ASSET SALE, PURCHASE AND TRANSFER AGREEMENT
This Asset Sale, Purchase and Transfer Agreement (this "Agreement") is made as
of this 12th day of March, 1996, between Hanson Natural Resources Company, a
Delaware general partnership ("Hanson"), and Cavenham Energy Resources Inc., a
Delaware corporation ("CERI"), and Cavenham Forest Industries Inc., a Delaware
corporation ("CFII") (Hanson, CERI and CFII are collectively called "Seller"),
and Willamette Industries, Inc., an Oregon corporation ("Buyer").
RECITALS:
A. Hanson, through its Cavenham Forest Industries Division and Cavenham
Energy Resources Division, currently owns or leases certain assets which are
used in the conduct of Hanson's timber, wood products and energy business
located in Oregon, and Washington (the "Northwest Business") and Southwest
Louisiana and North Louisiana (the "Remaining Louisiana Businesses").
B. Prior to the Closing Date, Hanson may: (i) transfer to CFII all of its
assets (except its mineral assets) in the Northwest Business and the Remaining
Louisiana Businesses, and (ii) transfer to CERI all of its mineral assets in
the Northwest Business and the Remaining Louisiana Businesses, and (iii)
transfer to CFII and CERI, respectively, all rights, liabilities and
obligations of Hanson with respect to the assets transferred to them; and CFII
and CERI will assume all rights, liabilities and obligations of Hanson with
respect to the assets transferred to them. Notwithstanding the foregoing
transfers, Hanson shall be bound by the covenants made by and obligations
imposed on Seller in this Agreement and shall be entitled to exercise the
rights granted to Seller in this Agreement. Notwithstanding the foregoing
transfers, Hanson, CERI, and CFII shall each execute all of the documents
listed in Section 3.4 (a) and (b) at the Closing.
C. Seller and Buyer desire to enter into this Agreement pursuant to which
Seller agrees to sell and transfer and Buyer agrees to buy and accept from
Seller substantially all of the assets of the Northwest Business and Remaining
Louisiana Businesses, and Buyer agrees to assume certain of the liabilities
and obligations of the Northwest Business and Remaining Louisiana Businesses.
It is therefore agreed as follows:
Definitions. As used herein, the following terms shall have the following
meanings:
A. Assets. The term "Assets" shall mean all of the rights, properties, and
assets used in the conduct of the Northwest Business and Remaining Louisiana
Businesses (including, without limitation, the real and personal property,
Mineral Rights, Mill Facilities, Chipper Facility, Contracts, and other items
and leases described in Sections 1.1, 1.2, 1.3, and 1.4), but excluding the
Excluded Assets.
B. Contracts. The term "Contracts" shall mean the contracts and leases
(except for the long term leases described in Section 1.3) which are described
in Sections 1.1 and 1.2 and 1.4.
C. Closing. The term "Closing" or "Closing Date" shall have the meaning
ascribed to it in Section 3.1.
D. Closing Date Payment. The term "Closing Date Payment" shall have the
meaning ascribed to it in Section 2.1(b).
E. Deposit. The term "Deposit" shall mean the initial sum paid by Buyer
pursuant to Section 2.1(a).
F. Excluded Assets. The term "Excluded Assets" shall mean the assets
excluded in Section 1.5.
G. Material Adverse Effect. The term "Material Adverse Effect" shall mean
events which have an adverse effect in the aggregate which, measured in
dollars, exceeds the sum of $15,000,000.
H. Material Contract. The term "Material Contract" shall have the meaning
ascribed to it in Section 6.3.
I. Proration Date. The term "Proration Date" shall mean the specific date
set for Closing in Section 3.1, or any subsequent date set for Closing,
provided that the actual date of Closing occurs within five (5) business days
after said date set for Closing.
J. Timberland Properties. The term "Timberland Properties" shall mean the
real property and real property interests described in Section 1.1(a).
K. Louisiana Transitional/Transactional Definitions. To the extent this
Agreement is describing Assets located in Louisiana, or rights therein, or to
the extent the internal laws of Louisiana govern this Agreement: the terms
"real property", "real estate" and words of similar import shall include
immovable property; the term "personal property" and words of similar import
shall include movable property; and the term "easements" and word of similar
import shall include servitudes.
L. Affiliate of Seller. The term "Affiliate of Seller" shall mean (i) any
individual, partnership, corporation, or other entity or person which is owned
or controlled directly or indirectly by Hanson plc; (ii) any other individual,
partnership, corporation, or other entity or person which controls or is
controlled by or under common control with Seller; and (iii) any officer,
director, partner, or owner of 10 percent or greater equity or voting interest
in any such other corporation, partnership, or other entity or person.
M. Code. The term "Code" shall mean the Internal Revenue Code of 1986, as
amended.
N. Designee. The term "Designee" shall mean a person designated by Buyer to
whom particular Assets are to be transferred by Seller at Closing. Buyer
shall specify each Designee and Assets to be transferred to such Designee to
Seller at least fifteen (15) business days in advance of Closing for purposes
of the conveyance instruments described in Section 3.4, and shall specify each
potential Designee and Assets to be transferred to such Designee to Seller
within three (3) weeks of mutual execution of this Agreement for purposes of
requesting consents for assignments of Contract, permits, licenses, and Long
Term Leases. Buyer may designate one or more of its subsidiaries and up to
three additional persons or entities as Designees.
O. Agreement. The term "Agreement" shall mean this instrument and all
Schedules and Exhibits attached hereto.
1. Sale, Purchase and Transfer of Assets.
Subject to the terms and conditions of this Agreement, at the Closing
referred to herein, Seller agrees to sell, transfer and assign and Buyer
agrees to purchase and accept on the terms stated herein, all of Seller's
right, title and interest in and to the Assets, including, without limitation,
the following:
1.1 Real Property (Timberland Properties).
(a). Timberland. Those certain parcels of real property, owned by
Seller situated in the states of Oregon and Washington and in Southwest
Louisiana and North Louisiana and described on Schedule 1.1 (a), together with
all timber of all species, standing, dead or down, pulpwood, all felled and
bucked logs, trees, shrubs and reproduction thereon as of the Closing Date,
the ("Timberland" or "Timberland Properties"), excepting therefrom changes
therein prior to Closing pursuant to Section 5 as a result of conduct of the
Northwest Business and Remaining Louisiana Businesses, and subject to the
provisions of Section 1.10 with respect to the Wauna Acreage described in
Section 1.10.
(b). INTENTIONALLY LEFT BLANK
(c). Buildings, Improvements and Easements. All buildings and
improvements, all roads, bridges, permits, servitudes, and easements, owned or
leased by Seller or which Seller has a right to use and on or appurtenant to
the Timberland Properties, including those described on Schedule 1.1(c).
(d). Related Facilities. All sorting yards, log booms, offices,
and rock pits, owned or leased by Seller and associated with the Timberland
Properties, whether or not located on the Timberland Properties, including
those described on Schedule 1.1 (d), and including the Chipper Facility, as
defined in, and subject to the provisions of, Section 1.9.
(e). Other Rights. All other contracts and rights specifically
relating to the Timberland Properties and operations thereon including, but
not limited to, contracts, contract rights, leases, servitudes, permits,
licenses, notifications, approvals and authorizations of governmental bodies,
including those described on Schedule 1.1 (e), to the extent assignable.
(f). Water Rights. All water rights owned by Seller relating to
and appurtenant to the Timberland Properties.
(g). Mineral Rights. All minerals, including without express or
implied limitation, oil, gas, and hydrocarbon and geothermal resources in
which Seller has an interest whether or not related to such Timberland
Properties in the states of Oregon and Washington and in North Louisiana and
Southwest Louisiana, including those Mineral Rights listed on Schedule 1.1 (g)
(the "Mineral Rights").
1.2 Mill Facilities. The sawmill properties, shops, and offices,
including all of the real property and related facilities, owned or leased by
Seller, including those identified or listed on Schedule 1.2, and all rights,
permits, licenses and contracts relating thereto to the extent assignable,
together with all inventory of logs and other raw materials, work-in-process,
finished goods, parts, scrap, wrapping, operation supplies and packaging items
and finished goods used or to be used exclusively or primarily in the
Northwest Business or Remaining Louisiana Businesses (including any in-transit
goods, except for such goods as have been purchased by customers of Seller and
are being held, stored or retained for such customers) (the "Mill
Facilities").
