MASTER TIMBER AGREEMENT
THIS AGREEMENT, made as of this 15th day of June, 2000, between North
American Timber Corporation, LRFP Timber, Inc., NPTC Timber, Inc., GNN Timber,
Inc., NPI Timber, Inc., and GPW Timber, Inc., all of which are direct or
indirect subsidiaries of Georgia-Pacific Corporation and are referred to
hereinafter collectively as "NATC," and Georgia-Pacific Corporation - Georgia-
Pacific Group (referred to hereinafter as "Procurement").
WITNESSETH:
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WHEREAS, Procurement and NATC wish to establish a new agreement to be
effective January 1, 2001 providing for Procurement's semi-annual acquisition
from NATC of cutting rights to standing timber located in the Basins described
in Section 1.02 at negotiated prices.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements set forth herein, and intending to be legally bound,
Procurement and NATC hereby agree as follows:
Section 1. Purchase of Standing Timber Under Cutting Contracts.
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1.01 Beginning January 1, 2001 and throughout the term of this Agreement,
Procurement agrees to acquire from NATC and NATC agrees to grant to
Procurement cutting rights to standing timber in the Basins.
Accordingly, NATC will periodically offer timber and wood fiber
located on specified tracts of forest land in the Basins to
Procurement as provided herein, and Procurement will purchase from
NATC standing timber pursuant to cutting contracts giving Procurement
the right and obligation to cut timber and wood fiber on such tracts.
1.02 This Agreement shall apply to purchases of standing timber and wood
fiber by Procurement from those timberlands which as of the date of
this Agreement are owned or leased (for the period of the current
lease) by NATC located in Florida (excepting the West Florida portion
of the Chattahoochee Forest), Southeast Georgia (Brunswick forest),
Southeast Arkansas (Crossett north, Crossett south and Fordyce
forests) and Mississippi (southwest Mississippi, central Mississippi
and southeast Mississippi forests). Each of these regions is referred
to in this Agreement as a "Basin" and collectively as the "Basins."
This Agreement shall also apply to purchases of standing timber and
wood fiber from the Ashdown, Coastal South Carolina, Piedmont and
Wisconsin Forests to the extent provided in Section 1.10.
1.03 On April 1/st/ of 2001 and by April 1/st/ of each year thereafter
during the term of this Agreement, NATC shall give Procurement a good
faith estimate of the timber and wood fiber volumes by type of
product (which must be within the range of the numbers for each Basin
specified in Exhibit A hereto as "Minimum Annual Offer" and "Maximum
Annual Offer") to be offered by NATC to Procurement in the following
calendar year.
1.04 On August 1, 2000 and on each August 1/st/ thereafter during the term
of this Agreement, NATC will deliver to Procurement a list of tracts
in the Basins for the following calendar year which it estimates to
contain approximately the volumes of timber and wood fiber which
equal the percentage of NATC's annual harvest set forth on Exhibit A
as "NATC Percentage." The total volumes of such timber and wood fiber
shall be within the range of the numbers for each Basis specified in
Exhibit A hereto as "Minimum Annual Offer" and "Maximum Annual
Offer." Each August 1/st/ is referred to below as an Offering Date.
During the term of this Agreement the volume of timber (in tons)
offered by NATC on each Offering Date for each Basin shall never be
less than the greater of (i) the percentage of NATC's annual harvest
specified as "NATC Percentage" on Exhibit A or (ii) the minimum
volumes specified as the "Minimum Annual Offer" on Exhibit A, and
shall never be greater than the "Maximum Annual Offer" specified on
Exhibit A. Each offering in each Basin must be a representative cross
section of the annual harvest by size, age, grade, species, harvest
method (e.g., clear-cutting or thinnings) and tract accessibility in
that Basin. The tracts and volumes NATC includes in its offer on the
Offering Date are referred to below as the NATC Offer. Product
specifications for timber inventories will be documented and mutually
agreed annually (on or before a date thirty (30) days prior to the
Offering Date) based on the then-prevailing market practices in the
general Basin area for stumpage.
