta, Georgia 30305
Attention: Sarah Hall
Email: shall@forestinvest.com
with a copy to: Stoel Rives LLP
760 SW Ninth Ave., Suite 3000
Portland, OR 97205
Attention: Adam H. Dittman
Attention: Mark A. Norby
97085121.1 0067129-00001
18
Facsimile: (503) 220-2480
Email: adam.dittman@stoel.com
Email: mark.norby@stoel.com
Purchaser: c/o CatchMark Timber Trust
Five Concourse Parkway
Suite 2325
Atlanta, Georgia 30328
Attention: John D. Capriotti
Facsimile No.: (770) 243-8172
Email: john.capriotti@catchmark.com
with a copy to: Smith, Gambrell & Russell, LLP
Suite 3100, Promenade II
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309-3592
Attention: Mark G. Pottorff
Facsimile: (404) 685-6897
Email: mpottorff@sgrlaw.com
17.
Entire Agreement
. This Agreement and the Confidentiality Agreement contain the entire agreement among the parties hereto with respect to the subject matter hereof and cannot be amended or supplemented except by a written agreement signed by Seller and Purchaser.
18.
Captions
. The captions of paragraphs in this Agreement are for convenience and reference only and are not part of the substance hereof.
19.
Severability
. In the event that any one or more of the provisions, paragraphs, words, clauses, phrases or sentences contained in this Agreement, or the application thereof in any circumstance is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision, paragraph, word, clause, phrase or sentence in every other respect and of the remaining provisions, paragraphs, words, clauses, phrases or sentences of this Agreement, shall not be in any way impaired, it being the intention of the parties that this Agreement shall be enforceable to the fullest extent permitted by laws.
20.
Counterparts
. This Agreement may be executed in multiple counterparts which shall be construed together as one instrument. This Agreement, including any amendments thereto, may be executed and delivered by facsimile transmission, with the intention that such facsimile signature and delivery shall have the same effect as an original signature and actual delivery.
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19
21.
Binding Effect
. This Agreement shall bind the parties hereto and their respective heirs, legal representatives, successors and assigns.
22.
Time; Business Day
.
(a) Time is of the essence of this Agreement; provided that in the event that the last day for performance of any obligation hereunder falls upon a day that is not a business day (as defined below), the last day for said performance shall be deemed to be the next business day.
(b) As used in this Agreement, the term “business day” shall mean any day that is not a Saturday, a Sunday, a legal holiday in the United States of America, or a legal holiday in the State of Oregon.
23.
Resolution of Disputes
. In the event that any provision of this Agreement refers to this Section 23 for a determination of the amount of any change in the value of the Property or the fair market value of any portion(s) of the Property or the timber on the Property, Seller and Purchaser will promptly make a good faith attempt to mutually agree upon such fair market value. In the event Seller and Purchaser are unable to so agree within the time period specified in this Agreement after notice of the event or circumstance necessitating the need for such determination from either party to the other party, Seller and Purchaser will each promptly appoint an independent forestry consultant, each of which may be a consultant previously engaged by the appointing party with respect to the Property, and such two consultants will in turn promptly select a third independent forestry consultant (which third consultant may not be a consultant previously engaged by either party) to act with them in a panel to determine the appropriate fair market valuation. The panel of consultants will reach a binding decision within thirty (30) days of the selection of the third consultant, and the decision of the panel of consultants as to the fair market valuation in dispute will be final. Each party will submit its determination of value to the panel of consultants within three (3) days of selection of the third consultant. When making is determination of value, the panel of consultants shall select the submission of the party that the panel determines most closely represents the fair market valuation taking into account any guidelines set forth in the applicable section of this Agreement, but the panel shall not be authorized to select a different amount. Seller shall pay the cost of its appointed consultant; Purchaser shall pay the cost of its appointed consultant; and Seller and Purchaser shall each pay one-half (1/2) of the cost of the third consultant. The Closing Date shall be extended to the extent necessary for such consultants to reach such decision but not by more than forty-five (45) days.
24.
Public Announcements
.
Seller
and Purchaser hereby agree that prior to the Closing, except as required by applicable laws or any applicable stock exchange rules, all press
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20
releases and other public announcements with respect to the transactions contemplated by this Agreement, including the time, form and content of such release or announcement, shall be made only with the prior mutual written agreement of Purchaser
and Seller; provided, however, that any disclosure required to be made under applicable law may be made only if a party required to make such disclosure has determined in good faith and upon advice of legal counsel that it is necessary to do so and such party has used reasonable efforts, prior to the issuance of the disclosure, to provide the other party with a copy of the proposed disclosure and to discuss the proposed disclosure with the other party.
25.
Patriot Act Compliance
. Purchaser represents that neither Purchaser nor any of Purchaser’s affiliates, nor any of their respective partners, members, shareholders or other equity owners, and none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“
OFAC
”)
of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not attempt to assign this contract to, contract with or otherwise engage in any dealings or transactions or be otherwise associated with such persons or entities. Any assignee of this contract is deemed to make this representation upon acceptance of an assignment of this contract. Purchaser’s primary address is as set forth in the notice section of this Agreement. Purchaser hereby covenants and agrees that if Purchaser obtains knowledge that Purchaser or any owner of any controlling interest in Purchaser becomes listed on the foregoing or is indicted, arraigned, or custodially detained on charges involving money laundering or predicate crimes to money laundering, Purchaser will immediately notify Seller in writing, and in such event, Seller will have the right to terminate this Agreement without penalty or liability to Seller immediately upon delivery of written notice thereof to Purchaser, in which event the Earnest Money will be returned to Purchaser and neither party will have any further rights or obligations under this Agreement, except for such as specifically survive termination.
26.
Effective Date
. The “
Effective Date
” of this Agreement will be the date the later of Seller and Purchaser has executed this Agreement, as indicated on the signature page(s) below.
27.
Incorporation of Exhibits
. All exhibits referred to herein are hereby incorporated in this Agreement by this reference.
28.
AS IS
. PURCHASER ACKNOWLEDGES THAT, EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES SET FORTH IN SELLER’S SPECIAL WARRANTY OF TITLE IN THE DEED AND EXCEPT FOR SELLER’S REPRESENTATIONS
97085121.1 0067129-00001
21
AND WARRANTIES CONTAINED IN SECTION 9 OF THIS AGREEMENT: (
I
) NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, HAVE BEEN OR ARE BEING MADE BY OR ON BEHALF OF SELLER OR ANY OTHER PERSON, INCLUDING WITH RESPECT TO THE CONDITION OR VALUE OF THE PROPERTY OR THE TIMBER THEREON,
AND SELLER HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND SUITABILITY FOR ITS INTENDED USE, (
II
) IN ENTERING INTO THIS AGREEMENT, PURCHASER HAS NOT RELIED ON AND DOES NOT RELY ON ANY SUCH REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, BY OR ON BEHALF OF SELLER OR ANY OTHER PERSON, AND (III) PURCHASER SHALL ACQUIRE THE PROPERTY IN
“AS IS, WHERE IS, AND WITH ALL FAULTS”
CONDITION ON THE CLOSING DATE.
29.
Property Data and Materials; Confidentiality Agreement
. Purchaser acknowledges that, except as may otherwise be provided in Section 9, any information or materials provided or made available to Purchaser or its representatives in hard copy, by facsimile or electronic transmission or via the online data room managed by Forest Investment Associates L.P., including, without limitation, any cost or other estimates, projections, acreage, and timber information, the Title Commitment, other title commitments, and other title policies, are not and shall not be deemed representations or warranties by or on behalf of Seller. Purchaser acknowledges and agrees that Purchaser is and will remain, until the Closing, subject to and bound by all of the prohibitions, requirements, restrictions and other provisions of that certain Confidentiality Agreement, dated as of February 16, 2018, between Forest Investment Associates L.P., in its capacity as investment manager, on behalf of Seller and Purchaser (the “
Confidentiality Agreement
”), and Purchaser reaffirms all of its obligations and liabilities thereunder.
30.
No Survival
. Except as otherwise provided herein, the provisions of this Agreement shall not survive the Closing of the purchase and sale contemplated hereby and shall be merged into the delivery of the Deed and other documents and the payment of all monies pursuant hereto.
31.
No Solicitation
. Seller agrees that it shall not after the Effective Date and until this Agreement is terminated, directly or indirectly, through any officer, director, employee, agent or otherwise, (a) solicit, initiate or encourage submission of proposals, offers or expressions of interest from any person or entity other than Purchaser relating to any acquisition or purchase of all or a portion of the Property (any of the foregoing proposals, offers or expressions of interest being referred to herein as an “
Acquisition Proposal
”), or (b) participate in any negotiations or discussions with any person other than Purchaser regarding, or furnish to such person any nonpublic information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any Acquisition Proposal.
97085121.1 0067129-00001
22
32.
[
Intentionally Deleted
]
33.
Property Information
. To the extent not already delivered to Purchaser, and to the extent transferrable, Seller shall make available to Purchaser within ten (10) days of the date hereof copies of all title information owned by Seller and within Seller’s possession relating the Real Property, inventory information, GIS information, current third party contracts for silvicultural activities with respect to the Property, and plot data from Seller’s latest cruise of the Property (the “
Property Information
”). At Closing, Seller shall deliver both hard copies and electronic versions (to the extent in existence and to the extent transferrable) of the Property Information as Purchaser may reasonably request;
provided
,
however
, that Seller shall have no obligation to provide or make available to Purchaser at any time, and the term “Property Information” shall not include: (a) any information that is subject to the attorney-client, attorney work product doctrine or other privilege (as reasonably and in good faith determined by Seller), (b) any information regarding the pricing of timber, internal or external appraisals of the Real Property, other valuations or similar pricing or financial records, or any other information that is confidential and proprietary to Seller, (c) all communications by Seller personnel prior to the Closing Date regarding the transactions contemplated by this Agreement and any other documentation relating to the negotiation, documentation, and consummation of the transactions contemplated by this Agreement, (d) Seller’s investor and manager communications and (e) any document or item which Seller is contractually bound to keep confidential.
34.
Statutory Notice
. THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS THAT, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND THAT LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930, IN ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON’S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO VERIFY THE EXISTENCE OF FIRE PROTECTION FOR STRUCTURES AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010.
97085121.1 0067129-00001
23
35.
Post-Closing Permit Transfer
. Upon Seller’s completion, after Closing, of the harvest of Unharvested Timber, if any, from the Harvest Parcels listed on
Exhibit E
, or, if earlier, the date that Seller’s reservation of the Unharvested Timber expires (such date, as to each permit, the “
Post-Closing Permit Transfer Date
”), Seller shall assign the notifications of operations/permits for such harvest unit to Purchaser and Purchaser shall be deemed to have assumed the obligations arising under such permits, and such permits shall thereafter be Assumed Liabilities, except that Purchaser is not assuming, and shall not be liable for, any liabilities or obligations of Seller under such permits arising prior to the Post-Closing Permit Transfer Date other than unperformed reforestation obligations under such permits.
36.
Continuing Obligations
. Purchaser acknowledges that the Real Property is subject to certain reforestation and/or slash removal obligations imposed by applicable law or governmental regulations, including, without limitation, the Oregon Forest Practices Act, concerning the Real Property, including but not limited to the continuing obligations under the notifications listed on attached
Exhibit G
(collectively, the “
Continuing Obligations
”). The parties acknowledge that the disclosures set forth in
Exhibit G
satisfy the statutory requirements of ORS 527.665. As of the Closing, Purchaser assumes and agrees to perform the Continuing Obligations at Purchaser’s sole cost and expense in a timely fashion, and to indemnify, defend and hold Seller harmless from and against the Continuing Obligations and any claim, loss, damage, cost or expense arising from Purchaser’s failure to perform the same. The obligations under this Section shall survive Closing.
37.
Fees and Expenses; Attorney’s Fees
. Except as expressly provided in this Agreement to the contrary, whether or not the transactions contemplated by this Agreement are consummated, all legal and other costs and expenses incurred in connection the due diligence, preparation, negotiation and execution of this Agreement and in connection with the transactions contemplated hereby shall be paid by the party incurring such costs and expenses. Should any legal action or proceeding be commenced by either party in order to enforce this Agreement or any provision hereof or any agreement or instrument executed and delivered in connection with this Agreement, or in connection with any alleged dispute, breach, default, or misrepresentation in connection with any provision herein or therein contained, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, including reasonable title insurance company charges or fees and reasonable and necessary expert witness fee and costs of pursuing or defending any legal action, including, without limitation, any on appeal, discovery or negotiation and preparation of settlement arrangements, in addition to such other relief as may be granted.
97085121.1 0067129-00001
24
38.
Conditions
.
(a) Unless waived by Purchaser, if the Option is exercised, the obligations of Purchaser to purchase the Property under this Agreement are expressly made subject to the fulfillment in all respects of the following conditions precedent:
(i)
the truth and accuracy as of the date of Closing of each and every warranty and representation herein made by Seller; and
(ii)
Seller’s timely performance of and compliance with each and every term, condition, agreement, restriction and obligation to be performed and complied with by Seller prior to Closing under this Agreement; and
(iii)
Purchaser shall have received, in the form of a “marked binder” delivered at Closing, an irrevocable commitment by the Title Company to issue to Purchaser the Basic Title Policy subject only to the payment of the premiums therefor at Closing (but, for the avoidance of doubt, the Title Company’s commitment to issue any extended coverage or endorsements to the Basic Title Policy or to issue loan policies to Purchaser’s lenders shall not be a condition to Closing); and
(iv)
The seller under the Other Option Agreement (as defined below) shall have tendered all documents required to be delivered by such seller to consummate the transactions contemplated by the Other Option Agreement and shall have performed or complied with all agreements and covenants to be performed or complied with by such seller at or prior to the consummation of the transactions contemplated by such Other Option Agreement.
In the event that Purchaser has exercised the Option, if any of the above conditions is not satisfied on or before the Closing, Purchaser will have the right, exercisable at Purchaser’s sole election, to exercise the remedies described in Section 12(b), provided however, that Purchaser shall not be entitled to exercise the remedies described in Section 12(b) if the failure of any such condition to be satisfied is on account of any fault of Purchaser or breach of this Agreement by Purchaser.
(b) Unless waived by Seller, upon exercise of the Option, the obligations of Seller to sell the Property under this Agreement are expressly made subject to the fulfillment in all respects of the following conditions precedent:
(i)
the truth and accuracy as of the date of Closing of each and every warranty and representation herein made by Purchaser; and
97085121.1 0067129-00001
25
(ii)
Purchaser’s timely performance of and compliance with each and every term, condition, agreement, restriction and obligation to be performed and complied with by Purchaser prior to Closing under this Agreement; and
(iii)
The Purchaser shall have timely exercised the option under the Other Option Agreement; and
(iv)
The Purchaser shall have tendered all documents required to be delivered by Purchaser to consummate the transactions contemplated by that certain Option Agreement dated of even date herewith between Purchaser and LRT IV LLC, a Delaware limited liability company (the “
Other Option Agreement
”) and shall have performed or complied with all agreements and covenants to be performed or complied with by Purchaser at or prior to the consummation of the transactions contemplated by such Other Option Agreement
.
In the event that Purchaser has exercised the Option, if any of the above conditions is not satisfied on or before the Closing, Seller will have the right, exercisable at Seller’s sole election, to exercise the remedies described in Section 12(a) provided however, that Seller shall not be entitled to exercise the remedies described in Section 12(a) if the failure of any such condition to be satisfied is on account of any fault of Seller or breach of this Agreement by Seller.
39.
[signatures commence on following page]
IN WITNESS WHEREOF, this Agreement has been duly executed, sealed and delivered by the parties hereto the day and year first above written.
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Date of Seller’s Execution:
________________________
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SELLER
:
LRT III LLC
, a Delaware limited liability company
By:
Name: Charles L. VanOver
Title: Vice President
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[signatures continue on following page]
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Date of Purchaser’s Execution:
________________________
|
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PURCHASER
:
CATCHMARK TIMBER TRUST, INC., a
Maryland corporation
By: _________________________ (SEAL)
Name: _______________________
Title: _________________________
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[end of signatures]
Schedule of Exhibits
Exhibit A-1 - Real Property Descriptions
Exhibit A-2 - Maps Depicting Real Property
Exhibit B - Form of Deed
Exhibit C - Certain Title Matters
Exhibit D - Schedule of Unrecorded Encumbrances
Exhibit E - Harvest Parcels
Exhibit F - Form of Assignment and Assumption Agreement
Exhibit G - Continuing Obligations
Exhibit H - Form of Post-Closing Harvest Agreement
Exhibit I - Form of Owner’s Affidavit
EXHIBIT A-1
Real Property Descriptions
TOGETHER WITH access easement rights contained in Reciprocal Right of Way and Road Use Agreement as recorded as Document No. 93-12-0636 and amended by instrument recorded as Document No. 2009-2338, Coos County, Oregon records; as affected by Partial Quitclaim, Assignment and Assumption of Reciprocal Right of Way and Road Use Agreement and Consent to Assignment recorded as Instrument No. 2013-9414, Coos County, Oregon records.
TOGETHER WITH access easement rights contained in Easement Agreement dated September 10, 2013 and recorded as Document No. 2013-9416, records of Coos County, Oregon. (As to Parcels 35, 36, 37 and 38)
TOGETHER WITH access easement rights contained in Easement Agreement dated September 10, 2013 and recorded as Document No. 2013-9416, records of Coos County, Oregon. (As to Parcels 40 and 41)
TOWNSHIP 29 SOUTH, RANGE 11 WEST
Parcel 66
Section 20: Beginning at the point on intersection of the West boundary of the SE 1/4 of the SW 1/4 of Section 20, Township 29 South, Range 11 West of the Willamette Meridian, Coos County, Oregon, with the North boundary of that certain strip of land conveyed to the State of Oregon, by and through its State Highway Commission by deed recorded in Book 282, Page 432, Deed Records of Coos County, Oregon; thence Northerly along the West boundary of said SE 1/4 of the SW 1/4 222 feet, more or less, to the South boundary of the Old State Highway No. 42; thence Easterly along said Highway for 297 feet, more or less to a small creek; thence in a Southerly direction along said creek 473 feet, more or less, to a point on the North boundary of said strip of land heretofore conveyed to the State of Oregon, above referred to, at a point which is 215 feet Easterly of the point of beginning; thence Southwesterly along said North boundary of said strip of land, 215 feet, more or less, to the point of beginning.
EXHIBIT A-2
Maps Depicting Real Property
(See attached)
EXHIBIT B
FORM OF SPECIAL WARRANTY DEED
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After Recording, Return To:
[_____________]
[_____________]
[_____________]
Until A Change Is Requested,
Send All Tax Statements To:
[_____________]
[_____________]
[_____________]
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Space above reserved for recorder
STATUTORY SPECIAL WARRANTY DEED
LRT III LLC
, a Delaware limited liability company (“
Grantor
”), conveys and specially warrants to
[_______________], a [_______________] (“
Grantee
”), the real property located in Coos County, Oregon, described on the attached
Exhibit A
, together with Grantor’s right, title and interest in the following: all buildings, structures, and other improvements located thereon, all tenements, hereditaments, easements, appurtenances and privileges thereto belonging, all trees, timber, sand, gravel, rock and crops now located thereon or thereunder, and all oil, gas and mineral rights and interests in said real property not reserved or conveyed by Grantor or Grantor’s predecessors in title (collectively, the “
Property
”), free of encumbrances created or suffered by the Grantor except as specifically set forth herein.
SUBJECT TO, and excepting and excluding from the covenants and warranties described herein and in ORS 93.855, the matters set forth on attached
Exhibit B
.
The true consideration for this conveyance is $_______________.
[TIMBER RESERVATION TO BE INSERTED IF THERE IS UNHARVESTED TIMBER ON HARVEST PARCELS]
Grantor hereby excepts from the conveyance made herein and reserves for itself and for the benefit of Grantor’s successors, assigns and contract timber buyers all timber standing or fallen and located on the portions of the Property which are cross-hatched on
Exhibit C
attached hereto for a period not to exceed one (1) year from the date of this Deed, as such time for removal may be further extended pursuant to the terms of the Post Closing Harvest Agreement defined below (the “
Timber Reservation
”). Grantor’s reserved rights to enter the Property and to remove the timber reserved to Grantor under the foregoing Timber Reservation is governed by the terms and conditions of a separate unrecorded Post Closing Harvest Agreement entered into between Grantor and Grantee of even date with this deed (the “
Post Closing Harvest Agreement
”). Upon the expiration of the time for removal of timber subject to the foregoing Timber Reservation, all rights, title and interest to all such timber remaining on the Property shall automatically pass to Grantee.
BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON’S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010. THIS INSTRUMENT DOES NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930, AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010.
DATED as of [_____________________], 2018.
LRT III LLC
,
a Delaware limited liability company
By:
Name:
Title:
STATE OF OREGON )
)ss.
County of __________ )
The foregoing instrument is acknowledged before on [_______________], 2018, by [__________________], as [____________________] of LRT III LLC, a Delaware limited liability company.
Notary Public for Oregon
Commission No.:
My commission expires:
Exhibit A
Legal Description of Property
[
Insert legal description
]
Exhibit B
Exceptions to Title
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1.
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[INSERT PERMITTED ENCUMBRANCES THAT BECOME PERMITTED ENCUMBRANCES UNDER THE AGREEMENT AND EXHIBIT C (OF OPTION AGREEMENT) MATTERS]
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EXHIBIT C
Certain Title Matters
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1.
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Liens for taxes, assessments and other governmental charges which are not yet due and payable.