1.3 Long Term Leases. Seller is the lessee under those long term timber
leases (the "Long Term Leases") which grant to Seller the right to grow and
harvest timber on the lands described in said leases in Southwest Louisiana,
subject to the terms and conditions of said leases. All of said leases are
described on the attached Schedule 1.3. At Closing, Seller will assign to
Buyer all of its rights under said leases, and Buyer will assume Seller's
obligations under the leases, and will fully perform Seller's obligations
thereunder. The attached Schedule 1.3 also indicates those leases which may
be assigned by Seller without the consent of the lessor and those that require
the consent of the lessor. Should any one or more of the lessors identified
on the attached Schedule 1.3 be unwilling to consent to the assignment of that
lease, the inability of Seller to assign that lease shall not be considered a
breach of this Agreement. The Purchase Price shall be adjusted, after
Closing, to reflect any reduction in the value of the Assets resulting from
Seller's inability to assign said lease because such consent is not obtained
or for any other reason, and Subsection 2.1(d), including the provisions
relating to the amount of the Deposit payable at Closing, shall apply. Should
Seller and Buyer be unable to agree upon the amount of said reduction within
10 days following the Closing Date, the issue shall then be resolved by
arbitration pursuant to Section 9.2 of this Agreement; provided, that
notwithstanding Section 9.2 and Section 12.3, for purposes of this Section 1.3
the arbitration shall be conducted in Bogalusa, Louisiana, in accordance with
the rules of the American Arbitration Association and the provisions of
Louisiana law relating to arbitration, as said rules and laws are in effect on
the date of this Agreement; the appointment of the arbitrator shall ultimately
be made by the 22nd Judicial District Court in and for the Parish of
Washington, Louisiana; proceedings to enter a judgment with respect to any
award rendered hereunder shall be undertaken in accordance with the law of the
State of Louisiana, including the conflicts of laws provisions thereof; and
Louisiana law shall govern.
1.4 Personal Property.
All of the personal property of the Northwest Business and Remaining
Louisiana Businesses, except personal property which is an Excluded Asset as
described in Section 1.5, shall be transferred, sold and assigned to Buyer,
including, without limitation, the following:
(a). Records. Seller's land management and other records relating
to the Timberland Properties, Mill Facilities, Chipper Facility, Mineral
Rights, Long Term Leases and other Assets which, in the reasonable judgment
and discretion of Seller, are segregated or segregable by Seller from the
overall records of Seller, including but not limited to management unit maps,
aerial photographs, timber cruises, Seller's GIS and forest inventory systems
for the Northwest Business and related hardware and software, road and gate
records, operational records and leases, easements, deeds, licenses, survey
and survey notes, information relating to oil, gas, and mineral activities,
permits, approvals and authorizations of governmental agencies held by Seller
in connection with the Timberland Properties, Mill Facilities, Chipper
Facility, Mineral Rights, Long Term Leases and other Assets. The records
shall also include all files and documents relating to customers, suppliers
and contractors directly related to the Timberland Properties, Mill
Facilities, Chipper Facility, Mineral Rights, Long Term Leases and other
Assets which, in the reasonable judgment and discretion of Seller, are
segregated or segregable from all other business records, files, books and
documents of Seller.
(b). Mobile Equipment, Machinery and Equipment. The mobile
equipment, machinery, equipment, tools, fixtures and furniture used by Seller
exclusively or primarily in connection with the Northwest Business and
Remaining Louisiana Businesses, including those listed on Schedule 1.4(b), as
such items listed thereon may have been sold, replaced, deleted or added in
the ordinary course of business, together with certificates of title for motor
vehicles which are licensed and owned by Seller.
(c). Office Supplies. The office supplies and forms, packaging
materials and similar miscellaneous tangible personal property used by Seller
exclusively or primarily in connection with the Northwest Business and
Remaining Louisiana Businesses, except such supplies which are marked or
identifiable with the logo, mark or trademark of Seller or Hanson's general
partners.
(d). Contracts. All rights and obligations under those
instruments not related to real property, including the contracts, leases,
permits and licenses described on Schedule 1.4(d), to the extent the same are
assignable, including sales orders and commitments, purchase orders and
commitments, agreements and contracts of Seller which relate to work or
services to be performed for or at the Northwest Business or Remaining
Louisiana Businesses or the Assets.
1.5 Excluded Assets. The parties to this Agreement expressly
understand and agree that the Seller is selling, assigning, transferring or
conveying to Buyer all of the assets owned or leased by Seller used in the
Northwest Business and Remaining Louisiana Businesses, except the following
assets, rights and properties which are owned or leased by Seller and which
shall be specifically excluded from the transactions contemplated by this
Agreement, notwithstanding anything to the contrary elsewhere in this
Agreement ("Excluded Assets"):
(a). all of Seller's bank accounts, depository accounts, lockbox
and other accounts and deposit books and all cash therein, and all other cash,
cash equivalents, and securities, including securities of Affiliates of
Seller, whether or not related to the Northwest Business and Remaining
Louisiana Businesses;
(b). pension, retirement savings or other funded employee benefit
plan assets of Seller or the Northwest Business and Remaining Louisiana
Businesses including the Cavenham Forest Industries Inc. Retirement Plan for
Salaried Employees and the Cavenham Forest Industries Inc. Retirement Plan for
Hourly Employees;
(c). tax refunds, security deposits and pledges and releases
thereof, bonds and undertakings and releases thereof, all prepaid and deferred
items (including prepaid rent and other prepaid expenses) and other credits,
reimbursements and refunds to be made by third parties to Seller attributable
in each case to periods prior to the Closing Date, whether such credits,
reimbursements and refunds occur before or after the Closing Date;
(d). accounts receivables reflected on Seller's books for goods
invoiced, shipped, or delivered, and advance payments generated or incurred by
or in connection with the Northwest Business and Remaining Louisiana
Businesses (including allowances for deductions from remittances, employee
advances, rebates, receivables, deposits on bids) and other receivables and
claims including claims against third parties which arise from acts or events
occurring prior to the Closing Date;
(e). minute books, stock ledger records and related corporate
records and partnership records of the Seller, or Affiliates of Seller,
including GOSL Acquisition Corp. and Hanson Export Ltd., formerly Cavenham
Forest Export Ltd., and all trade marks, trade names, and logos owned by
Seller, or Hanson's general partners, and intellectual property (except the
GIS and forest inventory systems for the Northwest Business); provided that
Buyer need not remove any such trademarks, trade names and logos from the
inventory included in the Assets or, for a period of thirty (30) days after
the Closing Date, from other Assets;
(f). any insurance policies, premiums, refunds and proceeds
relating to the Northwest Business and Remaining Louisiana Businesses;
(g). all leased or owned vehicles assigned to Non-
transferred Employees; provided, that Seller will not assign such vehicles to
Non-transferred Employees after February 1, 1996, except in the ordinary
course of Seller's Northwest Business and Remaining Louisiana Businesses; and
(h). all of Seller's personal property, rights and interests
which are related primarily to the headquarters or partnership or corporate
management of the Northwest Business and Remaining Louisiana Businesses,
including but not limited to the leased office located at 1800 SW First
Avenue, #500, Portland, Oregon, together with all office equipment, and
machinery, fixtures, furniture, office supplies, all computer hardware,
software (but not the hardware and software constituting the GIS system and
the forest inventory system for the Northwest Business), peripherals, computer
programs and supplies, and computer licenses relating to the foregoing items,
and all other similar personal property, rights and interests located at
McComb, Mississippi, or elsewhere which is related primarily to the
headquarters or partnership or corporate management of the Northwest Business
and Remaining Louisiana Businesses, including that property listed on Schedule
1.5 (h).
(i). all personal property which is owned by a third party
but not leased by Seller which is in the custody of Seller, together with all
other non-operating assets owned by any Affiliate of Seller which may be held
by Seller.