1.05 On or before September 1, 2000, and on or before each September 1/st/
thereafter during the term of this Agreement, Procurement will divide
the tracts included in the NATC Offer into two groups, each
containing approximately half of the total volume covered by the NATC
Offer, and such tracts will be cruised in accordance with the
provisions of Section 1.06. One such group of tracts is referred to
below as the "February Tracts" and the other as the "August Tracts."
1.06 (a) NATC and Procurement shall select mutually acceptable third
parties to cruise the tracts selected by Procurement pursuant to
Section 1.05. As promptly as possible after October 1/st/ of each
year for the February Tracts (and April 1/st/ for the August Tracts),
such third parties shall deliver to each of Procurement and NATC
reports showing, for all tracts in each forest in each Basin, the
amount of merchantable timber and wood fiber on such tracts as
calculated by such third parties. In directing such third parties to
make such cruises, NATC shall designate
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and mark any and all SMZs (Streamside Management Zones) and other
buffers located on each tract offered so that each such tract shall
be cruised, marked, sold and harvested in accordance with state Best
Management Plan harvest practices. Cruised inventories for each tract
shall be grown for the period of time between the date of the cruise
and the purchase date at a growth rate to be determined by such third
parties. All expenses of such third parties for making such cruises
shall be paid equally by Procurement and NATC.
(b) Each of NATC and Procurement shall have the right to conduct
spot cruises of any tract at its respective cost and expense. If
after any such spot cruises are completed NATC and Procurement do not
agree on the amount of merchantable timber and wood fiber contained
on any tract (which may be more or less than the amount set forth in
the third party cruises described above), then the determination of
the quantity of such merchantable timber and wood fiber on any tract
shall be established as provided in Sections 2.01 and 2.02 unless the
parties mutually agree to delete such tract from the NATC Offer.
1.07 (a) Not later than fifteen (15) days after receipt by both parties
of the results of each October 1 cruise specified in Section 1.06,
Procurement shall select in writing to NATC from the February Tracts
such number of tracts as shall, in the aggregate for each Basin,
contain a volume of timber and wood fiber equal to not less than the
percentage specified as "Procurement's Must Take" on Exhibit A, and
may select tracts in each Basin having a volume of timber and wood
fiber up to the percentage of the NATC Offer specified as
"Procurement's Max Take" on Exhibit A. Procurement shall similarly
select tracts from the August Tracts following the same process set
forth in the preceding sentence not later than fifteen (15) days
following completion of the cruises of the August Tracts.
Procurement's selection of such tracts must be in roughly the same
proportions of pulpwood and sawtimber, and of tracts to be clear-cut
and tracts to be thinned, as such types of timber and tracts are
included in the NATC Offer.
(b) Not later than fifteen (15) days after Procurement makes the
selection described in Section 1.07(a), Procurement and NATC shall
exchange their proposed stumpage prices (with such back-up data and
justification for such price as it may elect to include) for timber
cutting contracts on each tract (or, at its option, on groups of
tracts located in a particular forest in a Basin) which are to be
clear-cut. Thereafter, the parties shall have a period of fifteen
(15) days to negotiate a mutually acceptable stumpage price for a
timber cutting contract on each such tract or tracts. In the event
that Procurement and NATC do not reach agreement by the end of such
fifteen (15) day period on such a price, each party shall stipulate
in writing to each other, and to the arbitrator described in Section
2.02, the price at which it will buy or sell the volumes
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of standing timber and wood fiber located on such tract or tracts
unless the parties mutually agree to exclude such tract or tracts
from the operation of Section 2.02. A failure in good faith of the
parties to agree on the stumpage price to be paid under any timber
cutting contract hereunder shall not constitute a breach of this
Agreement entitling a party to exercise its termination rights under
Section 4, or affect the parties' obligations to comply with all
other terms and conditions of this Agreement
1.08 (a) In addition to the timber on tracts to be clear-cut, which
shall be selected, cruised, and contracted and paid for as provided
for in Sections 1.04 - 1.07 and 1.09, NATC may include in the NATC
Offer tracts to be thinned but not clear-cut. Such tracts will also
be offered to Procurement on August 1, 2000, and on each August 1st
thereafter during the term of this Agreement. A schedule for the
harvest of thinnings from such tracts (and delivery of wood from
tracts to be logged by NATC) will be negotiated by NATC and
Procurement by December 1 for the February Tracts and by June 1 for
the August Tracts. Not later than February 1 or August 1, as the case
may be, the parties will negotiate the price to be paid by
Procurement to NATC for thinnings on each tract or groups of tracts
so offered, subject to the same process provided for in Section
1.07(b). In the event the parties are unable to negotiate such prices
by such dates, the price will be determined by an arbitrator as
provided in Section 2.02.
