EXECUTION COPY
Exhibit 10.1
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$1,200,000,000
FIVE-YEAR COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of March 22, 2005
among
WEYERHAEUSER COMPANY, and
WEYERHAEUSER REAL ESTATE COMPANY, as Borrowers,
THE LENDERS, THE SWING LINE BANKS AND INITIAL FRONTING BANKS NAMED
HEREIN,
JPMORGAN CHASE BANK, N.A., as Administrative Agent,
CITIBANK, N.A., as Syndication Agent,
BANK OF AMERICA, N.A., DEUTSCHE BANK SECURITIES INC. and
THE BANK OF TOKYO-MITSUBISHI, LTD., as Documentation Agents,
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK, as Co-Documentation Agent
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and CITIGROUP GLOBAL MARKETS INC.,
as Lead Arrangers and Joint Book Runners
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 1
Section 1.01 Defined Terms.......................................... 1
Section 1.02 Terms Generally........................................ 15
Section 1.03 Accounting Terms; GAAP................................. 15
ARTICLE II THE CREDITS................................................... 15
Section 2.01 Commitments............................................ 15
Section 2.02 Loans.................................................. 16
Section 2.03 Conversion and Continuation of Loans................... 18
Section 2.04 Fees................................................... 19
Section 2.05 Repayment of Loans; Evidence of Debt................... 21
Section 2.06 Interest on Loans...................................... 22
Section 2.07 Default Interest....................................... 24
Section 2.08 Alternate Rate of Interest............................. 24
Section 2.09 Termination and Reduction of Commitments............... 24
Section 2.10 Prepayment............................................. 25
Section 2.11 Reserve Requirements; Change in Circumstances.......... 25
Section 2.12 Change in Legality..................................... 27
Section 2.13 Indemnity.............................................. 28
Section 2.14 Pro Rata Treatment..................................... 29
Section 2.15 Sharing of Setoffs..................................... 29
Section 2.16 Payments............................................... 30
Section 2.17 Taxes.................................................. 30
Section 2.18 Mitigation Obligations; Replacement of Lenders......... 33
Section 2.19 Competitive Bid Procedure.............................. 34
Section 2.20 Letters of Credit...................................... 36
Section 2.21 Swing Line Loans....................................... 40
ARTICLE III REPRESENTATIONS AND WARRANTIES............................... 41
Section 3.01 Organization; Powers................................... 41
Section 3.02 Authorization.......................................... 41
Section 3.03 Enforceability......................................... 42
Section 3.04 Consents and Approvals................................. 42
Section 3.05 Financial Statements................................... 42
Section 3.06 No Material Adverse Change............................. 42
Section 3.07 Title to Properties; Possession Under Leases........... 43
Section 3.08 Subsidiaries........................................... 43
Section 3.09 Litigation; Compliance with Laws....................... 43
Section 3.10 Agreements............................................. 43
Section 3.11 Federal Reserve Regulations............................ 43
Section 3.12 Investment Company Act; Public Utility Holding
Company Act............................................ 44
Section 3.13 Tax Returns............................................ 44
(i)
Section 3.14 No Material Misstatements.............................. 44
Section 3.15 Compliance with ERISA.................................. 44
Section 3.16 Environmental Matters.................................. 45
Section 3.17 Maintenance of Insurance............................... 45
ARTICLE IV CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT....... 45
Section 4.01 All Borrowings and Issuances........................... 45
Section 4.02 Closing Date........................................... 46
ARTICLE V AFFIRMATIVE COVENANTS.......................................... 47
Section 5.01 Existence; Businesses and Properties................... 48
Section 5.02 Insurance.............................................. 48
Section 5.03 Obligations and Taxes.................................. 48
Section 5.04 Financial Statements, Reports, etc..................... 49
Section 5.05 Litigation and Other Notices........................... 50
Section 5.06 ERISA.................................................. 51
Section 5.07 Maintaining Records; Access to Properties and
Inspections............................................ 51
Section 5.08 Use of Proceeds........................................ 52
Section 5.09 Environmental Matters.................................. 52
Section 5.10 OCBM Agreement......................................... 53
Section 5.11 Further Assurances..................................... 53
ARTICLE VI NEGATIVE COVENANTS............................................ 54
Section 6.01 Covenants of Weyerhaeuser.............................. 54
Section 6.02 Covenants with respect to WRECO........................ 56
ARTICLE VII EVENTS OF DEFAULT............................................ 60
Section 7.01 Events of Default...................................... 60
ARTICLE VIII THE ADMINISTRATIVE AGENT.................................... 62
Section 8.01 The Administrative Agent............................... 62
Section 8.02 Other Agents........................................... 65
ARTICLE IX MISCELLANEOUS................................................. 65
Section 9.01 Notices................................................ 65
Section 9.02 Survival of Agreement.................................. 66
Section 9.03 Binding Effect......................................... 66
Section 9.04 Successors and Assigns................................. 67
Section 9.05 Expenses; Indemnity.................................... 69
Section 9.06 Right of Setoff........................................ 70
Section 9.07 Applicable Law......................................... 70
Section 9.08 Waivers; Amendment..................................... 71
Section 9.09 Interest Rate Limitation............................... 71
Section 9.10 Entire Agreement....................................... 72
Section 9.11 WAIVER OF JURY TRIAL................................... 72
Section 9.12 Severability........................................... 72
(ii)
Section 9.13 Counterparts........................................... 72
Section 9.14 Headings............................................... 72
Section 9.15 Jurisdiction; Consent to Service of Process............ 72
Section 9.16 Domicile of Loans...................................... 73
Section 9.17 Restricted and Unrestricted Subsidiaries............... 73
Section 9.18 USA PATRIOT Act........................................ 75
EXHIBITS
Exhibit A Form of Revolving Borrowing Request
Exhibit B Form of Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
Exhibit D-1 Form of Certification of Financial Statements for Weyerhaeuser
Exhibit D-2 Form of Certification of Financial Statements for WRECO
Exhibit D-3 Form of Compliance Certificate for Weyerhaeuser
Exhibit D-4 Form of Compliance Certificate for WRECO
Exhibit E Form of Subordinated Debt
Exhibit F Form of Promissory Note
Exhibit G Form of Swing Line Borrowing Request
SCHEDULES
Schedule 2.01 Commitments
Schedule 2.20 Existing Letters of Credit
Schedule 3.08 Subsidiaries of Weyerhaeuser and WRECO
Schedule 9.01 Notices
(iii)
FIVE-YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
dated as of March 22, 2005 among WEYERHAEUSER COMPANY, a Washington corporation
("Weyerhaeuser"), WEYERHAEUSER REAL ESTATE COMPANY, a Washington corporation
("WRECO," together with Weyerhaeuser, the "Borrowers" and each, individually, a
"Borrower"), the lenders listed in Schedule 2.01 (together with each assignee
that becomes a party hereto pursuant to Section 9.04, a "Lender," and
collectively, the "Lenders"), JPMORGAN CHASE BANK, N.A., a national banking
association ("JPMorgan Chase Bank") and CITIBANK, N.A., a national banking
association ("Citibank"), as initial fronting banks (collectively, in such
capacities, the "Initial Fronting Banks"), JPMORGAN CHASE BANK and CITIBANK, as
swing line banks (in such capacities, the "Swing Line Banks"), JPMORGAN CHASE
BANK as administrative agent for the Lenders (in such capacity, and its
successors in such capacity, the "Administrative Agent"), CITIBANK, as
syndication agent (in such capacity, the "Syndication Agent"), BANK OF AMERICA,
N.A., DEUTSCHE BANK SECURITIES INC. and THE BANK OF TOKYO-MITSUBISHI, LTD., as
documentation agents (collectively, in such capacities, the "Documentation
Agents"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK, as co-documentation agent (in such capacity,
the "Co-Documentation Agent").
WITNESSETH:
WHEREAS, the Borrowers have entered into that certain Third Amended
and Restated 364-Day Revolving Credit Facility Agreement, dated as of March 23,
2004 (the "Existing 364-Day Revolving Credit Agreement") with JPMorgan Chase
Bank, as administrative agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as
syndication agent, The Bank of Tokyo-Mitsubishi, Ltd. and Deutsche Bank
Securities Inc. as co-documentation agents, and the lenders party thereto from
time to time.
WHEREAS, the Borrowers have requested that the Lenders enter into this
Five-Year Competitive Advance and Revolving Credit Agreement (a) to refinance
the Existing 364-Day Revolving Credit Agreement, (b) to pay costs and expenses
related to such re-financing, (c) to provide the Borrowers and their
Subsidiaries with financing for general corporate purposes and to back-stop
commercial paper issuances and (d) to provide for the issuance of Letters of
Credit for the account of Weyerhaeuser which are to be utilized for general
corporate purposes.
WHEREAS, WRECO will derive a substantial benefit from the credit
extended to Weyerhaeuser.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
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"Adjusted Net Worth" shall mean, as of the date of any computation
thereof, the aggregate amount of capital stock (less treasury stock), surplus
and retained earnings of WRECO and its Restricted Subsidiaries, after deducting
(i) goodwill, patents, trade names, trademarks, unamortized debt discount and
expense, deferred assets (other than prepaid taxes and insurance), experimental
or organizational expense, any reappraisal, revaluation or write-up assets, and
such other assets as are properly classified as "intangible assets" of WRECO and
its Restricted Subsidiaries in accordance with GAAP, (ii) all minority interests
in the capital stock and surplus of the Restricted Subsidiaries of WRECO, (iii)
all Investments in Unrestricted Subsidiaries of WRECO, and (iv) all Investments
of WRECO and its Restricted Subsidiaries in any joint venture, partnership or
similar entity (not including any Investments in any Restricted Subsidiary of
WRECO) entered into for the purpose of acquiring, developing, constructing,
owning, operating, selling or leasing any Real Estate Assets.
"Administrative Agent Fees" shall have the meaning given such term in
Section 2.04(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B hereto.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Aggregate Credit Exposure" shall mean the aggregate amounts of the
Lenders' Credit Exposures.
"Agreement" shall mean this Five-Year Competitive Advance and
Revolving Credit Facility Agreement, together with all amendments, supplements
and modifications hereof.
"Applicable Margin" shall have the meaning given such term in Section
2.06(d).
"Applicable Percentage" of any Lender at any time shall mean the
percentage of the Total Commitment represented by such Lender's Commitment. In
the event the Commitments shall have expired or been terminated, the Applicable
Percentage shall be determined on the basis of the Commitments most recently in
effect, but giving effect to assignments pursuant to Section 9.04.
"Applicable Utilization Fee Percentage" shall have the meaning given
such term in Section 2.06(e).
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
which acceptance shall be governed by the terms of Section 9.04, substantially
in the form of Exhibit C.
"Base Rate" shall mean, for any day, a rate per annum equal to the
higher of (i) the Prime Rate and (ii) 1/2 of 1% plus the Federal Funds Rate,
each as in effect from time to time. If for any reason the Administrative Agent
shall have determined (which determination shall be
3
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Rate, including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms thereof, the Base Rate
shall be determined without regard to clause (ii) of the first sentence of this
definition, until the circumstances giving rise to such inability no longer
exist. Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of such change in
the Prime Rate or the Federal Funds Rate, respectively.
"Base Rate Borrowing" shall mean a Borrowing comprised of Base Rate
Loans.
"Base Rate Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Base Rate in accordance with the provisions of
Article II.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrower" and "Borrowers" shall have the respective meanings given
such terms in the introductory paragraph hereto.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to Section 2.19) on a single
date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a Revolving Borrowing Request or a
Swing Line Borrowing Request, as the case may be.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Base" shall mean, as of the date of any computation thereof,
the sum of (i) Adjusted Net Worth plus (ii) the amount of WRECO/Weyerhaeuser
Subordinated Debt then outstanding not to exceed Adjusted Net Worth.
"Capital Lease Obligations" of any person shall mean the obligations
of such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for purposes of this Agreement, the amount of such obligations at any time
shall be the capitalized amount thereof at such time determined in accordance
with GAAP.
A "Change in Control" shall be deemed to have occurred with respect to
(a) Weyerhaeuser if, (i) any person or group (within the meaning of Rule 13d-5
of the SEC as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing more than 20% of the aggregate
ordinary voting power represented by the issued
4
and outstanding capital stock of Weyerhaeuser, (ii) a majority of the seats
(other than vacant seats) on the board of directors of Weyerhaeuser shall at any
time have been occupied by persons who were neither (A) nominated by the
management of Weyerhaeuser in accordance with its charter and by-laws, nor (B)
appointed by directors so nominated, or (iii) any person or group shall
otherwise directly or indirectly Control Weyerhaeuser, and (b) WRECO if
Weyerhaeuser shall fail to own directly or indirectly, beneficially or of
record, shares representing at least 79% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of WRECO.
"Class," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, is a Revolving Loan
or Competitive Loan.
"Closing Date" shall mean the first date on which the conditions
precedent set forth in Section 4.02 shall have been satisfied.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Commitment" shall mean, with respect to each Lender, the commitment
of such Lender hereunder as set forth in Schedule 2.01 or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Commitment, as
applicable, as such Lender's Commitment may be permanently reduced, increased or
terminated from time to time pursuant to Section 2.09, Section 2.18, Article VII
or Section 9.04.
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan in accordance with Section 2.19.
"Competitive Bid Rate" shall mean, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" shall mean a request by the Borrower for
Competitive Bids in accordance with Section 2.19.
"Competitive Borrowing" shall mean a Borrowing consisting of
Competitive Loans or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted by the Borrower
under the bidding procedure described in Section 2.19.
"Competitive Loan" shall mean a Loan made pursuant to Section 2.19.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities or by contract, and
"Controlling" and "Controlled" shall have meanings correlative thereto.
5
"Credit Exposure" shall mean, with respect to each Lender, at any
time, the aggregate principal amount at such time of all outstanding Revolving
Loans of such Lender to the Borrowers, plus the aggregate amount at such time of
such Lender's L/C Exposure, plus the aggregate amount at such time of such
Lender's Swing Line Exposure.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"Dollars," "dollars" or "$" shall mean lawful money of the United
States of America.
"Domestic Subsidiary" shall mean any subsidiary organized under the
laws of any State of the United States of America, substantially all the assets
of which are located, and substantially all the business of which is conducted,
in the United States of America.
"Environmental Claims" shall mean any and all administrative,
regulatory, or judicial actions, suits, demand letters, claims, liens, notices
of noncompliance or violation, investigations, or proceedings relating in any
way to any Environmental Law (hereinafter referred to as "claims") or any permit
issued under any such Environmental Law, including without limitation (a) any
and all claims by Governmental Authorities for enforcement, cleanup, removal,
response, remedial, or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation, or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety, or the environment.
"Environmental Laws" shall mean any and all Federal, state, local and
foreign statutes, laws, regulations, ordinances, codes, rules (including rules
of common law), judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions now or
hereafter in effect relating to the environment, health, safety, Hazardous
Materials (including, without limitation, the manufacture, processing,
distribution, use, treatment, storage, Release, and transportation thereof) or
to industrial hygiene or the environmental conditions on, under or about real
property, including, without limitation, soil, groundwater, and indoor and
outdoor ambient air conditions.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at the
date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with Weyerhaeuser or WRECO, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
6
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate in accordance with the provisions
of Article II.
"Eurodollar Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for the purpose of providing quotations
of interest rates applicable to dollar deposits in the London interbank market)
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "Eurodollar Rate" with respect
to such Eurodollar Borrowing for such Interest Period shall be the rate at which
dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Event of Default" shall have the meaning given such term in Article
VII.
"Existing 364-Day Revolving Credit Agreement" shall have the meaning
given such term in the preliminary statements hereto.
"Existing Letters of Credit" shall have the meaning given such term in
Section 2.20(a).
"Facility Fees" shall have the meaning given such term in Section
2.04(a).
"Federal Funds Rate" shall mean, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fees" shall mean the Facility Fees, the Fronting Fee, the L/C
Participation Fee and the Administrative Agent Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, treasurer or controller of such
corporation.
"Fixed Rate" shall mean, with respect to any Competitive Loan (other
than a Eurodollar Competitive Loan), the fixed rate of interest per annum
specified by the Lender making such Competitive Loan in its related Competitive
Bid.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed Rate
Loans.
7
"Fixed Rate Loan" shall mean a Competitive Loan bearing interest at a
Fixed Rate.
"Fronting Banks" shall mean the Initial Fronting Banks and any other
Lender designated by Weyerhaeuser to the extent such Lender has expressly agreed
to perform all of the obligations that, by the terms of this Agreement, are
required to be performed as the Fronting Banks, as such consent by such Lender
may be evidenced from time to time by documentation reasonably acceptable to
Weyerhaeuser, such Lender and the Administrative Agent.
"Fronting Fee" shall have the meaning given such term in Section
2.04(c).
"GAAP" shall mean generally accepted accounting principles, applied on
a consistent basis.
"Governmental Authority" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness, (c) to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or (d) as an account party in respect
of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, however, that the term Guarantee shall not
include endorsements for collection or deposit, in either case in the ordinary
course of business.
"Hazardous Materials" shall mean (a) any petroleum or petroleum
products, flammable substances, explosives, radioactive materials, hazardous
wastes, substances or contaminants, toxic wastes, substances or contaminants, or
any other wastes, substances, contaminants or pollutants prohibited, limited or
regulated by any Governmental Authority; (b) asbestos in any form that is or
could become friable, urea formaldehyde foam insulation, transformers or other
equipment that contains dielectric fluid containing levels of polychlorinated
biphenyls or radon gas; (c) any chemicals, materials or substances defined as or
included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "extremely hazardous wastes," "restricted hazardous
wastes," "toxic substances," "toxic pollutants," "contaminants," or
"pollutants," or words of similar import, under any applicable Environmental
Law; and (d) any other chemical, material, or substance, exposure to which is
prohibited, limited, or regulated by any Governmental Authority.
8
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (g) all Guarantees by such person
of Indebtedness of others, (h) all Capital Lease Obligations of such person, and
(i) all obligations of such person as an account party in respect of letters of
credit, letters of guaranty and bankers' acceptances. The Indebtedness of any
person shall include the Indebtedness of any partnership in which such person is
a general partner.
"Initial Fronting Banks" shall have the meaning given such term in the
introductory paragraph hereto.
"Interest Period" shall mean, (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing or on the date of conversion of
a Borrowing of a different Type to a Eurodollar Borrowing or on the last day of
the immediately preceding Interest Period applicable to such Borrowing or
conversion thereof, as the case may be, and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
applicable Borrower may elect, and (b) with respect to any Fixed Rate Borrowing,
the period (which shall not be less than seven days nor more than 360 days)
commencing on the date specified in the applicable Competitive Bid Request;
provided, however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of Eurodollar Loans, such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day; provided further that no
Interest Period for any Loan shall extend beyond the Termination Date. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Investments" shall mean all investments in any Person, computed in
accordance with GAAP, made by stock purchase, capital contribution, loan,
advance, extension of credit, or creation or assumption of any other contingent
liability or Guarantee in respect of any obligation of such Person, or
otherwise; provided, however, that in computing any investment in any Person (i)
all expenditures for such investment shall be taken into account at the actual
amounts thereof in the case of expenditures of cash and at the fair value
thereof (as determined in good faith by the Board of Directors of WRECO) or
depreciated cost thereof (in accordance with GAAP), whichever is greater, in the
case of expenditures of property, (ii) there shall not be included any Real
Estate Assets, or any account or note receivable from such other Person arising
from transactions in the ordinary course of business, and (iii) a Guarantee or
other contingent liability of any kind in respect of any Indebtedness or other
obligation of such Person shall be deemed an Investment equal to the amount of
such Indebtedness or obligation.
9
"L/C Disbursement" shall mean a payment or disbursement made by any
Fronting Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time (assuming
compliance at such time with all conditions to drawing) plus (b) the aggregate
principal amount of all L/C Disbursements that have not yet been converted to
Loans in accordance with Section 2.02(f) or reimbursed by Weyerhaeuser at such
time. The L/C Exposure of any Lender at any time shall mean its Applicable
Percentage of the aggregate L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning given such term in
Section 2.04(c).
"Lead Arrangers" shall mean, collectively, ▇.▇. ▇▇▇▇▇▇ Securities
Inc., and Citigroup Global Markets Inc.
"Lender" and "Lenders" shall have the respective meanings given such
terms in the introductory paragraph hereto.
"Lender Affiliate" shall mean, (a) with respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender and (b) with respect to any Lender that is a fund which invests in
bank loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.20.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Loan" shall mean a Revolving Loan, a Swing Line Loan or a Competitive
Loan.
"Loan Documents" shall mean this Agreement, the OCBM Agreement, any
Letter of Credit and any application therefor and any notes issued in accordance
with Section 2.05.
"Mandatory Convertible Debt Securities" with respect to Weyerhaeuser,
shall mean all obligations of Weyerhaeuser evidenced by bonds, notes,
debentures, or other similar instruments, which by their terms convert
mandatorily into equity interests of Weyerhaeuser no later than three years from
the date of issuance of such bonds, notes, debentures, or other similar
instruments; provided that at no time shall the aggregate outstanding principal
amount of such obligations included in the definition of "Mandatory Convertible
Debt Securities," prior to their conversion, exceed $1,500,000,000.
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"Margin" means, with respect to any Competitive Loan bearing interest
at a rate based on the Eurodollar Rate, the marginal rate of interest, if any,
to be added to or subtracted from the Eurodollar Rate to determine the rate of
interest applicable to such Loan, and specified by the Lender making such Loan
in its related Competitive Bid.
"Margin Stock" shall have the meaning given such term under Regulation
U.
"Material Adverse Effect" shall mean (a) a materially adverse effect
on the business, financial condition, operations or properties of Weyerhaeuser
and its Subsidiaries, taken as a whole, (b) a materially adverse effect on the
ability of Weyerhaeuser or any of its Subsidiaries to perform its obligations
under any Loan Documents to which it is or will be a party, or (c) a materially
adverse effect on the rights and remedies available to the Administrative Agent
and the Lenders under the Loan Documents.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., a corporation
organized and existing under the laws of the State of Delaware, and its
successors and assigns, and if such corporation shall for any reason no longer
perform the functions of a securities rating agency, "Moody's" shall be deemed
to refer to any other nationally recognized rating agency designated by
Weyerhaeuser and the Required Lenders.