(j). all real and personal property which is owned, leased
or used by Seller or Affiliates of Seller and its environmental staff in
connection with the environmental clean up and management of the former
treated wood products operations of Crown Zellerbach and Cavenham Forest
Industries Inc., including such personal property located at Columbia,
Mississippi, and all real and personal property located at Urania, Louisiana,
Mobile, Alabama, Gulfport, Mississippi, Sallisaw, Oklahoma and Lyman (near
Gulfport), Mississippi; and all contract, rights, permits and agreements
related to the treated wood products business.
(k). all real, personal, mixed, movable and immovable
property of any kind related to or used primarily in the Southeast Louisiana
and Mississippi Business of Seller which has been sold to Weyerhauser Company
pursuant to that Asset Sale, Purchase and Transfer Agreement dated as of
February 23, 1996.
(l). all log export contracts for the Northwest Business and
Remaining Louisiana Businesses (if any).
1.6 Assignment of Contracts.
(a). Contracts Assignable Without Consent. Seller agrees to
assign or cause to be assigned to Buyer or a Designee, as of the Closing, all
of the rights of Seller under the Contracts that are assignable without
consent of any third party and Buyer shall assume, as of the Closing, all
obligations of Seller thereunder which arise before, at or after Closing.
(b). Seller to Use Reasonable Efforts. Anything in this
Agreement to the contrary notwithstanding, Seller shall not be obligated to
sell, assign, transfer or convey or cause to be sold, assigned, transferred or
conveyed to Buyer or a Designee, if applicable, any of its rights in and to
any of the Contracts without first obtaining all necessary approvals, consents
or waivers. Seller shall use all reasonable efforts, and Buyer shall
reasonably cooperate with Seller, to obtain all necessary approvals, consents
or waivers, or to resolve any impracticalities of transfer necessary to assign
or convey to Buyer or a Designee, if applicable, each such Contract as soon as
practicable; provided, however, that neither Seller nor Buyer shall be
obligated to pay any consideration therefor except for filing fees and other
ordinary administrative charges which shall be paid by Seller to the third
party from whom such approval, consent or waiver is requested. Such
approvals, consents, and waivers shall be in favor of both Buyer and, if
applicable, a Designee. In the event Seller obtains consent to assignment of
a Contract prior to the Closing, Buyer shall assume, as of Closing, all
obligations of Seller thereunder which arise before, at or after the Closing,
as though no consent was required.
(c). If Waivers or Consents Cannot be Obtained. To the
extent that any of the approvals, consents or waivers referred to in Section
1.6(b) have not been obtained by Seller as of the Closing, or until the
impracticalities of transfer are resolved, Seller shall, during the remaining
term of such Contracts, use all reasonable efforts to (i) obtain the consent
of any such third party with the filing fees and ordinary administrative
charges payable to such third party to be split equally by the parties; (ii)
cooperate with Buyer in any reasonable and lawful arrangements designed to
provide the benefits of such Contracts to Buyer or a Designee, if applicable,
so long as Buyer fully cooperates with Seller in such arrangements; and (iii)
enforce, at the request of Buyer and at the expense and for the account of
Buyer, any rights of Seller arising from such Contracts against such issuer
thereof or the other party or parties thereto (including the right to elect to
terminate any such Contracts in accordance with the terms thereof upon the
request of, and indemnification from, Buyer).
(d). Non-assignability. To the extent that any Contract or
any claim, right or benefit arising thereunder or resulting therefrom is not
capable of being sold, assigned, transferred or conveyed without the approval,
consent or waiver of the issuer thereof or the other party thereto, or any
third person (including a government or governmental unit), or if such sale,
assignment, transfer or conveyance or attempted assignment, transfer or
conveyance would constitute a breach thereof or a violation of any law,
decree, order, regulation or other governmental edict, this Agreement shall
not constitute a sale, assignment, transfer or conveyance thereof, or an
attempted assignment, transfer or conveyance thereof.
1.7 Transferring Permits and Licenses. Seller will assign,
transfer or convey, or cause to be assigned, transferred or conveyed to Buyer
or a Designee, if applicable, at the Closing those permits and licenses,
including those described in Schedules 1.1 (c) and (e), 1.2, and 1.4 (d) which
are held or used by the Seller in connection with the Assets and which can be
assigned without having to obtain the consent of any third party with respect
thereto. Seller will cooperate with Buyer in obtaining any third party
consents necessary to the assignment or transfer of any other permits or
licenses used or held by Seller in connection with the Assets which are so
assignable or transferable; however, neither Seller nor Buyer shall be
obligated to pay any consideration therefor except for filing fees and other
ordinary administrative charges which shall be paid by Buyer to the third
party from whom such approval, consent or waiver is requested. Buyer shall
assume, as of Closing, all obligations of Seller arising prior to, at or after
Closing under those permits and licenses which can be transferred without
having to obtain the consent of any third party and those permits and licenses
for which consent to transfer is obtained prior to Closing. Subsequent to the
Closing, to the extent permitted by law, upon ninety (90) days prior written
notice, Seller shall have the right to cancel any permits or licenses or any
bonds, guarantees or undertakings by Seller applicable to the Assets or the
Northwest Business and Remaining Louisiana Businesses to the extent such are
not so assigned or transferred to Buyer or to a Designee pursuant to this
Section 1.7.
1.8. Liabilities Assumed by Buyer; Liabilities Not Assumed by
Buyer.
(a). Assumed Liabilities. Except as expressly provided in
Subsection 1.8(b), Buyer shall, effective as of the Closing and without any
further responsibility or liability of or recourse to Seller, or its
directors, shareholders, officers, partners, employees, agents, consultants,
representatives, successors, transferees or assignees, absolutely and
irrevocably assume and shall be liable and responsible for the claims,
liabilities, and obligations of Seller with respect to the Timberland
Properties, Mill Facilities, Chipper Facility, Mineral Rights, Long Term
Leases and the Northwest Business and Remaining Louisiana Businesses, whether
or not disclosed to Buyer, and whether or not occurring or arising prior to,
at or after Closing, except as expressly set forth in Section 1.8(b) and
except to the extent to which Seller indemnifies Buyer as expressly set forth
in Section 10.1(a); and nothing in this Section 1.8(a) shall diminish Buyer's
rights in Section 8.11.
Without limiting the foregoing, Buyer shall assume the following:
(i). Buyer shall assume the Long Term Leases described
on Schedule 1.3, and all other Contracts assigned to Buyer or a Designee
pursuant to Section 1.6, and permits and licenses assigned to Buyer or a
Designee pursuant to Section 1.7;
(ii). Buyer shall assume all matters disclosed to
Buyer in Schedules 6.3 through 6.6;
(iii). Buyer shall assume the employee matters that
are set forth in Section 11 as Buyer's responsibility;
(iv). Buyer shall assume the long term "fiber supply
agreements" which encumber certain of the Timberland Properties and related
facilities, including the Northwest Pulp Log Supply Agreement, as modified and
amended; the Northwest Whole Log Wood Chip Supply Agreement (Cathlamet), as
modified; and the Northwest Chipper Agreement; and
(v). Buyer shall assume all undertakings of, and
liabilities and obligations assumed by, CFII, and all indemnity obligations of
CFII, if any, to Crown Zellerbach Corporation and its successors and assigns
relating to all environmental conditions arising from ownership, possession,
use, or conduct of business and operations of the Indemnification Properties
(as defined in Section 6.7(e) of this Agreement), which undertakings,
liabilities, obligations, and indemnity obligations are contemplated in that
certain Transaction Agreement dated December 14, 1985, by and between James
River Corporation of Virginia and Crown Zellerbach Corporation and are more
specifically set forth in that certain Undertaking dated as of May 2, 1986, by
CFII in favor of Crown Zellerbach Corporation (the Transaction Agreement and
Undertaking are collectively referred to herein as "Transaction
Agreement/Undertaking").
At Closing, the parties shall execute an Assignment,
Acceptance, and Assumption Agreement in the form attached hereto as Schedule
1.8 to evidence the foregoing matters to be assumed by Buyer, in addition to
the more specific instruments of assignment and assumption described in this
Agreement.