(b) NATC shall have the right to determine whether it, or
Procurement, shall log tracts to be thinned. Tracts to be logged by
Procurement will be sold on a stumpage basis, in each case pursuant
to a cutting contract which shall be substantially in the form of
Exhibit C attached hereto for payment as cut or when delivered.
Procurement shall pay 100% of the negotiated price for each tract or
group of tracts sold pursuant to any such cutting contract on the
date each such cutting contract is executed. Tracts to be logged by
NATC will be sold pursuant to a delivered wood agreement which shall
be substantially in the form of Exhibit D attached hereto. Any such
cutting contract shall provide that if the value of the thinnings
from a tract or group of tracts is less than the amount advanced by
Procurement, then NATC will provide additional thinnings to fulfill
its obligations under such contract. Thinnings in excess of volumes
covered by any cutting contract or delivered wood agreement will be
paid for by Procurement on a pay-as-cut or pay-as-delivered basis.
(c) If NATC should fail to harvest and deliver thinnings pursuant
to this Section 1.08, or if Procurement shall fail to accept delivery
from NATC of thinnings pursuant to executed contracts, and in any
six-month period during the term of this Agreement such failure to
harvest, deliver or accept, by either party, covers thinnings with a
value greater than 10% of the value of the thinnings to be logged in
that six-month period in each particular Basin, then the party so
failing to harvest, deliver or accept, as the case may be, shall pay
the other party, as liquidated monetary
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damages, 50% of the value of the thinnings not so harvested,
delivered or accepted which are in excess of such 10% threshold.
1.09 Procurement and NATC shall be obligated to enter timber cutting
contracts substantially in the form of Exhibit B, on January 1, 2001
(for the first of the February Tracts) and on each succeeding August
1/st/ for the August Tracts and February 1/st/ for the February
Tracts during the term of this Agreement, for the timber and wood
fiber located on each tract or tracts selected by Procurement as
provided in Sections 1.07(a) which are designated for clear-cut
harvests. The stumpage prices under such timber cutting contracts
shall be the prices established pursuant to Section 1.07(b) and shall
be paid in advance of cutting on January 1, 2001 and on each
succeeding August 1/st/ and February 1/st/ during the term of this
Agreement.
1.10 In addition to the NATC Offer, in each year during the term of this
Agreement NATC shall offer to Procurement for purchase volumes of
timber (by species and general product) actually utilized by Georgia-
Pacific Corporation facilities at Nekoosa and Port Edwards,
Wisconsin; Idabell, Oklahoma; Russellville, South Carolina; and
Madison, Monticello, Warm Springs and Warrenton, Georgia, in a
minimum amount of not less than 50% of NATC's annual harvest volume
of timber (by such species and general product) from the Wisconsin,
Ashdown Coastal South Carolina, and Piedmont/Chattahoochee forests,
respectively (the "Ancillary Forests"). NATC shall offer such volumes
to Procurement for purchase from time to time during each year of
this Agreement pursuant to timber deeds, cutting contracts or on
other normal commercial terms, at market prices to be mutually agreed
between the parties either through a bid auction or by a negotiated
sale. NATC shall give Procurement not less than 14 days notice of its
intent to sell such volumes (together with reasonably detailed
information about the terms of each such sale). Unless the parties
otherwise agree, no such notice may cover more than 20% of the volume
of timber (by species and general product) to be offered from each of
the Ancillary Forests during each year. NATC may allow third parties
to bid on or negotiate for the purchase of such timber in any such
sale, and in the event of such sale to a third party NATC shall have
no further obligation to make the volume of timber sold in that sale
available to Procurement for purchase in that year.