"OCBM Agreement" shall mean the Ownership and Capital Base Maintenance
Agreement, dated as of March 22, 2005, and entered into by Weyerhaeuser.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Person" shall mean any natural person, corporation, business trust,
joint venture, joint stock company, trust, unincorporated organization,
association, company, partnership or government, or any agency or political
subdivision thereof.
"Plan" shall mean any multiemployer or single-employer plan as defined
in Section 4001 of ERISA covered by Title IV of ERISA, which is maintained or
contributed to by (or to which there is an obligation to contribute of), or at
any time during the five calendar years preceding the date of this Agreement was
maintained or contributed to by (or to which there was an obligation to
contribute of), Weyerhaeuser or an ERISA Affiliate.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective on the date such change is publicly announced as effective.
The Prime Rate is a reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer.
"Rating" shall mean, as of any date, the rating by Moody's and S&P in
effect on such date, of the Senior Unsecured Long-Term Debt of Weyerhaeuser.
"Real Estate Assets" shall mean all assets of WRECO and its Restricted
Subsidiaries (determined, unless the context otherwise requires, on a
consolidated basis for WRECO and its Restricted Subsidiaries) of the types
described below, acquired and held for the
11
purpose of, and arising out of, the development and/or sale or rental thereof in
the ordinary course of business: (i) improved and unimproved land, buildings and
other structures and improvements and fixtures located thereon, and (ii)
contracts, mortgages, notes receivables and other choses in action.
"Register" shall have the meaning given such term in Section 9.04(c).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Reinvestment Proceeds" shall have the meaning given such term in
Section 2.10(b).
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" shall mean disposing, discharging, injecting, spilling,
leaking, dumping, emitting, escaping, emptying, seeping, placing, and the like,
into or upon any land or water or air, or otherwise entering into the
environment.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by statute, regulation or otherwise.
"Required Lenders" shall mean, at any time, Lenders having Credit
Exposures and unused Commitments representing more than 50% of the sum of the
Aggregate Credit Exposure and unused Commitments at such time; provided that,
for the purpose of declaring the Loans to be due and payable pursuant to Article
VII, and for all purposes after the Loans become due and payable pursuant to
Article VII or the Commitments expire or terminate, (i) the outstanding
Competitive Loans of the Lenders shall be added to their respective Credit
Exposures and to the Aggregate Credit Exposure and (ii) notwithstanding Section
2.14, the entire amount of Competitive Loans of each Lender shall reduce the
unused Commitment of such Lender and shall not reduce the unused Commitment of
any other Lender in determining the Required Lenders.
"Restricted Subsidiary" shall mean, (i) with respect to Weyerhaeuser,
each Subsidiary that has not been designated as an Unrestricted Subsidiary on
Schedule 3.08 Part I and thereafter not designated by a Financial Officer of
Weyerhaeuser as an Unrestricted
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Subsidiary after the Closing Date pursuant to Section 9.17 and (ii) with respect
to WRECO, each Subsidiary that has not been designated as an Unrestricted
Subsidiary on Schedule 3.08 Part II or thereafter designated by a Financial
Officer of WRECO as an Unrestricted Subsidiary after the Closing Date pursuant
to Section 9.17. On the Closing Date, the Company and its subsidiaries shall be
deemed Restricted Subsidiaries unless a Financial Officer of Weyerhaeuser shall
have designated any of such entities as an Unrestricted Subsidiary after the
Closing Date.
"Revolving Borrowing" shall mean a Borrowing consisting of Revolving
Loans.
"Revolving Borrowing Request" shall mean a request made pursuant to
Section 2.02(e) in the form of Exhibit A.
"Revolving Loan" shall mean a Loan made by the Lenders to a Borrower
pursuant to Section 2.01.
"S&P" shall mean Standard & Poor's Ratings Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., a corporation organized and existing under the laws
of the State of New York, and its successors and assigns, and if such
corporation shall for any reason no longer perform the functions of a securities
rating agency, "S&P" shall be deemed to refer to any other nationally recognized
rating agency designated by Weyerhaeuser and the Required Lenders.
"SEC" shall mean the Securities and Exchange Commission or any
successor.
"Senior Debt" shall mean all Indebtedness of any Person (other than
WRECO) which is not expressed to be subordinate and junior in right of payment
to any other Indebtedness of such Person, and, with respect to WRECO, shall mean
all Indebtedness of WRECO other than Subordinated Debt.
"Senior Unsecured Long-Term Debt" shall mean the unsecured bonds,
debentures, notes or other Indebtedness of Weyerhaeuser, designated on its
financial statements as senior long-term indebtedness. In the event more than
one issue of Senior Unsecured Long Term Debt shall be outstanding at any
relevant time and different credit ratings shall have been issued by S&P or
Moody's for such issues, Senior Unsecured Long-Term Debt shall be deemed to
refer to the lowest rated issue.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one, and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority to which the
Administrative Agent is subject with respect to the Eurodollar Rate, for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserves shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.
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"Subordinated Debt" shall mean and include (i) Subordinated Promissory
Notes of WRECO, in substantially the form annexed as Exhibit E hereto, and (ii)
any other Indebtedness of WRECO now or hereafter created, issued or assumed
which at all times is evidenced by a written instrument or instruments
containing or having applicable thereto subordination provisions substantially
the same as those in said Exhibit E hereto, providing for the subordination of
such Indebtedness to such other Indebtedness of WRECO as shall be specified or
characterized in such subordination provisions.
"subsidiary" shall mean, with respect to any Person (herein referred
to as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power to elect a
majority of the board of directors or more than 50% of the general partnership
interests are, at the time any determination is being made, owned, controlled or
held, or (b) which is, at the time any determination is made, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" shall mean any subsidiary of Weyerhaeuser or WRECO,
provided that there shall be excluded from this definition (i) ▇▇▇▇▇▇ Forests
Joint Venture, a joint venture formed under the laws of New Zealand, and (ii)
Wapawekka Lumber Ltd., a limited partnership formed under the laws of
Saskatchewan, for so long as such business entities shall not be Controlled by
Weyerhaeuser or any of its subsidiaries.
"Swing Line Banks" shall have the meaning given such term in the
introductory paragraph hereto.
"Swing Line Borrowing" shall mean a Borrowing consisting of Swing Line
Loans.
"Swing Line Borrowing Request" shall mean a request made pursuant to
Section 2.21(b) in the form of Exhibit G.
"Swing Line Exposure" shall mean, at any time, the aggregate principal
amount of all Swing Line Loans outstanding at such time made by the Swing Line
Banks. The Swing Line Exposure of any Lender at any time shall mean its
Applicable Percentage of the aggregate Swing Line Exposure at such time.
"Swing Line Loan" shall mean a Loan made by (i) the Swing Line Banks
pursuant to Section 2.21(a), or (ii) any Lender pursuant to Section 2.21(c).
"Termination Date" shall mean March 22, 2010.
"Total Adjusted Shareholders' Interest" shall mean, at any time, the
amount of the preferred, preference and common shares accounts plus (or minus in
the case of a deficit) the amount of other capital and retained earnings, in
accordance with GAAP, of Weyerhaeuser and its consolidated Subsidiaries, less
treasury common shares and the aggregate net book value
14
(after deducting any reserves applicable thereto) of all items of the following
character which are included in the consolidated assets of Weyerhaeuser and its
consolidated Subsidiaries:
(a) investments in Unrestricted Subsidiaries; and
(b) without duplication, investments by Weyerhaeuser and its
consolidated Subsidiaries in WRECO and its consolidated Subsidiaries.
No effect shall be given for any increases or decreases attributable to
unrealized foreign exchange gains or losses resulting from the application of
FASB Statement 52.
"Total Commitment" shall mean at any time the aggregate amount of the
Commitments as in effect at such time, and on the date hereof shall mean
$1,200,000,000.
"Total Funded Indebtedness" with respect to Weyerhaeuser shall mean,
at any time, the aggregate principal amount of all Indebtedness (other than
Guarantees by such Person of Indebtedness of others) for borrowed money or for
the deferred purchase price of property and Capital Lease Obligations of
Weyerhaeuser and its consolidated Subsidiaries, excluding (a) the Indebtedness
of Unrestricted Subsidiaries, (b) without duplication, the Indebtedness of WRECO
and its consolidated Subsidiaries, and (c) 80% of the aggregate principal amount
of the Mandatory Convertible Debt Securities outstanding at such time.
"Transactions" shall have the meaning given such term in Section 3.02.
"Transferee" shall have the meaning given such term in Section 2.17.
"Type," when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "Rate" shall include the
Eurodollar Rate, the Base Rate and the Fixed Rate applicable to any Loan.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the present value of the accrued benefits under the Plan as of the
close of its most recent plan year, determined in accordance with Statement of
Financial Accounting Standards No. 35, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of the Plan, exceeds
the fair market value of the assets allocable thereto, determined in accordance
with Section 412 of the Code.
"Unrestricted Subsidiary" shall mean, (i) with respect to
Weyerhaeuser, each Subsidiary that has been designated as an Unrestricted
Subsidiary on Schedule 3.08 Part I and any Subsidiary which has been designated
by a Financial Officer of Weyerhaeuser as an Unrestricted Subsidiary after the
Closing Date pursuant to Section 9.17, and (ii) with respect to WRECO, each
Subsidiary that has been designated as an Unrestricted Subsidiary on Schedule
3.08 Part II and any Subsidiary which has been designated by a Financial Officer
of WRECO as an Unrestricted Subsidiary after the Closing Date pursuant to
Section 9.17.
"Utilization Fee" shall have the meaning given such term in Section
2.06(e).
15
"Weyerhaeuser" shall have the meaning given such term in the
introductory paragraph hereto.
"WRECO" shall have the meaning given such term in the introductory
paragraph hereto.
"WRECO/Weyerhaeuser Subordinated Debt" shall mean the Subordinated
Promissory Notes issued by WRECO to Weyerhaeuser described in clause (i) of the
definition of "Subordinated Debt" and in substantially the form annexed as
Exhibit E hereto.
Section 1.02 Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving Borrowing").
Section 1.03 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if either Borrower notifies the Administrative Agent that such Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies either
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
Section 2.01 Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Loans to each Borrower requesting a
Borrowing, at any time and from time to time on and after the date hereof and
until the earlier of the Termination Date and the termination of the Commitment
of such Lender, in an aggregate principal amount at any time outstanding not to
exceed such Lender's Commitment at such time, minus, in each case, the amount by
which the Competitive Loans outstanding at such time shall be deemed pursuant to
Section 2.14 to have utilized such Lender's Commitment, subject, however, to the
conditions that:
16
(a) at no time shall the outstanding aggregate principal amount of all
Loans made by all Lenders and the Swing Line Banks plus the aggregate L/C
Exposure of such Lenders at such time exceed the Total Commitment;
(b) at no time shall the outstanding aggregate principal amount of all
Loans made by all Lenders to WRECO exceed $400,000,000; and
(c) at all times the outstanding aggregate principal amount of all
Revolving Loans made by each Lender shall equal the product of (i) the
Applicable Percentage of such Lender times (ii) the outstanding aggregate
principal amount of all Revolving Loans made pursuant to Section 2.02.
Each Lender's Commitment is set forth opposite its name in Schedule
2.01, or in the case of each assignee that becomes a party hereto pursuant to
Section 9.04 or any subsequent assignments pursuant to Section 9.04, on the
Register maintained by the Administrative Agent pursuant to Section 9.04(c).
Within the foregoing limits, each Borrower may borrow, pay or prepay
and reborrow hereunder, on and after the Closing Date and prior to the
Termination Date, subject to the terms, conditions and limitations set forth
herein, on a several and not joint basis.
Section 2.02 Loans. (a) Each Revolving Loan shall be made as part of a
Revolving Borrowing consisting of Revolving Loans made by the Lenders ratably in
accordance with their respective Commitments; provided, however, that the
failure of any Lender to make any Revolving Loan shall not in and of itself
relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Revolving Loan required to be made by such other
Lender). Each Competitive Loan shall be made in accordance with the procedures
set forth in Section 2.19. The Loans (other than Swing Line Loans) comprising
any Revolving Borrowing (other than a Swing Line Borrowing) shall be in an
aggregate principal amount which is an integral multiple of $1,000,000 and not
less than $25,000,000 (or an aggregate principal amount equal to the remaining
balance of the available Commitments).
(b) Each Revolving Borrowing shall be comprised entirely of Eurodollar
Loans or Base Rate Loans, as the applicable Borrower may request pursuant to
paragraph (e) hereof and each Competitive Borrowing shall be comprised entirely
of Eurodollar Loans or Fixed Rate Loans as the applicable Borrower may request
in accordance with Section 2.19. Each Lender may at its option make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
(i) affect the obligation of the applicable Borrower to repay such Loan in
accordance with the terms of this Agreement and (ii) entitle such Lender to any
amounts pursuant to Sections 2.11 or 2.12 to which amounts such Lender would not
be entitled if such Lender had made such Loan itself through its domestic
branch. Borrowings of more than one Type may be outstanding at the same time;
provided, however, that neither Borrower shall be entitled to request any
Revolving Borrowing which, if made, would result in an aggregate of more than
twenty (20) separate Revolving Loans from any Lender being outstanding hereunder
at any one time. For purposes of the foregoing, Revolving Loans (other than
Revolving Loans which are Base Rate Loans) having
17
different Interest Periods, regardless of whether they commence on the same
date, shall be considered separate Revolving Loans.
(c) Each Lender shall make each Loan (other than a Swing Line Loan) to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in New York, New York,
not later than 12:00 noon (or in the case of Base Rate Loans, 2:00 p.m.), New
York City time, and the Administrative Agent shall by 3:00 p.m., New York City
time, credit the amounts so received to the general deposit account of the
applicable Borrower maintained with the Administrative Agent or, if a Borrowing
(other than a Swing Line Borrowing) shall not occur on such date because any
condition precedent herein specified shall not have been met, return the amounts
so received to the respective Lenders. Competitive Loans shall be made by the
Lender or Lenders whose Competitive Bids therefor are accepted pursuant to
Section 2.19 in the amount so accepted, and Revolving Loans shall be made by the
Lenders pro rata in accordance with Section 2.14. Unless the Administrative
Agent shall have received notice from a Lender prior to the date and time of any
Revolving Borrowing that such Lender will not make available to the
Administrative Agent such Lender's portion of such Revolving Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
this paragraph (c) and the Administrative Agent may, in reliance upon such
assumption, make available to the applicable Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have made
such portion available to the Administrative Agent, such Lender and the
applicable Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the applicable
Borrower until the date such amount is repaid to the Administrative Agent at (i)
in the case of the applicable Borrower, the interest rate applicable at the time
to the Revolving Loans comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount shall constitute such Lender's
Revolving Loan as part of such Revolving Borrowing for purposes of this
Agreement.
(d) Notwithstanding any other provision of this Agreement, no Borrower
shall be entitled to request any Revolving Borrowing with an Interest Period
ending after the Termination Date.
(e) In order to request a Revolving Borrowing, the Borrower requesting
such Borrowing shall hand deliver or telecopy to the Administrative Agent a
Revolving Borrowing Request in the form of Exhibit A (a) in the case of a
Eurodollar Borrowing, not later than 12:00 noon, New York City time, three
Business Days before a proposed borrowing and (b) in the case of a Base Rate
Borrowing, not later than 12:00 noon, New York City time, on the day of a
proposed borrowing. Such notice shall be irrevocable and shall in each case
specify (i) whether the Revolving Borrowing then being requested is to be a
Eurodollar Borrowing or a Base Rate Borrowing; (ii) the date of such Revolving
Borrowing (which shall be a Business Day) and the amount thereof; and (iii) if
such Revolving Borrowing is to be a Eurodollar Borrowing, the Interest Period
with respect thereto. If no election as to the Type of Revolving Borrowing is
specified in any such notice, then the requested Revolving Borrowing shall be a
Base Rate Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is specified in any such notice, then the applicable Borrower shall be
deemed to have selected an Interest Period of
18
one month's duration. The Administrative Agent shall promptly advise the Lenders
of any notice given pursuant to this Section 2.02(e) and of each Lender's
portion of the requested Borrowing.
(f) If a Fronting Bank shall not have received the payment required to
be made by Weyerhaeuser pursuant to Section 2.20(e) within the time specified in
such Section, such Fronting Bank will promptly notify the Administrative Agent
of the L/C Disbursement and the Administrative Agent will promptly notify each
Lender of such L/C Disbursement and its Applicable Percentage thereof. Not later
than 2:00 p.m., New York City time, on such date (or, if such Lender shall have
received such notice later than 12:00 noon, New York City time, on any day, no
later than 10:00 a.m., New York City time, on the immediately following Business
Day), each Lender will make available the amount of its Applicable Percentage of
such L/C Disbursement (it being understood that such amount shall be deemed to
constitute a Base Rate Loan of such Lender and such payment shall be deemed to
have reduced the L/C Exposure) in immediately available funds, to the
Administrative Agent in New York, New York, and the Administrative Agent will
promptly pay to the applicable Fronting Bank amounts so received by it from the
Lenders. The Administrative Agent will promptly pay to the applicable Fronting
Bank any amounts received by it from Weyerhaeuser pursuant to Section 2.20(e)
prior to the time that any Lender makes any payment pursuant to this paragraph
(f), and any such amounts received by the Administrative Agent thereafter will
be promptly remitted by the Administrative Agent to the Lenders that shall have
made such payments and to the applicable Fronting Bank, as their interests may
appear. If any Lender shall not have made its Applicable Percentage of such L/C
Disbursement available to the Administrative Agent as provided above, such
Lender agrees to pay interest on such amount, for each day from and including
the date such amount is required to be paid in accordance with this paragraph to
but excluding the date such amount is paid, to the Administrative Agent for the
account of the applicable Fronting Bank at, for the first such day, the Federal
Funds Rate, and for each day thereafter, the Base Rate.
Section 2.03 Conversion and Continuation of Loans. (a) Each Borrower
shall, with respect to its respective Revolving Borrowings, have the right at
any time, upon prior irrevocable written notice to the Administrative Agent
given in the manner and at the times specified in Section 2.02(e) with respect
to the Type of Revolving Borrowing into which conversion or continuation is to
be made, to convert any of its Revolving Borrowings into a Revolving Borrowing
of a different Type and to continue any of its Eurodollar Revolving Borrowings
into a subsequent Interest Period of any permissible duration, subject to the
terms and conditions of this Agreement and to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of Revolving
Loans comprising the converted or continued Revolving Borrowing;
(ii) if less than all the outstanding principal amount of any
Revolving Borrowing shall be converted or continued, the aggregate
principal amount of such Revolving Borrowing converted and/or continued
shall in each case not be less than the minimum amount set forth in Section
2.02;
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(iii) if a Eurodollar Borrowing is converted at any time other than on
the last day of the Interest Period applicable thereto, the applicable
Borrower shall pay any amount due pursuant to Section 2.13;
(iv) if such Revolving Borrowing is to be converted into a Eurodollar
Borrowing or if a Eurodollar Borrowing is to be continued, no Interest
Period selected shall extend beyond the Termination Date;
(v) interest accrued to the day immediately preceding each date of
conversion or continuation shall be payable on each Revolving Borrowing (or
part thereof) that is converted or continued concurrently with such
conversion or continuation; and
(vi) Competitive Borrowings may not be converted or continued.
(b) Each notice given pursuant to Section 2.03(a) shall be irrevocable
and shall refer to this Agreement and specify (i) the identity and the amount of
the Revolving Borrowing that the applicable Borrower requests to be converted or
continued; (ii) whether such Borrowing (or any part thereof) is to be converted
or continued as a Base Rate Borrowing or a Eurodollar Borrowing; (iii) if such
notice requests a conversion, the date of such conversion (which shall be a
Business Day); and (iv) if such Borrowing (or any part thereof) is to be
converted into or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Revolving
Borrowing, then the applicable Borrower shall be deemed to have selected an
Interest Period of one month's duration, in the case of a Eurodollar Borrowing.
The Administrative Agent shall advise the Lenders of any notice given pursuant
to Section 2.03(a) and of each Lender's portion of any converted or continued
Revolving Borrowing.
(c) If the applicable Borrower shall not have given notice in
accordance with this Section 2.03 to continue any Eurodollar Revolving Borrowing
into a subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section 2.03 to convert such Eurodollar Borrowing), such
Borrowing shall automatically be converted into a Base Rate Borrowing. In the
event of the occurrence and continuation of a Default or an Event of Default (i)
all Eurodollar Revolving Borrowings of each Borrower shall be converted into
Base Rate Borrowings on the last day of the Interest Period then in effect, and
(ii) no Base Rate Borrowing may be converted into a Borrowing of another Type so
long as a Default or Event of Default continues to exist.
Section 2.04 Fees. (a) The Borrowers jointly and severally agree to
pay to each Lender, through the Administrative Agent, on each March 31, June 30,
September 30 and December 31 and on the date on which the Commitment of such
Lender shall be terminated as provided herein, a facility fee (each, a "Facility
Fee," and collectively, the "Facility Fees"), calculated as specified below, on
the amount of the Commitment of such Lender, whether used or unused, during the
preceding quarter (or shorter period commencing with the Closing Date or ending
with the Termination Date applicable to such Lender or any date on which the
Commitment of such Lender shall be terminated). All Facility Fees shall be
computed on the basis of a year of 365 or 366 days and shall be payable for the
actual number of days elapsed
20
(including the first day but excluding the last day). The Facility Fee due to
each Lender shall commence to accrue on the Closing Date and shall cease to
accrue on the earlier of the Termination Date applicable to such Lender and the
termination of the Commitment of such Lender as provided herein, provided that,
to the extent that any Lender has any Credit Exposure which remains outstanding
after the Termination Date, the Facility Fee due to such Lender shall continue
to accrue on such Credit Exposure and shall be payable upon demand.
