TIMBER SUPPLY
AGREEMENT
DATE: May 15, 1996
BETWEEN: JOHN HANCOCK MUTUAL LIFE ('JH')
INSURANCE COMPANY
AND: WILLAMETTE INDUSTRIES, INC. ('WI')
Recitals:
A. Pursuant to Asset Sale, Purchase and Transfer Agreement dated
April 23, 1996 ('Purchase Agreement'), JH has on the date hereof acquired from
WI, or has obtained options to purchase from WI, certain timberlands located
in the State of Oregon, as more fully described therein ('Timberlands').
B. The Purchase Agreement requires that JH grant to WI a right of
first offer with respect to certain logs harvested from that portion of the
Timberlands subject to a certain Right of First Offer Agreement between the
parties dated May 15, 1996 ('First Offer Agreement') as set forth in this
Agreement ('Agreement') setting forth the terms and conditions on which WI
shall be entitled to exercise such right.
Agreements:
In consideration of the foregoing and the mutual covenants of the parties
set forth in this Agreement, the parties agree as follows:
1. Defined Terms. For all purposes of this Agreement, the following
terms, when capitalized, shall have the following meanings:
1.1 'First Offer Lands' means that portion of the Timberlands
from time to time subject to the First Offer Agreement. The First Offer
Agreement sets forth certain exemptions under which JH may cause certain
portions of the Timberlands to be permanently exempt from subjectivity to such
Agreement. Until such time as JH has utilized an exemption to remove a
specified portion of the Timberland from subjectivity to the Right of First
Offer Agreement, such portion shall be deemed subject to said Agreement.
1.2 'Export Logs' shall mean all species of Logs harvested from
the First Offer Lands which, under current market conditions as of the date of
harvest, and the standards of the industry, would commonly be sold on the
export market, divided into the following two categories:
1.2.1 high-end quality; includes regular Japan quality 8' and
larger; and
1.2.2 low-end quality; includes regular Korean and China
quality 8' and larger.
1.3 'Domestic Logs' shall mean all species of Logs harvested from
the First Offer Lands which, under current market conditions as of the date of
harvest, and the standards of the industry, would commonly be sold on the
domestic market, divided into the following two categories:
1.3.1 saw logs 8' and larger suitable for the manufacture of
standard and better lumber; and
1.3.2 chip and saw logs 5', 6' and 7' in diameter suitable
for the manufacture of chips and standard and better lumber.
1.4 'Pulp Logs' shall mean all species of Logs harvested from the
First Offer Lands which, under current market conditions as of the date of
harvest, and the standards of the industry, including utility, special
(peelable) cull, and highly defective grade logs, would commonly be sold on
the pulp market.
1.5 'Logs' shall mean all Export, Domestic and Pulp Logs.
1.6 'Category' shall mean any of the following five groups:
1.6.1 the type of Export Logs described in Section ;
1.6.2 the type of Export Logs described in Section ;
1.6.3 the type of Domestic Logs described in Section ;
1.6.4 the type of Domestic Logs described in Section ; and
1.6.5 the Logs described in Section .
2. Right of First Offer. JH hereby grants to WI the exclusive right
of first offer with respect to 25% of each Category of Logs harvested from the
First Offer Lands, subject to and in accordance with the terms and conditions
set forth in this Agreement. Without limiting the generality of the
foregoing, JH agrees that it shall not offer to sell, negotiate regarding the
sale of, nor enter into an agreement to sell any Logs subject to this
Agreement to any third party until and unless WI has failed to give a timely
Acceptance Notice (defined in Section ) with regard to such Logs.
3. Notices of Availability and Price. Not later than twenty (20) days
prior to the end of each fiscal quarter (as elected by JH from time to time
for its Log harvest and marketing purposes) during the Term (defined in
Section ), JH shall give WI written notice in substantially the form attached
as Exhibit A ('Notice of Availability') setting forth the approximate volume
of Logs (indicating the volume in each Category which JH expects to have
available for sale during the following fiscal quarter; provided, however,
that JH shall not be required to give a Notice of Availability if, at the time
such notice would otherwise be required hereunder, WI is in default in the
payment of any amount due JH for Logs previously delivered to WI hereunder.