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2.
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Rights of third parties in and to any oil, gas and other minerals or other substances of any kind or character as may have been reserved by or conveyed to others prior to the Effective Date and any leases concerning any of such previously reserved or conveyed oil, gas, other minerals or other substances in, on or under the Real Property.
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3.
|
All matters that would be revealed by a current and accurate survey or inspection of the Real Property.
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4.
|
Any loss or claim due to lack of access to any portion of the Real Property.
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5.
|
Existing zoning, forestry, building and land use restrictions, codes, ordinances, rules and regulations affecting the Real Property or the use thereof.
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6.
|
Rights of parties in possession pursuant to the Unrecorded Encumbrances.
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7.
|
Rights of others in and to any creeks, rivers, lakes or streams located on or adjoining the Real Property, including any rights of the United States of America, of the State of Oregon or any other parties whatsoever, in the use and continuous flow of any brooks, streams or other natural water courses or water bodies, riparian rights, navigational servitudes, or right to the beds and banks of such water courses below the ordinary high-water mark thereof.
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8.
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Existing road rights of way and the right of the public to use such roads.
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9.
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Existing railroad rights of way and easements.
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10.
|
Existing utility easements and rights of way.
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11.
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Rights, if any, relating to the construction and maintenance in connection with any public utility of wires, poles, pipes, conduits and appurtenances thereto, on, under, above or across the Real Property.
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12.
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Indian treaty or aboriginal rights, including easements and equitable servitudes.
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13.
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All water districts, water rights, restrictions or reservations outstanding in third parties.
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14.
|
Possible additional taxes and penalties that may be assessed if the Real Property is disqualified for assessment on the basis of forestland or farmland use.
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15.
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Reservations in federal patents and acts authorizing the same.
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16.
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If applicable, the Timber Reservation to be contained in the Deed.
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17.
|
Any Pre-Closing Easements which are entered by Seller pursuant to Section 5(e) of this Agreement.
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EXHIBIT D
Schedule of Unrecorded Encumbrances
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•
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Timber Cutting Agreements
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1.
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Pay as Cut Timber Cutting Right Contract No. 565-17-17 dated April 25, 2017, between LRT III LLC, as seller, and Swanson Group MFG, as purchaser.
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2.
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Pay as Cut Timber Cutting Right Contract No. 565-17-25 dated December 4, 2017, between LRT III LLC, as seller, and D&H Logging Co., as purchaser.
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•
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Temporary Access Licenses
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1.
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License Agreement dated May 2, 2017, between LRT III LLC, as Licensor, and Southport Forest Products, LLC, as Licensee.
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2.
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Short Form Tramway Agreement (Tailholds/Guylines) dated June 14, 2017, between LRT III LLC, as licensor, and Moore Mill & Lumber Co., as licensee.
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3.
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Temporary Access Letter Agreement for Crosby Road dated March 12, 2018, between LRT III LLC, and 3H Forestry & Land Management.
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4.
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Temporary Access Letter Agreement for the Elk Creek LWD Placement dated February 1, 2018, between LRT III LLC, and Coquille Watershed Association.
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5.
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Temporary Access Letter Agreement for Adamek Timber Sale dated October 3, 2017, between LRT III LLC, and Scott Timber Co.
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1.
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Permit for Water Line dated March 6, 2017, between LRT III LLC, as landowner, and William and Donna Wassman, as permittee.
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2.
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Permit for Water Line dated May 15, 2017, between LRT III LLC, as landowner, and Robert Anderson, as permittee.
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•
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Hunting License Agreements
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1.
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Hunting License Agreement dated March 12, 2018, between LRT III LLC, as licensor, and Ted McNeely, as licensee.
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1.
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Contract for Patrol of Timberlands (Sheriff’s Office) dated effective July 1, 2017, between LRT III LLC and the Board of Commissioners of Coos County, Oregon
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EXHIBIT E
Harvest Parcels
The Harvest Parcels shall include the parcels depicted on the following maps, each such map being the map attached as Exhibit A to the applicable Timber Cutting Agreement and identifying the “Sale Area” as defined therein. The acreage shown on each of the following maps is an approximation determined by GIS mapping.
LRT III LLC
LRT III LLC
EXHIBIT F
Form of Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this “
Agreement”
), dated as of _______________ ___, 2018, is by and between LRT III LLC, a Delaware limited liability company (“
Assignor”
), and ________________, a _________________ (“
Assignee”
).
Assignor and CatchMark Timber Trust, Inc., a Maryland corporation (“
CTT
”) have entered into that certain Option Agreement, dated as of _____________ ____, 2018, by and between Assignor, as seller, and CTT, as buyer, as assigned by CTT to Assignee (as it may have been amended, the “
Option Agreement”
). All capitalized terms used in this Agreement but not otherwise defined herein are given the meanings set forth in the Option Agreement.
For good and valuable consideration as recited in the Option Agreement, the receipt and adequacy of which are hereby acknowledged, Assignor and Assignee agree as follows:
1.
Assignment
. Effective as of the Closing Date, Assignor, to the extent of its interest therein, hereby sells, assigns, transfers and conveys to Assignee, to the extent assignable, all of Assignor’s right, title and interest in, to and under the Unrecorded Encumbrances set forth on attached
Exhibit A
(the “
Assignment”
).
2.
Assumption
. Effective as of the Closing Date, Assignee hereby purchases, acquires and accepts the foregoing Assignment from Seller, and Assignee further hereby assumes and agrees to pay, honor and discharge when due the Assumed Liabilities.
3.
Indemnification
.
(a)
Assignee hereby agrees to indemnify, defend and hold harmless Assignor for, from and against, and will reimburse Assignor for, any and all actions, claims, costs, damages, demands, expenses (including reasonable attorneys’ fees), loss and liability, of any nature whatsoever, arising out of or in any way related to the Assumed Liabilities and to the failure of Assignee to pay and perform the obligations under the Unrecorded Encumbrances set forth on attached
Exhibit A
, arising on or after the Closing Date.
(b)
Assignor hereby agrees to indemnify, defend and hold harmless Assignee for, from and against, and will reimburse Assignee for, any and all actions, claims, costs, damages, demands, expenses (including reasonable attorneys’ fees), loss and liability, of any nature whatsoever, arising out of or in any way related to the failure of Assignor to pay and perform the obligations under the Unrecorded Encumbrances set forth on attached
Exhibit A
arising prior to the Closing Date.
4.
Governing Law
. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule (whether of the State of Oregon or any other jurisdiction).
5.
Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement notwithstanding that all parties are not signatories to the same counterpart. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
6.
General
. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
[
Signatures on following pages.
]
IN WITNESS WHEREOF, each of Assignor and Assignee has caused this Assignment and Assumption Agreement to be executed by its duly authorized representative with the intent that it be effective as of the date set forth above.
Assignor
:
LRT III LLC,
a Delaware limited liability company
By:
Name:
Title:
Assignee
:
_____________________,
a ________________________
By:
Name:
Title:
EXHIBIT A
To
Assignment and Assumption Agreement
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•
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Temporary Access Licenses
|
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1.
|
License Agreement dated May 2, 2017, between LRT III LLC, as Licensor, and Southport Forest Products, LLC, as Licensee.
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2.
|
Short Form Tramway Agreement (Tailholds/Guylines) dated June 14, 2017, between LRT III LLC, as licensor, and Moore Mill & Lumber Co., as licensee.
|
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|
3.
|
Temporary Access Letter Agreement for Crosby Road dated March 12, 2018, between LRT III LLC, and 3H Forestry & Land Management.
|
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|
4.
|
Temporary Access Letter Agreement for the Elk Creek LWD Placement dated February 1, 2018, between LRT III LLC, and Coquille Watershed Association.
|
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5.
|
Temporary Access Letter Agreement for Adamek Timber Sale dated October 3, 2017, between LRT III LLC, and Scott Timber Co.
|
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|
1.
|
Permit for Water Line dated March 6, 2017, between LRT III LLC, as landowner, and William and Donna Wassman, as permittee.
|
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|
2.
|
Permit for Water Line dated May 15, 2017, between LRT III LLC, as landowner, and Robert Anderson, as permittee.
|
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•
|
Hunting License Agreements
|
|
|
2.
|
Hunting License Agreement dated March 12, 2018, between LRT III LLC, as licensor, and Ted McNeely, as licensee.
|
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|
1.
|
Contract for Patrol of Timberlands (Sheriff’s Office) dated effective July 1, 2017, between LRT III LLC and the Board of Commissioners of Coos County, Oregon
|
97085121.1 0067129-00001
26
EXHIBIT G
Continuing Obligations
Reforestation and slash disposal obligations in connection with the following operations on the Real Property:
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1.
|
Notification of Operations/Permit # 2017-740-02879 with respect to Pay as Cut Timber Cutting Right Contract No. 565-17-17 dated April 25, 2017, between LRT III LLC, as seller, and Swanson Group MFG, as purchaser.
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2.
|
Notification of Operations/Permit # 2017-740-13721 with respect to Pay as Cut Timber Cutting Right Contract No. 565-17-25 dated December 4, 2017, between LRT III LLC, as seller, and D&H Logging Co., as purchaser.
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3.
|
Notification of Operations/Permit # 2017-740-03519 with respect to Contract No. 567-17-22 dated October 9, 2017, between LRT III LLC, and Scott Timber Co., and the related Temporary Access Letter Agreement for Adamek Timber Sale dated October 3, 2017, between LRT III LLC, and Scott Timber Co.
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EXHIBIT H
Form of Post Closing Harvest Agreement
POST-CLOSING HARVESTING AGREEMENT
This Post-Closing Harvesting Agreement (the "Agreement") is made by and between _______________, a ________________ (hereinafter referred to as "Owner"), and LRT III LLC, a Delaware limited liability company (hereinafter referred to as "Seller"), as of the ___ day of __________, 2018.
W I T N E S S E T H:
For and in consideration of the mutual promises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, it is agreed by and between the parties hereto as follows:
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1.
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Timberland Sale and Timber Reservation
: Seller has conveyed to Owner by Statutory Special Warranty Deed dated on the date hereof certain timberland located in Coos County, Oregon (the "Property"). Seller has reserved from Seller’s conveyance to Owner all timber standing and fallen and located on the portions of the Property shown on Exhibit “A” attached hereto and hereby made a part hereof (such reserved timber, the “Timber” and such reservation, the “Timber Reservation”). Seller has entered into those timber sale contracts listed on Exhibit “B” attached hereto (the “Timber Contracts”) pursuant to which the respective timber buyers under such contracts have the right to harvest the Timber more particularly described in such Timber Contract. Seller and Owner are entering into this Agreement to define and acknowledge the responsibilities and obligations of Seller and Owner with respect to the harvesting of the Timber reserved to Seller in the Timber Reservation.
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2.
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Cutting & Access Rights
: Seller, its timber buyers under the Timber contracts, and their respective employees, contractors, agents and assigns (collectively, “Permittees”) shall be entitled to enter the Property and to cut and remove the Timber on or before ____________, 2019 (as it may be extended as provided herein, the “Removal Date”, with the period from the date hereof through and including the Removal Date being hereinafter referred to as the “Term”. Seller and its Permittees shall have no further rights to enter the Property or cut the Timber after the Removal Date. Owner hereby grants to Seller and its Permittees rights of ingress and egress with workers, machinery and equipment on the Property and any adjoining property of Owner, but only to the extent necessary to conduct such timber cutting and removal. Seller’s and its Permittees’ use of Owner’s existing roads or any new roads permitted to be constructed by the terms of the Timber Contracts shall be at Seller’s and such Permittees’ own risk. Seller and its Permittees shall be entitled to construct such new roads as are contemplated under the Timber Contracts. Owner shall not be liable for any latent or patent defect in any roadway nor shall Owner be liable for any damages or injuries sustained by Seller or Seller’s Permittees, or any other individual or entity acting by, for or under Seller or its Permittees hereunder, arising out of or resulting from the use of said roads, except to the extent such damages or injuries are caused by Owner’s gross negligence or willful misconduct. Seller agrees to conduct its activities at all times so as to minimize damage to Owner’s roads and agrees to repair any damage to Owner’s roads caused by Seller or Seller’s Permittees.
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3.
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Seller’s Operations
: Seller shall conduct its timber cutting and removal under this Agreement in the manner provided in the Timber Contracts and otherwise in a prudent and responsible manner, using generally accepted and sound silvicultural and harvesting procedures and practices in order to protect and preserve in all respects the land upon which said timber is located and any adjoining timber and lands of Owner. Trees shall be cut as low to the ground as practical in accordance with generally acceptable industry standards. Seller shall repair all fences or structures damaged by its operations. Seller shall leave all fire breaks, property lines, running streams and drainage ditches clear of logs, timber, limbs and debris. All oil drums, cans, bottles, cartons, limbing bars, loading decks, abandoned equipment and other debris shall be removed from the Property upon completion of Seller’s harvesting operations at Seller’s expense. If repairs are not made or if the debris is not removed and cleared promptly after notice from Owner, Owner may undertake such repair or removal for Seller’s account, and Seller shall be liable to Owner for any reasonable expenses incurred in repairing or removing same. Seller shall not, under any circumstances, bury any material underground.
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Seller acknowledges that a higher degree of care is required when the Property is abnormally wet and that such condition may require Seller to stop or interrupt its operations hereunder. Owner reserves the right to suspend Seller’s harvesting operations when Owner reasonably deems significant site damage will result from continued operations;
provided
that in the event of any such suspension, the Removal Date shall automatically be extended for the same number of days that such suspension was in effect.
All timber harvesting operations shall be conducted in compliance with the Best Management Practices (BMP) guidelines of the State of Oregon and in compliance with applicable law.
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4.
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Owner’s Inspection
: Owner shall have the right, at any time, to inspect the Property upon which the Timber is located for the purpose of ascertaining whether the requirements of this Agreement are being met. In the event any violations are discovered or ascertained by Owner, then Owner shall provide written notice of such violations to Seller, and Seller shall have a reasonable amount of time thereafter to remedy such violations. If Seller fails to remedy such violations within a reasonable amount of time, Owner shall have the right to remedy the same, and Seller shall reimburse Owner for the cost thereof.
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5.
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Payment for Unauthorized Cutting
: The cutting or materially damaging of any trees not permitted to be cut hereunder shall be paid for by Seller at the rate of 150% of the then current market value of said timber.
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6.
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Indemnification & Hold Harmless
: Seller does hereby agree to indemnify and hold harmless Owner in connection with and from any and all causes of action, liabilities, losses, damages, injuries, claims, costs (including reasonable attorney fees) or litigation, arising out of, attributable to, resulting from or due to: (a) the activities and operations of Seller or its Permittees on the Property, except to the extent such are caused by the gross negligence or willful misconduct of Owner, or its agents or employees; and (b) any violation or default under any of the Timber Contracts.
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7.
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Insurance
: During the Term, Seller shall maintain a general liability insurance policy, with coverage in an amount not less than $2,000,000.00, insuring for covered losses arising out of Seller’s presence and activities on the Property. In lieu of coverage in the amount of $2,000,000, Seller may maintain general liability coverage on a per occurrence basis of $1,000,000 and excess umbrella coverage on a per occurrence basis of $1,000,000. The aforesaid insurance shall be obtained from a company reasonably satisfactory to Owner and licensed to do business in the State of Oregon. Such insurance policy or policies shall name Owner and Owner’s manager, CatchMark Timber Operating Partnership, L.P., as additional insureds, and shall provide for at least thirty (30) days’ written notice to Owner prior to cancellation, termination, modification or change of any such policy. A certificate thereof, together with satisfactory evidence of payment of the premium thereon, shall be deposited with Owner on or before the commencement of harvest by Seller or any timber buyer or, if later, the date of this Agreement. Owner makes no representation that the limits of liability specified to be carried by Seller under the terms hereof are adequate to protect Seller. If Seller deems this insurance to be inadequate, Seller shall, at its own expense, provide such additional insurance as necessary.
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8.
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Fire Protection
: Seller shall use all reasonable and customary precautions and procedures to prevent fires on the Property or any adjacent lands of Owner. In the event of any such fire caused by Seller or its Permittees of which Seller is aware, Seller shall promptly notify Owner, and shall use reasonable efforts to cause Seller’s Permittees carrying on said timber operations, to assist in controlling said fire. Owner specifically reserves the right to prohibit the making of fires on the Property if it is deemed advisable to do so, and further reserves the right to temporarily stop or interrupt Seller’s operations hereunder if conditions are such that, in Owner’s discretion, continued operations are reasonably likely to start forest fires. In the event Owner so requires suspension of harvesting, or suspension of harvesting is required by the Oregon Department of Forestry or other agency due to fire risk, the Removal Date shall automatically be extended for the same number of days that such stoppage or suspension was in effect.
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9.
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Compliance with Laws, Etc.
: Seller shall comply with all federal, state and local laws, rules, and regulations applicable to the operations contemplated by this Agreement, including, without limitation, environmental protection/pollution laws and regulations, workmen’s compensation laws and regulations, and the securing by Seller of all necessary licenses and permits incidental to said operations,
provided
, that Owner shall be responsible for complying with any reforestation and slash disposal requirements with respect to the Property. Seller further covenants and agrees that it will not conduct its operations in a manner which could cause Owner to be in violation of any federal, state or local law, rule or regulation. Except with respect to reforestation and slash disposal obligations, Seller covenants and agrees to hold Owner harmless from and/or reimburse Owner from any costs including fees imposed by any federal, state or local agency and attorney fees which may result from Seller’s failure to fully comply with such laws, rules and regulations or from any cost which may result from Seller’s conduct which exposes Owner to a violation of such laws, rules and regulations.
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10.
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Severance Taxes
: Seller shall pay such severance tax and all assessments as may now or hereafter be required to be paid by the laws of the State of Oregon, if any, in connection with its removal of the Timber hereunder.
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11.
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Default
: Either party may exercise any rights or remedies available to it in any court of law or equity. In addition to all other remedies, Owner, in the event of Seller’s default in any provision of this Agreement, shall have the right to order that Seller immediately stop its harvesting operations whereupon Seller will cease its operations until the default is corrected. If the default is not corrected within thirty (30) days, at Owner’s option this Agreement may be terminated; provided, however, in the event such default cannot be corrected within thirty (30) days, such thirty (30) day period shall be extended for a reasonable amount of time so long as Seller is diligently pursuing correction thereof. No extension of the cutting period will be granted in the event of such default and extension of operations.
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Owner’s right to terminate as set forth in this Paragraph 11 shall be a right in addition to collection of any damages, including costs of repair, sustained by Owner which arise out of or result from Seller’s breach of the provisions contained in this Agreement. The remedies provided for in this paragraph are in addition to any other remedies permitted in this Agreement or allowed by law.
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12.
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Notice
: Seller shall notify Owner at the address listed in Paragraph 16 below, with regard to cutting activity as follows:
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a.
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At the beginning of any road construction or the cutting of the Timber.
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b.
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Upon completion of the cutting operation or when the cutting operation moves onto or off of the Property.
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13.
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Assignment
: This Agreement shall not be assigned by Seller, in whole or in part, without the prior written consent of Owner.
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14.
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Bankruptcy, etc.
: This Agreement may be terminated by Owner in the event of the filing of any bankruptcy or insolvency action or proceedings by or against Seller.
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15.
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Owner’s Retained Rights; Warranty
: Title to the Property on which the Timber is located shall remain vested in Owner. This Agreement is made subject to any rights outstanding under any existing oil, gas or any other mineral leases or contracts covering all or any part of the Property, whether the same be recorded or otherwise, and to any rights outstanding under any other contracts, leases, easements, rights-of-way or roads as may be evidenced by possession, use, survey or which are of record.
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a.
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This Agreement contains the entire agreement of the parties hereto, and both parties acknowledge that neither party has made any promise or representations or offered any inducement, except as herein set forth with regard to the subject matter of this Agreement. There shall be no alteration or modification of this Agreement, other than by an appropriate written instrument executed by the parties hereto or their respective successors in interest.
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b.
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The paragraph titles herein are for purposes of convenience only and shall in no way be held to explain, modify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
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c.
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The terms Seller and Owner shall and do include and extend to the contractors, representatives, successors, heirs and assigns of the parties hereto. The rights of Seller under this Agreement extend to the respective timber buyers under the Timber Contracts, and each of such timber buyer’s contractors, agents and employees.
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d.
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Any delay or failure by Owner in the strict enforcement of the provisions of this Agreement with respect to any default by Seller hereunder shall not constitute a waiver of Owner’s rights respecting such default or any other default hereunder. All indemnities, rights and remedies provided for herein shall survive the expiration or earlier termination of this Agreement.
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e.
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This Agreement shall be construed under the laws of the State of Oregon.
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f.
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Time is of the essence of this Agreement.
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g.
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Any notices contemplated under this Agreement shall be deemed sufficient if mailed to the Owner at c/o CatchMark Timber Trust, Inc., Five Concourse Parkway, Suite 2325, Atlanta, Georgia 30328, Attn: John D. Capriotti, and Seller at c/o Forest Investment Associates L.P., 15 Piedmont Center, Suite 1250, Atlanta, Georgia 30305, Attn: Sarah Hall.
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IN WITNESS WHEREOF, Owner and Seller have caused this Agreement to be duly executed by authorized representatives as of the date first written above.
[Signatures begin on following page]
"OWNER"
________________________, a_______________________
By: ________________________
Name: ______________________
Title: _______________________
[Signatures continue on following page]
“SELLER”
LRT III LLC
,
a Delaware limited liability company
By:___________________________________
Name:_________________________________
Title:__________________________________
EXHIBIT "A"
to Post Closing Harvest Agreement
1.