The Facility Fee for each Lender shall be calculated as a per annum
rate in an amount equal to the product of such Lender's Commitment hereunder and
the applicable percentage specified in the table below, to be determined based
upon the Ratings received from S&P and ▇▇▇▇▇'▇ by Weyerhaeuser:
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5
------------ ------- ------- ------- ----------
S&P: A- or better BBB+ BBB BBB- Below BBB-
▇▇▇▇▇'▇: A3 or better ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Below Baa3
Facility Fee 0.09% 0.11% 0.125% 0.175% 0.225%
The Facility Fees shall change effective as of the date on which the
applicable rating agency announces any change in its Ratings. In the event
either S&P or ▇▇▇▇▇'▇ shall withdraw or suspend its Ratings, the remaining
Rating announced by either S&P or ▇▇▇▇▇'▇, as the case may be, shall apply. In
the event neither agency shall provide a Rating, the Facility Fees shall be
based on the lowest rating provided above. If the Ratings by S&P and ▇▇▇▇▇'▇ are
split so that two consecutive Levels (as defined in the table above) apply, the
higher of those Ratings shall determine the applicable percentage to calculate
the Facility Fee. If the Ratings by S&P and ▇▇▇▇▇'▇ are split so that the
applicable Levels in the table above are separated by only one intermediate
Level, then such intermediate Level shall determine the applicable percentage to
calculate the Facility Fee. If the Ratings by S&P and ▇▇▇▇▇'▇ are split so that
the applicable Levels in the table above are separated by two intermediate
Levels, then the intermediate Level representing the lowest Rating shall
determine the applicable percentage to calculate the Facility Fee. The Facility
Fees shall be calculated by the Administrative Agent, which calculation absent
manifest error shall be final and binding on all parties.
(b) Weyerhaeuser agrees to pay the Administrative Agent, for its own
account, the administration fees (the "Administrative Agent Fees") at the times
and in the amounts agreed upon in the letter agreement dated as of February 15,
2005, among Weyerhaeuser, WRECO, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and the
Administrative Agent.
(c) Weyerhaeuser agrees to pay (i) to the Administrative Agent for pro
rata distribution to each Lender (an "L/C Participation Fee"), for the period
from the Closing Date until the later of the Termination Date and the date on
which there ceases to be any L/C Exposure outstanding (or such earlier date as
all Letters of Credit shall be canceled or expire and the Total Commitment shall
be terminated), on that portion of the average daily L/C Exposure attributable
to Letters of Credit issued for the account of Weyerhaeuser (excluding the
portion thereof attributable to unreimbursed L/C Disbursements), at the rate per
annum equal to the Applicable Margin for Eurodollar Loans from time to time in
effect for the Borrower and (ii) to each Fronting Bank for its own account a
fronting fee (a "Fronting Fee"), which shall accrue at
21
such rate as is mutually agreed between the applicable Fronting Bank and
Weyerhaeuser on the average daily amount of the L/C Exposure attributable to
Letters of Credit issued by such Fronting Bank for the account of Weyerhaeuser
(excluding any portion thereof attributable to unreimbursed L/C Disbursements)
during the period from and including the Closing Date to but excluding the later
of the date of termination of the Commitments and the date on which there ceases
to be any L/C Exposure attributable to Letters of Credit issued by such Fronting
Bank for the account of Weyerhaeuser, as well as such Fronting Bank's standard
fees with respect to the issuance, amendment, renewal or extension of any Letter
of Credit or processing of drawings thereunder. L/C Participation Fees and
Fronting Fees accrued under this paragraph are payable quarterly in arrears on
the last day of each calendar quarter and on the date on which the Total
Commitment shall be terminated as provided herein. All L/C Participation Fees
and Fronting Fees payable under this paragraph shall be computed on the basis of
the number of days actually elapsed over a year of 365 or 366 days.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for prompt distribution, if and as
appropriate, among the Lenders. Once paid, none of the Fees shall be refundable
under any circumstances.
Section 2.05 Repayment of Loans; Evidence of Debt. (a) The outstanding
principal balance of (i) each Revolving Loan shall be payable on the Termination
Date, (ii) each Swing Line Loan shall be payable on the earlier of the maturity
date specified in the applicable Swing Line Borrowing Request (which maturity
shall not be later than the seventh day after the requested date of such
Borrowing) and the Termination Date, and (iii) each Competitive Loan shall be
payable on the last day of the Interest Period applicable to such Competitive
Loan and on the Termination Date. Each Loan shall bear interest from the date
thereof on the outstanding principal balance thereof as set forth in Section
2.06.
(b) Each Lender shall, and is hereby authorized by the Borrowers to,
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of each Borrower to such Lender resulting from each Loan made
by such Lender, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of each Borrower to repay
its Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Revolving Loans made by it be
evidenced by a promissory note, substantially in the form of Exhibit F attached
hereto. In such event, the
22
applicable Borrower shall promptly, and in no event more than ten (10) Business
Days after a request therefor, prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns). Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
Section 2.06 Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising (i) each Eurodollar Revolving Borrowing shall
bear interest (computed on the basis of the actual number of days elapsed over a
year of 360 days) at a rate per annum equal to the Eurodollar Rate for the
Interest Period in effect for such Borrowing plus the Applicable Margin,
determined pursuant to paragraph (d) below, and (ii) Eurodollar Competitive
Loan, at the Eurodollar Rate for the Interest Period in effect for such
Borrowing plus (or minus, as applicable) the Margin applicable to such
Borrowing.
(b) Subject to the provisions of Section 2.07 the Loans comprising
each Base Rate Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be) at a rate per annum equal to the Base Rate plus the Applicable Margin.
(c) Interest on each Eurodollar Loan shall, except as otherwise
provided in this Agreement, be payable on the last day of the Interest Period
applicable thereto and, in case of a Eurodollar Loan with an Interest Period of
more than three months' duration, each day that would have been an interest
payment date for such Loan had successive Interest Periods of three months'
duration been applicable to such Loan, and on the Termination Date or any
earlier date on which this Agreement is, pursuant to its terms and conditions,
terminated. Interest on each Base Rate Loan shall be payable quarterly in
arrears on the last Business Day of each March, June, September and December,
except as otherwise provided in this Agreement and on the Termination Date or
any earlier date on which this Agreement is, pursuant to its terms and
conditions, terminated. The applicable Eurodollar Rate or Base Rate for each
Interest Period or day within an Interest Period, as the case may be, shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error. Interest on each Fixed Rate Loan shall be
payable on the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Fixed Rate Borrowing with an
Interest Period of more than three months' duration (unless otherwise specified
in the applicable Competitive Bid Request), each day prior to the last day of
such Interest Period, and any other dates that are specified in the applicable
Competitive Bid Request as interest payment dates with respect to such
Borrowing, and on the Termination Date or any earlier date on which this
Agreement is, pursuant to its terms and conditions, terminated.
(d) As used herein, "Applicable Margin" shall mean the sum of (i) the
applicable percentage per annum specified in the table below, to be determined
based upon the Ratings received by Weyerhaeuser from S&P and ▇▇▇▇▇'▇, and (ii)
the Utilization Fee. The applicable percentage referred to in clause (i) of the
immediately preceding sentence shall be determined based upon the Ratings, as
follows:
23
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5
------------ ------- ------- ------- ----------
S&P: A- or better BBB+ BBB BBB- Below BBB-
▇▇▇▇▇'▇: A3 or better Baa1 Baa2 Baa3 Below Baa3
Eurodollar Loan: 0.260% 0.34% 0.375% 0.575% 0.775%
Base Rate Loan: 0.0000% 0.0000% 0.0000% 0.0000% 0.000%
The Applicable Margin shall change effective as of the date on which
the applicable rating agency announces any change in its Ratings. In the event
either S&P or ▇▇▇▇▇'▇ shall withdraw or suspend its Ratings, the remaining
Rating announced by either S&P or ▇▇▇▇▇'▇, as the case may be, shall apply. In
the event neither agency shall provide a Rating, the Applicable Margin shall be
based on the lowest rating provided above. If the Ratings by S&P and ▇▇▇▇▇'▇ are
split so that two consecutive Levels (as defined in the table above) apply, the
higher of those Ratings shall determine the Applicable Margin. If the Ratings by
S&P and ▇▇▇▇▇'▇ are split so that the applicable Levels in the table above are
separated by only one intermediate Level, then such intermediate Level shall
determine the Applicable Margin. If the Ratings by S&P and ▇▇▇▇▇'▇ are split so
that the applicable Levels in the table above are separated by two intermediate
Levels, then the intermediate Level representing the lowest Rating shall
determine the Applicable Margin. The Applicable Margin shall be calculated by
the Administrative Agent, which calculation absent manifest error shall be final
and binding on all parties.
(e) As used herein, "Utilization Fee" shall mean (i) with respect to
any date on which the sum of (A) the Aggregate Credit Exposure plus (B) the
aggregate principal amount of outstanding Competitive Loans is equal to or
exceeds 50% of the Total Commitment, the applicable percentage specified in the
table below (the "Applicable Utilization Fee Percentage"), to be determined
based upon the Ratings received by Weyerhaeuser from S&P and ▇▇▇▇▇'▇, and (ii)
at all other times, 0.000%. The applicable percentage referred to in clause (i)
of the immediately preceding sentence shall be determined based upon the
Ratings, as follows:
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5
------------ ------- ------- ------- ----------
S&P: A- or better BBB+ BBB BBB- Below BBB-
▇▇▇▇▇'▇: A3 or better ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Below Baa3
Applicable
Utilization Fee
Percentage: 0.125% 0.125% 0.125% 0.125% 0.250%
The Applicable Utilization Fee Percentage shall change effective as of
the date on which the applicable rating agency announces any change in its
Ratings. In the event either S&P or ▇▇▇▇▇'▇ shall withdraw or suspend its
Ratings, the remaining Rating announced by either S&P or ▇▇▇▇▇'▇, as the case
may be, shall apply. In the event neither agency shall provide a Rating, the
Applicable Utilization Fee Percentage shall be based on the lowest rating
provided above. If the Ratings by S&P and ▇▇▇▇▇'▇ are split so that two
consecutive Levels (as defined in the table above) apply, the higher of those
Ratings shall determine the Applicable Utilization
24
Fee Percentage. If the Ratings by S&P and ▇▇▇▇▇'▇ are split so that the
applicable Levels in the table above are separated by only one intermediate
Level, then such intermediate Level shall determine the Applicable Utilization
Fee Percentage. If the Ratings by S&P and ▇▇▇▇▇'▇ are split so that the
applicable Levels in the table above are separated by two intermediate Levels,
then the intermediate Level representing the lowest Rating shall determine the
Applicable Utilization Fee Percentage. The Applicable Utilization Fee Percentage
shall be calculated by the Administrative Agent, which calculation absent
manifest error shall be final and binding on all parties.
(f) Subject to the provisions of Section 2.07, the Loans comprising
each Fixed Rate Borrowing will bear interest at the Fixed Rate applicable to
such Loans.
Section 2.07 Default Interest. If a Borrower shall default in the
payment of the principal of or interest on any of its Loans or any other amount
becoming due hereunder (other than any L/C Disbursement that has been made by a
Fronting Bank and not yet due pursuant to the terms of Section 2.20(e)), whether
by scheduled maturity, notice of prepayment, acceleration or otherwise, such
Borrower shall on demand from time to time by the Administrative Agent pay
interest, to the extent permitted by law, on such defaulted amount up to (but
not including) the date of actual payment (after as well as before judgment) at
a rate per annum equal to the rate of interest applicable thereto at maturity or
due date plus 2%.
Section 2.08 Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent (or, in the
case of a Eurodollar Competitive Loan, the Lender that is required to make such
Loan) shall have determined in good faith that dollar deposits in the principal
amounts of the Eurodollar Loans comprising such Borrowing are not generally
available in the London interbank market, or that the rates at which such dollar
deposits are being offered will not adequately and fairly reflect the cost to
the Required Lenders (or, in the case of a Eurodollar Competitive Loan, the
Lender that is required to make such Loan) of making or maintaining their
Eurodollar Loans during such Interest Period, or that reasonable means do not
exist for ascertaining the Eurodollar Rate, the Administrative Agent (or, in the
case of a Eurodollar Competitive Loan, the Lender that is required to make such
Loan) shall, as soon as practicable thereafter, give written notice of such
determination to the Borrowers and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrowers
and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any request by the Borrowers for a Eurodollar Revolving Borrowing
pursuant to Section 2.02 shall be deemed to be a request for a Base Rate
Borrowing, (ii) any request by the Borrowers for a conversion to, or a
continuation of, a Eurodollar Revolving Borrowing pursuant to Section 2.03 shall
be deemed to be a request for, respectively, a continuation as, or a conversion
to, a Base Rate Borrowing, and (iii) any request for a Eurodollar Competitive
Borrowing shall be ineffective; provided, that if the circumstances giving rise
to such notice do not affect all Lenders, then requests for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby.
Each determination by the Administrative Agent hereunder shall be conclusive
absent manifest error.
Section 2.09 Termination and Reduction of Commitments. (a) The unused
Commitments of each Lender shall be automatically terminated on the Termination
Date.
25
(b) Subject to Section 2.10(b), upon at least three Business Days'
prior irrevocable written notice to the Administrative Agent, the Borrowers may
at any time in whole permanently terminate, or from time to time in part
permanently reduce, the Total Commitment; provided, however, that (i) each
partial reduction shall be in an integral multiple of $1,000,000 and in a
minimum principal amount of $25,000,000 and (ii) no such termination or
reduction shall be made which would reduce the Total Commitment to an amount
less than the sum of the aggregate outstanding principal amount of Loans and the
aggregate L/C Exposure.
(c) Subject to Section 2.18, each reduction in the Total Commitment
hereunder shall be made ratably among the Lenders in accordance with their
respective Commitments. The Borrowers jointly and severally agree to pay to the
Administrative Agent for the account of the Lenders, on the date of each
termination or reduction, the Facility Fees on the amount of the Commitments so
terminated or reduced accrued through the date of such termination or reduction.
Section 2.10 Prepayment. (a) Voluntary Prepayments. Except as provided
in the next sentence below, each of the Borrowers shall have the right at any
time and from time to time to prepay any of its respective Revolving Borrowings,
in whole or in part, upon giving written notice (or telephone notice promptly
confirmed by written notice) to the Administrative Agent: (i) before 12:00 noon,
New York City time, three Business Days prior to prepayment, in the case of
Eurodollar Loans and (ii) before 12:00 noon, New York City time, one Business
Day prior to prepayment, in the case of Base Rate Loans; provided, however, that
each partial prepayment shall be in an amount which is an integral multiple of
$1,000,000 and not less than $25,000,000. The Borrowers shall not have the right
to prepay any Competitive Loan without the prior consent of the Lender thereof.
(b) Mandatory Prepayments. On the date of any termination or reduction
of the Commitments pursuant to Section 2.09, the Borrowers shall pay or prepay
so much of their respective Borrowings as shall be necessary in order that the
aggregate principal amount of Loans outstanding and the aggregate L/C Exposure
does not exceed the Total Commitment, after giving effect to such termination or
reduction.
(c) Each notice of prepayment under paragraph (a) above shall specify
the prepayment date and the principal amount of each Borrowing (or portion
thereof) to be prepaid, shall be irrevocable and shall commit the applicable
Borrower to prepay such Borrowing (or portion thereof) by the amount stated
therein on the date stated therein. All prepayments under this Section 2.10
shall be subject to Section 2.13 but otherwise without premium or penalty. All
prepayments under this Section 2.10 shall be accompanied by accrued interest on
the principal amount being prepaid to the date of payment.
Section 2.11 Reserve Requirements; Change in Circumstances. (a) It is
understood that the cost to each Lender (including the Administrative Agent, any
Swing Line Bank and any Fronting Bank) of making or maintaining any of the
Eurodollar Loans or Letters of Credit may fluctuate as a result of the
applicability of reserve requirements imposed by the Board at the ratios
provided for in Regulation D. Each Borrower agrees to pay to each of such
Lenders from time to time, as provided in paragraph (d) below, such amounts as
shall be necessary to compensate such Lender for the portion of the cost of
making or maintaining
26
Eurodollar Loans to such Borrower (or issuing Letters of Credit for the account
of Weyerhaeuser) resulting from any such reserve requirements provided for in
Regulation D as in effect on the date thereof, it being understood that the
rates of interest applicable to Eurodollar Loans have been determined on the
assumption that no such reserve requirements exist or will exist and that such
rates do not reflect costs imposed on the Lenders in connection with such
reserve requirements. It is agreed that for purposes of this paragraph (a) the
Eurodollar Loans made hereunder shall be deemed to constitute Eurocurrency
Liabilities as defined in Regulation D and to be subject to the reserve
requirements of Regulation D without the benefit of or credit for proration,
exemptions or offsets which might otherwise be available to the Lenders from
time to time under Regulation D.
(b) Notwithstanding any other provision herein, if after the date of
this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation of any payments to any Lender
(including the Administrative Agent, any Swing Line Bank and any Fronting Bank)
of the principal of or interest on any Eurodollar Loan or Fixed Rate Loan made
by such Lender, of any payments related to the Letters of Credit or any Fees or
other amounts payable hereunder (other than changes in respect of taxes imposed
on the overall net income of such Lender by the jurisdiction in which such
Lender has its principal office or by any political subdivision or taxing
authority therein), or shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of or credit extended by such Lender, or shall impose on such Lender
or the London interbank market any other condition affecting this Agreement, any
Eurodollar Loan or Fixed Rate Loan made by such Lender or any Letter of Credit
issued by any Fronting Bank hereunder, and the result of any of the foregoing
shall be to increase the cost to such Lender of making or maintaining any
Eurodollar Loan or Fixed Rate Loan (or issuing any Letter of Credit) or to
reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or otherwise) in respect thereof by an amount
deemed by such Lender to be material, then the applicable Borrower will pay to
such Lender upon demand such additional amount or amounts as will compensate
such Lender for such additional costs actually incurred or reduction actually
suffered.
(c) If after the date hereof any Lender (including the Administrative
Agent, the Swing Line Banks and any Fronting Bank) shall have determined that
the general applicability of any law, rule, regulation or guideline adopted
pursuant to or arising out of the July 1988 report of the Basle Committee on
Banking Regulations and Supervisory Practices entitled "International
Convergence of Capital Measurement and Capital Standards," or the adoption after
the date hereof of any other generally applicable law, rule, regulation or
guideline regarding capital adequacy, or any change in any of the foregoing or
in the interpretation or administration of any of the foregoing by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or any Lender's holding company with any request
or directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's capital or on the capital
of such Lender's holding company, if any, as a consequence of this Agreement,
the Loans made by such Lender pursuant hereto (or the Letters of Credit issued
hereunder) to a level below that which such Lender or such Lender's
27
holding company could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's policies and the policies of such
Lender's holding company with respect to capital adequacy) by an amount deemed
by such Lender to be material, then from time to time, the applicable Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or such Lender's holding company for any such reduction suffered.
(d) A certificate of a Lender (including the Administrative Agent, the
Swing Line Banks and any Fronting Bank) setting forth a reasonably detailed
explanation of such amount or amounts as shall be necessary to compensate such
Lender (or participating banks or other entities pursuant to Section 9.04) as
specified in paragraph (a), (b) or (c) above, as the case may be, shall be
delivered to the Borrowers and shall be conclusive absent manifest error. The
Borrowers shall pay each Lender the amount shown as due on any such certificate
delivered by it within 10 days after the receipt of the same.
(e) Failure on the part of any Lender to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Lender's right to demand compensation with respect to such period or any
other period; provided that the Borrowers shall not be required to compensate a
Lender pursuant to this Section 2.11 for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender notifies the
Borrowers of such increased costs or reductions in accordance with paragraph (d)
above and of such Lender's intention to claim compensation thereof; provided
further that, if the circumstances giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.
(f) Notwithstanding any other provision of this Section 2.11, no
Lender shall demand compensation for any increased costs or reduction referred
to above if it shall not be the general policy or practice of such Lender to
demand such compensation in similar circumstances under comparable provisions of
other credit agreements, if any (it being understood that this sentence shall
not in any way limit the discretion of any Lender to waive the right to demand
such compensation in any given case).
Section 2.12 Change in Legality. (a) Notwithstanding any other
provision herein contained, if any change in any law or regulation or in the
interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
(including the Administrative Agent, any Swing Line Bank and any Fronting Bank)
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrowers and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Lender hereunder and any request by either Borrower for a Eurodollar
Revolving Borrowing or a conversion to or continuation of a Eurodollar
Revolving Borrowing shall, as to such Lender only, be deemed a request for
a Base Rate Loan unless such declaration shall be subsequently withdrawn;
and
28
(ii) require that all outstanding Eurodollar Revolving Loans made by
it be converted into Base Rate Loans, in which event all such Eurodollar
Revolving Loans shall be automatically converted into Base Rate Loans as of
the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Revolving Loans that would have been made by such Lender or
the converted Eurodollar Revolving Loans of such Lender shall instead be applied
to repay the Base Rate Loans made by such Lender in lieu of, or resulting from
the conversion of, such Eurodollar Revolving Loans.
(b) For purposes of this Section 2.12, a notice to a Borrower by any
Lender shall be effective as to each Eurodollar Revolving Loan, if lawful, on
the last day of the Interest Period currently applicable to such Eurodollar
Revolving Loan; in all other cases such notice shall be effective on the date of
receipt by such Borrower.