For the purposes of this Agreement, all merchantable Logs 6' in diameter or
larger shall be measured and graded using the Official Rules of the Columbia
River Log Scaling and Grading Bureau (or any successor to such bureau agreed
to by the parties) scribner long log Rule M board feet. Pulp logs shall be
measured by weight on a per ton (2,000 pounds per ton) basis. The volume
estimates set forth in any Notice of Availability shall include estimated
volume by species, shall be based on the best information available to JH, and
shall not be binding with respect to actual volumes delivered. Not later than
ten (10) days prior to the end of each fiscal quarter during the Term, JH
shall give WI a Notice of Price/Acceptance Notice in substantially the form
attached as Exhibit B setting forth the price(s) at which JH is willing to
sell to WI 25% of each Category of the Logs described in the Notice of
Availability, which price shall be equal to the highest sales price (taking
into account any relevant transportation differentials) at which JH is selling
any portion of the volume not being so offered to WI, pursuant to JH's
standard, open market bidding procedures, to customers other than WI who are
not affiliated with or controlled by JH.
Due to varying market, weather, labor, topographical or other
conditions, JH may actually harvest greater volumes from one or more harvest
units than the estimated volume(s) set forth in the Notice of Availability for
the quarter in question. Should it appear during the progress of the harvest,
based on JH's best estimate, that as a result of such excess harvest, the
total volume to be harvested during any such quarter will exceed by at least
20% the total volume set forth in the initial Notice of Availability for that
quarter, JH shall promptly transmit to WI a supplemental Notice of
Availability setting forth the estimated excess harvest by Category and a
supplemental Notice of Price setting forth the highest price for which JH is
in a position to market such excess volume to customers other than WI not
controlled by or affiliated with JH.
4. Acceptance Notice, Procedure and Delivery.
4.1 Within five (5) business days after the delivery to WI of any
Notice of Price/Acceptance Notice, the Notice of Availability (initial or
supplemental) having been timely given as hereinabove provided, WI shall give
JH written notice by completing, dating and signing the Acceptance Notice
portion of the Notice of Price/Acceptance Notice ('Acceptance Notice') if it
wishes to purchase any Logs which are subject to this Agreement and described
in the Notice of Availability for the price(s) set forth in the Notice of
Price/Acceptance Notice (initial or supplemental). WI may accept the offer to
sell only by electing to buy at least 25% of the volume identified in the
Notice of Availability in one or more of the Categories defined above in
Section .
4.2 If WI gives a timely Acceptance Notice, WI shall thereafter
purchase from JH, and JH shall thereafter sell to WI, the Logs described in
such Acceptance Notice, for the price(s) set forth in the applicable Notice of
Price/Acceptance Notice.
4.3 If WI fails to give a timely Acceptance Notice with respect
to any Logs which have been the subject of a Notice of Availability, JH shall
thereafter be free to sell such Logs to any third party without any further
obligation to WI, whether or not the price or terms of any such sale are more
or less favorable to the purchaser than those offered to WI.
4.4 Logs purchased by WI under this Agreement shall be delivered
pursuant to JH's usual delivery procedures in which deliveries to each
customer are made throughout the quarter in substantially pro rata shipments,
using the percentage of the total anticipated volume for that quarter going to
each customer.
5. Sales Terms and Conditions. All sales of Logs to WI under this
Agreement shall be governed by the terms and conditions set forth in the
Notice of Availability.
6. Term. The term of this Agreement shall expire June 30, 2001, (the
'Term'), but shall be automatically extended for an unlimited number of
successive two (2) year terms from the initial or any subsequent expiration
date unless either party shall give written notice to the other party, at
least one (1) year before the date the Term is due to expire, that it elects
to allow the Term to expire at the end of the Term then in effect.
7. Time of Essence. Time is of the essence of this Agreement.
8. Recordation. This Agreement shall not be recorded, but the parties
shall execute and record from time to time as portions of the Timberlands are
purchased by JH, a Memorandum of this Agreement in the form attached as
Exhibit C, with an attached legal description of the said portion(s) so
purchased. Since certain portions of the Timberlands and the timber thereon,
not now identified, will be exempt from the First Offer Agreement (and thus
not impacted by this Agreement), WI agrees that it will promptly execute and
deliver to JH such appropriate release documents in recordable form that JH
may reasonably request from time to time so that JH's ability to deal with
such portions not subject to this Agreement will not be unreasonably or
unduly impeded, hindered or delayed.
9. Audit. WI shall have the right to audit and inspect, using the
services of independent public or certified public accounting firms, upon
reasonable notice during normal office hours, the relevant records of JH or
its timber manager to verify the accuracy of the price(s) set forth in any
Notice of Price/Acceptance Notice to the extent such audit or inspection will
not be in violation of any applicable laws. Prior to any such audit or
inspection, the auditing or inspection firm shall execute and deliver to JH a
confidentiality agreement in standard form in order to protect the
confidentiality of the data disclosed by the audit or inspection.