1.11 In the event that at any time during the term of this Agreement NATC
sells more than 20% (by acreage) of the timberlands subject to this
Agreement owned by it in any Basin, at its option Procurement may
require NATC to cause the purchaser of such timberlands to assume and
agree to perform this Agreement to the extent of the annual harvest
of timber and wood fiber sold from such timberlands pursuant to this
Agreement in the preceding calendar year.
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1.12 (a) In the event that Georgia-Pacific Corporation sells any
operating facility which, during either of the two calendar years
immediately preceding such sale, secured more than 20% of its annual
total consumption of timber and wood fiber from timber deeds
purchased pursuant to this Agreement, then at NATC's option
Procurement will be obligated to cause the purchaser of such
operating facility to assume and agree to perform this Agreement at a
volume level equal to average annual volume of timber and wood fiber
purchased pursuant to this Agreement and delivered to such facility
in the preceding two calendar years (or Procurement may perform such
obligations on behalf of such purchaser).
(b) In the event that Georgia-Pacific Corporation permanently
closes any operating facility which, during either of the two
calendar years immediately preceding such closure, received more than
10% of its annual total consumption of timber and wood fiber from
timber deeds purchased pursuant to this Agreement, then the
percentages of each species and type of timber and wood fiber offered
to Procurement in the Basin(s) from which such timber and wood fiber
was cut shall be reduced, for all remaining years during the term of
this Agreement, by an amount equal to the average annual volume (in
tons) of all timber and wood fiber sold by NATC to Procurement under
this Agreement for delivery by Procurement to such closed facility
during the preceding two calendar years.
1.13 If the NATC Offer made to Procurement pursuant to Section 1.04 does
not, in each year during the term of this Agreement, equal at least
the amounts of pine pulpwood and pine sawtimber in each Basin set
forth under the caption "Maximum Annual Offer" multiplied by the
percentage for each such Basin shown as "Procurement's Max Take,"
(such product being referred to as the "Annual Take") on Exhibit A,
then NATC will make available for purchase by Procurement in each
such year additional quantities (the "Annual Option Volume") of pine
pulpwood and pine sawtimber in each Basin which will equal (i) the
volume (in tons) set forth under the heading "Target Availability to
Procurement" less (ii) the amounts of such pine pulpwood and pine
sawtimber, calculated for each such Basin, which are actually
included in the Annual Take. NATC may offer the Annual Option Volume
to Procurement from time to time during each year of this Agreement
for sale pursuant to timber cutting contracts or on other normal
commercial terms, at prices to be mutually agreed between the
parties. NATC shall give Procurement not less than fourteen (14) days
notice of its intent to sell such volumes (together with reasonably
detailed information about the terms of each such sale). No such
notice may cover more than 20% of the Annual Option Volume (by type
of timber) to be sold in each Basin during each year. NATC may allow
third parties to bid on or negotiate for the purchase of timber in
any such sale, and in the event of such sale to a third party NATC
shall have
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no further obligation to make the volume of timber sold in that sale
available to Procurement for purchase in that year.
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Section 2. Dispute Resolution.
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2.01 The parties will attempt in good faith to resolve promptly any
controversy or claim arising out of or relating to this Agreement by
negotiations between representatives appointed by them with authority
to settle the controversy or claim. If such controversy or claim
should arise, such representatives ("Managers") will meet at least
once and will attempt to resolve the matter. The Managers will make
every effort to meet as soon as reasonably possible at a mutually
agreed time and place.