EXHIBIT "B"
to Post Closing Harvest Agreement
1.
EXHIBIT I
Form of Owner’s Affidavit
Owner’s Affidavit
State of
County of
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Property:
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Certain real property located in Coos County, Oregon and commonly known as a portion of the Myrtle Point Management Unit and more particularly described in the First American Title Commitment No. NCS-903759MYR-ATL dated ______________
(such property, the
“Property
” and such commitment, the “
Title Commitment
”)
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I,
_____________, as _____________ of Forest Investment Associates, L.P., the duly authorized investment manager of LRT III LLC, a Delaware limited liability company
("Seller"),
in such representative capacity and not in my individual capacity, having personal knowledge of the facts averred to herein and being first duly sworn, on oath depose and state that Seller is the owner of the Property and during all the time that Seller has owned the Property, Seller has received no written notice to Seller’s knowledge that record title to the Property has been disputed and more particularly:
1.
The Seller, at present, and for a period of seventy-five (75) days prior to the date of this Affidavit, (a) has not caused construction, erection, alteration or repairs of any structures or improvements on the Property to be done
(“Improvements”),
nor has Seller contracted for any material to be delivered to the Property
(“Materials”)
or (b) if it has so caused Improvements on or delivery of Materials to the Property within the foregoing period, the charges therefor have been paid or will be fully paid for when due.
2.
The undersigned has no knowledge of any unpaid real estate taxes or installments of special assessments for the Property which are currently due and payable.
3.
The Seller has received no written notice of any uncured violations of any covenants, restrictions, agreements, or conditions affecting title to the Property during Seller’s ownership of the Property.
4.
The Seller has received no written notice of pending suits, proceedings, judgments, bankruptcies, liens or executions against the Property and the Seller either in the aforesaid county or any other county in the aforesaid state.
5.
To Seller’s knowledge, except for the agreements described in
Exhibit A
attached hereto and incorporated herein by this reference, and except as provided in the above-described Title Commitment (excluding the standard or general exceptions set forth in Schedule B of the Title Commitment), there are no unrecorded agreements, encumbrances, easements, licenses or permits granting to third parties any tenancy, possessory or other occupancy rights in the Property. For purposes of this Affidavit, the term “to Seller’s knowledge” shall mean the present, actual knowledge of ______________, ________________ of Forest Investment Associates, L.P., the authorized investment manager of Seller, with no further duty to investigate or inquire.
This affidavit is given to induce First American Title Insurance Company to issue its title insurance policy or policies in reliance upon any of the statements contained herein.
Dated as of _____________, 2018
[Signature and notary appear on the following page]
AFFIANT:
Name : ____________________, in his/her capacity as _________________ of Forest Investment Associates, L.P., as authorized investment manager of the herein named Seller.
Subscribed and Sworn to before me this
______ day of ________________, 2018.
_____________________________________
My Commission Expires:
Schedule 5(e)
Pre-Closing Access Easements
97085121.1 0067129-
00001
Execution Version
OPTION AGREEMENT
THIS OPTION AGREEMENT (this “
Agreement
”), made as of the Effective Date (as defined in paragraph 26 below), by and among
LRT IV LLC,
a Delaware limited liability company (hereinafter referred to as “
Seller
”),
CATCHMARK TIMBER TRUST, INC.
, a Maryland corporation (hereinafter referred to as “
Purchaser
”).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, Seller is the owner of those certain tracts or parcels of land in Coos County, Oregon, containing approximately ±7,401 acres, which tracts or parcels are more fully described in
Exhibit A-1
and which are identified as being owned by Seller as approximately depicted on the maps in
Exhibit A-
2
, each attached hereto and hereby made a part hereof (the “
Real Property
”), together with Seller’s right, title and interest in the following: all buildings, structures, and other improvements located thereon, all tenements, hereditaments, easements, appurtenances and privileges thereto belonging, all trees, timber, sand, gravel, rock and crops now located thereon or thereunder, and all oil, gas and mineral rights and interests in the Real Property not reserved or conveyed by Seller or Seller’s predecessors in title prior to the Effective Date, and, to the extent assignable, Seller’s interests under the Unrecorded Encumbrances set forth on attached
Exhibit D
, less any of the Unrecorded Encumbrances that expire prior to Closing (the foregoing hereinafter referred to collectively with the Real Property and the Personal Property as defined in Section 4(b)(vi) below as the “
Property
”); and
WHEREAS, Purchaser desires to acquire an option to purchase the Property, and Seller is willing to grant to Purchaser an option sell the Property on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, the parties have agreed and do hereby agree as follows:
1.
Grant and Terms of Option
. Subject to the provisions of this Agreement, and for the consideration herein stated, Seller hereby grants to Purchaser an exclusive and irrevocable option to purchase the Property (the “
Option
”). The Option shall be effective as of the Effective Date and shall continue in effect until 5:00 pm Eastern Time on June 29, 2018 (such date and time the “
Option Expiration Time
” and the period running between the Effective Date and the Option Expiration Time, the “
Option Period
”). Purchaser shall exercise the Option, if at all, by giving written notice to Seller within the Option Term stating that the Option is exercised (the “
Exercise Notice
”). Purchaser may exercise the Option only as to all of the Property and no partial exercise of the Option shall be permitted. Purchaser’s exercise of the Option under this Agreement shall only be effective if Purchaser simultaneously exercises the option granted to Purchaser pursuant to the Other Option Agreement (as defined herein), and Purchaser may not exercise the Option without also exercising the option granted under the Other Option Agreement. Upon timely exercise of the
Option, Seller shall be obligated to sell, and Purchaser shall be obligated to purchase, the Property for the price and on the terms and conditions set forth in this Agreement. If Purchaser fails to exercise the Option within the Option Term, this Agreement will automatically terminate, Seller will retain the Option Consideration and Purchaser will have no further right to acquire the Property.
2.
Purchase Price; Assumed Liabilities
. If Purchaser timely exercises the Option, the purchase price (subject to adjustment as provided herein, hereinafter referred to as the “
Purchase Price
”) to be paid by Purchaser for the Property shall be THIRTY EIGHT MILLION TWO HUNDRED EIGHTY FOUR THOUSAND FOUR HUNDRED NINETY AND 09/100 DOLLARS ($38,284,490.09), and shall be payable to Seller by wire transfer of immediately available funds at the date of Closing to an account designated by Seller. The purchase and sale pursuant to this Agreement is not based on a per-acre price and the Purchase Price shall not be subject to adjustment if the acres within the Property are more or less than the above-stated numbers of acres. The Purchase Price shall be allocated between the Personal Property and the Real Property as set forth on attached
Exhibit K
. Any subsequent adjustment to the Purchase Price under this Agreement shall be deemed an adjustment to the amount allocated to the Real Property. The portion of the Purchase Price which is allocated to the Real Property pursuant to
Exhibit K
(as such allocation may be subsequently adjusted pursuant to this Agreement) shall be used as the consideration required to be stated on the face of the Deed. As additional consideration for the purchase and sale transaction contemplated by this Agreement, Purchaser shall assume from Seller at Closing: (a) all liabilities and obligations of Seller arising on or after the Closing Date (as defined herein) under easements and other matters of record affecting the Real Property which impose obligations on the owner thereof and under the Unrecorded Encumbrances (as defined herein)
other than
(i) the Timber Cutting Agreements set forth on
Exhibit D
(the “
Timber Cutting Agreements
”, which Timber Cutting Agreements are being retained by Seller), and (ii) any Seed Orchard Agreements (as defined in Section 39 below) which are not assigned to Purchaser at Closing; and (b) all Continuing Obligations as defined in Section 36 below (collectively, the “
Assumed Liabilities
”).
3.
Option Consideration
. Contemporaneously with Purchaser’s execution of this Agreement, Purchaser has delivered to Seller by wire transfer of immediately available funds the sum of $1,531,379.60 as non-refundable option consideration (said amount is hereinafter referred to as the “
Option Consideration
”). The Option Consideration is non-refundable except as otherwise provided in this Agreement and shall be considered earned by Seller on receipt, but shall be credited against the Purchase Price at Closing (if Closing occurs).
4.
Closing
.
(a)
If the Option is exercised, the delivery of the funds, documents and instruments for the consummation of the purchase and sale pursuant hereto (herein referred to as the “
Closing
”) shall take place on July 13, 2018 at 10:00 a.m. Pacific Time through the escrow services of First American Title Insurance Company, Six Concourse Parkway, Suite 2000, Atlanta,
2
97085080.1 0067129-00001
Georgia 30328
(hereinafter referred to as “
Title Company
” and "
Escrow Agent
"), or on such earlier date and time, and/or such other location, as may be mutually agreeable to Seller and Purchaser (the “
Closing Date
”).
(b)
At the Closing, Seller shall deliver the following:
(i)
one or more (at Purchaser’s election) Statutory Special Warranty Deeds (warranting only against the claims of persons claiming by, through or under Seller) for each county in which the Real Property is located, in the form of
Exhibit B
attached hereto,
and subject only to the Unrecorded Encumbrances and the Permitted Encumbrances (both as hereinafter defined) and further excepting from Seller’s warranties contained in such deed(s) those certain matters affecting Seller’s title set forth on attached
Exhibit C
(collectively, the “
Deed
”); and, to the extent the Seller or its timber buyers under the Timber Cutting Agreements have not, by Closing, completed harvesting and removal of the timber from the Harvest Parcels identified on
Exhibit E
(the “
Unharvested Timber
”), the Deed shall contain a reservation of the Unharvested Timber in favor of Seller. The legal description of the Real Property to be contained in the Deed shall be the legal description of the Real Property as set forth on
Exhibit A
attached hereto and hereby made a part hereof (as the same description may have been modified in connection with the Title Commitment or any Update thereto);
(ii)
an affidavit as to the non-foreign status of Seller in form satisfactory to Seller;
(iii)
a certificate or other documentary evidence complying with ORS 314.258 that is reasonably acceptable to the Title Company and sufficient to assure the Title Company that no withholding is required under ORS 314.258;
(iv)
an assignment and assumption agreement with respect to Purchaser’s assumption of the Assumed Liabilities from Seller, in form attached as
Exhibit F
(the “
Assignment and Assumption Agreement
”);
(v)
if Purchaser elects to purchase loan policy coverage or extended coverage or endorsements to the Basic Title Policy (as defined herein), an owner’s affidavit in the form attached hereto as
Exhibit I
(the “
Owner’s Affidavit
”);
3
97085080.1 0067129-00001
(vi)
a bill of sale, substantially in the form of attached
Exhibit J
, with respect to the seed in storage and improved seedlings listed on
Schedule 4(b)(vi)
(the “
Personal Property
”);
(vii)
a Closing statement; and
(viii)
Seller hereby agrees to execute such other certificates, and do such other acts as may be reasonably necessary to consummate the purchase and sale contemplated hereby and to enable Purchaser to obtain the Basic Title Policy in accordance with this Agreement. The Owner’s Affidavit contemplated by Section 4(b)(v) above and any other affidavits or certificates executed by or on behalf of Seller at the Closing shall be given to the actual knowledge of the person or entity executing the same, without independent investigation or inquiry.
(c)
At the Closing, Purchaser shall deliver the following:
(i)
the Assignment and Assumption Agreement;
(ii)
a Closing statement; and
(iii)
Purchaser hereby agrees to deliver the Purchase Price (as it may be adjusted for the prorations and other adjustments required by this Agreement) less the credit for the Option Consideration and to execute such other certificates and affidavits, and do such other acts as may be reasonably necessary to consummate the purchase and sale contemplated hereby and to obtain the Basic Title Policy in accordance with this Agreement.
5.
Title
.
(a)
If the Option is timely exercised, Seller agrees to convey to Purchaser at Closing fee simple title to the Real Property by the Deed, free and clear of all liens, encumbrances, mortgages, deeds of trust, deeds to secure debt, assessments, agreements, options and covenants created or suffered by, through or under Seller, except for and subject to the Permitted Encumbrances, as hereinafter defined, and the matters set forth on attached
Exhibit C
.
4
97085080.1 0067129-00001
(b)
To the extent not previously provided, contemporaneously with Seller’s execution of this Agreement, Seller will, at Seller’s cost, cause to be delivered to Purchaser a title insurance commitment, or similar title report sufficient to allow the Title Company to issue the Basic Title Policy, together with complete and legible copies of all documentary title exceptions listed or referred to therein, (the “
Title Commitment
”) issued by the Title Company. During the Option Period, Purchaser shall have the right to review Seller’s title to the Real Property and provide Seller with written notice (the “
Title Objection Notice
”) of Purchaser’s objections, if any, to Seller’s title. Purchaser shall have the right to object to any title matter affecting Seller’s title to the Real Property;
provided
, however, that Purchaser shall not object to (i) the lien of real property taxes not yet due and payable and additional taxes which may be assessed if the Real Property is disqualified for assessment as forest or farm land; and (ii) any title matter which does not adversely affect the use or value of the Property as commercial timberlands or for resale as timberlands. Failure of Purchaser to provide the Title Objection Notice to Seller within the Option Period will be deemed an election by Purchaser to waive any objection to the matters disclosed in such Title Commitment (in which case all liens, encumbrances, or other defects or special exceptions to coverage in such Title Commitment will thereafter be Permitted Encumbrances) and to accept such title as Seller is able to convey without any reduction in the Purchase Price.
(c)
If Purchaser delivers the Title Objection Notice to Seller within the Option Period, Seller shall give written notice to Purchaser of its response to such objections indicating whether or not Seller will cure the matters objected to by Purchaser (the “
Title Objection Response
”);
provided
, however, that Seller shall at its sole cost secure the release of any monetary liens or encumbrances created by Seller and of a definite or ascertainable amount by Seller’s payment or bonding against the same at or prior to Closing other than the lien of real property taxes not yet due and payable and additional taxes which may be assessed if the Real Property is disqualified for assessment as forest or farm land (“
Required Cure Matters
”). Any failure of Seller to deliver a Title Objection Response within the Option Period shall be deemed an election by Seller not to cure any title objections raised in Purchaser’s Title Objection Notice. Other than with respect to Required Cure Matters, if Seller fails to, or elects not to, cure or satisfy any objections contained in the Title Objection Notice (a “
Title Defect
”) then Purchaser’s exercise of the Option shall be deemed Purchaser’s waiver of such Title Defect(s) and Purchaser will be required to close the sale without regard to said Title Defect(s) and without an adjustment to the Purchase Price (in which event such Title Defect(s) shall become Permitted Encumbrances for all purposes).
In the event that Seller delivers the Title Objection Response indicating that Seller will cure some or all of the Title Defects, Seller shall cure such Title Defects prior to Closing and, Seller, in its sole discretion, may extend the Closing Date for so many days as Seller may elect in order to cure such Title Defects, but in no event shall the aggregate number of days of extension exceed thirty (30) calendar days.
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97085080.1 0067129-00001
(d)
If Purchaser timely exercises the Option, within three (3) days following Purchaser’s receipt of any update to the Title Commitment disclosing any title matter which first appears in said updated Title Commitment or Purchaser’s receipt of notice of any unrecorded encumbrance affecting Seller’s title to the Real Property which comes into existence after Purchaser’s exercise of the Option (as applicable, an “
Update
”), in each case
other than
(i) any Pre-Closing Easements permitted under Section 5(e) below, (ii) any matter which has become a Permitted Encumbrance pursuant to Section 5(b) or 5(c) above, (iii) any title matter which does not adversely affect the use or value of the Property as commercial timberlands or for resale as timberlands, and (iv) the lien of real property taxes not yet due and payable and additional taxes which may be assessed if the Real Property is disqualified for assessment as forest or farm land, Purchaser shall have the right to notify Seller in writing of Purchaser’s objection to such new matter (a “
Supplemental Title Objection Notice
”). Failure of Purchaser to provide Seller with a Supplemental Title Objection Notice within such 3-day period will be deemed an election by Purchaser to waive any objection to the additional matters disclosed in such Update (in which case all liens, encumbrances, or other defects or special exceptions to coverage in such Update will thereafter be Permitted Encumbrances) and to accept such title as Seller is able to convey without any reduction in the Purchase Price. If Purchaser delivers a Supplemental Title Objection Notice to Seller within such 3-day period, Seller shall give written notice to Purchaser of its response to such objections within three (3) days after Seller’s receipt of Purchaser’s notice indicating whether Seller will cure the matters objected to by Purchaser (a “
Supplemental Title Objection Response
”);
provided
, however, that Seller shall at its sole cost secure the release of any Required Cure Matters appearing in the Update. Any failure of Seller to deliver a Supplemental Title Objection Response within the foregoing 3-day period shall be deemed an election by Seller not to cure any title objections raised in Purchaser’s Supplemental Title Objection Notice. Other than with respect to Required Cure Matters, if Seller fails to, or elects not to, cure or satisfy any objections contained in the Supplemental Title Objection Notice then Purchaser shall, as its sole and exclusive remedy, elect either to: (i) waive such objection and close the sale without an adjustment to the Purchase Price (in which event the matters set forth in the Supplemental Title Objection Notice shall become Permitted Encumbrances for all purposes); or (ii) terminate this Agreement and receive a refund of the Option Consideration.
In the event that Seller delivers the Supplemental Title Objection Response indicating that Seller will cure some or all of the matters set forth in the Supplemental Title Objection Notice, Seller shall cure such matters prior to Closing and, Seller, in its sole discretion, may extend the Closing Date for so many days as Seller may elect in order to cure such matters, but in no event shall the aggregate number of days of extension exceed thirty (30) calendar days.
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97085080.1 0067129-00001
(e)
For so long as this Agreement remains in force, Seller shall not lease, encumber or convey all or part of the Property or any interest therein, or enter into any agreement granting to any person any right with respect to the Property or any portion thereof, without the prior written consent of Purchaser;
provided
, however, that prior to Closing Seller shall be entitled to enter into (i) renewals or replacements of the Unrecorded Encumbrances listed on attached
Exhibit D
on substantially the same terms as existing on the Effective Date (except that Seller shall not, without the prior consent of Purchaser, enter into any renewals, extensions or replacements of any Timber Cutting Agreement that are not already permitted by the terms of such Timber Cutting Agreement, as amended through the Effective Date), and (ii) reciprocal or unilateral road easement agreements as more particularly outlined for Seller on attached
Schedule 5(e)
, pursuant to which Seller, as applicable, may (a) as a grantor, grant to third parties access rights over existing roads located on the Real Property for purposes of transporting forest products and rock, timber management (including fire protection and suppression), and access to identified lands of such third parties; (b) as a grantee, be granted access over and across certain lands of third parties for purposes of transporting forest products and rock to and from, timber management (including fire protection and suppression) on, and access to and from portions of the Real Property (the foregoing collectively, the “
Pre-Closing Easements
”).
(f)
For purposes of this Agreement, “
Permitted Encumbrances
” shall mean, collectively, (i) the Unrecorded Encumbrances; and (ii) and any other title matter to which Purchaser does not object, or for which Purchaser waives its objection or is deemed to have accepted pursuant to this Section 5.
(g)
Purchaser acknowledges and agrees that Seller may continue to conduct ongoing timber harvesting operations until Closing on those harvest planning units identified in
Exhibit E
(the “
Harvest Parcels
”). If Seller is unable to complete such harvesting operations by Closing, Seller shall reserve in the Deed all right and title to the Unharvested Timber on such Harvest Parcels together with the right to complete such harvesting operations on such Harvest Parcels for one (1) year after the Closing (as such time for removal may be further extended under the terms of the Post Closing Harvest Agreement defined below). In such event, Purchaser and Seller shall enter into an access and harvest agreement at Closing in the form attached hereto as
Exhibit H
(the “
Post Closing Harvest Agreement
”). Seller shall retain all rights to such timber and all proceeds therefrom until Closing, and through the term of the Post Closing Harvest Agreement, if applicable.
6.
Inspection
.
(a)
Purchaser and its agents, representatives, employees, engineers and contractors (“
Purchaser Representatives
”)
shall have the right at any time during the term of this Agreement to enter upon the Real Property at their own risk to inspect, examine, survey and make
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97085080.1 0067129-00001
timber cruises and other engineering tests or surveys, including a Phase I environmental site assessment (collectively, the “
Tests
”) which it may deem necessary or advisable, all at Purchaser’s sole cost and expense. Purchaser and the Purchaser Representatives will comply with such reasonable restrictions and requirements as Seller may impose in connection with their activities on the Real Property and, if so required by Seller, Purchaser will, prior to Purchaser or the Purchaser Representatives entering the Real Property, provide Seller with evidence of liability insurance in an amount and issued by an insurer reasonably satisfactory to Seller, covering the activities of Purchaser and the Purchaser Representatives on the Real Property and naming Seller as an additional insured. Upon completion of the Tests, Purchaser shall repair, at its sole cost and expense, any physical damage caused to the Real Property by Purchaser’s (or any Purchaser Representative’s) inspection of the Real Property and the Tests, and shall remove all debris and materials placed on the Real Property in connection with Purchaser’s inspection of the Real Property and the Tests. Purchaser shall keep the Real Property free of any liens resulting from Purchaser’s inspection of the Real Property and the Tests.
(b)
Purchaser hereby agrees to indemnify, defend and hold Seller harmless from and against, and will compensate and reimburse Seller for, any and all causes, claims, demands, losses, liabilities, costs, damages, expenses and fees (including, but not limited to, reasonable attorney’s fees incurred at any level of proceedings including appeal) incurred or suffered by or asserted against Seller caused by or related to Purchaser’s or the Purchaser Representatives inspection of the Real Property or the Tests, with the exception of any causes, claims, demands, losses, liabilities, costs, damages, expenses and fees caused by the gross negligence of Seller. The foregoing indemnification shall survive any termination, cancellation or expiration of this Agreement or the Closing of the purchase and sale contemplated hereby.