Section 2.13 Indemnity. Each Borrower shall indemnify each Lender
against any loss or expense which such Lender sustains or incurs as a
consequence of (a) any failure by such Borrower to fulfill on the date of any
borrowing or any issuance of Letters of Credit hereunder the applicable
conditions set forth in Article IV, (b) any failure by such Borrower to borrow
or continue any Loan hereunder or to proceed with the issuance of a Letter of
Credit hereunder after irrevocable notice of such borrowing, continuation or
issuance has been given pursuant to Section 2.02, 2.03, 2.19, 2.20 or 2.21, as
applicable, (c) any payment, prepayment or conversion of a Eurodollar Loan
required by any other provision of this Agreement or otherwise made or deemed
made to or by such Borrower on a date other than the last day of the Interest
Period applicable thereto; provided that such Borrower shall not be required to
indemnify a Lender pursuant to this clause (c) for any loss or expense to the
extent any such loss or expense shall have been incurred pursuant to (i) Section
2.11, 2.12 or 2.17 or (ii) Section 2.10(a) more than six months prior to the
date that the applicable Lender shall have notified such Borrower of its
intention to claim compensation therefor, (d) any default in payment or
prepayment of the principal amount of any Loan to such Borrower or any part
thereof or interest accrued thereon, as and when due and payable (at the due
date thereof, whether by scheduled maturity, acceleration, irrevocable notice of
prepayment or otherwise), (e) the failure of such Borrower to borrow any
Competitive Loan after accepting the Competitive Bid to make such Loan, or (f)
the occurrence of any Event of Default including, in each such case, any loss or
reasonable expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a Eurodollar Loan. Such loss or
reasonable expense shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (i) its cost of obtaining the funds for
the Loan being paid, prepaid, converted or not borrowed (based, in the case of a
Eurodollar Loan, on the Eurodollar Rate) for the period from the date of such
payment, prepayment or conversion or failure to borrow to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan which would have commenced on the date of such
failure) over (ii) the amount of interest (as reasonably determined by such
Lender) that would be realized by such Lender in reemploying the funds so paid,
prepaid or converted or not borrowed for such period or Interest Period, as the
case may be. A certificate of any Lender setting forth a reasonably detailed
29
explanation of any amount or amounts which such Lender is entitled to receive
pursuant to this Section shall be delivered to such Borrower and shall be
conclusive absent manifest error.
Section 2.14 Pro Rata Treatment. Except in the case of any Competitive
Borrowing or as required under Sections 2.12 or 2.18, each Borrowing, each
payment or prepayment of principal of any Borrowing, each payment of interest on
the Loans, each payment of the Facility Fees, each reduction of the Commitments
and each conversion of any Borrowing to a Borrowing of any Type, shall be
allocated pro rata among the Lenders in accordance with their respective
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Revolving
Loans). Each payment of interest of any Competitive Borrowing shall be allocated
pro rata among the Lenders participating in such Borrowing in accordance with
the respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For the purpose of determining the
available Commitments of the Lenders at any time, each outstanding Competitive
Borrowing shall be deemed to have utilized the Commitments of the Lenders
(including those Lenders that have not made Loans as part of such Competitive
Borrowing) pro rata in accordance with such respective Commitments. Each Lender
agrees that in computing such Lender's portion of any Borrowing to be made
hereunder, the Administrative Agent may, in its discretion, round each Lender's
percentage of such Borrowing to the next higher or lower whole dollar amount.
Section 2.15 Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
a Borrower, or pursuant to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loans (other than (i)
Competitive Loans or (ii) pursuant to Sections 2.09, 2.11 and 2.12) as a result
of which the unpaid principal portion of its Loans (other than Competitive
Loans) shall be proportionately less than the unpaid principal portion of the
Loans (other than Competitive Loans) of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the
Loans (other than Competitive Loans) of such other Lender, so that the aggregate
unpaid principal amount of the Loans (other than Competitive Loans) and
participations in the Loans held by each Lender shall be in the same proportion
to the aggregate unpaid principal amount of all Loans (other than Competitive
Loans) then outstanding as the principal amount of its Loans (other than
Competitive Loans) prior to such exercise of banker's lien, setoff or
counterclaim or other event was to the principal amount of all Loans (other than
Competitive Loans) outstanding prior to such exercise of banker's lien, setoff
or counterclaim or other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.15 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. Each
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Loan (other than a Competitive Loan) deemed
to have been so purchased may exercise any and all rights of banker's lien,
setoff or counterclaim with respect to any and all moneys owing by such Borrower
30
to such Lender by reason thereof as fully as if such Lender had made a Loan
(other than a Competitive Loan) directly to such Borrower in the amount of such
participation.
Section 2.16 Payments. (a) The Borrowers shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts payable with respect to the Letters of Credit or otherwise) hereunder
and under any other Loan Document without setoff, counterclaim or deduction of
any kind not later than 12:00 (noon), New York City time, on the date when due
in dollars to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, in immediately available funds.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts payable with respect to the Letters of
Credit or otherwise) hereunder or under any other Loan Document shall become
due, or otherwise would occur, on a day that is not a Business Day, such payment
may be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of interest or Fees, if
applicable.
Section 2.17 Taxes. (a) Any and all payments by a Borrower hereunder
shall be made, in accordance with Section 2.16, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding any
income, franchise, branch profits or similar tax imposed on or measured by the
net income or net profits of the Administrative Agent, the Swing Line Banks, any
Fronting Bank or any Lender (or any transferee or assignee that acquires a Loan
(any such entity a "Transferee")) by the United States or any jurisdiction under
the laws of which it is organized or doing business or any political subdivision
thereof (all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If
either Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder to the Lenders (or any Transferee), the Swing Line
Banks, any Fronting Bank or the Administrative Agent, (i) the sum payable shall
be increased by the amount necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.17) such Lender (or Transferee), the Swing Line Banks, any
Fronting Bank or the Administrative Agent (as the case may be) shall receive an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower shall pay
the full amount deducted to the relevant taxing authority or other Governmental
Authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made by such Borrower hereunder or
under any other Loan Document or from the execution, delivery or registration of
or performance under this Agreement or any other Loan Document, or otherwise
with respect to such Borrower's role in this Agreement or any other Loan
Document (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Lender (or Transferee), each
Swing Line Bank, each Fronting Bank and the Administrative Agent for the full
amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed by
any jurisdiction on amounts
31
payable by such Borrower under this Section 2.17) paid by such Lender (or
Transferee), such Swing Line Bank, such Fronting Bank or the Administrative
Agent, as the case may be, and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted by the relevant taxing
authority or other Governmental Authority. Each Borrower shall also indemnify
each Lender (or any Transferee), each Fronting Bank and the Administrative Agent
for the full amount of taxes imposed on or measured by the net income or
receipts of such Lender (or any Transferee), such Swing Line Bank, such Fronting
Bank or the Administrative Agent, as the case may be, as such Lender (or
Transferee), such Fronting Bank or the Administrative Agent shall determine are
payable in respect of amounts paid by such Borrower to or on behalf of such
Lender (or any Transferee), such Swing Line Bank, such Fronting Bank or the
Administrative Agent, as the case may be, pursuant to this Section 2.17. Such
indemnification shall be made within 30 days after the date any Lender (or
Transferee), the Swing Line Banks, any Fronting Bank or the Administrative
Agent, as the case may be, makes written demand therefor. If any Lender (or
Transferee), any Fronting Bank or the Administrative Agent becomes entitled to a
refund of Taxes or Other Taxes for which such Lender (or Transferee), such Swing
Line Bank, such Fronting Bank or the Administrative Agent has received payment
from a Borrower hereunder, such Lender (or Transferee), such Swing Line Bank,
such Fronting Bank or Administrative Agent, as the case may be, shall, at the
expense of such Borrower, use its reasonable efforts (consistent with internal
policy, and legal and regulatory restrictions) to obtain such refund. If a
Lender (or Transferee), the Swing Line Banks, a Fronting Bank or the
Administrative Agent receives a refund or is entitled to claim a tax credit in
respect of any Taxes or Other Taxes for which such Lender (or Transferee), such
Swing Line Bank, such Fronting Bank or the Administrative Agent has received
payment from a Borrower hereunder it shall promptly notify such Borrower of such
refund or credit and shall, within 30 days after receipt of a request by such
Borrower (or promptly upon receipt, if such Borrower has requested application
for such refund or credit pursuant hereto), repay such refund or amount of
credit to such Borrower, net of all out-of-pocket expenses of such Lender (or
Transferee), such Swing Line Bank, such Fronting Bank or the Administrative
Agent, as applicable, and without interest; provided that each Borrower, upon
the request of such Lender (or Transferee), such Swing Line Bank, such Fronting
Bank or the Administrative Agent, agrees to return such refund or amount of
credit (plus penalties, interest or other charges) to such Lender (or
Transferee), such Swing Line Bank, such Fronting Bank or the Administrative
Agent in the event such Lender (or Transferee), such Swing Line Bank, such
Fronting Bank or the Administrative Agent is required to repay such refund or
such credit is denied or subsequently determined to be unavailable.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by either Borrower in respect of any payment to any Lender (or
Transferee), the Swing Line Banks, any Fronting Bank or the Administrative
Agent, such Borrower will furnish to the Administrative Agent, at its address
referred to in Section 9.01, the original or a certified copy of a receipt
evidencing payment thereof to the proper Governmental Authority.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.17 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
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(f) Each Lender (or Transferee), each Swing Line Bank or each Fronting
Bank, which is organized under the laws of a jurisdiction outside the United
States shall, on or prior to the date of its execution and delivery of this
Agreement or, in the case of a Transferee, on the date on which it becomes a
Lender and in the case of any Lender, any Swing Line Bank or any Fronting Bank,
on or prior to the date such Lender, such Swing Line Bank or such Fronting Bank
changes its funding office, and from time to time thereafter as requested in
writing by either Borrower (but only so long thereafter as such Lender, such
Swing Line Bank or such Fronting Bank remains lawfully able to do so), shall
deliver to the Borrowers and the Administrative Agent such certificates,
documents or other evidence, as required by the Code or Treasury Regulations
issued pursuant thereto, including Internal Revenue Service Form W-8BEN or Form
W-8ECI and any other certificate or statement of exemption required by Treasury
Regulation Section 1.1441-4(a) or 1.1441-6(c) or any subsequent version thereof,
properly completed and duly executed by such Lender (or Transferee), such Swing
Line Bank or such Fronting Bank establishing that any payment under the Loan
Documents is (i) not subject to withholding under the Code because such payment
is effectively connected with the conduct by such Lender (or Transferee) or such
Fronting Bank of a trade or business in the United States, or (ii) fully or
partially exempt from United States tax under a provision of an applicable tax
treaty, or (iii) not subject to withholding under the portfolio interest
exception under Section 881(c) of the Code (and, if such Lender (or Transferee),
such Swing Line Bank or such Fronting Bank delivers a Form W-8BEN claiming the
benefits of exemption from United States withholding tax under Section 881(c), a
certificate representing that such Lender (or Transferee), such Swing Line Bank
or such Fronting Bank is not a "bank" for purposes of Section 881(c) of the
Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of either Borrower and is not a controlled foreign
corporation related to either Borrower (within the meaning of Section 864(d)(4)
of the Code). Unless the Borrowers and the Administrative Agent have received
forms or other documents reasonably satisfactory to them indicating that
payments hereunder are not subject to United States withholding tax or are
subject to such tax at a rate reduced by an applicable tax treaty, each
applicable Borrower or the Administrative Agent shall withhold taxes from such
payments at the applicable statutory rate in the case of payments to or for any
Lender (or Transferee), any Swing Line Bank or any Fronting Bank organized under
the laws of a jurisdiction outside the United States. If a Lender (or
Transferee), a Swing Line Bank or a Fronting Bank is unable to deliver one of
these forms or if the forms provided by a Lender (or Transferee) or a Fronting
Bank, at the time such Lender (or Transferee), such Swing Line Bank or such
Fronting Bank, first becomes a party to this Agreement or at the time a Lender
(or Transferee), a Swing Line Bank or a Fronting Bank, changes its funding
office (other than at the request of a Borrower) indicate a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender (or
Transferee), such Swing Line Bank or such Fronting Bank, provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such appropriate forms; provided, however, that if at the effective
date of a transfer pursuant to which a Lender (or Transferee), a Swing Line Bank
or a Fronting Bank becomes a party to this Agreement, the Lender (or
Transferee), the Swing Line Banks or the Fronting Banks assignor was entitled to
payments under Section 2.17(a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in
33
Taxes) United States withholding tax, if any, applicable with respect to the
Lender (or Transferee), the Swing Line Banks or the Fronting Banks, assignee on
such date.
(g) The Borrowers shall not be required to pay any additional amounts
to any Lender (or Transferee), the Swing Line Banks or any Fronting Bank in
respect of United States withholding tax pursuant to paragraph (a) above for any
period in respect of which the obligation to pay such additional amounts would
not have arisen but for a failure by such Lender (or Transferee), such Swing
Line Bank or such Fronting Bank, to comply with the provisions of paragraph (f)
above unless such failure results from (i) a change in applicable law,
regulation or official interpretation thereof or (ii) an amendment, modification
or revocation of any applicable tax treaty or a change in official position
regarding the application or interpretation thereof, in each case after the
Closing Date (and, in the case of a Transferee, after the date of assignment or
transfer).
(h) Any Lender (or Transferee), any Swing Line Bank or any Fronting
Bank claiming any additional amounts payable pursuant to this Section 2.17 shall
use reasonable efforts (consistent with internal policy, and legal and
regulatory restrictions) to file any certificate or document requested by the
Borrowers or to change the jurisdiction of its applicable lending office if the
making of such a filing or change would avoid the need for or reduce the amount
of any such additional amounts which may thereafter accrue and would not, in the
reasonable determination of such Lender (or Transferee), such Swing Line Bank or
such Fronting Bank be materially disadvantageous to such Lender (or Transferee),
such Swing Line Bank or such Fronting Bank or require the disclosure of
information that such Lender (or Transferee), such Swing Line Bank or such
Fronting Bank reasonably considers to be confidential.
Section 2.18 Mitigation Obligations; Replacement of Lenders. (a) If
any Lender (including the Administrative Agent, any Swing Line Bank or any
Fronting Bank) requests compensation under Section 2.11, or if it becomes
unlawful for any Lender (including the Administrative Agent, any Swing Line Bank
or any Fronting Bank) to make or maintain Eurodollar Loans under Section 2.12,
or if a Borrower is required to pay any additional amount to any Lender, the
Administrative Agent, any Swing Line Bank, any Fronting Bank or any Governmental
Authority for the account of any Lender, the Administrative Agent or any
Fronting Bank pursuant to Section 2.17, then such Lender, the Administrative
Agent, such Swing Line Bank or such Fronting Bank shall, at the request of such
Borrower, use reasonable efforts to designate a different lending office for
funding or booking its Loans or for the issuance of Letters of Credit hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, the Administrative
Agent, such Swing Line Bank or such Fronting Bank, as the case may be, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.11 or 2.17 or no longer make it unlawful for such Lender, the
Administrative Agent, such Swing Line Bank or such Fronting Bank, to make or
maintain Eurodollar Loans under Section 2.12, as the case may be, in the future
and (ii) would not subject such Lender, the Administrative Agent, such Swing
Line Bank or such Fronting Bank, as the case may be, to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender, the
Administrative Agent, such Swing Line Bank or such Fronting Bank, as the case
may be. The Borrowers hereby agree, jointly and severally, to pay all
34
reasonable costs and expenses incurred by any Lender, the Administrative Agent,
the Swing Line Banks or any Fronting Bank in connection with any such
designation or assignment.
(b) If any Lender or any Fronting Bank requests compensation under
Section 2.11, or if it becomes unlawful for any Lender, any Swing Line Bank or
any Fronting Bank to make or maintain Eurodollar Loans under Section 2.12, or if
a Borrower is required to pay any additional amount to any Lender, any Swing
Line Bank any Fronting Bank or any Governmental Authority for the account of any
Lender, any Swing Line Bank or any Fronting Bank pursuant to Section 2.17, or if
any Lender, any Swing Line Bank or any Fronting Bank defaults in its obligation
to fund Loans or issue Letters of Credit hereunder, then the Borrowers may, at
their sole expense and effort, upon notice to such Lender, such Swing Line Bank
or such Fronting Bank and the Administrative Agent, (i) require such Lender,
such Swing Line Bank or such Fronting Bank to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (x) the Borrowers shall have received
the prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (y) such assigning Lender, Swing Line Bank or Fronting
Bank shall have received payment of an amount equal to the outstanding principal
of its Loans (other than Competitive Loans), accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the
Borrowers (in the case of all other amounts) and (z) in the case of any such
assignment resulting from a claim for compensation under Section 2.11 or
payments required to be made pursuant to Section 2.17, such assignment will
result in a reduction in such compensation or payments or (ii) terminate the
Commitment of such Lender upon notice given to such Lender within forty-five
(45) days of receipt of the notice given by the Lender; provided that such
notice shall be accompanied by prepayment in full of all Loans from such Lender,
including accrued interest thereon and any breakage costs, accrued fees and all
other amounts payable to such Lender, without extension, conversion or
continuation. A Lender, a Swing Line Bank or a Fronting Bank shall not be
required to make any such assignment and delegation under clause (i) above or
terminate its Commitment under clause (ii) above if, prior thereto, as a result
of a waiver by such Lender, such Swing Line Bank or such Fronting Bank or
otherwise, the circumstances entitling the Borrowers to require such assignment
and delegation or termination of Commitment cease to apply.
Section 2.19 Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the period from and
including the Closing Date to but excluding the Termination Date, a Borrower may
request Competitive Bids and may (but shall not have any obligation to) accept
Competitive Bids and borrow Competitive Loans; provided that the sum of (i) the
Aggregate Credit Exposure and (ii) the aggregate principal amount of outstanding
Competitive Loans at any time shall not exceed the Total Commitment. To request
Competitive Bids, a Borrower shall notify the Administrative Agent of such
request by telephone, in the case of a Eurodollar Borrowing, not later than
12:00 noon, New York City time, four Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than
12:00 noon, New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Competitive Bid Request shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Competitive Bid
35
Request in a form approved by the Administrative Agent and signed by such
Borrower. Each such telephonic and written Competitive Bid Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period": and
(v) the location and number of the Borrower's account to which funds
are to be disbursed.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section 2.19, the Administrative Agent shall notify the Lenders of the details
thereof in writing (which may be by telecopy) inviting the Lenders to submit
Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the applicable Borrower in response to a Competitive
Bid Request. Each Competitive Bid by a Lender must be substantially in a form to
be provided by the Administrative Agent and must be received by the
Administrative Agent by telecopy, in the case of a Eurodollar Competitive
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the proposed date of such Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 11:00 a.m., New York City time, on the
proposed date of such Competitive Borrowing. Competitive Bids that do not
conform substantially to the form provided by the Administrative Agent may be
rejected by the Administrative Agent, and the Administrative Agent shall notify
the applicable Lender as promptly as practicable. Each Competitive Bid shall
specify (i) the principal amount (which shall be a minimum of $5,000,000 and an
integral multiple of $1,000,000 and which may equal the entire principal amount
of the Competitive Borrowing requested by the applicable Borrower) of the
Competitive Loan or Loans that the Lender is willing to make, (ii) the
Competitive Bid Rate or Rates at which the Lender is prepared to make such Loan
or Loans (expressed as a percentage rate per annum in the form of a decimal to
no more than four decimal places) and (iii) the Interest Period applicable to
each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the applicable
Borrower in writing (which may be by telecopy) of the Competitive Bid Rate and
the principal amount specified in each Competitive Bid and the identity of the
Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower may
accept or reject any Competitive Bid. The applicable Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar
36
Competitive Borrowing, not later than 12:00 noon, New York City time, three
Business Days before the date of the proposed Competitive Borrowing, and in the
case of a Fixed Rate Borrowing, not later than 12:00 noon, New York City time,
on the proposed date of the Competitive Borrowing; provided that (i) the failure
of the applicable Borrower to give such notice shall be deemed to be a rejection
of each Competitive Bid, (ii) the applicable Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if such Borrower
rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by the applicable Borrower
shall not exceed the aggregate amount of the requested Competitive Borrowing
specified in the related Competitive Bid Request, (iv) to the extent necessary
to comply with clause (iii) above, the applicable Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of $1,000,000; provided further
that if a Competitive Loan must be in an amount less than $5,000,000 because of
the provisions of clause (iv) above, such Competitive Loan may be for a minimum
of $1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
applicable Borrower. A notice given by the applicable Borrower pursuant to this
paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
in writing (which may be by telecopy) whether or not its Competitive Bid has
been accepted (and, if so, the amount and Competitive Bid Rate so accepted), and
each successful bidder will upon receipt of such notice become bound, subject to
the terms and conditions hereof, to make the Competitive Loan in respect of
which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the applicable Borrower at least one quarter of an hour earlier than the time
by which the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
(g) The applicable Borrower shall pay, for each Competitive Bid
Request submitted pursuant to Section 2.19(a), an auction fee to the
Administrative Agent in an amount to be agreed by and between the Borrower and
the Administrative Agent. Such auction fee shall be due and owing irrespective
of whether any Lender submits a Competitive Bid pursuant to such Competitive Bid
Request.
Section 2.20 Letters of Credit. (a) General. Weyerhaeuser may from
time to time request the issuance of Letters of Credit for its own account (for
obligations of Weyerhaeuser or any of its Subsidiaries), denominated in dollars,
in form reasonably acceptable to the Administrative Agent and the applicable
Fronting Bank, at any time and from time to time until the earlier of (i) the
date that is five Business Days prior to the Termination Date and (ii) the
termination of the Commitments hereunder. The letters of credit identified on
Schedule 2.20
37
(the "Existing Letters of Credit") shall be deemed to be "Letters of Credit"
issued on the Closing Date for all purposes of this Agreement and the other Loan
Documents. This Section shall not be construed to impose an obligation upon any
Fronting Bank to issue any Letter of Credit that is inconsistent with the terms
and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), Weyerhaeuser shall hand deliver
or telecopy to the applicable Fronting Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, the date of
issuance, amendment, renewal or extension, the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) below), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare such Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only if, and upon
issuance, amendment, renewal or extension of each Letter of Credit Weyerhaeuser
shall be deemed to represent and warrant that, after giving effect to such
issuance, amendment, renewal or extension, the sum of (i) the Aggregate Credit
Exposure and (ii) the aggregate principal amount of outstanding Competitive
Loans shall not exceed the Total Commitment. The Administrative Agent shall,
from time to time at the request of any Lender and in any case once during each
fiscal quarter of Weyerhaeuser and based on the information provided to it by
the Fronting Banks, provide the Lenders with the amount of the L/C Exposure.