10. Force Majeure.
10.1 WI and JH shall not be liable to each other for any failure
or delay in delivery or acceptance of delivery of Logs in the event that such
failure of delay is due to circumstances beyond the party's reasonable
control, including, without limitation, inclement weather, fires, labor
disputes, acts of God and acts of any governmental body (each of the foregoing
being referred to herein as a 'Force Majeure Event'). The occurrence of a
Force Majeure Event shall not give either party the right to terminate this
Agreement. With respect to any Force Majeure event of the type described in
the preceding sentence, the party whose performance is prevented or delayed
shall use all reasonable efforts to minimize the duration and consequences of
any failure or delay in delivery or acceptance of delivery resulting from such
Force Majeure Event and shall give the other party prompt notice of the
occurrence of such Force Majeure Event.
10.2 If as a result of a Force Majeure Event WI cannot accept the
quantity of Logs it has elected to purchase under this Agreement, JH shall
have the right to sell Logs to customers other than WI until such time as WI
shall notify JH that WI is again able to accept delivery of Logs purchased
from JH hereunder. After WI again proposes to commence acceptance of delivery
of Logs purchased from JH hereunder, JH shall have the right to deliver any
Logs otherwise subject to WI's right to purchase under this Agreement, the
sale of which was contracted for by JH during the period WI did not accept
Logs subject to this Agreement due to a Force Majeure Event; provided that no
such contract shall be entered into for a term longer than three (3) months
without the prior written consent of WI, which consent shall not be
unreasonably withheld.
11. Confidentiality. It is recognized that both parties may disclose
to each other or ascertain in the process of exercising its audit or records
inspection rights, certain information with respect to their respective
operations which the other may consider to be private and confidential, the
disclosure of which could prove injurious to either party. Therefore, each
party agrees to use any pricing information and proposals and any other
information designated in writing by the other party as confidential solely
for the purposes hereof, and to use its best efforts to prevent the disclosure
of such information (other than information which is or becomes a matter of
public knowledge or which has been or is subsequently filed as public
information with any governmental authority) to third parties without the
prior written consent of the affected party, unless such disclosure is
required by law.
12. Cancellation and Termination.
12.1 In addition to the provisions of Section hereof, and all
other remedies available hereunder or under applicable law, this Agreement may
be cancelled by either party, at its option exercisable by written notice to
the other, if such other party shall default in the performance of any of its
agreements or obligations herein, and such default continues without cure for
a period of sixty (60) days after written notice from the non-defaulting
party.
12.2 This Agreement may be cancelled by either party, at its
option exercisable by written notice to the other, in the event the other
party (i) files, consents to the filing of, or within 30 days fails to have
rescinded or to obtain the dismissal of, any petition for relief under any
federal or state bankruptcy, insolvency or other similar law, (ii) makes any
assignment for the benefit of creditors, (iii) fails generally to pay its
debts as they come due, (iv) takes any corporate action to authorize any of
the foregoing, or (iv) becomes insolvent.
13. Relationship of Parties. In all matters relating to this
Agreement, both parties shall be acting solely as independent contractors and
shall be solely responsible for the acts of their employees; and employees of
one party shall not be considered employees of the other party. Neither party
shall have any right, power, or authority to create any obligation, express or
implied, on behalf of the other party.
14. Assignment. This Agreement shall not be assignable or transferable
by WI or JH without the consent in writing of the other party, which consent
shall not be unreasonably withheld, except that either party shall assign this
Agreement to any corporation formed by consolidation of such party with
another corporation or corporations, or into which such party shall be merged,
or to any corporation, form or person to whom substantially all the property
of such party is transferred as an entirety (the 'Successor Party'). Upon any
such transfer, all the terms and provisions of this Agreement binding upon, or
inuring to the benefit of, the party transferring the same shall be binding
upon, and inure to the benefit of, the Successor Party whether so expressed or
not.
15. Automatic Release/Non-Application. At such time as title to any
portion of the Timberlands or timber thereon is transferred by JH to a party
in whose ownership such portion of the Timberlands or timber thereon is not
subject to the First Offer Agreement, such property shall no longer be subject
to this Agreement, except to the extent of the fulfillment of any relevant log
sale agreement or cutting contract entered into between WI and JH prior to
such change of ownership. Further, the First Offer Agreement sets forth
certain transactions that are exempt from the application thereof. Subject to
the provisions of Section hereof, JH may utilize any such exemptions without
first affording WI any opportunity to purchase under this Agreement.
16. Cutting Contract Bidding. JH shall not enter into a cutting
contract intended to qualify as exempt from the restrictions of the First
Offer Agreement unless the following conditions are satisfied: Such cutting
contract shall be awarded as the result of a bid solicitation conducted
according to JH's normal procedures in such matters, provided that WI shall be
given at least twenty (20) days' written notice of the opportunity to bid,
such notice to be directed as set forth in Section hereof.