7.
[
Intentionally Deleted
]
8.
Condition of Property; Damage; Condemnation
.
(a)
Seller agrees that at the Closing the Property shall be in the same condition as exists on the date hereof, subject to natural wear and tear, trespass, condemnation, removal of timber from the Harvest Parcels or pursuant to rights granted to third parties under the Unrecorded Encumbrances or under recorded instruments disclosed in the Title Commitment and any Updates thereto, Casualty (as defined herein), and the Permitted Encumbrances. During the term of this Agreement, Seller shall neither cut or remove nor permit the cutting or removal of any timber or trees which are included as part of the Property subject to and excepting from the foregoing prohibition any removal of timber from the Harvest Parcels or other Real Property pursuant to rights granted to third parties under the Unrecorded Encumbrances or under recorded instruments disclosed in the Title Commitment and any Updates thereto.
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97085080.1 0067129-00001
(b)
If at any time prior to the Closing, the Property or any part thereof (including, but not limited to, any timber or trees which are included as part of the Property) is destroyed or damaged by fire or other Casualty (as hereinafter defined), Seller shall deliver to Purchaser prompt written notice of such destruction or damage along with Seller’s good faith calculation of the amount of such damage resulting from the Casualty (calculated as the fair market value of the destroyed or damaged Property less the salvage value of such destroyed or damaged Property), and the transactions contemplated by this Agreement shall be subject to the provisions of this Section 8(b). The Closing Date shall be extended to the extent necessary to permit the compliance with all procedures set forth in this Section 8(b).
(i)
If the amount of such damage (as finally determined pursuant to this Section 8) does not exceed $50,000 (the “
Threshold Amount
”), and Purchaser exercises the Option, or has previously exercised the Option, then Purchaser shall be required to purchase the Property in accordance with this Agreement without a reduction of the Purchase Price.
(ii)
If the amount of such damage (as finally determined pursuant to this Section 8) exceeds the Threshold Amount but does not exceed $3,000,000, then, if Purchaser exercises the Option, or has previously exercised the Option, Purchaser shall be required to purchase the Property in accordance with this Agreement, provided that the Purchase Price shall be reduced by an amount equal to the amount of such damage (as finally determined pursuant to this Section 8).
(iii)
If the amount of such damage (as finally determined pursuant to this Section 8) exceeds $3,000,000, then either party may, at its sole option, elect to cancel this Agreement by delivering written notice to the other party, whereupon Seller shall promptly return the Option Consideration to Purchaser and no party hereto shall have any further rights or obligations hereunder (except as may otherwise be expressly provided herein). If neither party elects to cancel this Agreement in accordance with the foregoing sentence, and Purchaser exercises the Option, or has previously exercised the Option, then the parties will proceed to Closing (subject to the other terms and conditions set forth in this Agreement) and the Purchase Price shall be reduced at Closing by an amount equal to the amount of such damage (as finally determined pursuant to this Section 8).
(iv)
If Purchaser, by delivering written notice to Seller within fifteen (15) days following Seller’s delivery of written notice of any Casualty, disputes the amount of damage reported by Seller, Purchaser and Seller shall attempt in good faith to resolve such dispute and agree upon the amount of the damage. If Purchaser and Seller agree upon the amount of the damage resulting from the Casualty, such agreed amount shall be final and binding on the parties for purposes of this Section 8. However, if Purchaser and
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Seller are unable to agree as to the amount of damage from fire or other Casualty on or before ten (10) days after Purchaser delivers to Seller written notice of its dispute, then the amount of damage will be determined in accordance with Section 23 of this Agreement.
(c)
If at any time prior to the Closing, any action or proceeding is filed or threatened under which any portion of the Property may be taken pursuant to any law, ordinance or regulation by condemnation or the right of eminent domain, Seller shall deliver to Purchaser prompt notice thereof. To the extent such action or proceeding would result in the taking of one thousand (1,000) acres or more, then Purchaser at its sole option shall elect, by delivering written notice to Seller within fifteen (15) days following Seller’s delivery of notice to Purchaser, either (i) to cancel this Agreement, whereupon Seller shall promptly return the Option Consideration to Purchaser and no party hereto shall have any further rights or obligations hereunder (except as may otherwise be expressly provided herein), or (ii) to purchase the Property pursuant to this Agreement, notwithstanding such action or proceeding. Failure by Purchaser to deliver written notice to Seller of its election within such fifteen (15) day period shall be deemed an election of clause (ii). If the action or proceeding would result in the taking of less than one thousand (1,000) acres, or if Purchaser elects or is deemed to elect clause (ii) above, then Purchaser shall receive a credit against the Purchase Price at Closing in the amount of all proceeds of any awards actually paid to Seller prior to Closing with respect to the Property so taken (less the costs of Seller incurred in procuring such proceeds or awards), or, if such amount is not known or received at the time of the Closing, the Purchase Price shall not be reduced and Seller shall instead assign to Purchaser at the Closing all of Seller’s right to such proceeds from such action or proceeding to the extent not yet received by Seller. To the extent such action or proceeding would result in the taking of one thousand (1,000) acres or more, the Closing Date shall be extended to the extent necessary to permit the exercise of such election by Purchaser.
9.
Warranties and Representations; Indemnification
.
(a)
Seller hereby warrants and represents to Purchaser that as of the Effective Date and as of the date of Closing:
(i)
Seller is a limited liability company duly organized and validly existing under the laws of the State of Delaware.
(ii)
Seller has the full right, power, and authority to enter into and perform its obligations under this Agreement; and no consent, approval, order or authorization of any court or other governmental entity is required to be obtained by Seller in connection with the execution and delivery of this Agreement or the performance hereof by Seller.
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(iii)
Attached hereto as
Exhibit D
is a true and accurate summary of (a) all unrecorded agreements, Timber Cutting Agreements and other unrecorded licenses created by Seller that currently affect the Real Property that will remain in effect as of the Closing Date and (b) the Seed Orchard Agreements in which Seller has a direct or beneficial interest (the “
Unrecorded Encumbrances
”). The Unrecorded Encumbrances remain in full force and effect and have not been modified or amended, except as indicated on said
Exhibit D
. To Seller’s knowledge, no event or condition exists or has occurred which with notice, the passage of time or otherwise would constitute a material default or event of default under any of the Unrecorded Encumbrances.
(iv)
There is no pending or, to Seller’s knowledge, threatened litigation, action or proceeding (including, but not limited to, any condemnation or eminent domain action or proceeding or any litigation regarding the location of lines and corners of the Property or any action or proceeding regarding adverse possession by third parties of any Real Property) before any court, governmental agency or arbitrator which may adversely affect Seller’s ability to perform this Agreement or which may affect the Property.
(v)
To Seller’s knowledge, (i) Seller’s use of the Real Property is in material compliance with all statutes, ordinances, rules, regulations, orders and requirements of all federal, state and local authorities and any other governmental entity having jurisdiction over the Property (“
Laws
”), and (ii) no condition exists on the Property which violates any Laws in any material respect. Seller has not received any notice from any such governmental entity of any violation of any Laws.
(vi)
Seller has received no written notice of any pending or threatened actions against Seller or the Real Property based upon the presence on the Real Property of any species listed as threatened or endangered under the Endangered Species Act of the United States or any law of the State of Oregon protecting endangered or threatened animal or plant species, and Seller has no knowledge of the current or past presence on the Real Property of any such threatened or endangered species that would adversely affect the Purchaser’s ability to conduct commercial timber operations on the Real Property.
(vii)
Seller (which for this purpose includes Seller’s partners, members, principal stockholders and managers) (x) has not been designated as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, <http://www.treas.gov/ofac/t11sdn.pdf> or at any replacement website or other replacement official publication of such list and (y) is currently in compliance with and will at all times during the term of this Agreement remain in compliance with the regulations of the Office of Foreign Asset Control of the Department of the Treasury and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto.
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97085080.1 0067129-00001
(viii)
Except as disclosed in the Phase I, Neither Seller nor, to Seller’s knowledge, any other person has used any portion of the Real Property as a land fill or as a dump to receive garbage, refuse, or waste, whether or not hazardous (other than unauthorized household refuse dump sites typical of rural timberlands not more than 1/4 acre in size), and, except as disclosed in the Phase I, neither Seller nor, to Seller’s knowledge, any other person has stored, handled, installed or disposed in, on or about the Real Property any Hazardous Substance, except for, in accordance with applicable Law, (A) the use of motor vehicle lubricants and fuels, and (B) the application of silvicultural and agricultural chemicals. For purposes of this warranty, the term “
Hazardous Substance
” means any chemical, compound, constituent, material, waste, contaminant (including petroleum, crude oil or any fraction thereof) or other substance, defined as hazardous or toxic, or otherwise regulated by any of the following laws and regulations promulgated thereunder as amended from time to time prior to the Effective Date: (1) the Comprehensive Environmental Response, Compensation and Liability Act (as amended by the Superfund Amendments and Reauthorization Act), 42 U.S.C. § 9601 et seq.; (2) the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq.; (3) the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.; (4) the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; (5) the Clean Water Act, 33 U.S.C. § 1251 et seq.; (6) the Clean Air Act, 42 U.S.C. § 1857 et seq.; and (7) all laws of the State of Oregon that are based on, or substantially similar to, the federal statutes listed in clauses (1) through (6) of this sentence.
(ix)
Except as provided under the Unrecorded Encumbrances (including the Timber Cutting Agreements) and under recorded instruments disclosed in the Title Commitment and any Updates thereto: (A) to Seller’s knowledge, no third party has any rights to enter upon the Real Property to harvest and remove any timber therefrom; and (B) no timber or trees have been removed or harvested from the Real Property or affected by any Casualty causing damage in excess of the Threshold Amount since February 2, 2018 (the “
Inventory Date
”). For purposes of this Agreement, “
Casualty
” shall mean any physical damage to or loss of the timber on any portion of the Property by fire, earthquake, flood, insects, disease or other calamity, or as a result of timber trespass or unauthorized harvest.
(x)
except for the Unrecorded Encumbrances, to Seller’s knowledge, there are no unrecorded contracts, leases, or other agreements that affect the ownership, use or operation of the Real Property and that would be binding on Purchaser after the Closing date.
(xi)
to Seller’s knowledge, except as disclosed in the Title Commitment and any Updates thereto, (A) no taxes or assessments relating to the Property are delinquent, and (B) there are no special taxes, assessments or charges proposed, pending
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97085080.1 0067129-00001
or threatened against the Property. During the period of Seller’s ownership of the Real Property, neither Seller nor, to the best of Seller’s knowledge, any other person or entity has caused any portion of the Real Property to violate the terms and conditions of any program in which such portion is enrolled that allows reduced ad valorem real property tax assessments for agricultural or silvicultural use.
(xii)
to Seller’s knowledge, there have been no active mining operations conducted on the Real Property during the period in which Seller has owned the Real Property, and Seller has no knowledge of any proposed mineral activity on the Real Property.
(xiii)
Subject to the limitations set forth in Section 9(d) and 9(e) below, if Purchaser exercises the Option, Seller will hold harmless, indemnify and defend Purchaser from and against any and all obligations, liabilities, claims, liens or damages suffered or incurred by Purchaser or imposed against the Property on account of any breach of any representation or warranty of Seller set forth in this Section 9(a).
(b)
For purposes of this Agreement, “
Seller’s knowledge
” and similar phrases with respect to matters known by Seller shall be defined as the present, actual knowledge possessed by Sarah Hall and Jack Stover, without any duty of inquiry.
(c)
Purchaser hereby warrants and represents to Seller, as of the Effective Date and as of Closing, that:
(i)
Purchaser is a corporation duly organized and validly existing under the laws of the State of Maryland.
(ii)
Purchaser has the full right, power and authority to enter into and perform its obligations under this Agreement; and no consent, approval, order or authorization of any court or other governmental entity is required to be obtained by Purchaser in connection with the execution and delivery of this Agreement or the performance hereof by Purchaser.
13
97085080.1 0067129-00001
(d)
Notwithstanding anything herein to the contrary, all representations and warranties contained in this Section 9 shall survive the Closing and the delivery of the conveyance instruments to Purchaser for a period of one (1) year after the Closing Date (the “
Survival Period
”).
No claim for a breach of any
Seller
representation or warranty, or the failure or default of a covenant or
agreement
of
Seller
that survives
Closing
, shall be actionable or payable unless written notice containing a description of the specific nature of such breach shall have been delivered by
Purchaser
to
Seller
prior to the expiration of the
Survival Period
. The maximum amount that
Purchaser
shall be entitled to collect from
Seller
in connection with all suits, litigation or administrative proceedings resulting from all breaches by
Seller
of any
Seller
representations or any covenants of
Seller
shall in no event exceed ten percent (10%) of the
Purchase Price
in the aggregate.
(e)
The indemnification provisions set forth in this Section 9 shall provide the parties’ exclusive post-Closing remedy for breach of any representation or warranty set forth in this Agreement. Notwithstanding anything in this Agreement to the contrary, the limitations on remedies set forth in this Section and elsewhere in this Agreement shall not apply to or limit in any way any post-Closing rights or remedies (i) contained in or derived from the Deed or the other conveyance documents delivered at Closing, (ii) arising out of any fraud or intentional misconduct on the part of either party hereto, or (iii) any right of contribution or indemnification existing under any statute or law resulting from the existence on the Closing date of any “Recognized Environmental Condition” (as such term is defined in ASTM Practice E 2247-16
Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property
) affecting the Property.
10.
Brokerage Commission
. Seller shall indemnify and hold Purchaser harmless from all claims, losses, liabilities and expenses (including but not limited to reasonable attorneys’ fees and court costs actually incurred) which Purchaser may incur on account of any claim which may be asserted against Purchaser, whether or not meritorious, by any broker or other person on the basis of any agreements made or alleged to have been made by or on behalf of Seller for commissions or other compensation for bringing about the transaction contemplated by this Agreement. Purchaser shall indemnify and hold Seller harmless from all claims, losses, liabilities and expenses (including but not limited to reasonable attorneys’ fees and court costs actually incurred) which Seller may incur on account of any claim which may be asserted against Seller, whether or not meritorious, by any broker or other person on the basis of any agreements made or alleged to have been made by or on behalf of Purchaser for commissions or other compensation for bringing about the transaction contemplated by this Agreement. This Section 10 shall survive the Closing or any termination, cancellation or expiration of this Agreement.
11.
Prorations of Income; Taxes; Expenses
.
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97085080.1 0067129-00001
(a)
All rent and other income and all expenses relating to the Property (other than any deficit or surplus balances under BLM road use agreements) shall be prorated as of the date of Closing. If the actual rent and other income and all expenses relating to the Property are not known as of the date of Closing, then within thirty (30) days after Closing or the date such amounts became known (whichever is later), Seller and Purchaser shall reconcile such actual rent and other income and all expenses with the prorations done at Closing, and an adjusting payment shall be made between the parties to effectuate the final prorated amounts. This obligation shall survive the Closing.
(b)
Ad valorem real property taxes on the Property and special assessments (including, without limitation, fire protection district assessments) shall be prorated as of the Closing Date. If actual tax bills for the calendar year of Closing are not available, said taxes shall be prorated based on tax bills for the previous calendar year and the parties hereto agree to cause a reproration of said taxes upon the receipt of tax bills for the calendar year of Closing and an adjusting payment shall be made between the parties to effectuate the final prorated amounts. This obligation to reprorate shall survive the closing of the purchase and sale contemplated hereby. If the Real Property is not designated a separate tax parcel from any real property which is not being purchased by Purchaser under this Agreement, the taxes for such tax parcel shall be adjusted to an amount bearing the same relationship to the total tax bill which the acreage contained within the Real Property bears to the acreage contained within the total real property included within said tax bill.
(c)
Purchaser and Seller shall each pay one-half of the Escrow Agent’s standard closing fees for the transaction. Purchaser shall pay the costs of recordation of the Deed.
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97085080.1 0067129-00001
(d)
Seller shall pay any and all fees, costs and expenses for title searches and examinations and other title-related charges in connection with obtaining the initial Title Commitment (if any charged separately from the Basic Title Policy premium), and the premium for the issuance of a single standard coverage owner’s policy of title policy in the amount of the Purchase Price and without endorsements or extended coverage insuring Purchaser of good and marketable title to the Real Property, subject only to the Permitted Encumbrances and the standard printed exceptions appearing in such policy form (the “
Basic Title Policy
”). Purchaser shall pay any and all fees, costs and expenses for any additional title searches and examinations and other title-related charges (if any charged separately from the Basic Title Policy premium) in connection with the issuance of any Updates or any title search and examination which is required in connection with any Title Objection Notice or Supplemental Title Objection Notice delivered by Purchaser. Purchaser shall also pay the premium and title related charges for any loan policies and extended coverage form policies of title insurance and any endorsements thereto or to the Basic Title Policy, if requested by Purchaser, and for any loan title policy required by Purchaser’s lender;
provided
, however, that a commitment to issue any such loan policies and extended coverage or endorsements shall not be a condition precedent to Purchaser’s obligations to close the transactions contemplated by this Agreement and Seller shall not be obligated in any event to indemnify the Title Company to induce it to issue the Basic Title Policy or any extended coverage or endorsements requested by Purchaser (other than a standard “gap” indemnity, if required by the Title Company, and delivery of the Owner’s Affidavit contemplated by Section 4(b)(v) above).
(e)
Each party shall pay its respective costs and expenses of legal representation.
(f)
Purchaser shall be solely responsible and liable for any deferred, rollback, recapture or other tax or assessment (“
Rollback Taxes
”) imposed or charged with respect to the Property or any part thereof for or relating to any periods prior to or subsequent to the Closing based on any change of use of the Property by Purchaser. Seller shall be responsible for any Rollback Taxes based upon the actions of Seller, including but not limited to the sale of the Property to Purchaser. The provisions of this subparagraph (f) shall survive the Closing.
12.
Default; Remedies
.
(a)
If Purchaser timely exercises the Option, and the purchase and sale of the Property contemplated hereby is not thereafter consummated on or prior to the Closing Date (as it may be extended under this Agreement) because of a default by Purchaser under this Agreement, then, in addition to Seller retaining the Option Consideration, Purchaser shall reimburse Seller on demand for Seller’s reasonable and documented third party cost and expenses incurred in connection with this Agreement, provided said reimbursement obligation under this Agreement, when taken collectively with the corresponding reimbursement obligations of the seller under
16
97085080.1 0067129-00001
Section 12(a) of the Other Option Agreement (as defined herein), shall not exceed $100,000.00 in the aggregate. Purchaser’s payment of Seller’s expenses as provided above shall be Seller’s sole remedy.
(b)
If Purchaser timely exercises the Option, and the purchase and sale of the Property contemplated hereby is not thereafter consummated on or prior to the Closing Date (as it may be extended under this Agreement) because of a default by Seller under this Agreement, then Purchaser shall have the right, as its sole and exclusive remedy, either (i) to terminate this Agreement, whereupon Seller will return the Option Consideration to Purchaser, and the parties hereto will have no further rights or obligations hereunder (except as otherwise expressly provided herein), (ii) to waive any such default and proceed to Closing, (iii) to seek specific performance of this Agreement, or (iv) if specific performance is not available to Purchaser, Seller shall reimburse Purchaser on demand for Purchaser’s reasonable and documented third party cost and expenses incurred in connection with this Agreement, provided said reimbursement obligation under this Agreement, when taken collectively with the corresponding reimbursement obligations of the seller under Section 12(b)(iv) of the Other Option Agreement (as defined herein), shall not exceed $100,000.00 in the aggregate.
(c)
If the Other Option Agreement (as defined in Section 38(b) below) is terminated for any reason, then this Agreement will automatically terminate, with the following effect: (i) if the termination of such Other Option Agreement was for a cause which would require the Option Consideration under such Other Option Agreement to be returned to the purchaser thereunder, then the Seller shall refund the Option Consideration under this Agreement to the Purchaser herein upon termination of this Agreement; and (ii) if the termination of such Other Option Agreement was for a cause which would permit the seller under such Other Option Agreement to retain the Option Consideration and seek expense reimbursement under such Other Option Agreement, then Seller shall retain the Option Consideration under this Agreement to the Seller herein upon termination of this Agreement and shall be entitled to expense reimbursement as provided in Section 12(a). In the event of any such termination, neither Seller nor Purchaser will have any further rights, duties or obligations hereunder other than those which expressly survive a termination hereof. If the Other Option Agreements is terminated due to a default of the seller thereunder, then Purchaser shall have the rights set forth in Section 12(b) of this Agreement.
13.
Assignment
. Except as otherwise expressly permitted in this Agreement, neither party hereto shall assign its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party, which written consent will not be unreasonably withheld of delayed. Notwithstanding the foregoing, (a) Purchaser shall have the right, upon written notice given to Seller not less than five (5) days prior to the Closing Date, to assign its rights and obligations under this Agreement in whole or in part to any affiliate or affiliates of Purchaser, provided that Purchaser shall remain liable for all obligations under this Agreement to the extent arising out of or relating to performance, acts or omissions occurring prior to Closing; and (b) Purchaser may
17
97085080.1 0067129-00001
assign this Agreement at the Closing, but not earlier, to any institutional lender or lenders as security for obligations to such lender or lenders in respect of financing arrangements of Purchaser or any affiliates thereof with such lender or lenders. Without limiting the generality of the foregoing, Purchaser may elect to have some or all of the Property, and/or the timber located thereon, conveyed directly at Closing to one or more of Purchaser’s affiliates and in such event the Deed shall be delivered to, and the applicable instruments of conveyance and assumption delivered at Closing shall be executed by, such affiliate or affiliates, as applicable.