(b). Excluded Liabilities. Notwithstanding anything to the
contrary in this Agreement, the following liabilities and obligations
("Excluded Liabilities") of Seller or the Northwest Business and Remaining
Louisiana Businesses shall not be assigned to Buyer nor assumed by Buyer:
(i) all liabilities and obligations related to the
Excluded Assets;
(ii) trade accounts payable for items purchased and
delivered as of the Closing Date, and all accrued expenses of the type set
forth on Schedule 1.8(b)(ii) attached hereto which are, or under generally
accepted accounting principles should be, accrued at Closing;
(iii) all liabilities and obligations for taxes,
except for assessments and real estate taxes which shall be prorated on the
Proration Date as provided in this Agreement, and except for the deferred ad
valorem taxes because of classification of all or a portion of the Timberland
Properties as farmland, grazing land, or timberland;
(iv) all liabilities and obligations of Seller to any
Affiliate of Seller, except the conveyance of approximately 160 acres in
Columbia County to Richard Dahlin as noted in the Real Estate Plan, and any
other matters listed on Schedule 1.8(b)(iv) attached hereto;
(v) any liabilities or obligations to or with respect
to employees of Seller, except for the obligations and liabilities to be
assumed by Buyer pursuant to Section 11;
(vi) any obligations for borrowed funds; the term
"borrowed funds" shall not be construed to include purchase money contracts
and similar security interests for personal property;
(vii) all bodily injury claims occurring on or in
connection with the Assets prior to Closing and all product liability claims
arising from sale or operation of the Assets prior to Closing;
(viii) any matters retained by Seller pursuant to
Section 8.2(c); and
(ix) all undertakings of, and liabilities and
obligations assumed by, CFII, and all indemnity obligations of CFII,
contemplated by or set forth in the Transaction Agreement/Undertaking, except
for the undertakings, assumed liabilities and obligations, and indemnity
obligations described in Section 1.8(a)(v) of this Agreement.
1.9 Right of First Refusal on Cathlamet Chipper Facility and Site.
Seller owns a chipper facility and site ("Chipper Facility") near Cathlamet,
Washington. As described in the Northwest Chipper Agreement, Seller is
obligated to offer the successor of Crown Zellerbach Corporation ("James
River") the right of first refusal to purchase the Chipper Facility. Buyer
agrees to execute and deliver to Seller, within five (5) days of execution of
this Agreement, an offer to purchase the Chipper Facility, which offer shall
be in the form attached hereto as Schedule 1.9. It is agreed that if James
River exercises its right to purchase the Chipper Facility, then the Chipper
Facility shall become an Excluded Asset as described in Section 1.5, and the
Purchase Price shall be reduced by the amount which James River is obligated
to pay to Seller (the "Chipper Facility Price"). If the right of James River
to purchase the Chipper Facility expires unexercised prior to the Closing
Date, then the Chipper Facility shall be included in the Assets and the
Purchase Price shall not be adjusted. If on the Closing Date the right of
James River to purchase the Chipper Facility has not expired or been
exercised, then the Purchase Price shall be reduced by the Chipper Facility
Price and the Chipper Facility shall be withheld from sale. If after the
Closing Date such right expires unexercised, then the Buyer agrees to purchase
and Seller agrees to sell the Chipper Facility, subject to the applicable
fiber agreements, for the Chipper Facility Price and on the terms contained in
the offer attached hereto.
1.10 Right of First Refusal on Wauna Acreage. Seller owns
approximately 259.07 acres of real property near the James River pulp and
paper plant at Wauna, Oregon, described in Schedule 1.10 attached hereto
("Wauna Acreage"). Seller is obligated to offer the successor of Crown
Zellerbach Corporation ("James River") the right of first refusal to purchase
the Wauna Acreage. Buyer agrees to execute and deliver to Seller, within five
(5) days of execution of this Agreement, an offer to purchase the Wauna
Acreage, which offer shall be in the form attached hereto as Schedule 1.10.
It is agreed that if James River exercises its right to purchase the Wauna
Acreage, then the Wauna Acreage shall become an Excluded Asset as described in
Section 1.5, and the Purchase Price shall be reduced by the amount which James
River is obligated to pay to Seller (the "Wauna Acreage Price"). If the right
of James River to purchase the Wauna Acreage expires unexercised prior to the
Closing Date, then the Wauna Acreage shall be included in the Assets and the
Purchase Price shall not be adjusted. If on the Closing Date the right of
James River has not expired or been exercised, then the Purchase Price shall
be reduced by the Wauna Acreage Price and the Wauna Acreage shall be withheld
from sale. If after the Closing Date such right expires unexercised, then
Buyer agrees to purchase and Seller agrees to sell the Wauna Acreage, subject
to the applicable fiber agreements, if any, for the Wauna Acreage Price and on
the terms contained in the offer attached hereto.
2. Purchase Price. Subject to adjustment in accordance with the
provisions of this Agreement, the purchase price for the Assets ("Purchase
Price") shall be One Billion Five Hundred Eighty Eight Million Dollars
($1,588,000,000). The Purchase Price shall be payable as provided in Section
2.1.
2.1 Payment of Purchase Price.
(a). Deposit. As an earnest money deposit, refundable to
Buyer only as specified in this Agreement, Buyer agrees to deposit the sum of
Fifty Million Dollars ($50,000,000) in cash or immediately available federal
funds ("Deposit") in an interest bearing escrow trust account with Chicago
Title Insurance Company ( herein "Chicago Title" or "Escrow Agent") at First
Interstate Bank of Washington, N.A., in Seattle, Washington, in accordance
with the Escrow Agreement attached hereto as Schedule 2.1(a) which Buyer and
Seller have executed concurrently herewith. The Deposit will be made by Buyer
on the same day the Escrow Agent signs the Escrow Agreement and so notifies
Buyer, unless the Escrow Agent signs the Escrow Agreement after 11:00 am PST
on such day, in which event the Deposit will be made by Buyer on the next
business day. The Escrow Agent shall cause investment of the Deposit in
accordance with the Escrow Agreement. Interest on the Deposit shall be for
the account of Buyer unless Buyer defaults as described in Section 9.
(b). Except as provided in Section 2.1(d) of this Agreement,
at the Closing, Escrow Agent shall pay the Deposit to Seller and the interest
thereon to Buyer, and Buyer shall pay to Seller the balance of the Purchase
Price (the "Closing Date Payment"), by wire transfer of immediately available
funds to the Escrow Agent's escrow trust account at Chemical Bank, New York,
New York ("Seller's Bank"), which transfer shall have been received by
Seller's Bank no later than 9:00 am PDT on the Closing Date. Upon
confirmation to Buyer by the Escrow Agent and/or First American Title
Insurance Company ("First American") that the deeds and assignments of the
Long Term Leases described in Section 3.4 have been recorded, the Escrow Agent
shall deliver the Closing Date Payment to Seller.
(c). If Buyer is legally obligated to Close and if the
Closing Date Payment is not received by Seller's Bank by 9:00 am PDT on the
Closing Date, Seller may, at its option, either exercise the Seller's remedies
described in Section 9 by reason of Buyer's default, or may accept late
payment of the Closing Date Payment which shall, in such event, be accompanied
by payment of an amount determined by computing simple interest on the amount
of that payment at the rate of interest announced publicly by Chemical Bank in
New York, New York from time to time as its "Prime Rate" (on the basis of a
360-day year) from the Closing Date to the date of payment; provided that
Seller shall accept late payment (with interest) if the Closing Date Payment
is received by Seller's Bank within twenty-four (24) hours of the time it was
due. For purpose of this subsection (c), if the Closing Date Payment is
received by Seller's Bank on the Closing Date after 9:00 am PDT, the Closing
Date Payment shall be deemed to have been paid one day after (but within
twenty-four (24) hours of) the Closing Date.
