<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 property taxes, charges or
similar levies which arise from any payment
made by such Borrower hereunder or
under any other Loan Docu