2.02 (a) If any controversy or claim relating to either (a) the volumes
of timber contained on any tracts selected pursuant to Section 1.05,
or (b) the price to be paid by Procurement under a timber cutting
contract covering, any particular tract or tracts selected by
Procurement as provided in Sections 1.07 or 1.09, has not been
resolved pursuant to Section 2.01 within fifteen (15) days of the
date either party notifies the other of such controversy, then each
party (if they have not already done so) shall within three (3) days
submit to an arbitrator (selected as provided in Section 2.03) a
single number representing its estimate of the volume of merchantable
timber it believes is contained on any particular tract, or, if
applicable, the dollar price at which it is willing to buy or sell
the standing timber on such tract or tracts (which shall be identical
to the final prices offered in writing by each of Procurement and
NATC to each other as provided in Section 1.07), or both if
applicable. Each party shall also provide the arbitrator (and the
other party) information it considers appropriate with respect to the
terms of the sale of timber deeds and cutting contracts entered into
by each of them, or their suppliers or any other third party, in the
Basin in which such tracts are located.
(b) Within seven (7) days after receiving such submissions the
arbitrator shall choose one or the other of the numbers submitted by
the parties for the volume of merchantable timber on a specific tract
or tracts, or one or another of the prices submitted by the parties
that most closely represents the market price of the standing timber
on a specific tract or tracts. Such arbitrator shall have no
authority to select or propose to the parties any numbers for such
volume or price, other than those submitted to the arbitrator at the
start of the arbitration.
(c) In choosing one of such volume or price numbers, the arbitrator
shall consider the benefit to Procurement of the guaranteed supply of
such timber to Georgia-Pacific's mills, and the benefit to NATC of
Procurement being a guaranteed customer for such timber. The
arbitrator may also consider any other information he or she
considers reliable, including but not limited to information about
the tract or tracts, the Basin involved, market prices for similar
standing timber, the results of the cruises, the volumes, size,
quality and accessibility of the timber and wood fiber located on
such tract or tracts and the benefit to both parties of the
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proximity of such tract or tracts to Georgia-Pacific's mills and
other markets. If a party has failed to timely submit such volume or
price data for any tract or tracts, the arbitrator shall select the
other party's volume or price submission. The arbitrator's decision
shall be final and binding upon both parties. All expenses charged by
the arbitrator shall be borne equally by the parties. The failure of
either party to abide by the arbitrator's decision under this section
shall be deemed a material breach of this Agreement by such party.
2.03 Promptly following the execution of this Agreement, the parties shall
mutually agree on the designation of one arbitrator for each Basin to
act pursuant to the provisions of Section 2.02. Each such arbitrator
shall be independent and shall have no affiliation with either party
or any affiliate of either party. The arbitrator shall be experienced
in the forest products industry, familiar with the factors taken into
account in pricing timber and wood fiber in such industry, and
otherwise qualified to make the determinations required by Section
2.02. In the event that the parties are unable to agree on such
arbitrators, or in the event any arbitrator so selected shall die,
resign, or be unable or unwilling to act as arbitrator, or in the
event that either party notifies the other that it is unwilling to
continue to have a previously designated arbitrator continue to act
in such capacity, then a replacement arbitrator will be designated by
mutual agreement of the parties, or if the parties are unable to so
agree then by the American Arbitration Association in accordance with
its established procedures.
2.04 In the event of any controversy or claim arising between the parties
other than those specified in Section 2.02, the parties shall follow
the procedures of Section 2.01. If any such matter has not been
resolved within thirty (30) days by the Managers, or if either party
will not allow its Managers to meet with the other party, the parties
will attempt in good faith to resolve the controversy or claim by
mediation in accordance with the current model procedural rules of
the CCR Institute for Dispute Resolution.
2.05 If the matter has not been resolved pursuant to the aforesaid
mediation procedure within thirty days of the commencement of such
procedure, or if either party will not participate in a mediation,
then either party may initiate litigation or otherwise pursue
whatever remedies may be available to such party.