(d). If, at the Closing, the parties have not resolved the
Purchase Price reduction as contemplated in Section 1.3, the adverse financial
impact in excess of fifteen million dollars ($15,000,000) as contemplated in
Section 8.6, or the Price Adjustment Items or Price Adjustment Notice as
contemplated in Section 8.11, through arbitration or otherwise, then the
parties shall proceed to Close as scheduled; provided, that the only amounts
to be paid to Seller at Closing shall be the Closing Date Payment plus the
portion, if any, of the Deposit that exceeds the amount of the reduction, as
alleged by Buyer, that is then unresolved. The remainder of the Deposit shall
continue to be held by the Escrow Agent until the earlier of mutual agreement
of the parties or the arbitrator's decision. Within two (2) business days of
said mutual agreement or arbitrator's decision, the Escrow Agent will deliver
the remainder of the Deposit to Buyer or Seller, in accordance with said
mutual agreement or arbitrator's decision, and interest on the portion of the
Deposit held by the Escrow Agent that accrues after the Closing Date shall be
paid to Buyer in the proportion that any overpayment returned to Buyer bears
to the amount of the portion of the Deposit retained, and the balance of such
interest shall be paid to Seller; and if the remainder of the Deposit is
insufficient to reimburse Buyer for its overpayment in the Purchase Price,
Seller shall pay Buyer the remaining amount due to Buyer within two (2)
business days of said mutual agreement or arbitrator's decision.
3. Closing.
3.1 Date of Closing. The Closing shall take place at the offices
of Ater Wynne Hewitt Dodson & Skerritt, 222 SW Columbia, Suite 1800, Portland,
Oregon or at such other place as the parties may agree in writing, on May 15,
1996, unless another time and date are mutually designated by Seller and
Buyer. The foregoing date is the date on which the Seller's deed(s) to Buyer
and any Designees are to be recorded immediately prior to the delivery of the
Purchase Price to Seller and is referred to in this Agreement as the "Closing"
or "Closing Date". Seller shall deliver possession of the Assets to Buyer on
the Closing Date.
3.2 Hart-Scott Rodino Act. Promptly upon execution of this
Agreement, the Buyer and Seller shall prepare all necessary documentation and
perform all other necessary actions to complete all necessary filings under
the Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"). Each party agrees to use its best efforts to complete its initial
filing within fourteen (14) days of execution of this Agreement and to respond
to any request for additional information within twenty (20) days of receipt
of the request. In the event the waiting period (which term includes the
extension period) under the HSR Act has not expired by the Closing Date set
forth in Section 3.1, the Closing Date shall be delayed until five (5)
business days after expiration of the waiting period; provided, that Seller,
in its sole discretion, may terminate this Agreement if the waiting period has
not expired or been terminated within 115 calendar days following the date on
which Seller completes its initial filing, and Buyer, in its sole discretion,
may terminate this Agreement if the waiting period has not expired or been
terminated within 180 calendar days of the date on which Buyer completes its
initial filing. If the Agreement is terminated by either party as provided in
this Section 3.2, Seller shall refund or cause to be refunded to Buyer the
Deposit and any interest thereon.
3.3 Execution and Deposit of Documents Prior to Closing. At least
five (5) business days prior to the Closing Date, each of the parties, as
applicable, shall execute and deposit with the Escrow Agent all of the
documents listed in Section 3.4 below which are to be recorded or filed on the
Closing Date. Each of the parties, as applicable, shall execute and deliver
to the other party all remaining documents listed in Subsection 3.4 below on
the Closing Date.
3.4 Documents to be Delivered by Seller . At or prior to the
Closing, Seller shall deliver, or cause to be delivered, the following:
(a). documents of transfer, bills of sale, certificates of
title and other instruments of transfer, dated the Closing Date, transferring
to Buyer and any Designees title to the Assets. With respect to the
Timberland described on Schedule 1.1(a) (including the buildings, improvements
and other appurtenant interests described in Section 1.1(c) and (d)) and the
real property on which the Mill Facilities and Chipper Facility are located,
title shall be transferred in the form of the deed(s) attached hereto as
Schedule 3.4 (a); with respect to the Mineral Rights described in Schedule 1.1
(g), transfer shall be accomplished through mineral quit claim deeds and other
instruments of transfer without warranty; with respect to all personal
property, title shall be transferred by Bill of Sale in the form attached
hereto as Schedule 3.4(a)(a); and with respect to the Long Term Leases to be
transferred pursuant to Section 1.3, title shall be transferred in the form of
the assignment attached hereto as Schedule 3.4(a)(a)(a), together with
documents evidencing the consent of the lessor.
(b). documents evidencing the assignment and assumption of
the Contracts to Buyer or a Designee (together with any third-party consents
required for such transfers) and the assignment and assumption of any permits
and licenses (together with any third-party consents required for such
transfers) not transferred pursuant to Section 3.4(a), and the Assignment,
Acceptance, and Assumption Agreement described in Section 1.8;
(c). a copy of the written consent of the general partners
of Hanson authorized by resolutions of the boards of directors of Hanson's
general partners, and copies of the resolutions of the boards of directors of
each other Seller authorizing the execution, delivery and performance of this
Agreement by Hanson and each other Seller and a certificate of the secretary
or assistant secretary of Hanson's general partners and each other Seller,
dated the Closing Date, that such resolutions were duly adopted and are in
full force and effect and, with respect to CERI and CFII, that their
respective shareholders have approved the transactions contemplated by this
Agreement;
(d). the affidavits of Seller required by Section 1445
(b)(2) of the Code and by local taxing authorities, and any other documents
required of Seller to transfer the Assets in accordance with this Agreement;
and
(e). satisfaction, releases or terminations of the liens and
encumbrances referred to in Section 3.6.
3.5 Documents to be Delivered by Buyer. At or prior to the
Closing Date, Buyer shall deliver the following:
(a). documents evidencing the assignment and assumption of
all Contracts and the assignment and assumption of all permits and licenses
transferred by Seller to Buyer pursuant to Section 3.4(a) and (b), and the
Bill of Sale, and Assignment, Acceptance, and Assumption Agreement described
in Section 1.8;
(b). a copy of the resolutions of the board of directors of
Buyer authorizing the execution, delivery and performance of this Agreement by
Buyer, and a certificate of its secretary or assistant secretary, dated the
Closing Date, that such resolutions were duly adopted and are in full force
and effect;
(c). the affidavits, if any, of Buyer required by local
taxing authorities, including the affidavits specified in Section 8.8 (b), and
any other documents required of Buyer to transfer the Assets in accordance
with this Agreement.
3.6 Satisfaction of Liens and Encumbrances. At or prior to the
Closing Date, Seller shall pay in full all liens and encumbrances for borrowed
funds, income tax liens, and judgement liens on the Assets owned by Seller.
At or prior to the Closing Date, Seller shall pay all delinquent property
taxes on the Assets which are owned by Seller; provided, however, that Buyer
shall assume sole responsibility, as of Closing, for any ad valorem taxes
which are deferred because of farm or grazing or forest use or classification.
3.7 Transfer Taxes; Prorations. Any recording fees, transfer
taxes, or sales taxes payable as a result of the sale of the Assets shall be
paid by Seller. Escrow fees shall be split equally between the parties. Real
estate taxes, assessments for public improvements, and all other fees and
assessments related to the Assets and rent for the Long Term Leases shall be
prorated as of the Proration Date.
4. Title Insurance. Seller has delivered to Buyer evidence of title in
the form of draft title reports and title commitments ("Title Reports"), as
appropriate, covering the Timberland Properties and Mill Facilities and
Chipper Facility referred to in Schedules 1.1(a), 1.1(d), and 1.2, copies of
which are attached hereto as Schedule 4; Seller and Buyer acknowledge that the
Title Reports may be revised, corrected, and supplemented by Chicago Title or
First American, as the case may be, between the date of this Agreement and the
Closing Date, as contemplated in Section 5(c) and, with respect to the Title
Reports for the Northwest Timberland Properties and Mill Facilities and
Chipper Facility, as contemplated in the letters from Rosalee Merritt to
Malcolm Newkirk, copies of which are included in Schedule 4 as part of the
Title Reports. In the event that Chicago Title and/or First American are not
prepared to issue at Closing to Buyer or a Designee, as applicable, owner's
policies of title insurance insuring title in the Timberland and Mill
Facilities and Chipper Facility in Buyer or such Designee, subject only to the
exceptions set forth in the Title Reports , as those Title Reports may have
been revised, corrected, and supplemented by Chicago Title and/or First
American as set forth above, but with no reductions, in excess of five hundred
(500) acres in the aggregate, in the acreage vested in Seller, and subject to
the printed exceptions contained in such Title Reports, then Buyer shall have
the rights set forth in Section 8.11 with respect to the additional reductions
in acreage and additional material encumbrances to be added as exceptions to
title. In the event First American is not prepared to issue at Closing a
leasehold policy of title insurance insuring in Buyer or a Designee, as
applicable, the lessee's interest under each Long Term Lease (subject to
exceptions and objections contained in such policy), Buyer shall have the
rights set forth in Section 1.3 for Seller's inability to assign such Long
Term Lease. If Chicago Title or First American is not prepared to issue such
owner's policies on the Closing Date for reasons other than additional
reductions in acreage or additional exceptions to title, either Buyer or
Seller may delay Closing until Chicago Title or First American or another
title insurance company is prepared to issue such owner's policies. At
Closing Buyer or the Designee, as applicable, shall purchase, at its own
expense, such owner's policies; provided, Buyer and its Designees may elect
not to purchase title insurance if Buyer so notifies Seller in writing on or
before May 1, 1996.