14.
No Waiver
. No action or failure to act by any party hereto shall constitute a waiver of any right or duty afforded to such party under this Agreement, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach of this Agreement except as may be specifically agreed in writing.
15.
Governing Law
. This Agreement shall be governed by the laws of the State of Oregon.
16.
Notice
. Any and all notices, elections and communications required or permitted by this Agreement shall be made or given in writing and shall be delivered in person or sent by postage, pre-paid, United States Mail, certified or registered, return receipt requested, or by a recognized overnight courier such as FedEx or UPS, or by facsimile or e-mail, to the other parties at the addresses set forth below, or such other address as may be furnished by notice in accordance with this paragraph. The date of notice given by personal delivery shall be the date of such delivery. The effective date of notice by mail, facsimile, email or overnight courier shall be the date such notice is mailed, faxed, emailed or deposited with such overnight courier. In the event that the last day for giving notice hereunder or for the performance of any obligation hereunder, including Closing, falls upon a Saturday, Sunday or a legal holiday, the last day for said notice or performance shall be deemed to be the next day which is neither a Saturday, Sunday nor a legal holiday.
Seller: LRT IV LLC
c/o Forest Investment Associates L.P.
15 Piedmont Center
Suite 1250
Atlanta, Georgia 30305
Attention: Sarah Hall
Email: shall@forestinvest.com
with a copy to: Stoel Rives LLP
760 SW Ninth Ave., Suite 3000
Portland, OR 97205
Attention: Adam H. Dittman
Attention: Mark A. Norby
18
97085080.1 0067129-00001
Facsimile: (503) 220-2480
Email: adam.dittman@stoel.com
Email: mark.norby@stoel.com
Purchaser: c/o CatchMark Timber Trust
Five Concourse Parkway
Suite 2325
Atlanta, Georgia 30328
Attention: John D. Capriotti
Facsimile No.: (770) 243-8172
Email: john.capriotti@catchmark.com
with a copy to: Smith, Gambrell & Russell, LLP
Suite 3100, Promenade II
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309-3592
Attention: Mark G. Pottorff
Facsimile: (404) 685-6897
Email: mpottorff@sgrlaw.com
17.
Entire Agreement
. This Agreement and the Confidentiality Agreement contain the entire agreement among the parties hereto with respect to the subject matter hereof and cannot be amended or supplemented except by a written agreement signed by Seller and Purchaser.
18.
Captions
. The captions of paragraphs in this Agreement are for convenience and reference only and are not part of the substance hereof.
19.
Severability
. In the event that any one or more of the provisions, paragraphs, words, clauses, phrases or sentences contained in this Agreement, or the application thereof in any circumstance is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision, paragraph, word, clause, phrase or sentence in every other respect and of the remaining provisions, paragraphs, words, clauses, phrases or sentences of this Agreement, shall not be in any way impaired, it being the intention of the parties that this Agreement shall be enforceable to the fullest extent permitted by laws.
20.
Counterparts
. This Agreement may be executed in multiple counterparts which shall be construed together as one instrument. This Agreement, including any amendments thereto, may be executed and delivered by facsimile transmission, with the intention that such facsimile signature and delivery shall have the same effect as an original signature and actual delivery.
19
97085080.1 0067129-00001
21.
Binding Effect
. This Agreement shall bind the parties hereto and their respective heirs, legal representatives, successors and assigns.
22.
Time; Business Day
.
(a) Time is of the essence of this Agreement; provided that in the event that the last day for performance of any obligation hereunder falls upon a day that is not a business day (as defined below), the last day for said performance shall be deemed to be the next business day.
(b) As used in this Agreement, the term “business day” shall mean any day that is not a Saturday, a Sunday, a legal holiday in the United States of America, or a legal holiday in the State of Oregon.
23.
Resolution of Disputes
. In the event that any provision of this Agreement refers to this Section 23 for a determination of the amount of any change in the value of the Property or the fair market value of any portion(s) of the Property or the timber on the Property or to resolve a disagreement between the parties with respect to the allocation of the Purchase Price, Seller and Purchaser will promptly make a good faith attempt to mutually agree upon such fair market value or allocation. In the event Seller and Purchaser are unable to so agree within the time period specified in this Agreement after notice of the event or circumstance necessitating the need for such determination from either party to the other party, Seller and Purchaser will each promptly appoint an independent forestry consultant, each of which may be a consultant previously engaged by the appointing party with respect to the Property, and such two consultants will in turn promptly select a third independent forestry consultant (which third consultant may not be a consultant previously engaged by either party) to act with them in a panel to determine the appropriate fair market valuation or allocation. The panel of consultants will reach a binding decision within thirty (30) days of the selection of the third consultant, and the decision of the panel of consultants as to the fair market valuation or the amount of the Purchase Price to be allocated to Real Property or Personal Property that is in dispute will be final. Each party will submit its determination of value or, in the case of a dispute regarding the allocation of the Purchase Price, its position regarding the amount to be allocated to the item(s) in dispute to the panel of consultants within three (3) days of selection of the third consultant. When making is determination of value or of the proper allocation to attribute to a disputed allocation to Real Property or Personal Property, as applicable, the panel of consultants shall select the submission of the party that the panel determines most closely represents the fair market valuation of the Real Property or Personal Property for which the allocation of value is disputed taking into account any guidelines set forth in the applicable section of this Agreement, but the panel shall not be authorized to select a different amount. Seller shall pay the cost of its appointed consultant; Purchaser shall pay the cost of its appointed consultant; and Seller and Purchaser shall each pay one-half (1/2) of the cost of the third consultant. The Closing Date shall
20
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be extended to the extent necessary for such consultants to reach such decision but not by more than forty-five (45) days.
24.
Public Announcements
.
Seller
and Purchaser hereby agree that prior to the Closing, except as required by applicable laws or any applicable stock exchange rules, all press releases and other public announcements with respect to the transactions contemplated by this Agreement, including the time, form and content of such release or announcement, shall be made only with the prior mutual written agreement of Purchaser
and Seller; provided, however, that any disclosure required to be made under applicable law may be made only if a party required to make such disclosure has determined in good faith and upon advice of legal counsel that it is necessary to do so and such party has used reasonable efforts, prior to the issuance of the disclosure, to provide the other party with a copy of the proposed disclosure and to discuss the proposed disclosure with the other party.
25.
Patriot Act Compliance
. Purchaser represents that neither Purchaser nor any of Purchaser’s affiliates, nor any of their respective partners, members, shareholders or other equity owners, and none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“
OFAC
”)
of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not attempt to assign this contract to, contract with or otherwise engage in any dealings or transactions or be otherwise associated with such persons or entities. Any assignee of this contract is deemed to make this representation upon acceptance of an assignment of this contract. Purchaser’s primary address is as set forth in the notice section of this Agreement. Purchaser hereby covenants and agrees that if Purchaser obtains knowledge that Purchaser or any owner of any controlling interest in Purchaser becomes listed on the foregoing or is indicted, arraigned, or custodially detained on charges involving money laundering or predicate crimes to money laundering, Purchaser will immediately notify Seller in writing, and in such event, Seller will have the right to terminate this Agreement without penalty or liability to Seller immediately upon delivery of written notice thereof to Purchaser, in which event the Earnest Money will be returned to Purchaser and neither party will have any further rights or obligations under this Agreement, except for such as specifically survive termination.
26.
Effective Date
. The “
Effective Date
” of this Agreement will be the date the later of Seller and Purchaser has executed this Agreement, as indicated on the signature page(s) below.
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97085080.1 0067129-00001
27.
Incorporation of Exhibits
. All exhibits referred to herein are hereby incorporated in this Agreement by this reference.
28.
AS IS
. PURCHASER ACKNOWLEDGES THAT, EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES SET FORTH IN SELLER’S SPECIAL WARRANTY OF TITLE IN THE DEED AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 9 OF THIS AGREEMENT: (
I
) NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, HAVE BEEN OR ARE BEING MADE BY OR ON BEHALF OF SELLER OR ANY OTHER PERSON, INCLUDING WITH RESPECT TO THE CONDITION OR VALUE OF THE PROPERTY OR THE TIMBER THEREON,
AND SELLER HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND SUITABILITY FOR ITS INTENDED USE, (
II
) IN ENTERING INTO THIS AGREEMENT, PURCHASER HAS NOT RELIED ON AND DOES NOT RELY ON ANY SUCH REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, BY OR ON BEHALF OF SELLER OR ANY OTHER PERSON, AND (III) PURCHASER SHALL ACQUIRE THE PROPERTY IN
“AS IS, WHERE IS, AND WITH ALL FAULTS”
CONDITION ON THE CLOSING DATE.
29.
Property Data and Materials; Confidentiality Agreement
. Purchaser acknowledges that, except as may otherwise be provided in Section 9, any information or materials provided or made available to Purchaser or its representatives in hard copy, by facsimile or electronic transmission or via the online data room managed by Forest Investment Associates L.P., including, without limitation, any cost or other estimates, projections, acreage, and timber information, the Title Commitment, other title commitments, and other title policies, are not and shall not be deemed representations or warranties by or on behalf of Seller. Purchaser acknowledges and agrees that Purchaser is and will remain, until the Closing, subject to and bound by all of the prohibitions, requirements, restrictions and other provisions of that certain Confidentiality Agreement, dated as of February 16, 2018, between Forest Investment Associates L.P., in its capacity as investment manager, on behalf of Seller and Purchaser (the “
Confidentiality Agreement
”), and Purchaser reaffirms all of its obligations and liabilities thereunder.
30.
No Survival
. Except as otherwise provided herein, the provisions of this Agreement shall not survive the Closing of the purchase and sale contemplated hereby and shall be merged into the delivery of the Deed and other documents and the payment of all monies pursuant hereto.
31.
No Solicitation
. Seller agrees that it shall not after the Effective Date and until this Agreement is terminated, directly or indirectly, through any officer, director, employee, agent or otherwise, (a) solicit, initiate or encourage submission of proposals, offers or expressions
22
97085080.1 0067129-00001
of interest from any person or entity other than Purchaser relating to any acquisition or purchase of all or a portion of the Property (any of the foregoing proposals, offers or expressions of interest being referred to herein as an “
Acquisition Proposal
”), or (b) participate in any negotiations or discussions with any person other than Purchaser regarding, or furnish to such person any nonpublic information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any Acquisition Proposal.
32.
[
Intentionally Deleted
]
33.
Property Information
. To the extent not already delivered to Purchaser, and to the extent transferrable, Seller shall make available to Purchaser within ten (10) days of the date hereof copies of all title information owned by Seller and within Seller’s possession relating the Real Property, inventory information, GIS information, current third party contracts for silvicultural activities with respect to the Property, and plot data from Seller’s latest cruise of the Property (the “
Property Information
”). At Closing, Seller shall deliver both hard copies and electronic versions (to the extent in existence and to the extent transferrable) of the Property Information as Purchaser may reasonably request;
provided
,
however
, that Seller shall have no obligation to provide or make available to Purchaser at any time, and the term “Property Information” shall not include: (a) any information that is subject to the attorney-client, attorney work product doctrine or other privilege (as reasonably and in good faith determined by Seller), (b) any information regarding the pricing of timber, internal or external appraisals of the Real Property, other valuations or similar pricing or financial records, or any other information that is confidential and proprietary to Seller, (c) all communications by Seller personnel prior to the Closing Date regarding the transactions contemplated by this Agreement and any other documentation relating to the negotiation, documentation, and consummation of the transactions contemplated by this Agreement, (d) Seller’s investor and manager communications and (e) any document or item which Seller is contractually bound to keep confidential.
34.
Statutory Notice
. THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS THAT, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND THAT LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930, IN ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON’S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY
23
97085080.1 0067129-00001
ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO VERIFY THE EXISTENCE OF FIRE PROTECTION FOR STRUCTURES AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010.
35.
Post-Closing Permit Transfer
. Upon Seller’s completion, after Closing, of the harvest of Unharvested Timber, if any, from the Harvest Parcels listed on
Exhibit E
, or, if earlier, the date that Seller’s reservation of the Unharvested Timber expires (such date, as to each permit, the “
Post-Closing Permit Transfer Date
”), Seller shall assign the notifications of operations/permits for such harvest unit to Purchaser and Purchaser shall be deemed to have assumed the obligations arising under such permits, and such permits shall thereafter be Assumed Liabilities, except that Purchaser is not assuming, and shall not be liable for, any liabilities or obligations of Seller under such permits arising prior to the Post-Closing Permit Transfer Date other than unperformed reforestation obligations under such permits.
36.
Continuing Obligations
. Purchaser acknowledges that the Real Property is subject to certain reforestation and/or slash removal obligations imposed by applicable law or governmental regulations, including, without limitation, the Oregon Forest Practices Act, concerning the Real Property, including but not limited to the continuing obligations under the notifications listed on attached
Exhibit G
(collectively, the “
Continuing Obligations
”). The parties acknowledge that the disclosures set forth in
Exhibit G
satisfy the statutory requirements of ORS 527.665. As of the Closing, Purchaser assumes and agrees to perform the Continuing Obligations at Purchaser’s sole cost and expense in a timely fashion, and to indemnify, defend and hold Seller harmless from and against the Continuing Obligations and any claim, loss, damage, cost or expense arising from Purchaser’s failure to perform the same. The obligations under this Section shall survive Closing.
37.
Fees and Expenses; Attorney’s Fees
. Except as expressly provided in this Agreement to the contrary, whether or not the transactions contemplated by this Agreement are consummated, all legal and other costs and expenses incurred in connection the due diligence, preparation, negotiation and execution of this Agreement and in connection with the transactions contemplated hereby shall be paid by the party incurring such costs and expenses. Should any legal action or proceeding be commenced by either party in order to enforce this Agreement or any provision hereof or any agreement or instrument executed and delivered in connection with this Agreement, or in connection with any alleged dispute, breach, default, or misrepresentation in connection with any provision herein or therein contained, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, including reasonable title insurance company charges or fees and reasonable and necessary expert witness fee and costs of pursuing or defending any legal action, including, without limitation, any
24
97085080.1 0067129-00001
on appeal, discovery or negotiation and preparation of settlement arrangements, in addition to such other relief as may be granted.
38.
Conditions
.
(a) Unless waived by Purchaser, if the Option is exercised, the obligations of Purchaser to purchase the Property under this Agreement are expressly made subject to the fulfillment in all respects of the following conditions precedent:
(i)
the truth and accuracy as of the date of Closing of each and every warranty and representation herein made by Seller; and
(ii)
Seller’s timely performance of and compliance with each and every term, condition, agreement, restriction and obligation to be performed and complied with by Seller prior to Closing under this Agreement; and
(iii)
Purchaser shall have received, in the form of a “marked binder” delivered at Closing, an irrevocable commitment by the Title Company to issue to Purchaser the Basic Title Policy subject only to the payment of the premiums therefor at Closing (but, for the avoidance of doubt, the Title Company’s commitment to issue any extended coverage or endorsements to the Basic Title Policy or to issue loan policies to Purchaser’s lenders shall not be a condition to Closing); and
(iv)
The seller under the Other Option Agreement (as defined below) shall have tendered all documents required to be delivered by such seller to consummate the transactions contemplated by the Other Option Agreement and shall have performed or complied with all agreements and covenants to be performed or complied with by such seller at or prior to the consummation of the transactions contemplated by such Other Option Agreement.
In the event that Purchaser has exercised the Option, if any of the above conditions is not satisfied on or before the Closing, Purchaser will have the right, exercisable at Purchaser’s sole election, to exercise the remedies described in Section 12(b), provided however, that Purchaser shall not be entitled to exercise the remedies described in Section 12(b) if the failure of any such condition to be satisfied is on account of any fault of Purchaser or breach of this Agreement by Purchaser.
(b) Unless waived by Seller, upon exercise of the Option, the obligations of Seller to sell the Property under this Agreement are expressly made subject to the fulfillment in all respects of the following conditions precedent:
25
97085080.1 0067129-00001
(i)
the truth and accuracy as of the date of Closing of each and every warranty and representation herein made by Purchaser; and
(ii)
Purchaser’s timely performance of and compliance with each and every term, condition, agreement, restriction and obligation to be performed and complied with by Purchaser prior to Closing under this Agreement; and
(iii)
The Purchaser shall have timely exercised the option under the Other Option Agreement; and
(iv)
The Purchaser shall have tendered all documents required to be delivered by Purchaser to consummate the transactions contemplated by that certain Option Agreement dated of even date herewith between Purchaser and LRT III LLC, a Delaware limited liability company (the “
Other Option Agreement
”) and shall have performed or complied with all agreements and covenants to be performed or complied with by Purchaser at or prior to the consummation of the transactions contemplated by such Other Option Agreement
.
In the event that Purchaser has exercised the Option, if any of the above conditions is not satisfied on or before the Closing, Seller will have the right, exercisable at Seller’s sole election, to exercise the remedies described in Section 12(a) provided however, that Seller shall not be entitled to exercise the remedies described in Section 12(a) if the failure of any such condition to be satisfied is on account of any fault of Seller or breach of this Agreement by Seller.
39.
Seed Orchard Agreements
. To the extent assignable, and subject in all events to any applicable consent requirements and any rights of refusal or preemptive rights of the other cooperators therein, Seller will use commercially reasonable efforts to assign to Purchaser at Closing Seller’s interest (or such lesser portion of Seller’s interest as is transferrable following the exercise of any such rights of refusal or preemptive rights of third parties) in the cooperative seed orchard agreements set forth on attached
Exhibit D
(the “
Seed Orchard Agreements
”), to the extent relating to or held for the benefit of the Real Property. With respect to any Seed Orchard Agreement for which any required consent or approval to the transfer of Seller’s transferrable interest is not obtained prior to the Closing, Seller shall use commercially reasonable efforts and will cooperate with Purchaser after Closing to obtain such consent or approval to the assignment of Seller’s transferrable interest until either such consent or approval has been obtained or Seller determines, in good faith, that such consent or approval cannot reasonably be obtained or the transfer of such interest cannot be completed despite Seller’s commercially reasonable and good faith efforts. In such event, notwithstanding anything in the Assignment and Assumption Agreement to the contrary, (i) Seller’s interest in such Seed Orchard Agreement (or any portion thereof which is transferrable after exercise of preemptive rights held by third parties) shall not be assigned to Purchaser until and unless such consent is obtained, (ii) Purchaser shall not assume any obligation under such Seed Orchard Agreement until such consent is obtained, and (iii) if such consent is obtained after Closing, then,
26
97085080.1 0067129-00001
effective as of the date such consent is obtained, the obligations arising after the date such consent is obtained shall become Assumed Liabilities for purposes of this Agreement and shall be assumed by Purchaser;
provided
,
however
, that, with respect to this clause (iii), in the event such consent to the transfer of Seller’s transferrable interest is obtained on a date that is more than two (2) years after the Closing Date, then Purchaser shall have the right, in its sole discretion, to decline the assignment of such Seed Orchard Agreement (in which event the obligations arising under such Seed Orchard Agreement shall not become Assumed Liabilities and shall remain with Seller); and
provided
,
further
, that, notwithstanding anything to the contrary contained herein, if such Seed Orchard Agreement has been amended between the Effective Date and the Closing Date or the date the consent to transfer is obtained, whichever is later, in a manner that material changes the benefits provided to Seller or materially and adversely increases the obligations of the Seller thereunder, then Purchaser shall have the right, in its sole discretion, to decline the assignment of such Seed Orchard Agreement (in which event the obligations arising under such Seed Orchard Agreement shall not become Assumed Liabilities and shall remain with Seller).
39.
[signatures commence on following page]
IN WITNESS WHEREOF, this Agreement has been duly executed, sealed and delivered by the parties hereto the day and year first above written.
|
|
|
|
Date of Seller’s Execution:
________________________
|
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SELLER
:
LRT IV LLC
, a Delaware limited liability company
By:
Name: Charles L. VanOver
Title: Vice President
|
[signatures continue on following page]
|
|
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|
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Date of Purchaser’s Execution:
________________________
|
|
PURCHASER
:
CATCHMARK TIMBER TRUST, INC., a
Maryland corporation
By: _________________________ (SEAL)
Name: _______________________
Title: _________________________
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[end of signatures]
Schedule of Exhibits
Exhibit A-1 - Real Property Descriptions
Exhibit A-2 - Maps Depicting Real Property
Exhibit B - Form of Deed
Exhibit C - Certain Title Matters
Exhibit D - Schedule of Unrecorded Encumbrances
Exhibit E - Harvest Parcels
Exhibit F - Form of Assignment and Assumption Agreement
Exhibit G - Continuing Obligations
Exhibit H - Form of Post-Closing Harvest Agreement
Exhibit I - Form of Owner’s Affidavit
Exhibit J - Form of Bill of Sale
Exhibit K - Allocation
EXHIBIT A-1
Real Property Descriptions
PARCEL 37:
The E 1/2 of Section 34, Township 25 South, Range 10 West of the Willamette Meridian, Coos County, Oregon.
PARCEL 41:
The SE 1/4 of Section 30, Township 28 South, Range 10 West of the Willamette Meridian, Coos County, Oregon.
SAVING AND EXCEPTING THEREFROM any portion embraced within Lundgren County Road #25.