2.06 All deadlines specified in this Section 2 may be extended by mutual
written agreement.
2.07 The procedures specified in this Section 2 shall be the sole and
exclusive procedures for the resolution of disputes between the
parties arising out of or relating to this Agreement; provided,
however, that a party may seek a
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preliminary injunction or other preliminary judicial relief if in its
judgment such action is necessary to avoid irreparable damage.
Despite such action the parties will continue to participate in good
faith in the procedures specified in this section. All applicable
statutes of limitation shall be tolled while the procedures specified
in this section are pending. The parties will take such action, if
any, required to effectuate such tolling.
Section 3. Remedies.
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3.01 In the event NATC fails for any reason other than Force Majeure to
offer tracts to Procurement as provided in Section 1, then, in lieu
of all remedies available to it except specific performance and
termination for breach, Procurement may purchase replacement timber
from any other source or sources, and NATC shall pay Procurement as
liquidated monetary damages an amount equal to 15% of Procurement's
costs of purchasing such replacement timber in a volume equal to that
not so offered by NATC.
3.02 In the event Procurement fails for any reason other than Force
Majeure to purchase timber deeds from NATC as provided in Section
1.08, then, in lieu of all remedies available to it except specific
performance and termination for breach, NATC shall have the right to
sell timber deeds covering such tracts to any other buyer or buyers,
and Procurement shall pay NATC as liquidated monetary damages an
amount equal to 15% of the purchase price actually paid to NATC for
such timber deeds by such other buyer or buyers.
3.03 Each party understands and agrees that monetary damages may not be a
sufficient remedy for its breach of this Agreement, and that the
other party shall be entitled to injunctive relief and for specific
performance as remedies for any such breach. Such remedies shall not,
however, be deemed to be such other party's exclusive remedies for
such breach of this Agreement, and shall be in addition to any other
remedies provided herein or available at law.
Section 4. Term and Termination.
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4.01 This Agreement shall remain in effect through December 31, 2010. If
neither party has given written notice of its desire to terminate or
renegotiate it by October 15, 2008, then it will automatically be
extended through December 31, 2020, and thereafter will be extended
for one additional year on each succeeding January 1/st/, until
either party gives the other such written notice of termination or
renegotiation by any October 15/th/ beginning October 15, 2020.
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4.02 This policy may be amended, modified or terminated at any time by a
written instrument signed by each of Procurement and NATC, or their
successors or assigns as permitted by Section 5.03 of this
Agreement.
4.03 This Agreement may be terminated by either party:
(a) following a material default or breach by the other party of
any of its monetary obligations hereunder, written notice of
such breach to the defaulting party, and the continued failure
by the defaulting party to cure such breach in all material
respects for a period of thirty (30) days, following which the
non-defaulting party will have no further obligations
hereunder; or
(b) at any time following a material breach or default by the other
party of any of its other obligations hereunder, written notice
of such breach to the defaulting party, and the continued
failure by the defaulting party to cure such breach in all
material respects for a period of ninety (90) days, provided
that if the breach is not reasonably susceptible of cure within
ninety (90) days, such defaulting party shall have such
additional time as is necessary as long as the defaulting party
initiates cure within the ninety (90) day period and diligently
pursues completion of the cure, following which the non-
defaulting party shall have no further obligations hereunder.
Termination shall not relieve a defaulting party of any liability to
the non-defaulting party for breach of its obligations hereunder.
The provisions of Sections 2 and 3 shall survive any termination of
this Agreement.
Section 5. Miscellaneous.
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5.01 Timber Cutting Contracts. The forms of timber cutting contracts
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attached as Exhibits B (for clear-cut harvests) and C (for
thinnings) to this Agreement shall be executed by Procurement and
NATC for all timber offered and selected pursuant to the terms of
this Agreement. The terms of such timber cutting contracts shall
control the rights of the parties with respect to the cutting of
timber and wood fiber located on such tracts, and all other matters
covered by the terms of such agreements.