5. Conduct of the Seller's Northwest and Remaining Louisiana Businesses
Pending Closing.
(a) Between the date hereof and the Closing Date, Seller shall
continue to operate the Northwest Business and Remaining Louisiana Businesses
in the ordinary course and in a manner reasonably consistent with its present
operating plan which establishes a maximum volume of harvest or stumpage sales
for harvest ("Maximum Volume") through the Closing Date ("Operating Plan"), a
copy of which is attached hereto as Schedule 5(a); provided, that Seller will
not enter into log export contracts that provide for delivery of logs after
Closing in recognition of the fact that Buyer will not export logs, and this
change of conduct by Seller may modify Seller's ordinary course and Operating
Plan but shall not affect the Maximum Volume set forth on Schedule 5(a).
Subject to the foregoing, Seller shall continue to harvest, or sell stumpage
for harvest, timber standing, lying, and situated upon the Timberland
Properties described in Schedule 1.1 (a) and on Long Term Leases described in
Section 1.3, and operate the Mill Facilities and Chipper Facility and
Northwest Business and Remaining Louisiana Businesses. Seller shall continue
its various silvicultural practices consistent with its past practices, from
the date hereof until the Closing Date. Seller shall have on hand, as of the
close of business on the day preceding the date the Closing actually occurs,
inventories valued at eight million dollars ($8,000,000.00), such
determination of value to be made on a basis consistent with the Seller's
prior practice.
(b) The Purchase Price shall be increased or decreased by the
difference between the actual harvest (including stumpage sales for harvest)
and the Maximum Volume pursuant to the formula ("Harvesting Formula") attached
hereto as Schedule 5(b), as of the date the Closing actually occurs, but such
difference between actual harvest and the Maximum Volume shall not be
considered a breach by Seller of this Agreement. The Purchase Price shall
also be increased or decreased by the amount by which the value of Seller's
inventories, on hand as of the close of business on the day preceding the date
the Closing actually occurs; if such value is more than eight million dollars
($8,000,000), the Purchase Price shall be increased by the difference and if
such value is less than eight million dollars ($8,000,000), the Purchase Price
shall be decreased by the difference. Any such shortfall or excess of
inventories on hand shall not be considered a breach by Seller of this
Agreement. Adjustments, if any, to the Purchase Price in this Subsection (b)
shall be made within fifteen (15) days of the date the Closing actually
occurs, and each party agrees to pay to the other the adjusted amount, as
applicable, without interest within said fifteen (15) days.
(c) Seller will not take any action, (i) the result of which will
be to create a Material Adverse Effect on the value of the Assets, or (ii)
which is both not reasonably consistent with its Operating Plan and not in the
ordinary course of business, except as otherwise set forth in this Section 5.
Seller may, but is not obligated, to continue, in the ordinary course of
business, to grant and obtain easements, rights of way and other similar
rights to the Timberland Properties, to grant options to or lease additional
Mineral Rights, and to purchase or sell or exchange additional real properties
or interests therein consistent with its present plan ("Real Estate Plan"), a
copy of which is attached hereto as Schedule 5(c). In the event Seller sells
any additional real properties or interests therein or grants options to or
leases additional Mineral Rights, other than those identified in the Real
Estate Plan, the Purchase Price shall be reduced by an amount equal to the
proceeds of any such sales, options, or leases, but Seller will not be deemed
in breach of this Agreement. Seller shall promptly notify Buyer of the grant
or obtaining of any easement, right of way or other similar right, any
additional option to or lease of Mineral Rights, and any such purchase, sale
or exchange; and if the transaction involves more than two hundred fifty
thousand dollars ($250,000.00), Seller shall obtain Buyer's prior written
consent to the transaction, which consent shall not be unreasonably withheld.
For purposes of Section 4, the Title Reports shall be revised or deemed
revised to reflect such transactions.
(d) Notwithstanding the foregoing, the parties agree that, if the
Closing Date is extended beyond May 15, 1996, Seller shall be deemed to be
operating the Northwest Business and Remaining Louisiana Businesses in the
ordinary course of business from May 16, 1996, to the date the Closing
actually occurs, with respect to the activities described below if Seller:
(i) meets its obligations under the "fiber supply agreements" described in
Section 1.8(a)(iv) and operates the Chipper Facility as necessary with respect
to those agreements, and (ii) continues its harvest of timber at a level that
is between fifty percent (50%) and one hundred percent (100 %) of the level in
the Operating Plan, and (iii) operates with at least two (2) shifts at the
Mill Facility in Warrenton, Oregon, subject to curtailment by chip or residual
customers or market conditions, and (iv) continues road maintenance and road
construction as necessary to prevent substantial deterioration from the
condition of the roads as of May 15, 1996, and as necessary to meet the needs
of Seller's harvest activities, and (v) continues silvicultural and
reforestation activities in Oregon and Washington as required by the forest
practices acts of said states and in Louisiana in accordance with good
management practices.
6. Representations of Seller. Seller represents to Buyer that:
6.1 Organization, Standing and Authority. Hanson is a general
partnership organized, existing, and in good standing under the laws of the
State of Delaware. Each of CERI and CFII is a corporation organized,
existing, and in good standing under the laws of the State of Delaware.
Seller has full power and authority to enter into and perform this Agreement.
Seller is not a "foreign person" within the meaning of Section 1445 of the
Code.
6.2 Authorization of Agreement; Authority. The execution,
delivery and performance of this Agreement by Seller has been duly authorized
by all necessary corporate and partnership action of Seller, and this
Agreement constitutes the valid and binding obligation of Seller, enforceable
against each of Hanson, CERI and CFII in accordance with its terms, except to
the extent enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights in general and subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). The execution, delivery and performance of this Agreement
by Seller will not (a) violate or conflict with Hanson's partnership power and
authority or with CERI's and CFII's corporate power and authority; (b)
constitute a violation of any law, regulation, order, writ, judgment,
injunction or decree applicable to Seller; or (c) subject to the receipt of
appropriate consents as specified in this Agreement as of the Closing Date and
subject to the provisions of Section 1.6(d), conflict with, or result in the
breach of the provisions of, or constitute a default under, any agreement,
license, permit or other instrument to which Seller is a party or is bound or
by which the Assets are bound. Except as required by the HSR Act, no consent,
approval or authorization of any governmental authority is required on the
part of Seller in connection with the execution, delivery and performance of
this Agreement.
6.3 Material Contracts. All of the Material Contracts which are
to be transferred to Buyer at Closing and which relate to the Northwest
Business and Remaining Louisiana Businesses are listed on Schedule 6.3 or
Schedule 4, and all of the Long Term Leases which relate to the Remaining
Louisiana Businesses are listed on Schedule 1.3. Except as disclosed in
Schedule 6.3 or Schedule 4 said Material Contracts have not been further
modified, or amended, and except as disclosed in Schedule 1.3 said Long Term
Leases have not been further modified, and amended; and to the best of
Seller's knowledge, neither Seller nor any party thereto is in default of any
material term in said Material Contracts or Long Term Leases, and true and
complete copies, including applicable amendments, of said Material Contracts
and Long Term Leases have been made available to Buyer for review prior to
execution of this Agreement. A Material Contract shall mean a Contract which
involves payments, performance of services or delivery of goods by or to
Seller after the Closing Date in an amount or value of two hundred fifty
thousand dollars ($250,000.00) or more.