Together with Right of Way and Road Use Agreement, as disclosed in instrument between United States of America and Sun Studs, Inc., recorded March 28, 1978, bearing Microfilm Reel No. 78-3-2468, Records of Coos County, Oregon and incorporated into the subject property by Amendment recorded August 19, 1994, bearing Microfilm Reel No. 94-08-0738 Records of Coos County, Oregon.
PARCEL 42:
The SE 1/4 of Section 2, Township 28 South, Range 10 West of the Willamette Meridian, Coos County, Oregon.
PARCEL 45:
That portion of the E 1/2 of the SE 1/4 of Section 27, Township 25 South, Range 10 West of the Willamette Meridian, Coos County, Oregon, lying West of the South Fork of Coos River. Together with Agreement, between Weyerhaeuser Company and Coos River Boom Company, etal, recorded December 17, 1949 in Book 195, Page 285, Deed Records of Coos County, Oregon.
PARCEL 47:
All of the S 1/2 of Section 1, Township 26 South, Range 10 West of the Willamette Meridian, Coos County, Oregon, lying West of the center of the channel of the South Fork of the Coos River.
PARCEL 49:
PARCEL 1: All of Section 16, Township 26 South, Range 9, West of the Willamette Meridian, Coos County, Oregon.
PARCEL II: The NW 1/4 and the NE 1/4 of Section 20, Township 26 South, Range 9, West of the Willamette Meridian, Coos County, Oregon.
The SE 1/4 of Section 20, Township 26 South, Range 9, West of the Willamette Meridian, Coos County, Oregon.
PARCEL 51:
PARCEL III: The E 1/2 of the NE 1/4 of Section 16, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
PARCEL IV: The W 1/2 of Section 16, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
PARCEL V: Government Lots 1 2; the E 1/2 of the NW 1/4; the NE 1/4 and the SE 1/4 of Section 18, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
PARCEL VI: The NW 1/4 of the SW 1/4 of Section 23, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
PARCEL 60:
All of Section 10, Township 26 South, Range 10 West of the Willamette Meridian, Coos County, Oregon.
PARCEL 62:
PARCEL III: The S 1/2 of the N 1/2 and the N 1/2 of the S 1/2 of Section 28, Township 26 South, Range 9 West of the Willamette Meridian, Coos County, Oregon.
PARCEL 68:
PARCEL I: All of Section 12; Township 26 South, Range 10 West of the Willamette Meridian, Coos County, Oregon.
SAVING AND EXCEPTING THEREFROM that portion of the NE 1/4 of the NE 1/4 of Section 12, Township 26 South, Range 10 West of the Willamette Meridian, Coos County, Oregon, lying Northerly of the South Fork of Coos River.
PARCEL II: All of Section 2, Township 26 South, Range 10 West of the Willamette Meridian, Coos County, Oregon.
PARCEL 69:
PARCEL I: The NW 1/4 of the NW 1/4 of Section 8, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon, lying South and East of Middle Creek.
PARCEL II: The NE 1/4 of the NW 1/4 of Section 8, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
PARCEL III: The S 1/2 of the NW 1/4; the S 1/2 of the NE 1/4; the SW 1/4 and the SE 1/4 of Section 8, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
Together with Reciprocal Right of Way Agreement, between Menasha Corporation and Moore Mill Company, recorded March 6, 2001, bearing Inst. #2001-2243, Records of Coos County, Oregon.
PARCEL 70:
The SW 1/4 of the NE 1/4 of Section 28, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon;
The NE 1/4 of the NW 1/4 and Government Lot 6 of Section 28, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
SAVING AND EXCEPTING THEREFROM that portion conveyed to Willard W. Johnson, etux, by instrument recorded February 20, 1981, bearing Microfilm Reel No. 81-1-2326, Records of Coos County, Oregon.
Together with Right of Way and Road Use Agreement, between Menasha Corporation and United States of America, recorded March 30, 1978, bearing Microfilm Reel No. 78-3-2671, Records of Coos County, Oregon and incorporated into the subject property by Amendment No. 4, recorded October 19, 1982, bearing Microfilm Reel No. 82-4-1682, Records of Coos County, Oregon.
Together with Right of Way and Road Use Agreement, between Menasha Corporation and Georgia Pacific Corporation, recorded April 21, 1980, bearing Microfilm Reel No. 80-2-4742, Records of Coos County, Oregon and incorporated into the subject property by Amendment recorded August 1, 1984, bearing Microfilm Reel No. 84-4-0502, Records of Coos County, Oregon.
PARCEL 73:
That portion of the W 1/2 of the NW 1/4 of Section 15, Township 28 South, Range 11, West of the Willamette Meridian, Coos County, Oregon, lying North of the East Fork of the Coquille River.
SAVING AND EXCEPTING THEREFROM the West 660 feet of the South 660 feet of the SW 1/4 of the NW 1/4 of said Section 15.
Together with rights of ingress and egress as disclosed in instrument recorded December 14, 1959 in Book 275, Page 272, Deed Records of Coos County, Oregon.
PARCEL 76:
The NW 1/4 of the SE 1/4 and Government Lots 6, 8 and 9 of Section 21, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
SAVING AND EXCEPTING THEREFROM that portion conveyed to Jerry C. Smith, etux, in instrument recorded February 5, 1980, bearing Microfilm Reel No. 80-1-0070, Records of Coos County, Oregon.
PARCEL 80:
PARCEL I: The SW 1/4 of Section 20, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
PARCEL II: The SE 1/4 of Section 20, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
SAVING AND EXCEPTING THEREFROM that portion conveyed to Orvil E. Mitchell in instrument recorded November 26, 1958, in Book 268, Page 618, Deed Records of Coos County, Oregon.
SAVING AND EXCEPTING THEREFROM that portion conveyed to Walter W. Tyre, etux, in instrument recorded July 23, 1959, in Book 272, Page 722, Deed Records of Coos County, Oregon.
The NW 1/4 and the NE 1/4 of Section 20, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
Together with Reservations in instrument from John F. Hobson to O. B. Powrie and Ian C. Powrie, recorded May 7, 1942 in Book 142, Page 502, Deed Records of Coos County, Oregon.
Together with Easement from Coos Head Timber Company, an Oregon corporation to Menasha Corporation, a Wisconsin corporation recorded October 27, 1975, bearing Microfilm Reel No. 75-10-120516, Records of Coos County, Oregon.
PARCEL 81:
PARCEL I: Government Lots 5, 6, 7, 8, 9, 10; the NE 1/4 of the NW 1/4; the SW 1/4 of the NE 1/4 and the SE 1/4 of the SE 1/4 of Section 22, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
SAVING AND EXCEPTING THEREFROM that portion conveyed to Jerry C. Smith, etux, in instrument recorded February 5, 1980, bearing Microfilm Reel No. 80-1-0070, Records of Coos County, Oregon.
PARCEL II: The N 1/2 of the NE 1/4; the SE 1/4 of the NE 1/4 and the NE 1/4 of the SE 1/4 of Section 22, Township 28 South, Range 11 West of the Willamette Meridian, Coos County, Oregon.
PARCEL 108:
PARCEL I: The E 1/2 of the SE 1/4 and that portion of the W 1/2 of the SE 1/4 lying Northeast of Fox Bridge County Road and East of Wimer Creek Road, said roads described in Volume 300, Page 52, Deed Records of Coos County, Oregon, of Section 24, Township 28 South, Range 12’ West of the Willamette Meridian, Coos County, Oregon.
PARCEL II: The SE 1/4 of the NE 1/4 of Section 24, Township 28 South, Range 12 West of the Willamette Meridian, Coos County, Oregon.
Together with Right of Way Easement, from Donald A. Rolund to Menasha Forest Products Corporation, recorded October 21, 2001, bearing Inst. #2001-13020, Records of Coos County, Oregon.
Affects the NW 1/4 of the SE 1/4
PARCEL 204:
PARCEL II: The S 1/2 of Section 8, Township 28 South, Range 10 West of the Willamette Meridian, Coos County, Oregon.
EXHIBIT A-2
Maps Depicting Real Property
(See attached)
EXHIBIT B
FORM OF SPECIAL WARRANTY DEED
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After Recording, Return To:
[_____________]
[_____________]
[_____________]
Until A Change Is Requested,
Send All Tax Statements To:
[_____________]
[_____________]
[_____________]
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Space above reserved for recorder
STATUTORY SPECIAL WARRANTY DEED
LRT IV LLC, a Delaware limited liability company, successor by merger to LRT Olympus LLC, a Delaware limited liability company (“
Grantor
”), conveys and specially warrants to
[_______________], a [_______________] (“
Grantee
”), the real property located in Coos County, Oregon, described on the attached
Exhibit A
, together with Grantor’s right, title and interest in the following: all buildings, structures, and other improvements located thereon, all tenements, hereditaments, easements, appurtenances and privileges thereto belonging, all trees, timber, sand, gravel, rock and crops now located thereon or thereunder, and all oil, gas and mineral rights and interests in said real property not reserved or conveyed by Grantor or Grantor’s predecessors in title (collectively, the “
Property
”), free of encumbrances created or suffered by the Grantor except as specifically set forth herein.
SUBJECT TO, and excepting and excluding from the covenants and warranties described herein and in ORS 93.855, the matters set forth on attached
Exhibit B
.
The true consideration for this conveyance is $_______________.
[TIMBER RESERVATION TO BE INSERTED IF THERE IS UNHARVESTED TIMBER ON HARVEST PARCELS]
Grantor hereby excepts from the conveyance made herein and reserves for itself and for the benefit of Grantor’s successors, assigns and contract timber buyers all timber standing or fallen and located on the portions of the Property which are cross-hatched on
Exhibit C
attached hereto for a period not to exceed one (1) year from the date of this Deed, as such time for removal may be further extended pursuant to the terms of the Post Closing Harvest Agreement defined below (the “
Timber Reservation
”). Grantor’s reserved rights to enter the Property and to remove the timber reserved to Grantor under the foregoing Timber Reservation is governed by the terms and conditions of a separate unrecorded Post Closing Harvest Agreement entered into between Grantor and Grantee of even date with this deed (the “
Post Closing Harvest Agreement
”). Upon the expiration of the time for removal of timber subject to the foregoing Timber Reservation, all rights, title and interest to all such timber remaining on the Property shall automatically pass to Grantee.
BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON’S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010. THIS INSTRUMENT DOES NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930, AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010.
DATED as of [_____________________], 2018.
LRT IV LLC
, a Delaware limited liability company,
(successor by merger to LRT Olympus LLC,
a Delaware limited liability company)
By:
Name:
Title:
STATE OF OREGON )
)ss.
County of __________ )
The foregoing instrument is acknowledged before on [_______________], 2018, by [__________________], as [____________________] of LRT IV LLC, a Delaware limited liability company.
Notary Public for Oregon
Commission No.:
My commission expires:
Exhibit A
Legal Description of Property
[
Insert legal description
]
Exhibit B
Exceptions to Title
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1.
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[INSERT PERMITTED ENCUMBRANCES THAT BECOME PERMITTED ENCUMBRANCES UNDER THE AGREEMENT AND EXHIBIT C (OF OPTION AGREEMENT) MATTERS]
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EXHIBIT C
Certain Title Matters
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1.
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Liens for taxes, assessments and other governmental charges which are not yet due and payable.
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2.
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Rights of third parties in and to any oil, gas and other minerals or other substances of any kind or character as may have been reserved by or conveyed to others prior to the Effective Date and any leases concerning any of such previously reserved or conveyed oil, gas, other minerals or other substances in, on or under the Real Property.
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3.
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All matters that would be revealed by a current and accurate survey or inspection of the Real Property.
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4.
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Any loss or claim due to lack of access to any portion of the Real Property.
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5.
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Existing zoning, forestry, building and land use restrictions, codes, ordinances, rules and regulations affecting the Real Property or the use thereof.
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6.
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Rights of parties in possession pursuant to the Unrecorded Encumbrances.
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7.
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Rights of others in and to any creeks, rivers, lakes or streams located on or adjoining the Real Property, including any rights of the United States of America, of the State of Oregon or any other parties whatsoever, in the use and continuous flow of any brooks, streams or other natural water courses or water bodies, riparian rights, navigational servitudes, or right to the beds and banks of such water courses below the ordinary high-water mark thereof.
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8.
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Existing road rights of way and the right of the public to use such roads.
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9.
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Existing railroad rights of way and easements.
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10.
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Existing utility easements and rights of way.
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11.
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Rights, if any, relating to the construction and maintenance in connection with any public utility of wires, poles, pipes, conduits and appurtenances thereto, on, under, above or across the Real Property.
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12.
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Indian treaty or aboriginal rights, including easements and equitable servitudes.
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13.
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All water districts, water rights, restrictions or reservations outstanding in third parties.
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14.
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Possible additional taxes and penalties that may be assessed if the Real Property is disqualified for assessment on the basis of forestland or farmland use.
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15.
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Reservations in federal patents and acts authorizing the same.
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16.
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If applicable, the Timber Reservation to be contained in the Deed.
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17.
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Any Pre-Closing Easements which are entered by Seller pursuant to Section 5(e) of this Agreement.
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EXHIBIT D
Schedule of Unrecorded Encumbrances
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•
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Timber Cutting Agreements
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1.
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Pay as Cut Timber Cutting Right Contract No. 601-17-13 dated April 13, 2017, between LRT IV LLC, as seller, and Scott Timber Co., as purchaser.
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2.
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Pay as Cut Timber Cutting Right Contract No. 601-17-22 dated September 21, 2017, between LRT IV LLC, as seller, and 3H Forestry & Land Management, LLC, as purchaser.
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•
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Temporary Access Licenses
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1.
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License Agreement dated May 15, 2017, between LRT IV LLC, as Licensor, and 3H Forestry & Land Management LLC, as Licensee.
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2.
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Temporary Access Letter Agreement for Crosby Road dated March 12, 2018, between LRT IV LLC, and 3H Forestry & Land Management.
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3.
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Temporary Access Letter Agreement for Crosby Road dated March 20, 2018, between LRT IV LLC, and Juniper Properties, LLC, as supplemented by that Letter Agreement regarding rock loads dated March 23, 2018, by Lone Rock Timber Management Company.
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4.
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United States Department of Agriculture Letter Agreement dated March 12, 2018, to LRT IV LLC regarding access for forest inventory survey of Oregon Plot ID #82178.
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1.
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Contract for Patrol of Timberlands (Sheriff’s Office) dated effective July 1, 2017, between LRT IV LLC and the Board of Commissioners of Coos County, Oregon
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•
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Seed Orchard Agreements
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1.
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Memorandum of Understanding Concerning Cooperative Seed Orchard Program, BLM Agreement No. BLM-OR-930-1107, dated October 3, 2011, between United States Department of the Interior, Bureau of Land Management, Oregon/Washington, Cascade Timber Consulting, Incorporated, the Confederated Tribes of Grand Ronde, Hampton Affiliates, IFA Nurseries, Incorporated, Indian Hill, LLC, Lone Rock Timber Management Company, Menasha Forest Products Corporation, Nestucca Forests LLC, Oregon Department of Forestry, Perpetua Forests Company, Plum Creek Timberlands, Limited Partnership, Rosboro LLC, Silver Butte Timber Company, South Coast Lumber Company and Yule Tree Farms & Management Corporation, as supplemented by Addendum #1 through Addendum #22.
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2.
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Memorandum of Understanding dated May 17, 2013, between Roseburg Resources Co., Menasha Forest Corporation and Pacific West Timber Company (Oregon), LLC, with respect to the South Central Coast Second-Generation Seed Orchard, as amended by that First Amendment dated November 7, 2014, between such parties and Loan Rock Timber Management Co.
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3.
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Management Agreement dated February 12, 2007, between Menasha Forest Products Corporation, Oregon Department of Forestry, Lone Rock Timber Company and Pacific West Timber Company, with respect to the South Central Coast Cooperative Seed Orchard at the J.E. Schroeder Orchard Complex, as supplemented by Addendum #1 to the Management Agreement dated July 1, 2016, between such parties together with Coast Range Buyer, LLC, and Rayonier Operating LLC, as further supplemented by that Merger of Coast Range Buyer, LLC, into the South Central Coast Douglas-Fir Seed Orchard Management Agreement (MOU) dated August 26, 2017, by Coast Range Buyer, LLC.
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EXHIBIT E
Harvest Parcels
The Harvest Parcels shall include the parcels depicted on the following maps, each such map being the map attached as Exhibit A to the applicable Timber Cutting Agreement and identifying the “Sale Area” as defined therein. The acreage shown on each of the following maps is an approximation determined by GIS mapping.
LRT IV LLC
LRT IV LLC
EXHIBIT F
Form of Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this “
Agreement”
), dated as of _______________ ___, 2018, is by and between LRT IV LLC, a Delaware limited liability company (“
Assignor”
), and ________________, a _________________ (“
Assignee”
).
Assignor and CatchMark Timber Trust, Inc., a Maryland corporation (“
CTT
”) have entered into that certain Option Agreement, dated as of _____________ ____, 2018, by and between Assignor, as seller, and CTT, as buyer, as assigned by CTT to Assignee (as it may have been amended, the “
Option Agreement”
). All capitalized terms used in this Agreement but not otherwise defined herein are given the meanings set forth in the Option Agreement.
For good and valuable consideration as recited in the Option Agreement, the receipt and adequacy of which are hereby acknowledged, Assignor and Assignee agree as follows:
1.
Assignment
. Effective as of the Closing Date, Assignor, to the extent of its interest therein, hereby sells, assigns, transfers and conveys to Assignee, to the extent assignable, all of Assignor’s right, title and interest in, to and under the Unrecorded Encumbrances [and Seed Orchard Agreements] set forth on attached
Exhibit A
(the “
Assignment”
).
2.
Assumption
. Effective as of the Closing Date, Assignee hereby purchases, acquires and accepts the foregoing Assignment from Seller, and Assignee further hereby assumes and agrees to pay, honor and discharge when due the Assumed Liabilities.
3.
Indemnification
.
(a)
Assignee hereby agrees to indemnify, defend and hold harmless Assignor for, from and against, and will reimburse Assignor for, any and all actions, claims, costs, damages, demands, expenses (including reasonable attorneys’ fees), loss and liability, of any nature whatsoever, arising out of or in any way related to the Assumed Liabilities and to the failure of Assignee to pay and perform the obligations under the Unrecorded Encumbrances [and Seed Orchard Agreements] set forth on attached
Exhibit A
, arising on or after the Closing Date.
(b)
Assignor hereby agrees to indemnify, defend and hold harmless Assignee for, from and against, and will reimburse Assignee for, any and all actions, claims, costs, damages, demands, expenses (including reasonable attorneys’ fees), loss and liability, of any nature whatsoever, arising out of or in any way related to the failure of Assignor to pay and perform the obligations under the Unrecorded Encumbrances [and Seed Orchard Agreements] set forth on attached
Exhibit A
arising prior to the Closing Date.
4.
Governing Law
. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule (whether of the State of Oregon or any other jurisdiction).
5.
Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement notwithstanding that all parties are not signatories to the same counterpart. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
6.
General
. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
[
Signatures on following pages.
]
IN WITNESS WHEREOF, each of Assignor and Assignee has caused this Assignment and Assumption Agreement to be executed by its duly authorized representative with the intent that it be effective as of the date set forth above.
Assignor
:
LRT IV LLC,
a Delaware limited liability company
By:
Name:
Title:
Assignee
:
_____________________,
a ________________________
By:
Name:
Title:
EXHIBIT A
To
Assignment and Assumption Agreement
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Temporary Access Licenses
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1.
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License Agreement dated May 15, 2017, between LRT IV LLC, as Licensor, and 3H Forestry & Land Management LLC, as Licensee.
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2.
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Temporary Access Letter Agreement for Crosby Road dated March 12, 2018, between LRT IV LLC, and 3H Forestry & Land Management.
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3.
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Temporary Access Letter Agreement for Crosby Road dated March 20, 2018, between LRT IV LLC, and Juniper Properties, LLC, as supplemented by that Letter Agreement regarding rock loads dated March 23, 2018, by Lone Rock Timber Management Company.
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4.
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United States Department of Agriculture Letter Agreement dated March 12, 2018, to LRT IV LLC regarding access for forest inventory survey of Oregon Plot ID #82178.
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1.
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Contract for Patrol of Timberlands (Sheriff’s Office) dated effective July 1, 2017, between LRT IV LLC and the Board of Commissioners of Coos County, Oregon.
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[Seed Orchard Agreements]
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EXHIBIT G
Continuing Obligations
Reforestation and slash disposal obligations in connection with the following operations on the Real Property:
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1.
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Notification of Operations/Permit # 2017-740-06851 with respect to Pay as Cut Timber Cutting Right Contract No. 601-17-13 dated April 13, 2017, between LRT IV LLC, as seller, and Scott Timber Co., as purchaser.
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2.
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Notification of Operations/Permit # 2017-740-11239 with respect to Pay as Cut Timber Cutting Right Contract No. 601-17-22 dated September 21, 2017, between LRT IV LLC, as seller, and 3H Forestry & Land Management, LLC, as purchaser.
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EXHIBIT H
Form of Post Closing Harvest Agreement
POST-CLOSING HARVESTING AGREEMENT
This Post-Closing Harvesting Agreement (the "Agreement") is made by and between _______________, a ________________ (hereinafter referred to as "Owner"), and LRT IV LLC, a Delaware limited liability company (hereinafter referred to as "Seller"), as of the ___ day of __________, 2018.