5.02 Other Agreements. This Agreement does not apply to sales of timber
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deeds, or of timber and wood fiber, by NATC to Procurement from any
forest managed by NATC other than those now owned by NATC located in
the Basins or the Ancillary Forests. The parties now have agreements
dated July 29, 1999 with respect to timber to be sold from the
Fordyce Forests to the Georgia-Pacific Corporation OSB mill near
Fordyce, Arkansas, and the Oregon Supply Agreement dated July 1,
2000 with respect to wood to be sold to Procurement for Georgia-
Pacific Corporation
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mills located at Coos Bay, Philomoth and Toledo, Oregon, and may in
the future enter into additional agreements with respect to sales of
timber and wood fiber from the Basins, the Ancillary Forests or
other forests.
5.03 Assignment. Neither party may, or shall have the power to, assign
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this Agreement, in whole or in part, without the prior written
consent of the other, except that:
(a) Procurement may assign its rights and obligations under this
Agreement without the consent of NATC to any entity which
acquires all or substantially all of the assets of Georgia-
Pacific Corporation, or to any subsidiary or affiliate of
Georgia-Pacific Corporation, or to a successor in a merger,
consolidation or acquisition of Georgia-Pacific Corporation;
and
(b) NATC may assign its rights and obligations under this Agreement
without the consent of Procurement to any entity which
acquires, by merger, consolidation, acquisition or otherwise,
NATC or any portion of the timberlands of NATC, subject to this
Agreement, or to any subsidiary or affiliate of Georgia-Pacific
Corporation or NATC;
provided, however, that any permitted assignee pursuant to clauses
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(a) or (b) above must assume all liabilities and obligations of NATC
or Procurement, as the case may be, under this Agreement pursuant to
an instrument in form and substance reasonably satisfactory to the
other party. Procurement or NATC, as the case may be, shall cause
any person that merges or consolidates with either of them, or that
acquires all or substantially all of its assets, to assume its
liabilities and obligations under this Agreement. No assignment or
assumption pursuant to clauses (a) or (b) above shall in any way
affect the liability of the party making such assignment under this
Agreement, and in the event of any such assignment or assumption
NATC or Procurement, as the case may be, shall remain fully liable
for its liabilities and obligations under this Agreement. [NOTE:
Need to be sure this provision fits with contemplated transaction.]
Subject to the foregoing, this Agreement shall be binding on the
parties hereto and their respective successors and permitted
assignees.
5.04 Force Majeure. Neither Procurement nor NATC shall be liable to each
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other for any delay in or failure of performance by one of them of
its obligations hereunder that is caused by any event of Force
Majeure. As used in this Agreement, Force Majeure means any cause,
condition or event beyond a party's reasonable control which delays
or prevents such party's performance of its obligations hereunder,
including war, acts of government, acts of public enemy, riots,
civil strife, lightning, fires, explosions, floods, power failures,
other acts of God or nature, and other similar events or
circumstances; provided, however, that adverse financial
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or market conditions in the forest products industry or generally,
changes in market prices or demand for timber and wood fiber, or
seasonal weather changes, shall not constitute an event of Force
Majeure. If an event of Force Majeure results in a reduction but not a
complete cessation of a party's production or operations, the party so
affected shall use its best effort to meet its obligations hereunder
to the extent commercially reasonable, and shall treat the other party
no less favorably than it treats all of its other customers or
suppliers during the period of such reduced production or operations.
5.05 Consents, Approval and Future Agreement. Except where expressly
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provided as being in the sole or absolute discretion of a party, where
agreement, approval, acceptance, consent, or similar action by either
party is required under this Agreement, such action shall be
undertaken in good faith and shall not be unreasonably delayed or
withheld. Where agreement, approval, acceptance, consent, or similar
action by either party is required under this Agreement in a party's
sole or absolute discretion, such action may be withheld for any or no
reason. In any event, a party required to make any such decision
hereunder will notify the other party of its decision promptly after a
reasonable period to obtain and analyze facts. An approval or consent
given by a party under this Agreement shall not relieve the other
party from responsibility for complying with the requirements of this
Agreement, nor shall it be construed as a waiver of any rights under
this Agreement, except as and to the extent otherwise expressly
provided in such approval or consent.