Each of the Fronting Banks hereby agrees to provide the Administrative Agent on
demand with all the information necessary in the computation thereof.
(c) Expiration Date. Each Letter of Credit shall expire no later than
the earlier of (i) one year from the date of its issuance and (ii) the date that
is five Business Days prior to the Termination Date.
(d) Participations. By the issuance of a Letter of Credit and without
any further action on the part of the applicable Fronting Bank or the Lenders,
each Fronting Bank hereby grants to each Lender, and each such Lender hereby
acquires from such Fronting Bank, a participation in each Letter of Credit
issued by such Fronting Bank equal to such Lender's Applicable Percentage from
time to time of the aggregate amount available to be drawn under such Letter of
Credit, effective upon the issuance of such Letter of Credit. In consideration
and in furtherance of the foregoing and for so long as any Letters of Credit
shall remain outstanding hereunder, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the applicable Fronting Bank, such Lender's proportionate share of each L/C
Disbursement made by such Fronting Bank and not reimbursed by Weyerhaeuser
forthwith on the date due as provided in Section 2.20(e). Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute, unconditional and
irrevocable and shall not be affected by any circumstance whatsoever, including
the occurrence and continuance of a Default or an Event of Default or the
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
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(e) Reimbursement. If a Fronting Bank shall make any L/C Disbursement
in respect of a Letter of Credit, Weyerhaeuser shall pay to the Administrative
Agent an amount equal to such L/C Disbursement not later than the Business Day
after Weyerhaeuser shall have received notice from such Fronting Bank that
payment of such draft has been made. Upon receipt thereof, the Administrative
Agent shall promptly distribute such reimbursement payment to such Fronting Bank
and to the extent each Lender has funded its participation therein in accordance
with paragraph (d), to such Lenders.
(f) Obligations Absolute. Weyerhaeuser's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or
any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
Weyerhaeuser, any other party guaranteeing, or otherwise obligated with,
Weyerhaeuser or any subsidiary or other affiliate thereof or any other
person may at any time have against the beneficiary under any Letter of
Credit, any Fronting Bank, the Administrative Agent or any Lender or any
other person, whether in connection with this Agreement, any other Loan
Document or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(v) payment by any Fronting Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of any
Fronting Bank, the Lenders, the Administrative Agent or any other person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of Weyerhaeuser's obligations
hereunder;
provided, however, that the foregoing shall not be construed to excuse any
Fronting Bank from liability to Weyerhaeuser to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by Weyerhaeuser to the extent permitted by applicable law) suffered by
Weyerhaeuser that are caused by such Fronting Bank's gross negligence or willful
misconduct in determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof.
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It is understood that any Fronting Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) the applicable Fronting Bank's
exclusive reliance on the documents presented to it under such Letter of Credit
as to any and all matters set forth therein, including reliance on the amount of
any draft presented under such Letter of Credit, whether or not the amount due
to the beneficiary thereunder equals the amount of such draft and whether or not
any document presented pursuant to such Letter of Credit proves to be
insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or untrue in any respect whatsoever
and (ii) any noncompliance in any immaterial respect of the documents presented
under such Letter of Credit with the terms thereof shall, in each case, be
deemed not to constitute willful misconduct or gross negligence of such Fronting
Bank.
(g) Disbursement Procedures. Each Fronting Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The applicable Fronting Bank shall
as promptly as possible give telephonic notification, confirmed by telecopy, to
the Administrative Agent and Weyerhaeuser of such demand for payment and whether
such Fronting Bank has made or will make an L/C Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve Weyerhaeuser of its obligation to reimburse such Fronting Bank and the
Lenders with respect to any such L/C Disbursement. The Administrative Agent
shall promptly give each Lender notice thereof.
(h) Interim Interest. When (x) a Fronting Bank shall make any L/C
Disbursement in respect of a Letter of Credit or (y) any Lender shall have
acquired a participation in a Letter of Credit pursuant to Section 2.20(d),
then, unless Weyerhaeuser shall reimburse such L/C Disbursement or pay for such
participation in full on the date thereof, the unpaid amount thereof shall bear
interest for the account of such Fronting Bank or such Lender, as applicable,
for each day from and including the date of such L/C Disbursement or the
acquisition of such participation, as applicable, to but excluding the earlier
of, to the extent applicable, the date of payment by Weyerhaeuser or the date on
which interest shall commence to accrue on the Base Rate Loans resulting from
such L/C Disbursement as provided in Section 2.02(f), at the rate per annum that
would apply to such amount if such amount were a Base Rate Loan.
(i) Cash Collateralization. If any Event of Default shall occur and be
continuing, Weyerhaeuser shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders thereof and of the amount to be
deposited, deposit in an account with the Administrative Agent, for the benefit
of the Fronting Banks and the Lenders, as applicable, an amount in cash equal to
the portion of the L/C Exposure attributable to Letters of Credit issued for the
account of Weyerhaeuser and outstanding as of such date.
Each deposit of cash pursuant to this Section 2.20(i) shall be held by
the Administrative Agent as collateral for the payment and performance of the
obligations under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the
40
exclusive right of withdrawal, over such account. Such deposits shall not bear
interest. Moneys in such account shall automatically be applied by the
Administrative Agent to reimburse the applicable Fronting Bank and Lenders
participating pursuant to Section 2.20(d) for L/C Disbursements attributable to
Letters of Credit issued for the account of Weyerhaeuser for which such Fronting
Bank and such participating Lenders have not been reimbursed, and any remaining
amounts will either (i) be held for the satisfaction of the reimbursement
obligations of Weyerhaeuser for the L/C Exposure at such time or (ii) if the
maturity of the Loans has been accelerated, be applied to satisfy the
obligations of the Borrowers under this Agreement. If Weyerhaeuser is required
to provide an amount of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to Weyerhaeuser within three Business Days after all Events of
Default have been cured or waived.
Section 2.21 Swing Line Loans. (a) A Borrower may request a Swing Line
Bank to make, and such Swing Line Bank shall make, on the terms and conditions
hereinafter set forth, Swing Line Loans to such Borrower from time to time on
any Business Day during the period from the date hereof until the Termination
Date in an aggregate amount (for all outstanding Swing Line Loans) not to exceed
at any time outstanding $100,000,000; subject, however, to the conditions that
(i) at no time shall the outstanding aggregate principal amount of all Loans
made by all Lenders and the Swing Line Banks plus the L/C Exposure of all
Lenders at such time exceed the Total Commitment, (ii) at no time shall the
outstanding aggregate principal amount of all Loans made by all Lenders and the
Swing Line Banks to WRECO at such time exceed $400,000,000 and (iii) at no time
shall the outstanding aggregate principal amount of Swing Line Loans made by a
Swing Line Bank exceed $50,000,000. No Swing Line Loan shall be used for the
purpose of funding the payment of principal of any other Swing Line Loan. Each
Swing Line Borrowing shall be in an amount of $1,000,000 or an integral multiple
of $100,000 in excess thereof and shall be made as a Base Rate Loan.
(b) In order to request a Swing Line Borrowing, a Borrower shall hand
deliver or telecopy to the relevant Swing Line Bank and the Administrative Agent
a Swing Line Borrowing Request not later than 3:00 p.m., New York City time, on
the day of a proposed borrowing. Such notice shall be irrevocable and shall in
each case specify (i) the date of such Swing Line Borrowing (which shall be a
Business Day) and the amount thereof; and (ii) the maturity of such Swing Line
Borrowing (which maturity shall be no later than the seventh day after the
requested date of such Swing Line Borrowing). Such Swing Line Bank will make the
amount thereof available to the Administrative Agent on the proposed date
thereof by wire transfer of immediately available funds to the Administrative
Agent in New York, New York, not later than 4:00 p.m., New York City time, and
the Administrative Agent shall by 5:00 p.m., New York City time, credit the
amount so received to the general deposit account of the applicable Borrower
maintained with the Administrative Agent or, if a Swing Line Borrowing shall not
occur on such date because any condition precedent herein specified shall not
have been met, return the amount so received to such Swing Line Bank.
(c) Upon written demand by a Swing Line Bank, with a copy of such
demand to the Administrative Agent, each other Lender shall purchase from such
Swing Line Bank, and such Swing Line Bank shall sell and assign to each such
other Lender, such other Lender's Applicable Percentage of the Swing Line Loans
of such Swing Line Bank as of the date of such
41
demand, by making available to the Administrative Agent in New York, New York
for the account of such Swing Line Bank by wire transfer of immediately
available funds, an amount equal to the portion of the outstanding principal
amount of such Swing Line Loan to be purchased by such Lender. The Borrowers
hereby agree to each such sale and assignment. Each Lender agrees to purchase
its Applicable Percentage of outstanding Swing Line Loans pursuant to the first
sentence of this paragraph (c) on (i) the Business Day on which demand therefor
is made by the relevant Swing Line Bank, provided, that notice of such demand is
given to such Lender not later than 12:00 noon, New York City time, on such
Business Day or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. If and to the extent that any
Lender shall have received such notice of demand and shall not have so made the
amount of the relevant Swing Line Loans available to the Administrative Agent,
such Lender agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
the relevant Swing Line Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate. If such Lender shall pay to the
Administrative Agent such amount for the account of the relevant Swing Line Bank
on any Business Day, such amount so paid in respect of principal shall
constitute a Swing Line Loan made by such Lender on such Business Day for
purposes of this Agreement, and the outstanding principal amount of the Swing
Line Loans made by such Swing Line Bank shall be reduced by such amount on such
Business Day.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Borrowers represents and warrants to each of the Lenders,
the Swing Line Banks and each of the Fronting Banks that:
Section 3.01 Organization; Powers. Such Borrower and each of its
Restricted Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted, (c) is
qualified to do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not result in a Material
Adverse Effect, and (d) in the case of such Borrower, has the corporate power
and authority to execute, deliver and perform its obligations under each of the
Loan Documents and each other agreement or instrument contemplated thereby to
which it is or will be a party and to borrow hereunder.
Section 3.02 Authorization. The execution, delivery and performance by
such Borrower of each of the Loan Documents and the borrowings and issuances of
Letters of Credit hereunder, and the consummation of the other transactions
contemplated hereby (collectively, the "Transactions") (a) have been duly
authorized by all requisite corporate and, if required, stockholder action and
(b) (i) will not violate (A) any provision of law, statute, rule or regulation,
(B) of the certificate or articles of incorporation or other constitutive
documents or by-laws of such Borrower or any of its Restricted Subsidiaries, (C)
any order of any Governmental Authority or (D) any provision of any indenture,
agreement or other instrument to which such Borrower or any of its Restricted
Subsidiaries is a party or by which any of them or any of their property is or
may be bound, (ii) will not be in conflict with, result in a breach of or
constitute
42
(alone or with notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or (iii) will not result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by such Borrower or any of its Restricted
Subsidiaries except, in each case other than (a) and (b)(i)(B), as could not
reasonably be expected to have a Material Adverse Effect.
Section 3.03 Enforceability. This Agreement has been duly executed and
delivered by such Borrower and constitutes, and each other Loan Document when
executed and delivered by such Borrower will constitute, a legal, valid and
binding obligation of such Borrower enforceable against such Borrower in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
Section 3.04 Consents and Approvals. No action, consent or approval
of, registration or filing with, or any other action by any Governmental
Authority or any other third party is or will be required in connection with the
Transactions, except as have been made or obtained (without the imposition of
any conditions that are not acceptable to the Lenders) and are in full force and
effect (other than any action, consent, approval, registration or filing the
absence of which could not reasonably be expected, either individually or in the
aggregate with any such other consents, approvals, registrations or filings, to
result in a Material Adverse Effect). No law or regulation shall be applicable,
restraining, preventing or imposing materially adverse conditions upon the
Transactions or the rights of the Borrowers and their respective subsidiaries
freely to transfer or otherwise dispose of, or to create any Lien on, any
properties now owned or hereafter acquired by any of them except, in each case,
as could not reasonably be expected to have a Material Adverse Effect.
Section 3.05 Financial Statements. (a) Weyerhaeuser has heretofore
furnished to the Lenders its consolidated balance sheets and statements of
earnings and statements of cash flows, together with the notes thereto, as of
and for the fiscal year ended December 26, 2004, audited by and accompanied by
the opinion of KPMG LLP, independent public accountants.
(b) WRECO has heretofore furnished to the Lenders its consolidated
balance sheets and statements of earnings and statements of cash flows, together
with the notes thereto, as of and for the fiscal year ended December 26, 2004,
audited by and accompanied by the opinion of KPMG LLP, independent public
accountants.
(c) Such financial statements referred to in Section 3.05(a) and (b)
present fairly in all material respects the financial position and results of
operations of Weyerhaeuser, WRECO and their respective consolidated subsidiaries
as of such dates and for such periods. Such balance sheets and the notes thereto
disclose all material liabilities, direct or contingent, of Weyerhaeuser, WRECO
and their respective consolidated subsidiaries as of the dates thereof. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis.
Section 3.06 No Material Adverse Change. Other than changes in
operating results arising in the ordinary course of business and except as
otherwise disclosed publicly or to the Lenders prior to the date hereof, there
has been no material adverse change in the business,
43
financial condition, operations or properties of Weyerhaeuser and its
subsidiaries, taken as a whole, since December 26, 2004.
Section 3.07 Title to Properties; Possession Under Leases. (a) Each of
such Borrowers and its Restricted Subsidiaries has good and marketable title to,
or valid leasehold interests in, all of its material properties and assets,
except for defects in title that do not interfere with its ability to conduct
its business as currently conducted or to utilize such properties and assets for
their intended purposes.
(b) Each of such Borrowers and its Restricted Subsidiaries (i) has
complied with all obligations under all leases to which it is a party, and (ii)
enjoys peaceful and undisturbed possession under all such leases, except where
such non-compliance or lack of peaceful and undisturbed possession would not
result in a Material Adverse Effect. All leases to which the Borrowers and their
respective Restricted Subsidiaries are a party are in full force and effect,
except where such lack of force and effect would not result in a Material
Adverse Effect.
Section 3.08 Subsidiaries. Schedule 3.08 Part I for Weyerhaeuser and
Schedule 3.08 Part II for WRECO (i) set forth as of the Closing Date a list of
all subsidiaries of Weyerhaeuser and WRECO and the percentage ownership interest
of Weyerhaeuser and WRECO therein, as applicable, and (ii) for Weyerhaeuser and
WRECO, designate those Subsidiaries which are Unrestricted Subsidiaries.
Section 3.09 Litigation; Compliance with Laws. (a) Except as disclosed
in Weyerhaeuser's Report on Form 10-K for the fiscal year ended December 26,
2004, there are no actions, suits, investigations, litigations or proceedings
pending or, to the knowledge of the Borrowers, threatened against or affecting
the Borrowers or any of their Restricted Subsidiaries in any court or before any
arbitrator or Governmental Authority that could reasonably be expected to have a
Material Adverse Effect.
(b) Except as disclosed in Weyerhaeuser's Report on Form 10-K for the
fiscal year ended December 26, 2004, neither such Borrower nor any of its
Restricted Subsidiaries is in violation of any law, rule or regulation, or in
default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
Section 3.10 Agreements. (a) Neither such Borrower nor any of its
Restricted Subsidiaries is a party to any agreement or instrument or subject to
any corporate restriction that has resulted in a Material Adverse Effect.
(b) Neither such Borrower nor any of its Restricted Subsidiaries is in
default in any manner under any material agreement or instrument (except for any
indenture or other agreement or instrument evidencing Indebtedness) to which it
is a party or by which it or any of its properties or assets are or may be
bound, where such default could reasonably be expected to result in a Material
Adverse Effect.
Section 3.11 Federal Reserve Regulations. (a) Neither such Borrower
nor any of its Restricted Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
44
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, whether immediately, incidentally or ultimately, for any purpose
which entails a violation of, or which is inconsistent with, the provisions of
the Regulations of the Board, including Regulation T, U or X.
Section 3.12 Investment Company Act; Public Utility Holding Company
Act. Neither such Borrower nor any of its Restricted Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
Section 3.13 Tax Returns. Each of such Borrower and its Subsidiaries
has filed or caused to be filed all material Federal, state and local tax
returns required to have been filed by it and has paid or caused to be paid all
material taxes shown to be due and payable on such returns or on any assessments
received by it, except taxes that are being contested in good faith by
appropriate proceedings and for which such Borrower or Subsidiary, as the case
may be, shall have set aside on its books appropriate reserves.
Section 3.14 No Material Misstatements. No information, report,
financial statement, exhibit or schedule furnished by or on behalf of such
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto, when taken together with the reports and other filings with the SEC,
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Section 3.15 Compliance with ERISA. Except as would not have a
Material Adverse Effect, subject to the following sentences of this Section
3.15, each Plan subject to ERISA or the Code, as applicable, is in compliance
with ERISA and the Code; no Reportable Event has occurred with respect to a
Plan, no Plan is insolvent or in reorganization; no Plan has an Unfunded Current
Liability in excess of $40,000,000, and all Plans collectively do not have
Unfunded Current Liabilities in excess of $91,000,000 in the aggregate, and no
Plan subject to ERISA or the Code, as applicable, has an accumulated or waived
funding deficiency, has permitted decreases in its funding standard account or
has applied for an extension of any amortization period within the meaning of
Section 412 of the Code; neither such Borrower nor any ERISA Affiliate has
incurred any liability to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section
4975 of the Code or expects to incur any material liability under any of the
foregoing Sections with respect to any such Plan; no condition exists which
presents a risk to such Borrower or any ERISA Affiliate of incurring a liability
to or on account of a Plan pursuant to the foregoing provisions of ERISA and the
Code; no proceedings have been instituted to terminate any Plan; no lien imposed
under the Code or ERISA on the assets of such Borrower or any ERISA Affiliate
exists or is likely to arise on account of any Plan; such Borrower and its
Subsidiaries do not maintain or contribute to any "welfare plan" (within the
meaning of Section 3(1) of ERISA) which provides life insurance or health
benefits to retirees (other than as required by Section 601 of ERISA) the
obligations with respect to which could reasonably be expected to have a
Material Adverse Effect.
45
Section 3.16 Environmental Matters. Except as disclosed in
Weyerhaeuser's Report on Form 10-K for the fiscal year ended December 26, 2004,
filed with the SEC, (a) neither Borrower nor any of its Subsidiaries has failed
to comply with any Federal, state, local and other statutes, ordinances, orders,
judgments, rulings and regulations relating to environmental pollution or to
environmental regulation or control, where any such failure to comply, alone or
together with any other such noncompliance, could result in a Material Adverse
Effect; (b) neither Borrower nor any of its Subsidiaries has received notice of
any failure so to comply which alone or together with any other such failure
could result in a Material Adverse Effect; and (c) the Borrowers' and their
respective Subsidiaries' plants have not managed any hazardous wastes, hazardous
substances, hazardous materials, toxic substances or toxic pollutants, as those
terms are used in the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Clean Air Act, the
Clean Water Act or any other Environmental Law, in violation of any regulations
promulgated pursuant thereto or in any other applicable law where such violation
could reasonably result, individually or together with other violations, in a
Material Adverse Effect.
Section 3.17 Maintenance of Insurance. Such Borrower and each of its
Restricted Subsidiaries maintains insurance (which may be self insurance) for
all of its insurable properties: (a) by financially sound and reputable insurers
to the extent of insurance obtained from third party insurers; (b) to such
extent and against such risks, including fire and other risks insured against by
extended coverage, as is customary with companies in the same or similar
businesses, including public liability insurance against claims for personal
injury or death or property damage occurring upon, in, about or in connection
with the use of any properties owned, occupied or controlled by such Borrower or
such Restricted Subsidiaries; and (c) as may be required by law.
ARTICLE IV
CONDITIONS OF LENDING AND
ISSUANCE OF LETTERS OF CREDIT
The obligations of the Lenders (including the Swing Line Banks) to
make Loans hereunder and the obligation of each Fronting Bank to issue Letters
of Credit hereunder (or to amend, renew or extend an existing Letter of Credit)
are subject to the satisfaction of the following conditions:
Section 4.01 All Borrowings and Issuances. On the date of each
Borrowing and on the date of each issuance of a Letter of Credit (and each
amendment, renewal or extension thereof):
(a) Notice. The Administrative Agent and, as applicable, the Swing
Line Banks or any Fronting Bank, shall have received from the applicable
Borrower a notice of such Borrowing or a notice of such issuance, amendment,
renewal or extension as required by Section 2.02, 2.03, 2.19, 2.20 or 2.21, as
applicable.
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(b) Representations. The representations and warranties of the
Borrowers set forth in Sections 3.01, 3.02, 3.03, 3.04, 3.07, 3.10(b), 3.11 and
3.12 shall be true and correct in all material respects on and as of such date
with the same effect as though made on and as of such date at the time of and
immediately after such Borrowing or at the time of and immediately after the
issuance, amendment, renewal or extension of a Letter of Credit hereunder.
(c) Compliance, etc. The Borrowers shall be in compliance with all the
terms and provisions set forth herein and in each other Loan Document on their
part to be observed or performed, and, as applicable, at the time of and
immediately after such Borrowing or at the time of and immediately after the
issuance, amendment, renewal or extension of a Letter of Credit hereunder, no
Event of Default or Default shall have occurred and be continuing.
Each Borrowing and each issuance of a Letter of Credit hereunder (or
an amendment, renewal or extension thereof) shall be deemed to constitute a
representation and warranty by the Borrowers on the date of such Borrowing,
issuance, amendment, renewal or extension, as the case may be, as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
Section 4.02 Closing Date. In addition to all the conditions set forth
in Section 4.01, on or before the Closing Date:
(a) Opinions. The Administrative Agent shall have received a favorable
written opinion of (i) ▇▇▇▇▇▇▇ Coie, special counsel for the Borrowers, dated
the Closing Date and addressed to the Lenders, in form and substance reasonably
satisfactory to the Administrative Agent and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇, Esq., Senior
Legal Counsel to Weyerhaeuser, as counsel for Weyerhaeuser, dated the Closing
Date and addressed to the Lenders, in form and substance reasonably satisfactory
to the Administrative Agent.