W I T N E S S E T H:
For and in consideration of the mutual promises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, it is agreed by and between the parties hereto as follows:
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1.
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Timberland Sale and Timber Reservation
: Seller has conveyed to Owner by Statutory Special Warranty Deed dated on the date hereof certain timberland located in Coos County, Oregon (the "Property"). Seller has reserved from Seller’s conveyance to Owner all timber standing and fallen and located on the portions of the Property shown on Exhibit “A” attached hereto and hereby made a part hereof (such reserved timber, the “Timber” and such reservation, the “Timber Reservation”). Seller has entered into those timber sale contracts listed on Exhibit “B” attached hereto (the “Timber Contracts”) pursuant to which the respective timber buyers under such contracts have the right to harvest the Timber more particularly described in such Timber Contract. Seller and Owner are entering into this Agreement to define and acknowledge the responsibilities and obligations of Seller and Owner with respect to the harvesting of the Timber reserved to Seller in the Timber Reservation.
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2.
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Cutting & Access Rights
: Seller, its timber buyers under the Timber contracts, and their respective employees, contractors, agents and assigns (collectively, “Permittees”) shall be entitled to enter the Property and to cut and remove the Timber on or before ____________, 2019 (as it may be extended as provided herein, the “Removal Date”, with the period from the date hereof through and including the Removal Date being hereinafter referred to as the “Term”. Seller and its Permittees shall have no further rights to enter the Property or cut the Timber after the Removal Date. Owner hereby grants to Seller and its Permittees rights of ingress and egress with workers, machinery and equipment on the Property and any adjoining property of Owner, but only to the extent necessary to conduct such timber cutting and removal. Seller’s and its Permittees’ use of Owner’s existing roads or any new roads permitted to be constructed by the terms of the Timber Contracts shall be at Seller’s and such Permittees’ own risk. Seller and its Permittees shall be entitled to construct such new roads as are contemplated under the Timber Contracts. Owner shall not be liable for any latent or patent defect in any roadway nor shall Owner be liable for any damages or injuries sustained by Seller or Seller’s Permittees, or any other individual or entity acting by, for or under Seller or its Permittees hereunder, arising out of or resulting from the use of said roads, except to the extent such damages or injuries are caused by Owner’s gross negligence or willful misconduct. Seller agrees to conduct its activities at all times so as to minimize damage to Owner’s roads and agrees to repair any damage to Owner’s roads caused by Seller or Seller’s Permittees.
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3.
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Seller’s Operations
: Seller shall conduct its timber cutting and removal under this Agreement in the manner provided in the Timber Contracts and otherwise in a prudent and responsible manner, using generally accepted and sound silvicultural and harvesting procedures and practices in order to protect and preserve in all respects the land upon which said timber is located and any adjoining timber and lands of Owner. Trees shall be cut as low to the ground as practical in accordance with generally acceptable industry standards. Seller shall repair all fences or structures damaged by its operations. Seller shall leave all fire breaks, property lines, running streams and drainage ditches clear of logs, timber, limbs and debris. All oil drums, cans, bottles, cartons, limbing bars, loading decks, abandoned equipment and other debris shall be removed from the Property upon completion of Seller’s harvesting operations at Seller’s expense. If repairs are not made or if the debris is not removed and cleared promptly after notice from Owner, Owner may undertake such repair or removal for Seller’s account, and Seller shall be liable to Owner for any reasonable expenses incurred in repairing or removing same. Seller shall not, under any circumstances, bury any material underground.
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Seller acknowledges that a higher degree of care is required when the Property is abnormally wet and that such condition may require Seller to stop or interrupt its operations hereunder. Owner reserves the right to suspend Seller’s harvesting operations when Owner reasonably deems significant site damage will result from continued operations;
provided
that in the event of any such suspension, the Removal Date shall automatically be extended for the same number of days that such suspension was in effect.
All timber harvesting operations shall be conducted in compliance with the Best Management Practices (BMP) guidelines of the State of Oregon and in compliance with applicable law.
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4.
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Owner’s Inspection
: Owner shall have the right, at any time, to inspect the Property upon which the Timber is located for the purpose of ascertaining whether the requirements of this Agreement are being met. In the event any violations are discovered or ascertained by Owner, then Owner shall provide written notice of such violations to Seller, and Seller shall have a reasonable amount of time thereafter to remedy such violations. If Seller fails to remedy such violations within a reasonable amount of time, Owner shall have the right to remedy the same, and Seller shall reimburse Owner for the cost thereof.
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5.
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Payment for Unauthorized Cutting
: The cutting or materially damaging of any trees not permitted to be cut hereunder shall be paid for by Seller at the rate of 150% of the then current market value of said timber.
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6.
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Indemnification & Hold Harmless
: Seller does hereby agree to indemnify and hold harmless Owner in connection with and from any and all causes of action, liabilities, losses, damages, injuries, claims, costs (including reasonable attorney fees) or litigation, arising out of, attributable to, resulting from or due to: (a) the activities and operations of Seller or its Permittees on the Property, except to the extent such are caused by the gross negligence or willful misconduct of Owner, or its agents or employees; and (b) any violation or default under any of the Timber Contracts.
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7.
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Insurance
: During the Term, Seller shall maintain a general liability insurance policy, with coverage in an amount not less than $2,000,000.00, insuring for covered losses arising out of Seller’s presence and activities on the Property. In lieu of coverage in the amount of $2,000,000, Seller may maintain general liability coverage on a per occurrence basis of $1,000,000 and excess umbrella coverage on a per occurrence basis of $1,000,000. The aforesaid insurance shall be obtained from a company reasonably satisfactory to Owner and licensed to do business in the State of Oregon. Such insurance policy or policies shall name Owner and Owner’s manager, CatchMark Timber Operating Partnership, L.P., as additional insureds, and shall provide for at least thirty (30) days’ written notice to Owner prior to cancellation, termination, modification or change of any such policy. A certificate thereof, together with satisfactory evidence of payment of the premium thereon, shall be deposited with Owner on or before the commencement of harvest by Seller or any timber buyer or, if later, the date of this Agreement. Owner makes no representation that the limits of liability specified to be carried by Seller under the terms hereof are adequate to protect Seller. If Seller deems this insurance to be inadequate, Seller shall, at its own expense, provide such additional insurance as necessary.
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8.
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Fire Protection
: Seller shall use all reasonable and customary precautions and procedures to prevent fires on the Property or any adjacent lands of Owner. In the event of any such fire caused by Seller or its Permittees of which Seller is aware, Seller shall promptly notify Owner, and shall use reasonable efforts to cause Seller’s Permittees carrying on said timber operations, to assist in controlling said fire. Owner specifically reserves the right to prohibit the making of fires on the Property if it is deemed advisable to do so, and further reserves the right to temporarily stop or interrupt Seller’s operations hereunder if conditions are such that, in Owner’s discretion, continued operations are reasonably likely to start forest fires. In the event Owner so requires suspension of harvesting, or suspension of harvesting is required by the Oregon Department of Forestry or other agency due to fire risk, the Removal Date shall automatically be extended for the same number of days that such stoppage or suspension was in effect.
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9.
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Compliance with Laws, Etc.
: Seller shall comply with all federal, state and local laws, rules, and regulations applicable to the operations contemplated by this Agreement, including, without limitation, environmental protection/pollution laws and regulations, workmen’s compensation laws and regulations, and the securing by Seller of all necessary licenses and permits incidental to said operations,
provided
, that Owner shall be responsible for complying with any reforestation and slash disposal requirements with respect to the Property. Seller further covenants and agrees that it will not conduct its operations in a manner which could cause Owner to be in violation of any federal, state or local law, rule or regulation. Except with respect to reforestation and slash disposal obligations, Seller covenants and agrees to hold Owner harmless from and/or reimburse Owner from any costs including fees imposed by any federal, state or local agency and attorney fees which may result from Seller’s failure to fully comply with such laws, rules and regulations or from any cost which may result from Seller’s conduct which exposes Owner to a violation of such laws, rules and regulations.
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10.
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Severance Taxes
: Seller shall pay such severance tax and all assessments as may now or hereafter be required to be paid by the laws of the State of Oregon, if any, in connection with its removal of the Timber hereunder.
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11.
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Default
: Either party may exercise any rights or remedies available to it in any court of law or equity. In addition to all other remedies, Owner, in the event of Seller’s default in any provision of this Agreement, shall have the right to order that Seller immediately stop its harvesting operations whereupon Seller will cease its operations until the default is corrected. If the default is not corrected within thirty (30) days, at Owner’s option this Agreement may be terminated; provided, however, in the event such default cannot be corrected within thirty (30) days, such thirty (30) day period shall be extended for a reasonable amount of time so long as Seller is diligently pursuing correction thereof. No extension of the cutting period will be granted in the event of such default and extension of operations.
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Owner’s right to terminate as set forth in this Paragraph 11 shall be a right in addition to collection of any damages, including costs of repair, sustained by Owner which arise out of or result from Seller’s breach of the provisions contained in this Agreement. The remedies provided for in this paragraph are in addition to any other remedies permitted in this Agreement or allowed by law.
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12.
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Notice
: Seller shall notify Owner at the address listed in Paragraph 16 below, with regard to cutting activity as follows:
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a.
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At the beginning of any road construction or the cutting of the Timber.
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b.
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Upon completion of the cutting operation or when the cutting operation moves onto or off of the Property.
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13.
|
Assignment
: This Agreement shall not be assigned by Seller, in whole or in part, without the prior written consent of Owner.
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14.
|
Bankruptcy, etc.
: This Agreement may be terminated by Owner in the event of the filing of any bankruptcy or insolvency action or proceedings by or against Seller.
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15.
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Owner’s Retained Rights; Warranty
: Title to the Property on which the Timber is located shall remain vested in Owner. This Agreement is made subject to any rights outstanding under any existing oil, gas or any other mineral leases or contracts covering all or any part of the Property, whether the same be recorded or otherwise, and to any rights outstanding under any other contracts, leases, easements, rights-of-way or roads as may be evidenced by possession, use, survey or which are of record.
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a.
|
This Agreement contains the entire agreement of the parties hereto, and both parties acknowledge that neither party has made any promise or representations or offered any inducement, except as herein set forth with regard to the subject matter of this Agreement. There shall be no alteration or modification of this Agreement, other than by an appropriate written instrument executed by the parties hereto or their respective successors in interest.
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b.
|
The paragraph titles herein are for purposes of convenience only and shall in no way be held to explain, modify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
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c.
|
The terms Seller and Owner shall and do include and extend to the contractors, representatives, successors, heirs and assigns of the parties hereto. The rights of Seller under this Agreement extend to the respective timber buyers under the Timber Contracts, and each of such timber buyer’s contractors, agents and employees.
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d.
|
Any delay or failure by Owner in the strict enforcement of the provisions of this Agreement with respect to any default by Seller hereunder shall not constitute a waiver of Owner’s rights respecting such default or any other default hereunder. All indemnities, rights and remedies provided for herein shall survive the expiration or earlier termination of this Agreement.
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e.
|
This Agreement shall be construed under the laws of the State of Oregon.
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f.
|
Time is of the essence of this Agreement.
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g.
|
Any notices contemplated under this Agreement shall be deemed sufficient if mailed to the Owner at c/o CatchMark Timber Trust, Inc., Five Concourse Parkway, Suite 2325, Atlanta, Georgia 30328, Attn: John D. Capriotti, and Seller at c/o Forest Investment Associates L.P., 15 Piedmont Center, Suite 1250, Atlanta, Georgia 30305, Attn: Sarah Hall.
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IN WITNESS WHEREOF, Owner and Seller have caused this Agreement to be duly executed by authorized representatives as of the date first written above.
[Signatures begin on following page]
"OWNER"
________________________, a_______________________
By: ________________________
Name: ______________________
Title: _______________________
[Signatures continue on following page]
“SELLER”
LRT IV LLC
,
a Delaware limited liability company
By:___________________________________
Name:_________________________________
Title:__________________________________
EXHIBIT "A"
to Post Closing Harvest Agreement
1.
EXHIBIT "B"
to Post Closing Harvest Agreement
1.
EXHIBIT I
Form of Owner’s Affidavit
Owner’s Affidavit
State of
County of
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|
Property:
|
Certain real property located in Coos County, Oregon and commonly known as a portion of the Gravelford Management Unit and more particularly described in the First American Title Commitment No. NCS-903759GRA-ATL dated ______________
(such property, the
“Property
” and such commitment, the “
Title Commitment
”)
|
I,
_____________, as _____________ of Forest Investment Associates, L.P., the duly authorized investment manager of LRT IV LLC, a Delaware limited liability company
("Seller"),
in such representative capacity and not in my individual capacity, having personal knowledge of the facts averred to herein and being first duly sworn, on oath depose and state that Seller is the owner of the Property and during all the time that Seller has owned the Property, Seller has received no written notice to Seller’s knowledge that record title to the Property has been disputed and more particularly:
1.
The Seller, at present, and for a period of seventy-five (75) days prior to the date of this Affidavit, (a) has not caused construction, erection, alteration or repairs of any structures or improvements on the Property to be done
(“Improvements”),
nor has Seller contracted for any material to be delivered to the Property
(“Materials”)
or (b) if it has so caused Improvements on or delivery of Materials to the Property within the foregoing period, the charges therefor have been paid or will be fully paid for when due.
2.
The undersigned has no knowledge of any unpaid real estate taxes or installments of special assessments for the Property which are currently due and payable.
3.
The Seller has received no written notice of any uncured violations of any covenants, restrictions, agreements, or conditions affecting title to the Property during Seller’s ownership of the Property.
4.
The Seller has received no written notice of pending suits, proceedings, judgments, bankruptcies, liens or executions against the Property and the Seller either in the aforesaid county or any other county in the aforesaid state.
5.
To Seller’s knowledge, except for the agreements described in
Exhibit A
attached hereto and incorporated herein by this reference, and except as provided in the above-described Title Commitment (excluding the standard or general exceptions set forth in Schedule B of the Title Commitment), there are no unrecorded agreements, encumbrances, easements, licenses or permits granting to third parties any tenancy, possessory or other occupancy rights in the Property. For purposes of this Affidavit, the term “to Seller’s knowledge” shall mean the present, actual knowledge of ______________, ________________ of Forest Investment Associates, L.P., the authorized investment manager of Seller, with no further duty to investigate or inquire.
This affidavit is given to induce First American Title Insurance Company to issue its title insurance policy or policies in reliance upon any of the statements contained herein.
Dated as of _____________, 2018
[Signature and notary appear on the following page]
AFFIANT:
Name : ____________________, in his/her capacity as _________________ of Forest Investment Associates, L.P., as authorized investment manager of the herein named Seller.
Subscribed and Sworn to before me this
______ day of ________________, 2018.
_____________________________________
My Commission Expires:
EXHIBIT J
Bill of Sale
BILL OF SALE
This Bill of Sale is executed by LRT IV LLC, a Delaware limited liability company, and delivered to
[●]
, a(n) __________ __________ (“
Purchaser
”), pursuant to that certain Option Agreement dated __________ ___, 2018 (“
Option Agreement
”), by and between Seller and [Purchaser]/[ CatchMark Timber Trust, Inc., a Maryland corporation (“
CTT
”), as assigned by CTT to Purchaser]. Unless otherwise defined herein, capitalized terms used in this Bill of Sale shall have the meanings ascribed to them in the Option Agreement.
KNOW ALL MEN BY THESE PRESENTS, that Seller for the consideration stated in the Option Agreement and other good and valuable consideration paid to Seller by Purchaser, the receipt and sufficiency of which are hereby acknowledged, hereby sells and delivers unto Purchaser the Personal Property [more particularly described on attached
Exhibit A
].
TO HAVE AND TO HOLD all the Personal Property unto Purchaser, its successors and assigns, forever. Seller hereby represents, covenants, and warrants to Purchaser that Seller is the lawful owner of the Personal Property; that the Personal Property is free from all monetary encumbrances; that Seller has a right to sell the Personal Property to Purchaser; and that Seller shall warrant and forever defend title to the Personal Property unto Purchaser, its successors and assigns, against the lawful claims and demands of all persons.
DATED as of this ___ day of _______________, 2018.
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|
SELLER:
|
LRT IV LLC, a Delaware limited liability company
|
By: ______________________________
Name:
Title:
EXHIBIT K
Purchase Price Allocation
The parties’ initial allocation of the Purchase Price between the Real Property and the Personal Property is as follows:
|
|
|
Real Property
|
$38,181,373.42
|
Personal Property
|
$103,116.67
|
TOTAL
|
$38,284,490.09
|
Not later than fifteen (15) days following the Effective Date (the “
Allocation Date”)
, Purchaser shall have the right to provide Seller with written notice of any proposed revisions to the above allocations based on Purchaser’s further review of the Real Property and Personal Property. Failure of Purchaser to provide such notice by the close of business on the Allocation Date shall be deemed an acceptance of the initial allocation set forth above. If Purchaser timely notifies Seller in writing of any proposed revisions to one or more items reflected in the above allocations prior to the close of business on the Allocation Date, and Seller does not agree with Purchaser’s proposed revisions, then Seller and Purchaser shall negotiate in good faith to resolve such disagreement; provided, however, that if Seller and Purchaser are unable to resolve any disagreement with respect to the proposed revisions to the above allocation within three (3) business days following the Allocation Date, then such dispute shall be resolved in accordance with the procedures set forth in Section 23 of this Agreement. Purchaser and Seller shall file all tax returns (including amended returns and claims for refund) and information reports in a manner consistent with the allocation schedule as finally determined herein. Any adjustments to the Purchase Price pursuant to this Agreement shall be allocated in the manner described in Section 2 of this Agreement.
Schedule 4(b)(vi)
Personal Property
Seed In Storage
|
|
•
|
Approximately 185 lbs. of tree seed in storage at IFA Nurseries, Inc. (Gen 1 Stock) with a value of $92,500 (valued at $500/lb.)
|
Seedlings
|
|
•
|
91,000 seedlings allocated from Coast Range Buyer, LLC 2019 Seed Order from IFA Nurseries, Inc. with an agreed value of $10,616.67 (i.e. 1/3 of total price for 91,500 seedlings under applicable agreement at contract rate of $350/Thousand)
|
Schedule 5(e)
Pre-Closing Access Easements
27
97085080.1 0067129-00001
Execution version
AGREEMENT REGARDING AMENDMENTS AND TERM A-4 LOAN CREDIT FACILITY
This
AGREEMENT REGARDING AMENDMENTS AND TERM A-4 LOAN CREDIT FACILITY
, dated as of August 22, 2018 (this “
Agreement
”), among
CATCHMARK TIMBER OPERATING PARTNERSHIP, L.P.
, a Delaware limited partnership (the “
Borrower
”), the other Loan Parties party hereto,
COBANK, ACB
, as administrative agent (in such capacity, the “
Administrative Agent
”) for the Lender Parties, and the Lenders and Voting Participants under the Credit Agreement defined below that have executed this Agreement. Unless otherwise defined herein or the context otherwise requires, terms used herein shall have the meaning provided in the Credit Agreement.
W I T N E S S E T H:
WHEREAS
, the Borrower, the other Loan Parties party thereto from time to time as Guarantors, the financial institutions party thereto from time to time as Lenders and the Administrative Agent are parties to that certain Fifth Amended and Restated Credit Agreement, dated as of December 1, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”);
WHEREAS
, the outstanding principal balance of the Multi-Draw Term Loans under the Credit Agreement as of the Amendment Effective Date (as defined below) (before giving effect to this Agreement and to the application of the proceeds of any Borrowing on the Amendment Effective Date) is $200,000,000; the aggregate Multi-Draw Term Loan Commitments under the Credit Agreement as of the Amendment Effective Date (before giving effect to this Agreement) is $265,000,000; the available aggregate Multi-Draw Term Loan Commitments under the Credit Agreement as of the Amendment Effective Date (before giving effect to this Agreement and to the application of the proceeds of any Borrowing on the Amendment Effective Date) is $65,000,000; and the available Maximum Incremental Amount as of the Amendment Effective Date (before giving effect to this Agreement) is $110,000,000;
WHEREAS
, pursuant to Section 3.1.1(b) of the Credit Agreement, the Borrower desires to reduce the Multi-Draw Term Loan Commitment Amount by $65,000,000 (the “
Multi-Draw Term Loan Commitment Reduction
”);
WHEREAS
, the Borrower has requested, and certain Lenders (the “
Term A-4 Loan Lenders
”) have agreed to provide, a term loan credit facility in the aggregate principal amount of $140,000,000 (the “
Term A-4 Loan Credit Facility
”), the proceeds of which shall be used to prepay the outstanding principal of the Multi-Draw Term Loans under the Credit Agreement as of the Amendment Effective Date;
WHEREAS
, $65,000,000 of the Term A-4 Loan Credit Facility will be funded by Multi-Draw Term Loan Lenders in an amount, for each Multi-Draw Term Loan Lender (or, indirectly, Participant), up to but not to exceed its Percentage of the Multi-Draw Term Loan Commitment Reduction, and represents a term out of a portion of the Multi-Draw Term Loan Facility and corresponds in amount to the Multi-Draw Term Loan Commitment Reduction;
WHEREAS
, $75,000,000 of the Term A-4 Loan Credit Facility shall consist of an Incremental Term Loan Facility pursuant to and in compliance with Section 2.1.1(b) of the Credit Agreement, thus reducing the available Maximum Incremental Amount by such amount; provided that for all purposes under the Credit
Agreement after the Amendment Effective Date the Term A-4 Loan Credit Facility shall be treated as a Term Loan and not an Incremental Term Loan;
WHEREAS
, the outstanding principal balance of the Multi-Draw Term Loans as of the Amendment Effective Date (after giving effect to this Agreement and to the application of the proceeds of any Borrowing on the Amendment Effective Date) shall be $60,000,000; the aggregate Multi-Draw Term Loan Commitments as of the Amendment Effective Date (after giving effect to this Agreement) shall be $200,000,000; the available aggregate Multi-Draw Term Loan Commitments under the Credit Agreement as of the Amendment Effective Date (after giving effect to this Agreement and to the application of the proceeds of any Borrowing on the Amendment Effective Date) shall be $140,000,000; and the available Maximum Incremental Amount as of the Amendment Effective Date (after giving effect to this Agreement and to the application of the proceeds of any Borrowing on the Amendment Effective Date) shall be $35,000,000; and
WHEREAS
, the parties hereto have agreed to certain other amendments to the Credit Agreement as set forth below.