5.06 Waiver of Default; Cumulative Remedies.
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(a) A delay or omission by either party hereto to exercise any right
or power under this Agreement shall not be construed to be a
waiver thereof. A waiver by either party hereto of any of the
covenants to be performed by the other, or of any breach thereof,
shall not be construed to be a waiver of any succeeding breach
thereof or of any other covenant herein contained.
(b) Except as provided in Sections 2 and 3 of this Agreement, all
remedies provided for herein shall be cumulative and in addition
to and not in lieu of any other remedies available to either
party at law, in equity or otherwise.
5.07 Entire Agreement; Amendment. This Agreement, including any Exhibits
---------------------------
or Schedules referred to herein and attached hereto, each of which is
incorporated herein for all purposes, constitutes the entire agreement
between the parties with respect to the subject matter hereof and
supersedes all prior agreements, whether written or oral, with respect
to the subject matter contained in this Agreement. No amendment,
change, waiver, or discharge of any provision of this Agreement shall
be valid
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unless in writing and signed by an authorized representative of the
party against which such change, waiver, or discharge is sought to be
enforced.
5.08 Governing Law. This Agreement shall be governed by, and interpreted
-------------
in accordance with, the laws of the State of Georgia without giving
effect to laws and procedures with respect to its choice of law
questions generally.
5.09 Notices. All notices, requests, demands and determinations under this
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Agreement (other than routine operational communications)
(collectively, "notices"), shall be in writing and marked "URGENT -
DELIVER TO ADDRESSEE IMMEDIATELY." All notices shall be addressed as
follows:
In the case of Procurement: In the case of NATC:
John F. Rasor Donald L. Glass
Executive Vice President
President - Procurement 100 Peachtree Street, NE
133 Peachtree Street, NE Suite 2650
Suite 5100 Atlanta, GA 30303
Atlanta, GA 30303
With copies to: With copies to:
James F. Kelley James F. Kelley
Senior Vice President - Senior Vice President -
Law and General Counsel Law and General Counsel
133 Peachtree Street, NE 133 Peachtree Street, NE
Suite 5100 Suite 5100
Atlanta, GA 30303 Atlanta, GA 30303
Douglas P. Roberto Erwin D. Barger, Jr.
Chief Counsel - Building Prod. Chief Counsel - Timber Company
133 Peachtree Street, NE 100 Peachtree Street, NE
Suite 5100 Suite 2650
Atlanta, GA 30303 Atlanta, GA 30303
A party may from time to time change its address or designee for
notification purposes by giving the other prior written notice of the
new address or designee and the date upon which it will become
effective.
5.10 Counterparts. This Agreement may be executed in several counterparts,
------------
all of which taken together shall constitute one single agreement
between the parties hereto.
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5.11 Severability. In the event that any provision of this Agreement
------------
conflicts with the law under which this Agreement is to be construed,
or if any such provision is held invalid by an arbitrator or court
with jurisdiction over the parties, such provision shall be deemed to
be restated to reflect as nearly as possible the original intentions
of the parties in accordance with applicable law. The remainder of
this Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first written above.
Georgia-Pacific Corporation -
Georgia-Pacific Group ("Procurement")
By:
------------------------
North American Timber Corporation ("NATC")
By:
------------------------
LRFP Timber, Inc.
By:
------------------------
NPTC Timber, Inc.
By:
------------------------
GNN Timber, Inc.
By:
------------------------
NPI Timber, Inc.
By:
------------------------
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GWP Timber, Inc.
By: ________________________
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Exhibit "A"
Annual Offering Schedule (000s of tons) 2001-2010
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Master Timber Agreement - North American Timber Corp., LRFP Timber Inc., NPTC Timber Inc., GNN Timber Inc., NPI Timber Inc., and GPW Timber Inc. and Georgia-Pacific Corp.
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