(b) Legal Matters. All legal matters (including any documentation)
related to this Agreement and the Transactions shall be satisfactory to the
Lenders and to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the
Administrative Agent.
(c) Articles, etc. The Administrative Agent shall have received (i) a
copy of the certificate or articles of incorporation, including all amendments
thereto, of each of the Borrowers, certified as of a recent date by the
Secretary of State of their respective States of incorporation, and certificates
as to the good standing of each of the Borrowers, as of a recent date, from each
such Secretary of State; (ii) a certificate from each of the Borrowers of their
respective Secretary or Assistant Secretary dated the Closing Date and
certifying (A) that attached thereto is a true and complete copy of the by-laws
of such Borrower as in effect on the Closing Date and at all times since a date
prior to the date of the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors of such Borrower authorizing the execution, delivery and
performance of such Borrower of any and all documents and agreements to be
entered into with respect to the Loan Documents and the borrowings to be made
thereunder, and that such resolutions have not been modified,
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rescinded or amended and are in full force and effect, (C) that the certificate
or articles of incorporation of such Borrower have not been amended since the
date of the last amendment thereto shown on the certificates of good standing
furnished pursuant to clause (i) above, and (D) as to the incumbency and
specimen signature of each officer executing any Loan Document or any other
document or agreement delivered in connection with the Transactions on behalf of
such Borrower; (iii) a certification of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as the Lenders
or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Administrative Agent,
may reasonably request.
(d) Officers' Certificates. The Administrative Agent shall have
received a certificate from each Borrower, dated the Closing Date and signed by
a Financial Officer of such Borrower, confirming (i) compliance with the
condition precedent set forth in paragraph (c) of Section 4.01, and (ii) that
the representations and warranties of such Borrower set forth herein are true
and correct in all material respects on and as of the Closing Date (except for
representations and warranties expressly stated to relate to a specific earlier
date, in which case such representations and warranties are true and correct in
all material respects as of such earlier date), immediately prior to, and after
giving effect to, the initial Borrowing and/or the initial issuance of a Letter
of Credit hereunder.
(e) Fees. The Administrative Agent and the Lenders shall have received
all Fees and other amounts due and payable on or prior to the Closing Date.
(f) Loan Documents. The Administrative Agent shall have received a
fully executed counterpart of this Agreement, and an executed copy of each Loan
Document (other than this Agreement).
(g) Termination of Existing 364-Day Revolving Credit Agreement. The
Administrative Agent shall have received evidence satisfactory to it that the
commitments under the Existing 364-Day Revolving Credit Agreement shall have
expired or been terminated and all amounts then due and payable thereunder shall
have been paid.
ARTICLE V
AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees with each Lender, each Swing Line
Bank, each Fronting Bank and the Administrative Agent that, so long as this
Agreement shall remain in effect or the principal of or interest on any Loan,
any Fees or any other expenses or amounts payable under any Loan Document shall
be unpaid, or any Letter of Credit shall remain outstanding (which has not been
collateralized (with cash or a back-to-back letter of credit issued by a
satisfactory financial institution) in a manner satisfactory to the applicable
Fronting Banks and the Administrative Agent), or any amounts drawn thereunder
shall remain unpaid, unless the Required Lenders (or, where indicated, the
Lenders) shall otherwise consent in writing, each
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Borrower will, and will cause each of its Restricted Subsidiaries (except in the
case of Sections 5.03 (which applies to Weyerhaeuser), 5.06 (which applies to
Weyerhaeuser, WRECO and their respective ERISA Affiliates) and 5.09 (which
applies to Weyerhaeuser, WRECO and all of their respective Subsidiaries)) to:
Section 5.01 Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.01(c) (with respect to Weyerhaeuser) and Section 6.02(d) (with respect
to WRECO) and, with respect to Restricted Subsidiaries, where the failure to do
so could not reasonably be expected to have a Material Adverse Effect, provided,
however, that such Borrower may liquidate or dissolve any of its Subsidiaries to
the extent the assets of such Subsidiary are transferred to Weyerhaeuser or any
of its Restricted Subsidiaries.
(b) Except in each case where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect, (i) do or cause
to be done all things necessary to obtain, preserve, renew, extend and keep in
full force and effect the rights, licenses, permits, franchises, authorizations,
patents, copyrights, trademarks and trade names necessary in the conduct of its
business; (ii) maintain and operate such business in substantially the manner in
which it is presently conducted and operated; (iii) comply with all applicable
laws, rules, regulations and orders of any Governmental Authority, whether now
in effect or hereafter enacted; and (iv) at all times maintain and preserve all
property necessary in the conduct of such business and keep such property in
good repair, working order and condition and from time to time make, or cause to
be made, all necessary and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times.
(c) Maintain compliance with each of its loans, contracts, leases and
other obligations (other than Indebtedness) except such as are being contested
in good faith by appropriate proceedings and for which appropriate reserves have
been established, and except for such noncompliance as could not reasonably be
expected to have, in any case or in the aggregate, a Material Adverse Effect.
Section 5.02 Insurance. (a) Keep such of its insurable properties as
are insured with third-party insurers insured at all times by financially sound
and reputable insurers; and (b) maintain (i) insurance (which may include self
insurance), to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses, including public liability insurance against
claims for personal injury or death or property damage occurring upon, in, about
or in connection with the use of any properties owned, occupied or controlled by
it; and (ii) such insurance as may be required by law.
Section 5.03 Obligations and Taxes. Pay its obligations (other than
Indebtedness) promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise which, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
49
that such payment and discharge shall not be required (i) with respect to any
such tax, assessment, charge, levy or claim so long as the validity or amount
thereof shall be contested in good faith by appropriate proceedings and such
Borrower or such Subsidiary shall have set aside on its books appropriate
reserves with respect thereto or (ii) if the failure to make such payments or to
discharge such Liens is not, in any case or in the aggregate, reasonably likely
to have a Material Adverse Effect.
Section 5.04 Financial Statements, Reports, etc. In the case of each
Borrower, furnish to the Administrative Agent (which shall promptly furnish to
each Lender):
(a) within 95 days after the end of each fiscal year, its consolidated
balance sheets and related statements of earnings and statements of cash flows,
together with the notes thereto, showing the financial position of such Borrower
and its consolidated Subsidiaries as of the close of such fiscal year and the
results of their operations and the operations of such subsidiaries during such
year, all audited by KPMG LLP or other independent public accountants of
recognized national standing acceptable to the Required Lenders and accompanied
by an opinion of such accountants (which shall not be qualified in any material
respect) to the effect that such consolidated financial statements fairly
present the financial position and results of operations of each such Borrower
and its consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, except as therein noted;
(b) within 50 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheets and related
statements of earnings and, with respect to Weyerhaeuser, statements of cash
flows, showing the financial position of Weyerhaeuser and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of its
operations and the operations of such consolidated Subsidiaries during such
fiscal quarter and the then elapsed portion of the fiscal year, all certified
(in the form of Exhibits D-1 and D-2, with respect to Weyerhaeuser and WRECO,
respectively) by one of its Financial Officers as fairly presenting the
financial position and results of operations of each such Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, except as therein noted, subject to appropriate year-end
audit adjustments;
(c) concurrently with any delivery of financial statements under (a)
or (b) above, a certificate (in the form of Exhibits D-3 and D-4, with respect
to Weyerhaeuser and WRECO, respectively) of the accounting firm or Financial
Officer of such Borrower opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to accounting
matters and disclaim responsibility for legal interpretations) (i) certifying
that no Event of Default or Default has occurred or, if such an Event of Default
or Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto, (ii) in
the case of Weyerhaeuser setting forth computations in reasonable detail
satisfactory to the Administrative Agent demonstrating compliance with the
covenants contained in Sections 6.01(d) and 6.01(e) and (iii) including a
reconciliation setting forth adjustments made to such financial statements in
order to make the calculations set forth in clause (ii) above;
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(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by it or
any of its Subsidiaries with the SEC, or with any national securities exchange,
or distributed to its shareholders, as the case may be;
(e) as soon as practicable, copies of such further financial
statements and reports as such Borrower shall send to banks with which it has
lines of credit, and all such financial statements and reports as such Borrower
shall send to its shareholders (unless all of the outstanding shares of capital
stock of such Borrower are held by one Person);
(f) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of such Borrower or any of
its Subsidiaries, or compliance with the terms of any Loan Document, as the
Administrative Agent, any Swing Line Bank, any Fronting Bank or any Lender may
reasonably request (it being understood that neither Borrower shall be required
to provide any information or documents which are subject to confidentiality
provisions the nature of which prohibit such disclosure);
(g) promptly, and in any event within 2 days, upon becoming aware
thereof, notice of any proposed or actual down-grade, suspension or withdrawal
of the rating provided by S&P or ▇▇▇▇▇'▇ to Weyerhaeuser in respect of its
Senior Unsecured Long-Term Debt; and
(h) information required to be delivered pursuant to paragraphs (a),
(b), (d) and (e) shall be deemed to have been delivered on the date on which
Weyerhaeuser provides notice to the Administrative Agent that such information
has been posted on Weyerhaeuser's website on the internet at the website address
listed on the signature pages thereof, at ▇▇▇.▇▇▇.▇▇▇ or at another website
identified in such notice and accessible by the Lenders without charge; provided
that Weyerhaeuser shall deliver paper copies of the reports and financial
statements referred to in paragraphs (a), (b), (d) and (e) of this Section 5.04
to the Administrative Agent, any Swing Line Bank, any Fronting Bank or any
Lender who requests Weyerhaeuser to deliver such paper copies until written
notice to cease delivering paper copies is given by such Administrative Agent,
Swing Line Bank, Fronting Bank or Lender to Weyerhaeuser.
Section 5.05 Litigation and Other Notices. Furnish to the
Administrative Agent (which shall promptly furnish to each Lender) prompt
written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with respect
thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or proceeding,
whether at law or in equity or by or before any Governmental Authority, against
Weyerhaeuser, WRECO or any of
51
their respective Affiliates which, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(c) any development that has resulted in a Material Adverse Effect;
and
(d) the issuance by any Governmental Authority of any injunction,
order, decision or other restraint prohibiting, or having the effect of
prohibiting, the making of the Loans or the initiation of any litigation or
similar proceeding seeking any such injunction, order or other restraint;
provided that in each case (other than Subsection 5.05 (a)) no Borrower shall be
required to provide separate notice of any event disclosed in any report
promptly filed with the SEC.
Section 5.06 ERISA. As soon as possible and, in any event, within 10
Business Days after Weyerhaeuser knows of the occurrence of any of the following
events which individually or in the aggregate could reasonably be expected to
have a Material Adverse Effect, Weyerhaeuser will deliver to the Administrative
Agent a certificate of the Financial Officer of Weyerhaeuser setting forth
details as to such occurrence and such action, if any, which Weyerhaeuser or an
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by Weyerhaeuser or such
ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with
respect thereto: (a) that a Reportable Event has occurred, (b) that an
accumulated funding deficiency has been incurred or an application has been made
to the Secretary of the Treasury for a waiver or modification of the minimum
funding standard (including any required installment payments) or an extension
of any amortization period under Section 412 of the Code with respect to a Plan,
(c) that a Plan has been or is in the process of being terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA, (d) that a Plan has
an Unfunded Current Liability, (e) that proceedings have been instituted to
terminate a Plan, (f) that a proceeding has been instituted pursuant to Section
515 of ERISA to collect a delinquent contribution to a Plan, or (g) that
Weyerhaeuser or any ERISA Affiliate will or is reasonably likely to incur any
liability (including any contingent or secondary liability) to or on account of
the termination of or withdrawal from a Plan under Section 4062, 4063, 4064,
4069, 4201 or 4204 of ERISA or with respect to a Plan under Section 4975 of the
Code or Section 409, 502(i) or 502(l) of ERISA. Weyerhaeuser will, upon written
request, deliver to the Administrative Agent a complete copy of the annual
report (Form 5500) of each Plan required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to the
Administrative Agent pursuant to the first sentence hereof, copies of annual
reports and any other notices received by Weyerhaeuser or any ERISA Affiliate
required to be delivered to the Administrative Agent hereunder shall be
delivered to the Administrative Agent no later than 10 Business Days after the
later of the date such report or notice has been filed with the Internal Revenue
Service or the PBGC, given to Plan participants, received by Weyerhaeuser or
such ERISA Affiliate or requested in writing by the Administrative Agent.
Section 5.07 Maintaining Records; Access to Properties and
Inspections. Maintain appropriate, accurate and complete financial records and
permit any representatives designated by the Administrative Agent or any Lender
to visit and inspect the financial records and the properties of each such
Borrower or any of its Restricted Subsidiaries at reasonable times and, with
reasonable prior notice given to Weyerhaeuser, as often as requested and until a
52
Default has occurred at the expense of the Administrative Agent or such Lender,
and to make extracts from and copies of such financial records, and permit any
representatives designated by any Lender, any Swing Line Bank, any Fronting Bank
or the Administrative Agent to discuss the affairs, finances and condition of
Weyerhaeuser, WRECO or any such Restricted Subsidiary with the officers thereof
and independent accountants (so long as a representative of Weyerhaeuser is
present, or Weyerhaeuser has consented to the absence of such a representative)
therefor (in each case subject to such Borrower's obligations under applicable
confidentiality provisions).
Section 5.08 Use of Proceeds. Use the credit extended pursuant to this
Agreement only for the purposes set forth in the recitals to this Agreement.
Section 5.09 Environmental Matters. (a) (i) Comply in all material
respects with all Environmental Laws applicable to the ownership or use of any
real property owned or leased by such Borrower or any of its Subsidiaries,
except where such noncompliance is not, in any case or in the aggregate,
reasonably likely to have a Material Adverse Effect, (ii) include in all
material contracts with tenants and other persons occupying such real property
provisions to ensure such tenants' compliance in all material respects with all
such Environmental Laws, and diligently enforce and prosecute its rights with
respect to such provisions, (iii) pay or cause to be paid in the case of sole
liability, or, in the case of joint liability, to seek contribution or
compensation in respect of, all costs and expenses incurred in connection with
such compliance, except in respect to costs and expenses that are being
contested in good faith and for which such Borrower or such Subsidiary, as the
case may be, shall have set aside on its books appropriate reserves, and except
where failures to make such payments are not, in any case or in the aggregate,
reasonably likely to have a Material Adverse Effect, and (iv) use its best
efforts to keep or cause to be kept all such real property free and clear of any
liens imposed pursuant to any Environmental Laws, except in respect to liens
that are being contested in good faith, and except in respect to liens the
existence of which is not, in any case or in the aggregate, reasonably likely to
have a Material Adverse Effect.
(b) Neither such Borrower, nor any of its Subsidiaries will generate,
use, treat, store, Release, or permit the generation, use, treatment, storage or
Release of Hazardous Materials on any real property owned or leased by such
Borrower or any of its Subsidiaries, or transport or permit the transportation
of Hazardous Materials to or from any such real property, except for quantities
generated, used, treated, stored, or Released on, or transported to or from,
such real property in the ordinary course of business in material compliance
with all applicable Environmental Laws and, except for such generation, use,
treatment or storage on, or transportation to or from, any such real property of
Hazardous Materials as is not, in any case or in the aggregate, reasonably
likely to have a Material Adverse Effect.
(c) If the Administrative Agent receives any notice from such Borrower
pursuant to subsection (d) of this Section 5.09 or if the Administrative Agent
otherwise acquires knowledge of any Environmental Claim which in the sole
determination of the Required Lenders would have a Material Adverse Effect with
respect to such Borrower then upon the written request of the Required Lenders,
such Borrower will provide, at its sole cost and expense, an environmental site
assessment report concerning any real property owned or leased by such Borrower
or an affected Subsidiary prepared by an environmental consulting firm approved
by the Required Lenders, indicating the presence or absence of Hazardous
Materials and the
53
potential costs of any removal or remedial action in connection with any
Hazardous Materials on any real property owned or leased by such Borrower or any
of its Subsidiaries.
(d) Such Borrower will immediately advise the Administrative Agent in
writing of any of the following:
(i) Any pending or threatened Environmental Claim against such
Borrower or any of its Subsidiaries or any real property owned or leased by
such Borrower or any of its Subsidiaries which if determined adversely to
such Borrower or any of its Subsidiaries would be reasonably likely to have
a Material Adverse Effect;
(ii) Any condition or occurrence on any real property owned or leased
by such Borrower or any of its Subsidiaries that (A) results in
noncompliance by such Borrower or any of its Subsidiaries with any
applicable Environmental Law which noncompliance is reasonably likely to
have a Material Adverse Effect, or (B) could reasonably be anticipated to
form the basis of an Environmental Claim against such Borrower or any of
its Subsidiaries or any real property owned or leased by such Borrower or
any of its Subsidiaries and which if determined adversely to such Borrower
or any of its Subsidiaries would be reasonably likely to have a Material
Adverse Effect;
(iii) Any condition or occurrence on any real property owned or leased
by such Borrower or any of its Subsidiaries or, to the actual knowledge of
such Borrower or any of its Subsidiaries, any property adjoining or in the
vicinity thereof that could reasonably be anticipated to cause such real
property to be subject to any restrictions on the ownership, occupancy,
use, or transferability thereof under any Environmental Law which
restrictions, in any case or in the aggregate, are reasonably likely to
have a Material Adverse Effect; and
(iv) The taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Materials on any real property
owned or leased by such Borrower or any of its Subsidiaries the taking of
which, in any case or in the aggregate, is reasonably likely to have a
Material Adverse Effect.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence, or removal or remedial action and the
action which such Borrower or any of its Subsidiaries proposes to take in
response thereto.
Section 5.10 OCBM Agreement. With respect to Weyerhaeuser, perform,
observe and comply with each of its covenants and agreements in the OCBM
Agreement, and do or cause to be done all things necessary to keep the OCBM
Agreement in full force and effect.
Section 5.11 Further Assurances. Promptly cause to be taken, executed,
acknowledged or delivered, at the sole expense of such Borrower, all such
further acts, documents and assurances as the Required Lenders may from time to
time reasonably request in order for such Borrower to carry out its obligations
hereunder and under the other Loan Documents.
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ARTICLE VI
NEGATIVE COVENANTS
Section 6.01 Covenants of Weyerhaeuser. Weyerhaeuser covenants and
agrees with each Lender, each Swing Line Bank, each Fronting Bank and the
Administrative Agent that, so long as this Agreement shall remain in effect or
the principal of or interest on any Loan, any Fees or any other expenses or
amounts payable under any Loan Document shall be unpaid or any Letter of Credit
shall remain outstanding (which has not been collateralized (with cash or a
back-to-back letter of credit issued by a satisfactory financial institution) in
a manner satisfactory to the applicable Fronting Banks and the Administrative
Agent) or any amounts drawn thereunder shall remain unpaid, unless the Required
Lenders shall otherwise consent in writing, it will not, either directly or
indirectly:
(a) Secured Indebtedness. (i) Issue, assume or guarantee, or permit
any of its Restricted Subsidiaries to issue, assume or guarantee, any
indebtedness for money borrowed (hereinafter in this Section 6.01(a) referred to
as "debt"), if such debt is secured by a deed of trust, mortgage, pledge,
security interest or other lien or encumbrance (any deed of trust, mortgage,
pledge, security interest or other lien or encumbrance being hereinafter in this
Section 6.01(a) referred to as a "mortgage" or collectively "mortgages") upon or
with respect to any timber or timberlands of Weyerhaeuser or such Restricted
Subsidiary located in the States of Washington, Oregon, Arkansas, Oklahoma,
Mississippi or North Carolina, or upon or with respect to any principal
manufacturing plant of Weyerhaeuser or such Restricted Subsidiary located
anywhere in the United States of America, in either case now owned or hereafter
acquired, without in any such case effectively providing, concurrently with the
issuance, assumption or guarantee of any such debt, that the Loans and Letters
of Credit (together with, if Weyerhaeuser shall so determine, any other
indebtedness of or guarantee by Weyerhaeuser or such Restricted Subsidiary
ranking equally with the Loans or Letters of Credit and then existing or
thereafter created) shall be secured equally and ratably with (or prior to) such
debt; provided, however, that the foregoing restrictions shall not be applicable
to:
(1) mortgages upon or with respect to any property of any of its
Restricted Subsidiaries securing debt of such Restricted Subsidiary to
Weyerhaeuser or another Restricted Subsidiary of Weyerhaeuser;
(2) mortgages upon or with respect to any property acquired,
constructed or improved by Weyerhaeuser or any of its Restricted
Subsidiaries after the date of this Agreement which are created,
incurred or assumed contemporaneously with, or within 90 days after,
such acquisition, construction or improvement, to secure or provide
for the payment of any part of the purchase price of such property or
the cost of such construction or improvement, or mortgages upon or
with respect to any property existing at the time of acquisition
thereof; provided, however, that in the case of any such construction
or improvement the mortgage shall not apply to any property
theretofore owned by Weyerhaeuser or any of its Restricted
Subsidiaries other than any theretofore
55
unimproved real property on which the property so constructed, or the
improvement, is located;
(3) any extension, renewal or replacement of any mortgage
referred to in clause (2) above or clause (4) below; provided,
however, that the principal amount of indebtedness secured thereby
shall not exceed the principal amount of indebtedness so secured at
the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or part of
the same property which secured the mortgage so extended, renewed or
replaced; and
(4) any mortgage existing on any timber or timberlands of any
Person or upon or with respect to any principal manufacturing plant of
any Person at the time of acquisition by the Borrower or any of its
Restricted Subsidiaries of such Person.