NOW, THEREFORE
, in consideration of the agreements herein contained, the parties hereto hereby agree as follows.
ARTICLE I
RECITALS
The recitals set forth above are hereby incorporated into this Agreement as if set forth at length herein.
ARTICLE II
AMENDMENTS
Effective as of the Amendment Effective Date, the parties hereto hereby agree to amend the Loan Documents, as follows:
SECTION 2.1
Amended Credit Agreement
. The Credit Agreement (exclusive of the Schedules and Exhibits thereto) is hereby amended as indicated on the marked document attached hereto as
Schedule A
. The Term A-4 Lenders consent to and acknowledge that for all purposes under the Credit Agreement after the Amendment Effective Date the Term A-4 Loan Credit Facility shall be treated as a Term Loan and not an Incremental Term Loan.
SECTION 2.2
Amendments to Schedules to Credit Agreement
. The Schedules to the Credit Agreement are hereby amended by replacing them in their entirety with the Schedules attached hereto as
Schedule B
.
SECTION 2.3
Amendments to Exhibits to Credit Agreement
. The Exhibits to the Credit Agreement are hereby amended by replacing them in their entirety with the Exhibits attached hereto as
Schedule C
.
ARTICLE III
[RESERVED]
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders party hereto to agree to the amendments in
Article II
, each Loan Party hereby jointly and severally (a) represents and warrants that as of the date hereof and as of Amendment Effective Date (i) the recitals set forth above are true and correct in all material respects, (ii) it has the right and power, and has taken all necessary action to authorize it, to execute, deliver and perform this Agreement in accordance with its terms, and this Agreement has been duly executed and delivered by it and is a legal, valid and binding obligation of it, enforceable against it in accordance with its terms, (iii) each of the representations and warranties contained in the Credit Agreement and in the other Loan Documents, in each case, after giving effect to the amendments described in
Article II
and before and after giving Pro Forma Effect to the Borrowing of the Term A-4 Loan and to the application of the proceeds thereof on the date hereof, is true and correct in all material respects as if made on the date hereof;
provided
, that such representations and warranties (A) that relate solely to an earlier date are true and correct as of such earlier date and (B) are true and correct in all respects if they are qualified by a materiality standard, (iv) no Default or Event of Default has occurred and is continuing or would be reasonably expected to result after giving effect to the amendments described in
Article II
and after giving Pro Forma Effect to the Borrowing of the Term A-4 Loan and to the application of the proceeds thereof on the date hereof, (v) the Loan Parties are in compliance, after giving Pro Forma Effect to the Borrowing of the Term A-4 Loan and to the application of the proceeds thereof on the date hereof, with the covenants set forth in Section 7.2.4 of the Credit Agreement, (vi) all of the conditions precedent set forth in Section 2.1.1(b) of the Credit Agreement that are required for the effectiveness of the Incremental Term Loan Facility contemplated by this Agreement have been satisfied in full in accordance with the terms thereof, (vii) all of the conditions precedent set forth in Section 5.2.1 of the Credit Agreement that are required to be performed or satisfied by any Loan Party as a condition of each Term A-4 Lender to make the Term A-4 Loans have been satisfied in full in accordance with the terms thereof, (viii) there are no Material Governmental Approvals required in connection with the execution, delivery or performance by any of the Loan Parties of this Agreement or the transactions contemplated hereby, and (ix) there are no required consents or approvals of any Person necessary to effect this Agreement or the transactions contemplated hereby other than those that have been obtained and are in full force and effect, 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 V
ACKNOWLEDGMENT OF LOAN PARTIES
Each of the Loan Parties consents to the terms and conditions of this Agreement and the transactions contemplated hereby and affirms and confirms that (a) all of its respective obligations under the Credit Agreement (including the Guaranty), the Security Documents and the other Loan Documents (in each case, as modified by this Agreement) are and shall continue to be, in full force and effect and shall accrue to the benefit of the Lender Parties to guarantee the Obligations (as modified by this Agreement), and (b) all of the Liens granted to the Administrative Agent under the Security Documents and the other Loan Documents are and shall continue to be, in full force and effect to secure the Obligations (as modified by this Agreement).
ARTICLE VI
CONDITIONS TO EFFECTIVENESS
This Agreement shall become effective on such date (herein called the “
Amendment Effective Date
”) when each of the following conditions shall have been met:
SECTION 6.1
Agreement
. The Administrative Agent shall have received counterparts of this Agreement duly executed and delivered on behalf of each Loan Party, the Administrative Agent and the Lenders constituting Required Lenders under the Credit Agreement.
SECTION 6.2
Amendment Effective Date Compliance Certificate
. The Administrative Agent shall have received a Compliance Certificate duly executed by a Financial Officer of the Borrower, and dated as of the Amendment Effective Date, showing compliance with the covenants set forth in
Section 7.2.4
of the Credit Agreement after giving effect to the amendments described in
Article II
and after giving Pro Forma Effect to the Borrowing of the Term A-4 Loan and to the application of the proceeds thereof on the date hereof.
SECTION 6.3
Delivery of Term A-4 Loan Notes
. To the extent requested, each Term A-4 Loan Lender shall have received its Term A-4 Loan Note in an amount equal to such Term A-4 Loan Lender’s Term A-4 Loan Commitment, after giving effect to this Agreement, dated the Amendment Effective Date, duly completed as herein provided and duly executed and delivered by an Authorized Officer of the Borrower.
SECTION 6.4
Solvency Certificates
. The Administrative Agent shall have received a Solvency Certificate, dated as of the Amendment Effective Date, from CatchMark Timber and Timberlands II.
SECTION 6.5
No Default
. No Default or Event of Default has occurred and is continuing.
SECTION 6.6
Representations and Warranties
. The representations and warranties in
Article IV
are true and correct as of the Amendment Effective Date.
SECTION 6.7
Resolutions; Good Standing; etc
. The Administrative Agent shall have received from each Loan Party a certificate, dated the Amendment Effective Date, of its Secretary, Assistant Secretary or Manager as to:
(a)
resolutions of its Board of Directors (or equivalent body) then in full force and effect authorizing the execution, delivery and performance of this Agreement and each other document in connection therewith to be executed by it;
(b)
each Organizational Document of each such Loan Party; and
(c)
the incumbency and signatures of each officer (including each Authorized Officer and Financial Officer) of each such Loan Party that is authorized to act with respect to this Agreement and each other Loan Document executed by it;
upon which certificate each Lender Party may conclusively rely until it shall have received a further certificate of the Secretary, Assistant Secretary or Manager of the relevant Loan Party canceling or amending such prior certificate. The Administrative Agent shall have received satisfactory good standing certificates for each jurisdiction where each Loan Party is organized.
SECTION 6.8
Opinions
. The Administrative Agent shall have received legal opinions, dated the Amendment Effective Date and addressed to the Administrative Agent and all the Lenders, from legal counsel to the Borrower in New York, Delaware, Maryland, Texas and South Carolina.
SECTION 6.9
Fees
. The Administrative Agent shall have received for its own account and the account of the Lenders (and the assignees of the Lenders) all fees, costs and expenses due and payable pursuant to that certain Fee Letter, dated as of August 2, 2018.
SECTION 6.10
Anti-Terrorism
. The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA Patriot Act and any other Anti-Terrorism Laws.
SECTION 6.11
Borrowing Request
. The Administrative Agent shall have received a duly completed and executed Borrowing Request.
SECTION 6.12
Farm Credit Equities
. The Borrower shall have made the minimum equity investment in each Farm Credit Lender as required by Section 7.1.16 of the Credit Agreement.
ARTICLE VII
POST-CLOSING COVENANTS
In order to induce the Administrative Agent and the Lenders to agree to the amendments described in
Article II
, each Loan Party hereby jointly and severally covenants that the Borrower and the Loan Parties will perform, and will cause their respective Subsidiaries to perform, the obligations set forth in
Schedule D
.
The Loan Parties hereto hereby acknowledge and agree that the failure to take the actions described on
Schedule D
within the specified time period or to otherwise comply with the covenants described in this
Article VII
at all times shall constitute an Event of Default under the Credit Agreement and, among other things, shall constitute a basis for the Lenders to withhold Loans under the Credit Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1
Cross-References
. References in this Agreement to any Article or Section are, unless otherwise specified, to such Article or Section of this Agreement.
SECTION 8.2
Loan Document Pursuant to Credit Agreement
. This Agreement is a Loan Document executed pursuant to the Credit Agreement. Except as otherwise specified herein, all of the representations, warranties, terms, covenants and conditions contained in the Credit Agreement, the Security Documents and each other Loan Document shall remain unamended or otherwise unmodified and in full force and effect.
SECTION 8.3
Limitation of Agreement
. The modifications set forth herein shall be limited precisely as provided for herein and, except as expressly set forth herein, shall not be deemed to be a waiver of, amendment of, consent to or modification of any other term or provision of the 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 the Administrative Agent
or any of the Lenders under the Credit Agreement or any other Loan Document. This Agreement shall not constitute a novation of the Credit Agreement or any other Loan Document.
SECTION 8.4
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 one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopy or electronic mail shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 8.5
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 8.6
Further Assurances
. In furtherance of the foregoing, each Loan Party shall execute and deliver or cause to be executed and delivered at any time and from time to time such further instruments and documents and do or cause to be done such further acts as may be reasonably necessary in the reasonable opinion of the Administrative Agent to carry out more effectively the provisions and purposes of this Agreement.
SECTION 8.7
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 OTHER 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.
[Signatures on following page.]
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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
:
CATCHMARK TIMBER OPERATING PARTNERSHIP, L.P.
By:
CATCHMARK TIMBER TRUST, INC
.,
as General Partner
By: _________________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK TRS HARVESTING OPERATIONS, LLC
By:
Forest Resource Consultants, Inc.
,
as Manager
By:
Name: David T. Foil
Title: President
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK TIMBER TRUST, INC.
By:
___________________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
timberlandS ii, llc
By:
CATCHMARK TIMBER OPERATING
PARTNERSHIP, L.P.
, as Manager
By:
CATCHMARK TIMBER TRUST, INC
.,
as General Partner
By: __________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK TIMBER TRS, INC.
By:
___________________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK HBU, LLC
By:
CATCHMARK TIMBER OPERATING
PARTNERSHIP, L.P.
, as Manager
By:
CATCHMARK TIMBER TRUST, INC
.,
as General Partner
By: __________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK TEXAS TIMBERLANDS GP, LLC
By:
TIMBERLANDS II, LLC
, as Member
By:
CATCHMARK TIMBER OPERATING
PARTNERSHIP, L.P.
, as Manager
By:
CATCHMARK TIMBER TRUST, INC.
,
as General Partner
By: __________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK TEXAS TIMBERLANDS, L.P.
By:
CATCHMARK TEXAS TIMBERLANDS GP, LLC
,
as General Partner
By:
TIMBERLANDS II, LLC
, as Member
By:
CATCHMARK TIMBER OPERATING
PARTNERSHIP, L.P.
, as Manager
By:
CATCHMARK TIMBER TRUST,
INC.
,
as General Partner
By: __________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK TRS INVESTMENTS, LLC
|
|
By:
|
CATCHMARK TIMBER TRS, INC.
, as sole Member
|
By:
___________________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK TRS MANAGEMENT, LLC
|
|
By:
|
CATCHMARK TIMBER TRS, INC.
, as sole Member
|
By:
___________________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK TRS HARVESTING OPERATIONS II, LLC
By:
AMERICAN FOREST MANAGEMENT, INC.
,
as Manager
By:
Name: Andrew Ferguson
Title: President/CEO
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK SOUTHERN HOLDINGS II GP, LLC
By:
timberlandS ii, llc,
as
sole Member
By:
CATCHMARK TIMBER OPERATING
PARTNERSHIP, L.P.
, as Manager
By:
CATCHMARK TIMBER TRUST, INC
.,
as General Partner
By: _______________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK SOUTHERN TIMBERLANDS II, L.P.
By:
CATCHMARK SOUTHERN HOLDINGS II GP,
LLC
, as General Partner
By:
timberlandS ii, llc,
as
sole Member
By:
CATCHMARK TIMBER OPERATING
PARTNERSHIP, L.P.
, as Manager
By:
CATCHMARK TIMBER TRUST,
INC
., as General Partner
By: _____________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK SOUTH CAROLINA TIMBERLANDS, LLC
By:
timberlandS ii, llc,
as
sole Member
By:
CATCHMARK TIMBER OPERATING
PARTNERSHIP, L.P.
, as Manager
By:
CATCHMARK TIMBER TRUST,
INC
., as General Partner
By: __________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK LP HOLDER, LLC
|
|
By:
|
CATCHMARK TIMBER TRUST, INC.
, as sole Member
|
By:
___________________________________
Name: Brian M. Davis
Title: Senior Vice President and
Chief Financial Officer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CREEK PINE HOLDINGS, LLC
By:
___________________________________
Name: Ursula Godoy-Arbelaez
Title: Treasurer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CATCHMARK TRS CREEK MANAGEMENT, LLC
By:
___________________________________
Name: Ursula Godoy-Arbelaez
Title: Treasurer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
TRIPLE T GP, LLC
By:
___________________________________
Name: Ursula Godoy-Arbelaez
Title: Treasurer
WAIVER OF APPRAISAL RIGHTS
.
The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the mortgaged property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. Pursuant to Section 29-3-680 of the Code of Laws of South Carolina,
THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE COLLATERAL
. The undersigned specifically acknowledges and affirms its waiver of appraisal rights as evidenced by its signature below.
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.
CTT EMPLOYEE, LLC
By:
___________________________________
Name: Ursula Godoy-Arbelaez
Title: Treasurer
Consent and
Amendment Agreement
[Agreement Regarding Amendments and Term A-4 Loan Credit Facility]
[Signatures continued from previous page]
ADMINISTRATIVE AGENT:
COBANK, ACB,
as Administrative Agent
By:
Name: Zachary Carpenter
Title: Vice President
[Agreement Regarding Amendments and Term A-4 Loan Credit Facility]
[Agreement Regarding Amendments and Term A-4 Loan Credit Facility]
[Signatures continued from previous page]
Lenders:
AGSOUTH FARM CREDIT, ACA
,
as a Lender
By: _______________________________
Name:
Title:
[Signatures continued from previous page]
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH (f/k/a COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A. “RABOBANK NEDERLAND”, NEW YORK BRANCH)
, as a Lender
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
[Signatures continued from previous page]
METROPOLITAN LIFE INSURANCE COMPANY
, as a Lender
By: _______________________________
Name:
Title:
[Signatures continued from previous page]
VOTING PARTICIPANTS (pursuant to
Section 11.11(d)):
FARM CREDIT BANK OF TEXAS
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
FARM CREDIT SERVICES OF AMERICA, FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
FARM CREDIT WEST, FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
FCS COMMERCIAL FINANCE GROUP, for AgCountry Farm Credit Services, FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
AGFIRST FARM CREDIT BANK
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
AMERICAN AGCREDIT, FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
FARM CREDIT EAST, ACA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
NORTHWEST FARM CREDIT SERVICES, FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
COMPEER FINANCIAL, FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
FARM CREDIT MID-AMERICA, FLCA, f/k/a Farm Credit Services of Mid-America, FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
GREENSTONE FARM CREDIT SERVICES, FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
FRESNO-MADERA FEDERAL LAND BANK ASSOCIATION, FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
FARM CREDIT OF FLORIDA, FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
AGCREDIT PCA, ACA and FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
FARM CREDIT OF CENTRAL FLORIDA ACA, PCA and FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
AGCHOICE FARM CREDIT, FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
[Signatures continued from previous page]
MIDATLANTIC FARM CREDIT, ACA as agent/ nomine for MidAtlantic Farm Credit, FLCA
, as a Voting Participant
By: __________________________________
Name:
Title:
SCHEDULE A
Amendments to Credit Agreement
[attached]
SCHEDULE B
Schedules to Credit Agreement
[attached]
SCHEDULE C
Exhibits to Credit Agreement
[attached]
SCHEDULE D
Post-Closing Covenants
Not later than October 30, 2018 (or such later date as the Administrative Agent shall agree to in its sole discretion), the Borrower shall deliver or cause to be delivered to the Administrative Agent all of the following (except to the extent waived by the Administrative Agent in its sole discretion), each of which shall be in form and substance acceptable to the Administrative Agent in its sole discretion:
|
|
1.
|
duly executed Mortgage Amendments regarding the Term A-4 Loan Credit Facility for each existing Mortgage given by the applicable Subsidiary Guarantor and acknowledging the increase of the overall debt (which Mortgage Amendments shall also exclude from the lien thereof all “Buildings” (as defined in the applicable Flood Laws));
|
|
|
2.
|
duly executed Mortgages (which Mortgages shall also exclude from the lien thereof all Buildings (as defined in the applicable Flood Laws)) regarding all of the real property acquired by the Loan Parties in Oregon (the “
Bandon Property
”);
|
|
|
3.
|
a pro forma loan policy of title insurance for the Bandon Property (which shall include tie in, first dollar and such other endorsements as requested by the Administrative Agent), together with marked endorsements to each of the Administrative Agent’s existing loan policies of title insurance bringing forward the date of such policies and acknowledging the foregoing Mortgage Amendments and the Term A-4 Loan Credit Facility. The endorsements to existing policies and new title insurance policy shall in the aggregate equal an amount not less than the sum of (i) total amount of title insurance coverage in place with respect to the Credit Agreement prior to the Closing Date
plus
(ii) the purchase price for the Bandon Property;
|
|
|
4.
|
evidence satisfactory to the Administrative Agent that all premiums in respect of each such endorsement and new loan policy, all charges for mortgage recording and similar taxes, and all related expenses, if any, have been paid by the Loan Parties;
|
|
|
5.
|
a copy of all documents referred to, or listed as exceptions to title in, the title endorsements and new loan policy referred to above;
|
|
|
6.
|
legal opinions, dated on or about the date of the Mortgage Amendments and Mortgages regarding the Term A-4 Loan Credit Facility and addressed to the Administrative Agent and all the Lenders, from legal counsel for the Borrower and the Subsidiary Guarantors, regarding such Mortgage Amendments and the Mortgages with respect to the Bandon Property;
|
|
|
7.
|
good standing certificates for each jurisdiction where each Loan Party is authorized (or should be authorized under the Laws) to conduct business; and
|
|
|
8.
|
all other reasonable requests of the Administrative Agent made with respect to the Mortgage Amendments and Mortgages referenced above, or the transactions related thereto.
|
EXHIBIT 31.1
PRINCIPAL EXECUTIVE OFFICER CERTIFICATION
PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Jerry Barag, certify that:
|
|
1.
|
I have reviewed this quarterly report on Form 10-Q of CatchMark Timber Trust, Inc. for the quarter ended
September 30, 2018
:
|
|
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
|
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
|
|
4.
|
The registrant's other certifying officer(s)and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as
|
defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
|
a.
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
|
|
b.
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting
|
to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
|
c.
|
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
|
|
d.
|
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
|
|
|
5.
|
The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
|
|
|
a.
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
|
|
|
b.
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
|
|
|
|
|
Date:
|
By:
|
/s/ Jerry Barag
|
November 1, 2018
|
|
Jerry Barag
|
|
|
Principal Executive Officer
|
EXHIBIT 31.2
PRINCIPAL FINANCIAL OFFICER CERTIFICATION
PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Brian M. Davis, certify that:
|
|
1.
|
I have reviewed this quarterly report on Form 10-Q of CatchMark Timber Trust, Inc. for the quarter ended
September 30, 2018
;
|
|
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
|
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
|
|
4.
|
The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as
|
defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
|
a.
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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b.
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Designed such internal control over financial reporting, or caused such internal control over financial reporting
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to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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c.
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Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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d.
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Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
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5.
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The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
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a.
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
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b.
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
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Date:
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By:
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/s/ Brian M. Davis
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November 1, 2018
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Brian M. Davis
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Principal Financial Officer
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EXHIBIT 32.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER AND PRINCIPAL FINANCIAL OFFICER PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
(18 U.S.C. 1350)
In connection with the Quarterly Report on Form 10-Q of CatchMark Timber Trust, Inc. (the “Registrant”) for the quarter ended
September 30, 2018
, as filed with the Securities and Exchange Commission (the “Report”), the undersigned, Jerry Barag, Principal Executive Officer of the Registrant, and Brian M. Davis, Principal Financial Officer of the Registrant, hereby certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. 1350) that, to the best of our knowledge and belief:
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(1)
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The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
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(2)
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The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.
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/s/ Jerry Barag
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Jerry Barag
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Principal Executive Officer
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November 1, 2018
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/s/ Brian M. Davis
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Brian M. Davis
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Principal Financial Officer
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November 1, 2018
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