6.4 Litigation; Compliance with Laws. There are no judicial or
administrative actions, proceedings or investigations pending or, to the best
of Seller's knowledge, threatened, that question the validity of this
Agreement or any action taken or to be taken by Seller in connection with this
Agreement. Except as set forth on Schedule 6.4, there is no claim,
litigation, proceeding or governmental investigation pending or, to the best
of Seller's knowledge, threatened, or any order, injunction or decree
outstanding which, if decided unfavorably, would cause Buyer to incur loss or
damage in excess of one hundred thousand dollars ($100,000.00); except as
disclosed on Schedule 6.4, to the best of Seller's knowledge Seller has
received no written notice from a governmental authority of a material
violation of law relating to the Timberland or Mill Facilities or Chipper
Facility or Northwest Business or Remaining Louisiana Businesses which has not
or will not have been resolved by Seller prior to Closing.
6.5 Personal Property. Seller has, or will have on the Closing
Date, good and marketable title (which includes leasehold title if applicable)
to the personal property to be transferred to Buyer on the Closing Date
pursuant to Section 1.4, subject to equipment leases, purchase money
contracts, and similar security interests to be assumed by Buyer pursuant to
Section 1.8.
6.6 Environmental Conditions. Except as disclosed on Schedule
6.6, to the best of Seller's knowledge there are no environmental conditions
on the Indemnification Properties (as defined in Section 6.7(e)) that would
cause Buyer to incur more than one hundred thousand dollars ($100,000) in loss
or damage for each such environmental condition. The foregoing representation
by Seller specifically includes no representation whatsoever with respect to
the real property in North Louisiana and Southwest Louisiana (including the
Long Term Leases), regarding the effects created by oil and gas operations.
6.7 Disclaimer of Warranties and Representations From Seller; AS
IS; Indemnity
(a). Personal Property. Except as otherwise expressly set
forth in this Agreement, this Agreement is executed, and the personal property
will be transferred, without any warranty of title, either express or implied,
and without any express or implied warranty or representation as to the
merchantability or fitness for any purpose of any of the equipment or other
personal property included in the Assets, and without any other express or
implied warranty or representation whatsoever.
(b). Real Property. Except as otherwise expressly set
forth in this Agreement, this Agreement is executed, and the real property
including Timberland Properties, Mill Facilities, Chipper Facility, and
Mineral Rights and Long Term Leases will be transferred, without any warranty
of title, either express or implied, except warranties (if any) contained in
the deed(s) conveying the real property included in the Assets, and without
any express or implied warranty or representation as to the merchantability of
any of the real property included in the Assets, acreage, legal access,
operations or encroachments or any other condition affecting the Assets.
(c). Condition of Property. Except as otherwise expressly
set forth in this Agreement, Buyer agrees to purchase the Timberland
Properties, Mill Facilities, Chipper Facility, Mineral Rights, Long Term
Leases, personal property, mobile equipment, machinery and equipment and all
other Assets "as is", "where is" and with all faults. The Buyer certifies by
execution hereof that it has had an opportunity to inspect the Timberland
Properties, Mill Facilities, Chipper Facility, and Mineral Rights and Long
Term Leases and other Assets (including the surface and subsurface of any real
property) prior to executing this Agreement; that Buyer either has inspected
or waived its right to inspect the Timberland Properties, Mill Facilities,
Chipper Facility, and Mineral Rights and Long Term Leases and other Assets for
all purposes and satisfied itself as to its physical condition, both surface
and subsurface, including but not limited to conditions specifically related
to the presence, release or disposal of hazardous substances, but without
limiting Buyer's rights under Section 8.11; that it has not relied upon any
information delivered by Seller or its agents concerning the Timberland
Properties, Mill Facilities, Chipper Facility, and Mineral Rights and Long
Term Leases and other Assets; and that it is relying upon its own examination
of the Timberland Properties, Mill Facilities, Chipper Facility, and Mineral
Rights and Long Term Leases and all other Assets in entering into and in
consummating this Agreement. Buyer further acknowledges and agrees that,
except as otherwise expressly set forth in this Agreement, neither Seller nor
its agents have made any representations, warranties or covenants whatsoever
with respect to the quantity or quality of the timber, the acreage, tax
status, legal access, encroachment or physical condition of the Timberland
Properties, Mill Facilities, Chipper Facility, and Mineral Rights and Long
Term Leases, nor, except as expressly set forth in this Agreement, have they
made any representations, warranties, or covenants whatsoever concerning the
presence, release or disposal of hazardous substances thereon.
(d). Disclaimer. Except as otherwise expressly set forth
in this Agreement, the transaction contemplated hereby shall be without any
express, implied, statutory or other warranty or representation as to the
condition, quantity, quality, fitness for particular purpose, freedom from
redhibitory vices or defects, conformity to models or samples of materials or
merchantability of any of the Assets, their fitness for any purpose, and
without any other express, implied, statutory or other warranty or
representation whatsoever. In addition, except as otherwise expressly set
forth in this Agreement, Seller makes no warranty or representation, express,
implied, statutory or otherwise, as to the accuracy or completeness of any
data, reports, records, projections information or materials now, heretofore
or hereafter furnished or made available to the Buyer in connection with this
Agreement including, without limitation, any description of the Assets,
pricing assumptions, or the environmental condition of the Assets or the
portions affected by the Endangered Species Act or any other materials
furnished or made available to Buyer by Seller or its agents or
representatives; any and all such data, records, reports, projections,
information and other materials furnished by Seller or otherwise made
available to Buyer are provided to Buyer as a convenience, and shall not
create or give rise to any liability of or against Seller; and any reliance on
or use of the same shall be at Buyer's sole risk.
Buyer expressly waives the warranty of fitness for intended
purposes or guarantee against hidden or latent redhibitory vices under
Louisiana law, including Louisiana Civil Code Articles 2520 through 2548, and
the warranty imposed by Louisiana Civil Code Articles 2475; waives all rights
in redhibition pursuant to Louisiana Civil Code Article 2520, et seq;
acknowledges that this express waiver shall be considered a material and
integral part of this Agreement and the consideration thereof; and
acknowledges that this waiver has been brought to its attention and explained
in detail and that it has voluntarily and knowingly consented to this waiver
or warranty of fitness and/or warranty against redhibitory vices and defects
for the Assets, if the Assets or any part thereof are located in Louisiana.