(ii) Notwithstanding the provisions of paragraph (a)(i) of this
Section 6.01, Weyerhaeuser or any of its Restricted Subsidiaries may issue,
assume or guarantee secured debt which would otherwise be subject to the
foregoing restrictions in an aggregate amount which, together with all
other such debt of Weyerhaeuser and its Restricted Subsidiaries and the
Attributable Debt in respect of Sale and Lease-Back Transactions (as
defined in Section 6.01(b)) existing at such time (other than Sale and
Lease-Back Transactions permitted because Weyerhaeuser would be entitled to
incur debt secured by a mortgage on the property to be leased without
equally and ratably securing the Loans pursuant to paragraph (a)(i) of this
Section 6.01, and other than Sale and Lease-Back Transactions the proceeds
of which have been applied in accordance with clause (ii) of Section
6.01(b)), does not at the time exceed five percent (5%) of Shareholders'
Interest in Weyerhaeuser and its Restricted Subsidiaries (as hereinafter
defined). The term "Attributable Debt" as used in this paragraph shall
mean, as of any particular time, the present value of the obligation of the
lessee for rental payments during the remaining term of any lease
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
(iii) For purposes of this Section 6.01(a), (A) the term "principal
manufacturing plant" shall not include any manufacturing plant which, in
the reasonable opinion of the Board of Directors of Weyerhaeuser, is not a
principal manufacturing plant of Weyerhaeuser and its Restricted
Subsidiaries; (B) the following types of transactions shall not be deemed
to create debt secured by a mortgage: (1) the sale, mortgage or other
transfer of timber in connection with an arrangement under which
Weyerhaeuser or any of its Restricted Subsidiaries is obligated to cut such
timber or a portion thereof in order to provide the transferee with a
specified amount of money however determined; (2) the mortgage of any
property of Weyerhaeuser or any of its Restricted Subsidiaries in favor of
the United States, or any State, or any department, agency or
instrumentality of either, to secure partial, progress, advance or other
payments to Weyerhaeuser or any of its Restricted Subsidiaries pursuant to
the provisions of any contract or statute and (3) liens existing on
property at the time of acquisition of such property; and (C) the term
"Shareholders' Interest in Weyerhaeuser and its Restricted Subsidiaries"
shall mean the
56
aggregate of capital and surplus, including surplus resulting from the
March 1, 1913 revaluation of timber and timberlands, of Weyerhaeuser
and its Restricted Subsidiaries, after deducting the cost of shares of
Weyerhaeuser held in treasury.
(b) Sale and Lease-Back. Enter into any arrangement, or permit any
Restricted Subsidiary to enter into any arrangement, with any Person providing
for the leasing by Weyerhaeuser or any of its Restricted Subsidiaries of any
real property in the United States (except for temporary leases for a term of
not more than three years), which property has been or is to be sold or
transferred by Weyerhaeuser or such Restricted Subsidiary to such Person (herein
referred to as a "Sale and Lease-Back Transaction"), unless (i) Weyerhaeuser or
such Restricted Subsidiary would be entitled to incur debt secured by a mortgage
on the property to be leased without equally or ratably securing the Loans
pursuant to Section 6.01(a), or (ii) Weyerhaeuser applies an amount equal to the
fair value (as determined by the Board of Directors of Weyerhaeuser) of the
property so leased to the retirement (other than any mandatory retirement),
within 90 days of the effective date of any such Sale and Lease-Back
Transaction, of indebtedness for borrowed money incurred or assumed by
Weyerhaeuser which by its terms matures at, or is extendible or renewable at the
option of the obligor to, a date more than 12 months after the date of the
creation of such debt.
(c) Merger, Consolidation, etc. Be a party to a merger or
consolidation or sell, transfer or otherwise dispose of all or substantially all
of its properties or assets in a single transaction or in a series of related
transactions unless (i) such merger, consolidation, sale, transfer or
disposition is made with respect to another corporation incorporated and doing
business primarily within the United States of America which shall expressly
assume, in form and substance reasonably satisfactory to the Required Lenders,
the obligations of Weyerhaeuser under the Loan Documents and Weyerhaeuser's
Loans and Letters of Credit, and (ii) immediately after giving effect to such
merger, consolidation, sale, transfer or disposition, no Default or Event of
Default hereunder shall have occurred and be continuing.
(d) Debt Ratio. Permit Total Funded Indebtedness to exceed 65% of the
sum of Weyerhaeuser's Total Adjusted Shareholders' Interest.
(e) Net Worth. At any time permit Weyerhaeuser's Total Adjusted
Shareholders' Interest to be less than $5,000,000,000.
(f) Change in Business. Engage in, or permit any Restricted Subsidiary
to engage in, any material business activities or operations substantially
different from, or unrelated to, the business activities and operations
conducted by it as of the date hereof, except for reasonable extensions,
developments and modifications thereof.
Section 6.02 Covenants with respect to WRECO. WRECO covenants and
agrees with each Lender, each Fronting Bank and the Administrative Agent that,
so long as this Agreement shall remain in effect or the principal of or interest
on any Loan, any Fees or any other expenses or amounts payable under any Loan
Document shall be unpaid, or any Letter of Credit shall remain outstanding
(which has not been collateralized (with cash or a back-to-back
57
letter of credit issued by a satisfactory financial institution) in a manner
satisfactory to the applicable Fronting Banks and the Administrative Agent) or
any amounts drawn thereunder shall remain unpaid, unless the Required Lenders
shall otherwise consent in writing, it will not, either directly or indirectly:
(a) Capital Base. Have a Capital Base less than $100,000,000.
(b) Limitation on Indebtedness. Create, issue, guarantee, assume or
otherwise become liable, directly or indirectly, or permit any of its Restricted
Subsidiaries to create, issue, guarantee, assume or otherwise become liable,
directly or indirectly, in respect of any (i) Senior Debt of WRECO or
Indebtedness of any of its Restricted Subsidiaries if, immediately after giving
effect to the incurrence thereof and to the application of the proceeds thereof,
the aggregate principal amount of all consolidated Senior Debt of WRECO and its
Restricted Subsidiaries then outstanding would exceed 80% of the sum of (x) the
Capital Base plus (y) the aggregate principal amount of Senior Debt of WRECO and
its Restricted Subsidiaries then outstanding; or (ii) Subordinated Debt of WRECO
if, immediately after giving effect to the incurrence thereof and to the
application of the proceeds thereof, the aggregate principal amount of
Subordinated Debt of WRECO then outstanding would exceed 100% of Adjusted Net
Worth. For purposes of this Section and Section 6.02(c), Indebtedness of a
Person which becomes a Restricted Subsidiary on any date shall be deemed to have
been issued or incurred as of such date.
(c) Limitation on Mortgages and Liens. Create, incur or permit to
exist any mortgage, pledge, encumbrance, lien, security interest or charge of
any kind (including liens or charges upon properties acquired or to be acquired
under conditional sales agreements or other title retention devices) on its
property or assets, whether now owned or hereafter acquired, or upon any income
or profits thereof, or permit any of its Restricted Subsidiaries to do any of
the foregoing, except:
(i) liens, charges, encumbrances and priority claims incidental to the
conduct of the business or the ownership of properties and assets
(including warehousemen's, attorneys' and statutory landlords' liens) and
liens, pledges or deposits in connection with workmen's compensation,
unemployment insurance, old age benefit or social security obligations,
taxes, assessments, statutory obligations or other similar charges, liens
of contractors, mechanics and materialmen, good faith deposits in
connection with tenders, contracts or leases to which WRECO or any of its
Restricted Subsidiaries is a party or other deposits required to be made in
the ordinary course of business and not in connection with the borrowing of
money, easements, rights of way, restrictions and other similar
encumbrances that, in the aggregate, are not substantial in amount and that
do not in any case materially detract from the value of the property
subject thereto or substantially interfere with the ordinary conduct of
WRECO's business; provided in each case the obligation secured is not
overdue or, if overdue, is being contested in good faith by appropriate
proceedings;
(ii) provided that no Default or Event of Default has occurred and is
continuing, the pledge of assets for the purpose of securing any appeal or
stay or
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discharge in the course of any legal proceeding and liens on or resulting
from judgments or awards in respect of which WRECO or any of its Restricted
Subsidiaries shall in good faith be prosecuting an appeal or proceeding for
review;
(iii) mortgages, liens or security interests existing as of the date
of this Agreement securing obligations of WRECO or any of its Restricted
Subsidiaries outstanding on such date and all renewals, extensions or
refundings thereof (without increase in the principal amount remaining
unpaid at the time of any such renewal, extension or refunding);
(iv) mortgages, liens or security interests securing Indebtedness of a
Restricted Subsidiary of WRECO to another Restricted Subsidiary of WRECO or
to WRECO;
(v) mortgages, conditional sale contracts, security interests or other
arrangements for the retention of title (including financing leases), in
addition to those permitted under subparagraphs (iii), (iv), (vi) and (vii)
hereof, given to secure the payment of the purchase price incurred in
connection with the acquisition of property useful and intended to be used
in carrying on the business of WRECO or any of its Restricted Subsidiaries,
and liens existing on such property at the time of acquisition thereof or
at the time of acquisition by WRECO or a Restricted Subsidiary of any
Person then owning such property whether or not such existing liens were
given to secure the payment of the purchase price of the property to which
they attach; provided that the lien or charge shall attach solely to the
property acquired or purchased and any improvements then or thereafter
placed thereon;
(vi) mortgages, security interests and other encumbrances or liens on
Real Estate Assets, incurred or created in the ordinary course of the
business of WRECO and its Restricted Subsidiaries; provided that the
aggregate principal amount of all Indebtedness so secured and at any one
time outstanding shall not exceed 10% of the Capital Base at such time; and
(vii) mortgages, conditional sale contracts, security interests or
other arrangements for the retention of title (including financing leases),
in addition to those specifically permitted by foregoing subparagraphs (i)
through (vi) hereof, given to secure the payment of Senior Debt of WRECO or
any of its Restricted Subsidiaries, and any renewal, extension or refunding
of any such Senior Debt; provided that the aggregate principal amount of
all Senior Debt of WRECO and its Restricted Subsidiaries so secured and at
any one time outstanding shall not exceed 10% of the Capital Base at such
time.
In the event that any property is subjected to a lien or other
encumbrance in violation of this Section 6.02(c), WRECO will make or cause to be
made effective provision whereby the Loans shall be secured equally and ratably
with all other obligations secured thereby (provided, however, that such
violation shall constitute a default under this Agreement whether or not such
provision is made) and, if such
59
provision is not made, an equitable lien, so equally and ratably securing the
Loans, shall (to the extent permitted by law) exist on such property.
(d) Limitation on Mergers and Consolidations. Be a party to any merger
or consolidation unless (i) WRECO or a Weyerhaeuser Subsidiary (as defined
below) having substantially all of its assets and doing business primarily in
the United States of America shall be the surviving or resulting corporation of
any such merger or consolidation and immediately after giving effect to any such
merger or consolidation such successor corporation, whether or not WRECO, shall
be entitled to incur at least $1 of additional Senior Debt under Section
6.02(b); (ii) if the surviving or resulting corporation is not WRECO, the
surviving or resulting corporation shall be a Weyerhaeuser Subsidiary
incorporated within the United States of America and shall expressly assume the
obligations of WRECO under this Agreement and the other Loan Documents to which
it is a party by supplemental agreement reasonably satisfactory to the
Administrative Agent; (iii) immediately after giving effect to any such merger
or consolidation, no Default or Event of Default shall have occurred and be
continuing; and (iv) WRECO shall have delivered to the Administrative Agent a
certificate signed by two of WRECO's officers stating that such merger or
consolidation and, if a supplemental agreement is required in connection
therewith as aforesaid, such supplemental agreement comply with the provisions
described in this paragraph. Upon the consummation of any merger or
consolidation in which the surviving or resulting corporation is not WRECO in
accordance with the foregoing provisions, the surviving or resulting corporation
shall succeed to and be substituted for, and may exercise every right and power
of and shall be subject to all of the obligations of, WRECO under this Agreement
and the other Loan Documents to which it is a party, with the same effect as if
it had been named as WRECO therein. As used in this paragraph, the term
"Weyerhaeuser Subsidiary" means a corporation at least 79% of whose issued and
outstanding shares of capital stock at the time outstanding and having ordinary
voting power for the election of a majority of the directors of such corporation
shall be owned and controlled by Weyerhaeuser or a wholly owned Subsidiary of
Weyerhaeuser.
(e) Limitation on Sale of Assets. Sell, transfer or otherwise dispose
of all or substantially all of its properties and assets in a single transaction
or in a series of related transactions unless (i) the consideration received
therefor shall consist of cash, securities or other properties having an
aggregate fair value (as determined in good faith by the Board of Directors of
WRECO) equal to not less than the aggregate fair value (as determined in good
faith by the Board of Directors of WRECO) of the properties and assets so sold,
transferred or otherwise disposed of; (ii) immediately after giving effect
thereto WRECO shall be entitled to incur at least $1 of additional Senior Debt
under Section 6.02(b); (iii) immediately after giving effect thereto, no Default
or Event of Default shall have occurred and be continuing; and (iv) WRECO shall
have delivered to the Administrative Agent a certificate signed by two of
WRECO's officers stating that such transaction complies with the provisions
described in this paragraph.
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ARTICLE VII
EVENTS OF DEFAULT
Section 7.01 Events of Default. In case of the happening of any of the
events under Sections 7.01(a) through 7.01(l) below (an "Event of Default"):
(a) default shall be made in the payment by a Borrower of any
principal of any Loan or any reimbursement of any L/C Disbursement, when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise;
(b) default shall be made in the payment by a Borrower of any interest
on any Loan or any Fee or any other amount (other than an amount referred to in
Section 7.01(a) above) due under any Loan Document, when and as the same shall
become due and payable, and such default shall continue unremedied for a period
of five days;
(c) any representation or warranty made or deemed made by a Borrower
in or in connection with any Loan Document or the Borrowings or Letters of
Credit hereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument
furnished in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made, deemed made
or furnished;
(d) default shall be made in the due observance or performance by a
Borrower or any of its Subsidiaries (or its respective Restricted Subsidiaries,
if such covenant, condition or agreement applies only to Restricted
Subsidiaries) of any covenant, condition or agreement contained in Section
5.01(a), 5.05(a), 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by a
Borrower or any of its Subsidiaries (or its Restricted Subsidiaries, if such
covenant, condition or agreement applies only to Restricted Subsidiaries) of any
covenant, condition or agreement contained in any Loan Document (other than
those specified in Section 7.01(a), 7.01(b), 7.01(c) or 7.01(d)) and such
default shall continue unremedied for a period of thirty days after notice
thereof from the Administrative Agent, any Swing Line Bank, any Fronting Bank or
any Lender to such Borrower;
(f) a Borrower or any of its Restricted Subsidiaries shall (i) fail to
pay, when and as the same shall become due and payable (and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument related to such Indebtedness) any principal or interest,
regardless of amount, due in respect of Indebtedness in an aggregate principal
amount in excess of $100,000,000, or (ii) fail to observe or perform any other
terms, covenants, conditions or agreements contained in any agreements or
instruments evidencing or governing Indebtedness in an aggregate principal
amount in excess of $100,000,000 (and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
related to such Indebtedness), if the effect of any failure or failures referred
to in this Section 7.01(f)(ii)
61
is to cause or permit the holder or holders of such Indebtedness or a trustee on
its or their behalf (with or without the giving of notice) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of a Borrower or any of its Restricted Subsidiaries, or of a
substantial part of the property or assets of such Borrower or any of its
Restricted Subsidiaries, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal or state bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for such
Borrower or any of its Restricted Subsidiaries or for a substantial part of the
property or assets of such Borrower or any of its Restricted Subsidiaries or
(iii) the winding-up or liquidation of such Borrower or any of its Restricted
Subsidiaries; and such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(h) a Borrower or any of its Restricted Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking relief under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other Federal or state bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contes t in a timely and
appropriate manner, any proceeding or the filing of any petition described in
Section 7.01(g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
such Borrower or any of its Restricted Subsidiaries or for a substantial part of
the property or assets of such Borrower or any of its Restricted Subsidiaries,
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit
of creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any action for the
purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $100,000,000 shall be rendered against a Borrower or any of
its Restricted Subsidiaries or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to levy upon assets or properties of such Borrower or any of its
Restricted Subsidiaries to enforce any such judgment;
(j) any Plan shall fail to satisfy the minimum funding standard
required for any plan year or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code, any Plan
is, shall have been or is likely to be terminated or the subject of termination
proceedings under ERISA, any Plan shall have an Unfunded Current Liability, or
Weyerhaeuser has incurred or is likely to incur a liability to or on account of
a Plan under Sections 409, 502(i), 502(l), or 515 of ERISA or Section 4975 of
the Code, or Weyerhaeuser or any ERISA Affiliate has incurred or is likely to
incur a liability to or on account of a Plan under Sections 4062, 4063, 4064,
4069, 4201 or 4204 of ERISA; and there shall result from any such event or
events
62
referred to in this Section 7.01(j) the imposition of a lien upon the assets of
Weyerhaeuser or any ERISA Affiliate, the granting of a security interest, a
liability or a material risk of incurring a liability to the PBGC or the
Internal Revenue Service or a Plan or a trustee appointed under ERISA or a
liability or a material risk of incurring a liability under Sections 409, 502(i)
or 502(l) of ERISA or under Sections 4971 or 4975 of the Code; which, in the
good faith determination of the Required Lenders, will have a Material Adverse
Effect;
(k) there shall have occurred a Change in Control of a Borrower; or
(l) the OCBM Agreement shall cease, for any reason, to be in full
force and effect, or Weyerhaeuser shall contest the validity or enforceability
thereof or otherwise fail to comply with its obligations thereunder;
then, and in every such event (other than an event with respect to a Borrower
described in Section 7.01(g) or 7.01(h) above), and at any time thereafter
during the continuance of such event, the Administrative Agent, at the request
of the Required Lenders, shall, by notice to the Borrowers, take any or all of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments of the Lenders and terminate forthwith the obligation of any
Fronting Bank to issue Letters of Credit (and require any outstanding Letters of
Credit to be cash collateralized in accordance with Section 2.20(i)) and/or (ii)
declare the Loans then outstanding to the Borrowers to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrowers accrued hereunder and
under any other Loan Document, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrowers, anything contained herein or in any
other Loan Document to the contrary notwithstanding; and in any event with
respect to a Borrower described in Sections 7.01(g) or 7.01(h) above, the
Commitments of the Lenders and the obligation of any Fronting Bank to issue
Letters of Credit shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Borrowers accrued hereunder and under any
other Loan Document, shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrowers, anything contained herein or in any
other Loan Document to the contrary notwithstanding.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.01 The Administrative Agent. In order to expedite the
transactions contemplated by this Agreement, JPMorgan Chase Bank is hereby
appointed to act as Administrative Agent on behalf of the Lenders, the Swing
Line Banks, and the Fronting Banks. Each of the Lenders, the Swing Line Banks
and the Fronting Banks, and each assignee thereof, hereby irrevocably authorizes
the Administrative Agent to take such actions on behalf of such Lender, the
Swing Line Banks and such Fronting Bank and to exercise such powers as are
63
specifically delegated to the Administrative Agent by the terms and provisions
hereof, together with such actions and powers as are reasonably incidental
thereto.
The Administrative Agent is hereby expressly authorized by the
Lenders, the Swing Line Banks and the Fronting Banks, without hereby limiting
any implied authority, (a) to receive on behalf of the Lenders, the Swing Line
Banks and the Fronting Banks all payments of principal of and interest on the
Loans, all reimbursements made with respect to L/C Disbursements and all other
amounts due to the Lenders, the Swing Line Banks and the Fronting Banks
hereunder, and promptly to distribute to each Lender, each Swing Line Bank and
each Fronting Bank its proper share of each payment so received; (b) to give
prompt notice on behalf of the Lenders, the Swing Line Banks and the Fronting
Banks to the Borrowers of any Event of Default specified in this Agreement of
which the Administrative Agent has actual knowledge acquired in connection with
its agency hereunder; and (c) to distribute promptly to each Lender, each Swing
Line Bank and each Fronting Bank copies of all notices, financial statements and
other materials delivered by the Borrowers pursuant to this Agreement as
received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such to any Lender, any Swing Line Bank
or any Fronting Bank for any action taken or omitted by any of them except for
its or his own gross negligence or willful misconduct, or be responsible for any
statement, warranty or representation herein or the contents of any document
delivered in connection herewith, or be required to ascertain or to make any
inquiry concerning the performance or observance by the Borrowers of any of the
terms, conditions, covenants or agreements contained in any Loan Document. The
Administrative Agent shall not be responsible to the Lenders, the Swing Line
Banks and the Fronting Banks for (i) the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or any other Loan Documents or
other instruments or agreements or (ii) the satisfaction of any condition set
forth in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent. The duties of the
Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Lender, any Swing Line
Bank or any Fronting Bank. The Administrative Agent shall in all cases be fully
protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders, the Lenders, the Swing Line Banks
or any Fronting Bank, as the case may be, and, except as otherwise specifically
provided herein, such instructions and any action or inaction pursuant thereto
shall be binding on all of the Lenders, the Swing Line Banks and all of the
Fronting Banks. The Administrative Agent shall, in the absence of knowledge to
the contrary, be entitled to rely on any instrument or document believed by it
to be genuine and correct and to have been signed or sent by the proper person
or persons. The Administrative Agent may also rely upon any statement made to it
orally or by telephone and believed to be made by the proper Person, and shall
not incur any liability for relying thereon.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall have any responsibility to the Borrowers on account of
the failure of or delay in performance or breach by any Lender, any Swing Line
Bank or any Fronting Bank of any of its obligations hereunder or to any Lender,
any Swing Line Bank or any Fronting Bank on account of the failure of or delay
in performance or breach by any other Lender, any Swing Line Bank,
64
any Fronting Bank or the Borrowers of any of their respective obligations
hereunder or under any other Loan Document or in connection herewith or
therewith. The foregoing shall not limit the obligations of JPMorgan Chase Bank
(or its successors and assigns) in its capacity as Lender hereunder. The
Administrative Agent may execute any and all duties hereunder by or through
agents or employees and shall be entitled to rely upon the advice of legal
counsel (who may be counsel for a Borrower), independent accountants and other
experts selected by it with respect to all matters arising hereunder and shall
not be liable for any action taken or suffered in good faith by it in accordance
with the advice of such counsel. The exculpatory provisions of this Article VIII
shall apply to any such agent or employee, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, the Lenders, the Swing Line Banks and the Fronting Banks hereby
acknowledge that (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default or Event of
Default has occurred and is continuing, (b) the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Lenders, the Lenders, the Swing Line Banks or
any Fronting Bank, as the case may be, and (c) except as expressly set forth
herein, the Administrative Agent shall not have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to the
Borrowers or any of their respective Subsidiaries that is communicated to or
obtained by the Administrative Agent or any of its Affiliates in any capacity.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders, the Swing Line Banks, the Fronting Banks and
the Borrowers. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, the Swing Line
Banks and the Fronting Banks, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, having a combined capital
and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
bank, such successor shall succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After the Administrative Agent's resignation hereunder,
the provisions of this Article and Section 9.05 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative
Agent in its individual capacity and not as Administrative Agent shall have the
same rights and powers as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and
65
generally engage in any kind of business with the Borrowers or any of their
respective Subsidiaries or other Affiliate thereof as if it were not the
Administrative Agent.
