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<PAGE>
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
MORGAN STANLEY BANK, as Co-Documentation Agent
================================================================================
J.P. MORGAN SECURITIES INC. and CITIGROUP GLOBAL MARKETS
INC.,
as Lead Arrangers and Joint Book Runners
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TABLE OF CONTENTS
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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
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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
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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
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EXHIBITS
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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
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SCHEDULES
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Schedule 2.01 Commitments
Schedule 2.20 Existing Letters of Credit
Schedule 3.08 Subsidiaries of Weyerhaeuser and WRECO
Schedule 9.01 Notices
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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 MORGAN STANLEY 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, Morgan Stanley 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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2
"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
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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
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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.
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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.
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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.
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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.
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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.
<PAGE>
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, J.P. Morgan
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.
<PAGE>
10
"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 Moody's 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
<PAGE>
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
<PAGE>
12
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
McGraw-Hill 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.
<PAGE>
13
"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)
Nelson 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
<PAGE>
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).
<PAGE>
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:
<PAGE>
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
<PAGE>
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
<PAGE>
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;
<PAGE>
19
(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
<PAGE>
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 Moody's by
Weyerhaeuser:
<TABLE>
<CAPTION>
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5
------------ ------- ------- ------- ----------
<S> <C> <C> <C> <C> <C>
S&P: A- or better BBB+ BBB BBB- Below BBB-
Moody's: A3 or better Baa1 Baa2 Baa3 Below Baa3
Facility Fee 0.09% 0.11% 0.125% 0.175% 0.225%
</TABLE>
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 Moody's shall withdraw or suspend its Ratings,
the remaining
Rating announced by either S&P or Moody's, 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 Moody's 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 Moody's 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
Moody's 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, J.P. Morgan 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
<PAGE>
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
<PAGE>
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
Moody's, 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:
<PAGE>
23
<TABLE>
<CAPTION>
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5
------------ ------- ------- ------- ----------
<S> <C> <C> <C> <C> <C>
S&P: A- or better BBB+ BBB BBB- Below BBB-
Moody's: 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%
</TABLE>
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 Moody's shall withdraw or suspend its Ratings,
the remaining
Rating announced by either S&P or Moody's, 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 Moody's 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 Moody's 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
Moody's 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
Moody's, 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:
<TABLE>
<CAPTION>
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5
------------ ------- ------- ------- ----------
<S> <C> <C> <C> <C> <C>
S&P: A- or better BBB+ BBB BBB- Below BBB-
Moody's: A3 or better Baa1 Baa2 Baa3 Below Baa3
Applicable
Utilization Fee
Percentage: 0.125% 0.125% 0.125% 0.125% 0.250%
</TABLE>
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 Moody's shall withdraw
or suspend its
Ratings, the remaining Rating announced by either S&P or
Moody's, 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 Moody's are split
so that two
consecutive Levels (as defined in the table above) apply, the
higher of those
Ratings shall determine the Applicable Utilization
<PAGE>
24
Fee Percentage. If the Ratings by S&P and Moody's 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 Moody's 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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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 270
Park Avenue, New
York, New York, 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 pr
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