17. Designees Bound. Under the Purchase Agreement, JH has the right to
cause its designee(s) to acquire a portion of the Timberland at any closing
under the Purchase Agreement. This Agreement shall be binding on such
designee(s). In such event, reference in this Agreement to 'JH' shall be
deemed to include such designee(s), unless the context shall otherwise
require.
18. Notices. Notices under this Agreement shall be effective upon
actual delivery, if given by hand delivery, telefacsimile, or overnight
delivery service, or two (2) business days after the date of mailing, if given
by certified or registered mail, postage prepaid with return receipt
requested. Notices shall be addressed as follows (or to such other or
additional address as either party may designate by written notice to the
other):
If to WI: Willamette Industries
P.O. Box 907
Albany, OR 97321
Attn: Jim A. James, General Manager
Western Timber and Logging
Copy to: Duane McDougall, Vice President
Building Materials Group
Willamette Industries, Inc.
2730 Pacific Boulevard S.E.
P.O. Box 907
Albany, Oregon 97321
If to JH: John Hancock Mutual Life Insurance Company
John Hancock Plaza
200 Clarendon Street
P.O. Box 111
Boston, MA 02117
Attn: Daniel P. Christensen
Hancock Natural Resource Group, Inc.
Copy to: Robert Golden, Counsel
John Hancock Mutual Life Insurance Company
John Hancock Plaza
200 Clarendon Street
P.O. Box 111
Boston, MA 02117
Copy to: Stanley G. Renecker or John Gilleland
The Campbell Group, Inc.
One S.W. Columbia
Suite 1720
Portland, OR 97258
Provided that any Acceptance Notice under Section 4 hereof shall be given only
to:
The Campbell Group, Inc.
Suite 1720
One S. W. Columbia
Portland, OR 97258
Attn: Cary Young or Joe Shore
19. Binding Effect. The provisions of this Agreement shall run with
the land comprising the Timberlands and shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns; provided,
however, that WI shall be entitled to assign its rights under this Agreement
only with the prior written consent of JH, which consent shall not be
unreasonably withheld.
20. Waiver. Failure of either party at any time to require performance
of any provision of this Agreement shall not limit such party's right to
enforce such provision, nor shall any waiver of any breach of any provision of
this Agreement constitute a waiver of any succeeding breach of such provision
or a waiver of such provision itself.
21. Amendment. This Agreement may not be modified or amended except by
the written agreement of the parties.
22. Attorneys' Fees. If a suit, action, or other proceeding of any
nature whatsoever (including any proceeding under the U.S. Bankruptcy Code) is
instituted in connection with any controversy arising out of this Agreement or
to interpret or enforce any rights hereunder, the prevailing party shall be
entitled to recover its attorneys', paralegals', accountants', and other
experts' fees and expenses and all other fees and expenses actually incurred
and reasonably necessary in connection therewith, as determined by the court
at trial or on any appeal or review, in addition to all other amounts provided
by law.
23. Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Agreement and the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be affected thereby, and
each term or provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
24. Integration. This Agreement contains the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements between them with respect
to such subject matter, excepting only those agreements noted in this
Agreement.
25. Construction and Interpretation. The headings or titles of the
sections of this agreement are intended for ease of reference only and shall
have no effect whatsoever on the construction or interpretation of any
provision of this Agreement. The use in this Agreement of the words
'including,' 'such as,' and words of similar import following any general
statement, term, or matter shall not be construed to limit such statement,
term, or matter in any manner, whether or not language of non-limitation (such
as 'without limitation' or 'but not limited to') is used in connection
therewith, but rather shall be deemed to refer to all other items or matters
that could reasonably fall within the scope of the general statement, term, or
matter. All provisions of this Agreement have been negotiated at arms length,
and this Agreement shall not be construed for or against any part by reason of
the authorship or alleged authorship of any provision hereof.
26 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Oregon.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation
By: HANCOCK NATURAL RESOURCE GROUP, INC., its Investment Manager
By: /s/ Wm. R. Gordan
Signature
Wm. R. Gordan
Name
President and CEO
Title
WILLAMETTE INDUSTRIES, INC., an Oregon corporation
By: /s/ J. A. Parsons
Signature
J. A. Parsons
Name
Executive Vice President, CFO
Title
Exhibits to Timber Supply Agreement
Exhibit A Notice of Availability
Exhibit B Notice of Price/Acceptance Notice
Exhibit C Memorandum of Timber Supply Agreement
Timber Supply Agreement - John Hancock Mutual Life Insurance Co. and Willamette Industries Inc.
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