Each of the Lenders, the Swing Line Banks and each of the Fronting
Banks agrees (i) to reimburse the Administrative Agent, on demand, in the amount
of its pro rata share (based on its Commitment hereunder) of any expenses
incurred for the benefit of the Lenders, the Swing Line Banks and the Fronting
Banks by the Administrative Agent, including counsel fees and compensation of
agents and employees paid for services rendered on behalf of the Lenders, the
Swing Line Banks and the Fronting Banks, which shall not have been reimbursed by
the Borrowers and (ii) to indemnify and hold harmless the Administrative Agent
and any of its directors, officers, employees or agents, on demand, in the
amount of such pro rata share, from and against any and all losses, claims,
damages, liabilities and related expenses of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against it in its capacity as the
Administrative Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted by it
or any of them under this Agreement or any other Loan Document, to the extent
the same shall not have been reimbursed by the Borrowers; provided that no
Lender, nor any Swing Line Bank nor any Fronting Bank shall be liable to the
Administrative Agent for any portion of such losses, claims, damages,
liabilities and related expenses resulting from the gross negligence or willful
misconduct of the Administrative Agent or any of its directors, officers,
employees, or agents.
Each of the Lenders, the Swing Line Banks and each of the Fronting
Banks acknowledges that it has, independently and without reliance upon the
Administrative Agent, any other Lender, any Swing Line Bank or any Fronting Bank
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each of the
Lenders, the Swing Line Banks and each Fronting Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent, any
other Lender, any Swing Line Bank or any Fronting Bank and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
Section 8.02 Other Agents. Each of the Lenders, the Swing Line Banks,
each of the Fronting Banks and each of the Borrowers acknowledges (A) that each
of the Lead Arrangers in their capacity as Lead Arranger, Joint Book Runner,
Syndication Agent, Documentation Agents, and Co-Documentation Agent do not have
any responsibility or liability hereunder, and (B) that the titles "Lead
Arranger," are purely honorary in nature.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by telecopy to the address specified below, or such
other address as such party shall hereafter have specified by written notice to
the Administrative Agent and the Borrowers:
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(a) if to a Borrower by hand or courier service, to such Borrower at
33663 Weyerhaeuser Way South, Federal Way, Washington, or by facsimile to (253)
924-3543, in each case to the Attention of Vice President and Treasurer with a
copy to Secretary;
(b) if to the Administrative Agent or a Lender, to it at its address
(or telecopy number) set forth in Schedule 9.01 or in the Assignment and
Acceptance pursuant to which such Lender became a party hereto.
Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrowers may, in their discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy or other telegraphic communications equipment of the sender,
in each case delivered, sent or mailed (properly addressed) to such party as
provided in this Section 9.01 or in accordance with the latest unrevoked
direction from such party given in accordance with this Section 9.01.
Section 9.02 Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders, the Swing Line Banks and the Fronting
Banks and shall survive the making of the Loans and the issuance of the Letters
of Credit, regardless of any investigation made by the Lenders, the Swing Line
Banks or the Fronting Banks or on their behalf, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any Fee or any L/C Disbursement or any other amount payable under this Agreement
or any other Loan Document is outstanding and unpaid and so long as the
Commitments and all Letters of Credit hereunder have not been terminated.
Section 9.03 Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrowers and the Administrative Agent
and when the Administrative Agent shall have received copies hereof which, when
taken together, bear the signatures of each Lender, each Swing Line Bank and
each Initial Fronting Bank and thereafter shall be binding upon and inure to the
benefit of the Borrowers, the Administrative Agent, each Lender, each Swing Line
Bank, each Fronting Bank and their respective successors and assigns, except
that, other than as provided in Section 6.01(c) and Section 6.02(d), neither
Borrower shall have the right to assign or delegate its rights or obligations
hereunder or any interest herein without the prior consent of all the Lenders,
the Swing Line Banks and the Fronting Banks.
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Section 9.04 Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that, other
than as provided in Section 6.01(c) and Section 6.02(d), neither Borrower may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or
transfer by a Borrower without such consent shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it and its interests in,
rights to payment under and obligations with respect to the Letters of Credit
issued at such time); provided that (i) except in the case of an assignment to a
Lender or a Lender Affiliate, each of the Borrowers must give their prior
written consent to such assignment (which consents shall not be unreasonably
withheld or delayed), (ii) each of the Fronting Banks, the Swing Line Banks and
the Administrative Agent must give their prior written consent to such
assignment (which consents shall not be unreasonably withheld or delayed), (iii)
except in the case of an assignment to a Lender or a Lender Affiliate or an
assignment of the entire remaining amount of the assigning Lender's Commitment,
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrowers and the Administrative Agent
otherwise consent, (iv) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (iv) shall not apply to rights in
respect of outstanding Competitive Loans, (v) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500, and (vi)
the assignee, if it shall not be a Lender prior to such assignment, shall
deliver to the Administrative Agent an Administrative Questionnaire; and
provided further that any consent of a Borrower otherwise required under this
paragraph shall not be required if a Default or Event of Default has occurred
and is continuing. Subject to acceptance and recording thereof pursuant to
paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.11, 2.13, 2.17 and 9.05). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
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(c) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive (absent manifest error), and the Borrowers, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, if any, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrowers, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment, the Loans owing to it and its
interests in, rights to payment under and obligations with respect to the
Letters of Credit issued hereunder); provided that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.08(b) that affects such Participant. Subject to paragraph (f) of this Section,
the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.11, 2.13 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.06 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.15 as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.11 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrowers'
prior written consent.
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(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement and the other Loan
Documents (including, without limitation, any notes held by it pursuant to
Section 2.05(e)) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, without notice to,
or consent of the Borrower or the Administrative Agent, and this Section 9.04
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(h) Weyerhaeuser authorizes each Lender to disclose to any Participant
or assignee and any prospective Participant or assignee any and all financial
information in such Lender's possession concerning Weyerhaeuser or any
Subsidiary of Weyerhaeuser which has been delivered to such Lender by a Borrower
pursuant to this Agreement or which has been delivered to such Lender by a
Borrower in connection with such Lender's credit evaluation of a Borrower prior
to entering into this Agreement; provided that such Participant or assignee or
prospective Participant or assignee agrees to treat any such information which
is not public as confidential in accordance with the terms of the Agreement.
Section 9.05 Expenses; Indemnity. (a) The Borrowers jointly and
severally agree to pay all reasonable out-of-pocket expenses incurred by the
Administrative Agent in connection with the preparation of this Agreement and
the other Loan Documents or in connection with any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
hereby contemplated shall be consummated) or incurred by the Administrative
Agent, any Lender, any Swing Line Bank or any Fronting Bank in connection with
the enforcement or protection of their rights in connection with this Agreement
and the other Loan Documents or in connection with the Loans made and the
Letters of Credit issued, including the fees and disbursements of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Administrative Agent, and, in
connection with any such amendment, modification or waiver made in connection
with any such enforcement or protection, the fees and disbursements of any other
counsel for the Administrative Agent, any Lender or any Fronting Bank. The
Borrowers further agree jointly and severally that they shall indemnify the
Lenders, the Swing Line Banks and the Fronting Banks from and hold them harmless
against any documentary taxes, assessments or charges made by any Governmental
Authority by reason of the execution and delivery of this Agreement, any of the
other Loan Documents or any Letters of Credit.
(b) Each Borrower will indemnify the Administrative Agent, each
Lender, each Swing Line Bank, each Fronting Bank and the directors, officers,
employees and agents of each of the foregoing (each such person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including reasonable
counsel fees and expenses, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery by such Borrower of this Agreement or any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties thereto of their respective obligations thereunder or the consummation
of the Transactions and the other transactions contemplated hereby and thereby,
(ii) the use of the proceeds of the Loans by such Borrower or of the Letters of
Credit issued on behalf of Weyerhaeuser or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a
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party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses have resulted from the gross negligence or willful misconduct
of such Indemnitee.
(c) It is understood and agreed that, to the extent not precluded by a
conflict of interest, each Indemnitee shall endeavor to work cooperatively with
Weyerhaeuser with a view toward minimizing the legal and other expenses
associated with any defense and any potential settlement or judgment. To the
extent reasonably practicable and not disadvantageous to any Indemnitee, it is
anticipated that a single counsel selected by Weyerhaeuser may be used.
Settlement of any claim or litigation involving any material indemnified amount
will require the approval of Weyerhaeuser (not to be unreasonably withheld).
(d) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans or L/C Disbursements, the termination of any
Letters of Credit, the invalidity or unenforceability of any term or provision
of this Agreement or any other Loan Document, or any investigation made by or on
behalf of the Administrative Agent, any Lender, any Swing Line Bank or any
Fronting Bank. All amounts due under this Section 9.05 shall be payable on
written demand therefor.
Section 9.06 Right of Setoff. If any Event of Default shall have
occurred and be continuing, each Lender, each Swing Line Bank and each Fronting
Bank is hereby authorized at any time and from time to time, without notice to
such Borrower (any such notice being expressly waived by such Borrower), to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender, such Swing Line Bank or
such Fronting Bank or any of their respective Affiliates to or for the credit or
the account of such Borrower against any of and all the obligations of such
Borrower now or hereafter existing under this Agreement and any other Loan
Documents held by such Lender, such Swing Line Bank or such Fronting Bank,
irrespective of whether or not such Lender, such Swing Line Bank or such
Fronting Bank shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The rights of each
Lender, each Swing Line Bank and each Fronting Bank under this Section 9.06 are
in addition to other rights and remedies (including other rights of setoff)
which such Lender, such Swing Line Bank or such Fronting Bank may have.
Section 9.07 Applicable Law. THIS AGREEMENT, THE OTHER LOAN DOCUMENTS
AND THE RIGHTS AND OBLIGATIONS HEREUNDER AND THEREUNDER OF THE PARTIES HERETO
AND THERETO (OTHER THAN AS RELATED TO LETTERS OF CREDIT) SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH LETTER
OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT OR, IF NO SUCH LAWS
OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO.
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500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM
CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
Section 9.08 Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, any Lender, any Swing Line Bank or any Fronting Bank in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Lenders, the Swing Line Banks and the Fronting Banks hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies which they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by the
Borrowers therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on the Borrowers in any case shall entitle the Borrowers to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders; provided, however, that
no such agreement shall (i) change the principal amount of, or extend or advance
the maturity of or any date for the scheduled payment of any principal of or
interest on, any Loan, or extend the stated maturity of any Letter of Credit
beyond the date that is five Business Days prior to the Termination Date or
waive or excuse any such scheduled payment or any part thereof, or decrease the
rate of interest on any Loan, without the prior written consent of each Lender
affected thereby, (ii) change the Commitment or decrease or extend any date for
the payment of the Facility Fees, Utilization Fees or L/C Participation Fees of
any Lender without the prior written consent of such Lender, or (iii) amend or
modify the provisions of Section 2.14, the provisions of this Section 9.08 or
the definition of "Termination Date" or "Required Lenders," without prior
written consent of each Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, any Swing Line Bank or any Fronting Bank, as the case may be, hereunder
without the prior written consent of the Administrative Agent, Swing Line Bank
or Fronting Bank, as the case may be. Each Lender shall be bound by any waiver,
amendment or modification authorized by this Section 9.08, and any consent by
any Lender pursuant to this Section 9.08 shall bind any person subsequently
acquiring a Loan from it.
Section 9.09 Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the applicable interest rate, together with all
fees and charges which are treated as interest under applicable law
(collectively the "Charges"), as provided for herein or in any other Loan
Document, or otherwise contracted for, charged, received, taken or reserved by
any Lender, shall exceed the maximum lawful rate (the "Maximum Rate") which may
be contracted for, charged, taken, received or reserved by such Lender in
accordance with applicable law, the rate of interest payable with respect to
each Loan owing to each Lender, together with all Charges payable to such
Lender, shall be limited to the Maximum Rate.
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Section 9.10 Entire Agreement. This Agreement and the other Loan
Documents and the letter agreements referred to in Section 2.04(b) (with respect
to the payment of fees only) constitute the entire contract between the parties
relative to the subject matter hereof. Any previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
Section 9.11 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
Section 9.12 Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
Section 9.13 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
Section 9.14 Headings. The cover page, the Article and Section
headings and the Table of Contents used herein are for convenience of reference
only, are not part of this Agreement and are not to affect the construction of,
or to be taken into consideration in interpreting, this Agreement.
Section 9.15 Jurisdiction; Consent to Service of Process. (a) Each of
the Borrowers hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal
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court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any Lender, the
Administrative Agent, any Swing Line Bank or any Fronting Bank may otherwise
have to bring any action or proceeding relating to this Agreement or the other
Loan Documents against either Borrower or its properties in the courts of any
jurisdiction.
(b) Each of the Borrowers hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in any New York State or Federal court located in New York City.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) Each of the Borrowers hereby irrevocably designates, appoints and
empowers CT Corporation System, Inc. presently located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its designee, appointee and attorney-in-fact to
receive, accept and acknowledge for and on its behalf, and in respect of its
property, service of any and all legal process, summons, notices and documents
which may be served in any such action or proceeding. If for any reason such
designee, appointee and attorney-in-fact shall cease to be available to act as
such, each Borrower agrees to designate a new designee, appointee and
attorney-in-fact in New York City on the terms and for purposes of this
provision satisfactory to the Administrative Agent. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 9.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
Section 9.16 Domicile of Loans. Each Lender may transfer and carry its
Loans at, to or for the account of any office, subsidiary or Affiliate of such
Lender.
Section 9.17 Restricted and Unrestricted Subsidiaries. (a) Set forth
on Schedule 3.08 Part I is a list of all of the Restricted Subsidiaries and
Unrestricted Subsidiaries of Weyerhaeuser as of the Closing Date.
(b) Set forth on Schedule 3.08 Part II is a list of all of the
Restricted Subsidiaries and Unrestricted Subsidiaries of WRECO as of the Closing
Date.
(c) After the Closing Date, a Financial Officer of Weyerhaeuser may,
provided that no Default or Event of Default has occurred and is continuing,
designate a Restricted Subsidiary as an Unrestricted Subsidiary by notice sent
to all of the Lenders, provided that (i) no such designation shall be effective
unless immediately after giving effect thereto there would exist no Default or
Event of Default; (ii) any such designation shall be effective not less than
five Business Days after written notice thereof shall have been provided to each
Lender; and (iii) upon such designation, Schedule 3.08 Part I shall be deemed to
be amended to reflect such designation. Any Person that becomes a Subsidiary (by
formation, acquisition, merger or otherwise) after the Closing Date shall
automatically be deemed to be a Restricted Subsidiary of
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Weyerhaeuser as of the date it becomes a Subsidiary unless designated as an
Unrestricted Subsidiary pursuant to the terms hereof.
(d) After the Closing Date, a Financial Officer of Weyerhaeuser may,
provided that no Default or Event of Default has occurred and is continuing,
designate an Unrestricted Subsidiary as a Restricted Subsidiary by notice sent
to all of the Lenders, provided that (w) no such designation shall be effective
unless immediately after giving effect thereto there would exist no Default or
Event of Default; (x) no such designation shall be effective unless immediately
after giving effect thereto Weyerhaeuser is in compliance with Sections 6.01(d)
and 6.01(e); (y) any such designation shall be effective not less than five
Business Days after written notice thereof shall have been provided to each
Lender; and (z) upon such designation, Schedule 3.08 Part I shall be deemed to
be amended to reflect such designation.
(e) After the Closing Date, any Subsidiary of WRECO (i) which is
organized and existing under the laws of the United States or any state of the
United States, Puerto Rico or the Dominion of Canada or any province thereof and
(ii) of which substantially all of the physical properties are located, and
substantially all of the business is carried on, in the United States of
America, Puerto Rico or Canada may, provided that no Default or Event of Default
has occurred and is continuing, be designated as a Restricted Subsidiary by
WRECO, subject to the limitations described in Subsection 9.17(f) below. Any
Person that becomes a Subsidiary of WRECO (by formation, acquisition, merger or
otherwise) after the Closing Date shall automatically be deemed to be an
Unrestricted Subsidiary of WRECO as of the date it becomes a Subsidiary unless
designated as a Restricted Subsidiary pursuant to the terms hereof.
(f) After the Closing Date, Weyerhaeuser may, provided that no Default
or Event of Default has occurred and is continuing, cause a Financial Officer of
WRECO to designate an Unrestricted Subsidiary as a Restricted Subsidiary by
notice sent to all of the Lenders, provided that (v) such Subsidiary satisfies
the requirements of Subsection 9.17(e) above; (w) no such designation shall be
effective unless immediately after giving effect thereto there would exist no
Default or Event of Default; (x) WRECO could incur at least $1 of additional
Senior Debt under Subsection 6.02(b); (y) any such designation shall be
effective not less than five Business Days after written notice thereof shall
have been provided to each Lender; and (z) upon such designation, Schedule 3.08
Part II shall be deemed to be amended to reflect such designation.
(g) After the Closing Date, Weyerhaeuser may, provided that no Default
or Event of Default has occurred and is continuing, cause a Financial Officer of
WRECO to designate a Restricted Subsidiary as an Unrestricted Subsidiary by
notice sent to all of the Lenders, provided that (v) no such designation shall
be effective unless immediately after giving effect thereto there would exist no
Default or Event of Default; (w) WRECO could incur at least $1 of additional
Senior Debt under Subsection 6.02(b); (x) the aggregate amount of Real Estate
Assets owned by all Subsidiaries of WRECO, determined on a consolidated basis,
which have been or are to be, as the case may be, designated as Unrestricted
Subsidiaries during the 365 consecutive days ending on and including the
effective date of such proposed designation, shall not exceed 15% of the
aggregate amount of Real Estate Assets owned by WRECO and its Restricted
Subsidiaries as of the beginning of such 365 day period; (y) any such
designation shall be effective not less than five Business Days after written
notice thereof shall have been
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provided to each Lender; and (z) upon such designation, Schedule 3.08 Part II
shall be deemed to be amended to reflect such designation.
Section 9.18 USA PATRIOT Act. Each Lender hereby notifies each
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required
to obtain, verify and record information that identifies each Borrower, which
information includes the name and address of such Borrower and other information
that will allow such Lender to identify such Borrower in accordance with the
Act.
[Signatures follow.]
IN WITNESS WHEREOF, the Borrowers, the Administrative Agent, the Swing
Line Banks, the Initial Fronting Banks and the Lenders have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
WEYERHAEUSER COMPANY, as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
WEYERHAEUSER REAL ESTATE COMPANY,
as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
[Credit Agreement - Signature Page]
JPMORGAN CHASE BANK, N.A.,
individually and as an Initial Fronting Bank,
a Swing Line Bank and the Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
[Credit Agreement - Signature Page]
CITIBANK, N.A., individually and as an Initial
Fronting Bank, a Swing Line Bank and the
Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
[Credit Agreement - Signature Page]
BANK OF AMERICA, N.A., individually and as a
Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
[Credit Agreement - Signature Page]
DEUTSCHE BANK SECURITIES INC., as a
Documentation Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇-▇▇▇▇▇ Mikolayczyk
------------------------------------------
Name: ▇▇▇▇-▇▇▇▇▇ Mikolayczyk
Title: Managing Director
[Credit Agreement - Signature Page]
DEUTSCHE BANK AG NEW YORK BRANCH,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
[Credit Agreement - Signature Page]
THE BANK OF TOKYO-MITSUBISHI, LTD.,
individually and as a Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Manager
[Credit Agreement - Signature Page]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK, individually and as
a Co-Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[Credit Agreement - Signature Page]
LENDERS
COBANK, ACB, as a Lender
By: /s/ ▇▇▇▇▇▇▇ Tqusignant
------------------------------------------
Name: ▇▇▇▇▇▇▇ Tqusignant
Title: Vice President
[Credit Agreement - Signature Page]
LENDERS
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
1
LENDERS
CIBC INC., as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Executive Director
2
LENDERS
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
3
LENDERS
WACHOVIA BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
4
LENDERS
COOPERATIEVE CENTRALE RAIFFEISEN
BOERENLEENBANK, B.A. "RABOBANK
NEDERLAND," NEW YORK BRANCH, as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
5
LENDERS
SUMITOMO MITSUI BANKING CORPORATION,
as a Lender
By: /s/ ▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
6
LENDERS
▇▇▇▇▇ FARGO BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
7
LENDERS
UFJ BANK LIMITED, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
8
LENDERS
MELLON BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
9
LENDERS
ROYAL BANK OF CANADA, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-Fact
10
LENDERS
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Director
11
LENDERS
KBC BANK N.V., as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
12
LENDERS
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
13
LENDERS
WESTPAC BANKING CORPORATION,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
14
LENDERS
CAJA MADRID, as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇ Lareu
------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇ Lareu
Title: Head of International Origination &
Syndication
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Relationship Manager Corporate Banking
15