(e) Waiver of Claims and Indemnity. Without limiting the
generality of any other provision in this Section 6.7, except as otherwise
expressly set forth in this Agreement, Buyer assumes any and all liabilities,
past, present, or future, of "Sellers" as defined below, relating to hazardous
substances or materials, wastes, toxics, pollutants, solid wastes, or
contaminants, including without limitation liabilities arising under any
current or future legal requirement pertaining thereto, which are based upon
the ownership or operation of the Assets. Except as otherwise expressly set
forth in this Agreement, Buyer assumes the risk that hazardous substances or
materials, wastes, toxics, pollutants, solid wastes, or contaminants may be
present in, on or under the Timberland Properties, Mill Facilities, Chipper
Facility, Long Term Leases, Mineral Rights or other Assets, and hereby waives,
releases, and discharges forever Seller, Hanson's general partners, Affiliates
of Seller, Seller's successors and assigns, and their respective shareholders,
directors, officers, employees, and agents (in this Section 6.7(e)
collectively referred to as "Sellers") from any and all present or future
claims or demands, and any and all damages, loss, injury, liability, claims or
costs, including fines, penalties judgements, claims for contribution, and
cost recovery actions, arising from or in any way related to the condition,
operation, or use of the Timberland Properties, Mill Facilities, Chipper
Facility, Long Term Leases, Mineral Rights or other Assets or the presence of
any hazardous substances or materials, wastes, toxics, pollutants, solid
wastes, or contaminants in, on or under the Timberland Properties, Mill
Facilities, Chipper Facility, Long Term Leases, Mineral Rights or other
Assets; provided, however, that to the extent such waiver, release, or
discharge will prejudice Buyer's rights to pursue third parties (not including
Affiliates of Seller) who have indemnified or insured Seller (or any of the
three Sellers) for some or all of the foregoing matters, Buyer shall not, and
shall not be deemed to, have waived, released, or discharged "Sellers" for the
sole purpose of pursuing such third parties. Except as otherwise expressly
set forth in this Agreement, Buyer hereby indemnifies, holds harmless, and
agrees to defend "Sellers" from and against any and all present or future
claims or demands, including claims and demands asserted by any Designee, and
any and all damages, losses, liabilities, injuries, fines, penalties,
judgments, claims for contribution, and cost recovery actions, and consultant
fees, expert witness fees, costs and expenses (including attorney's fees
incurred by Seller in the case of matters involving third parties) arising
from or in any way related to the presence of any hazardous substances or
materials, wastes, toxics, pollutants, solid wastes, or contaminants in, on or
under the (i) Timberland, (ii) real property constituting a part of the Mill
Facilities or Chipper Facility, (iii) Mineral Rights, (iv) Long Term Leases,
and (v) other real property constituting a part of other Assets (collectively,
the Indemnification Properties"). This indemnity specifically includes the
obligation of Buyer to remove, remediate, reimburse or take other actions
required by law concerning any hazardous substances or materials, wastes,
toxics, pollutants, solid wastes, or contaminants in, on or under the
Indemnification Properties. Nothing herein shall limit Buyer's right, in good
faith, to contest any action, request or requirement of any governmental
agency provided that such action is taken at Buyer's sole cost, risk and
expense. The provisions of this Section 6.7(e) shall not include, or create
any obligation of Buyer with respect to any contractual obligation of
"Sellers" or Seller's predecessors except as provided in Section 1.8(a)(v) or
as disclosed on any Schedule attached to this Agreement, are solely for the
benefit of "Sellers", and shall not be construed to be for the benefit of any
third party or to constitute a waiver or release of rights against any third
party. Seller hereby assigns to Buyer all rights and claims which Seller may
now or hereafter have against third parties relating to any matter for which
Buyer indemnifies "Sellers". The provisions of this Section 6.7(e) and
Section 1.8(a)(v) are intended to exclusively set forth Buyer's obligations
under this Agreement with respect to assumption, waiver, release, discharge,
and indemnification of environmental matters, and the provisions of Section
10.1(b) and Section 1.8(a) (other than Section 1.8(a)(v)) shall not apply to
such obligations of Buyer.
7. Representations of Buyer. Buyer represents to Seller as follows:
7.1 Buyer's Organization. Buyer is a corporation organized,
existing and in good standing under the laws of Oregon and has the full
corporate power and authority to enter into and to perform this Agreement.
Buyer is qualified to do business and is in good standing in the states of
Washington and Louisiana.
7.2 Authorization of Agreement. The execution, delivery and
performance of this Agreement by Buyer have been duly authorized by all
necessary corporate action of Buyer, and this Agreement constitutes the valid
and binding obligation of Buyer enforceable against it in accordance with its
terms, except to the extent enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors'
rights in general and subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
7.3 Consents of Third Parties. The execution, delivery and
performance of this Agreement by Buyer will not (a) violate or conflict with
the articles of incorporation or by-laws of Buyer; or (b) constitute a
violation of any law, regulation, order, writ, judgment, injunction or decree
applicable to Buyer. Except as required by the HSR Act, no consent, approval
or authorization of any governmental authority is required on the part of
Buyer in connection with the execution, delivery and performance of this
Agreement.
7.4 Litigation. There are no judicial or administrative actions,
proceedings or investigations pending or, to the best of Buyer's knowledge,
threatened, that question the validity of this Agreement or any action taken
or to be taken by Buyer in connection with this Agreement. There is no
litigation, proceeding or governmental investigation pending or, to the best
of Buyer's knowledge, threatened, or any order, injunction or decree
outstanding, against the Buyer that, if adversely determined, would have a
material effect upon Buyer's ability to perform its obligations under this
Agreement.
7.5 Financing. Buyer will have, on the Closing Date, all funds
necessary to pay the Purchase Price and related fees and expenses, and has, or
will have on the Closing Date, the financial capacity to perform all of its
other obligations under this Agreement.
8. Further Agreements of the Parties.
8.1 Access to Information. Buyer and each Designee (subject to
Section 8.7) shall have access to information, in the possession of Seller,
relating to the Timberland Properties, the Mill Facilities, Chipper Facility,
the Mineral Rights and the Long Term Leases and other Assets for due diligence
investigation purposes and to facilitate an orderly transition in the
management of those Assets in anticipation of Closing. In addition, Seller
will make available to Buyer and each Designee its financial statements and
shall cooperate and instruct Seller's independent auditors to cooperate, at
Buyer's expense, in preparing the financial statement of the Northwest
Business and Remaining Louisiana Businesses which Buyer will, or such Designee
may, be required to file with the Securities Exchange Commission.
8.2 Notice of Changes and Events.
(a). Each party shall promptly notify the other party in
writing, and furnish to such party any information that such party may
reasonably request, with respect to the occurrence of any event or the
existence of any state of facts that would (i) result in the party's
representations and warranties not being true if they were made at any time
prior to or as of the Closing Date, or (ii) impair the party's ability to
perform its obligations under this Agreement.
(b). Seller agrees to update and bring current all
Schedules attached to this Agreement prior to the Closing Date. Any such
updated Schedule shall be for informational purposes only and shall not affect
the rights and obligations of the parties as set forth in this Agreement.
(c). Notwithstanding anything to the contrary in this
Agreement, Seller shall have the right, in its sole discretion, to retain any
claim, obligation, or liability that may otherwise be transferred to or
assumed by Buyer in this Agreement. Seller may, without limitation, exercise
this right by omitting or deleting a claim, liability, or obligation on one or
more of the Schedules attached to this Agreement. If Seller exercises this
right, Seller shall provide written notice to Buyer of the claim, liability,
or obligation that Seller shall retain within thirty (30) days of Seller's
receipt of written notice of said claim, liability, or obligation.
8.3 Expenses. Except as otherwise specifically provided in this
Agreement, Buyer and Seller shall bear their own respective expenses incurred
in connection with this Agreement and in connection with all obligations
required to be performed by each of them under this Agreement.
8.4 Publicity. Buyer and Seller shall consult with each other
before issuing any public announcement or press release concerning the
transactions contemplated by this Agreement and, except as may be required by
applicable law or regulation or rule of any stock exchange or organized
securities market on which the securities of Buyer or Seller's parent are
listed or traded, will not make a public announcement or issue a press release
prior to such consultation. If Buyer or Seller are so required to make a
public announcement or issue a press release such party shall use its best
efforts to inform the other party hereto prior to making or issuing it.
8.5 Preservation of Records.
(a). Buyer agrees that, without expense to Seller, Buyer or
one or more Designees (i) shall preserve and keep the records relating to the
Timberland Properties, Mill Facilities, Chipper Facility, Mineral Rights, Long
Term Leases and other Assets delivered to it by Seller for a period of six (6)
years from the Closing and (b) shall give Seller reasonable access to such
records and to personnel during regular business hours if needed for any bona
fide purpose, provided such access shall be at Seller's cost and expense,
including reimbursement of Buyer's or any affected Designee's extraordinary
costs, if any, of providing such access.
(b). Seller agrees that, at it own expense, it (i) shall
preserve and keep the records relating to the Timberland Properties, Mill
Facilities, Chipper Facility, Mineral Rights, Long Term Leases, and other
Assets which were not transferred to Buyer pursuant to Section 1.4(a) and (ii)
shall give Buyer and Designees reasonable access to such records and to
personnel during regular business hours if needed for any bona fide purpose,
provided such access shall be at Buyer's cost and expense, including
reimbursement of Seller's extraordinary costs, if any, of providing such
access.
(c). Notwithstanding the expiration of the six (6) year
period in Subsection (a) above, Buyer agrees that neither Buyer nor any
Designee shall destroy the records described in Subsection (a) without first
giving Seller sixty (60) days advance written notice and an opportunity to
take custody of such records, at Seller's cost and expense, including
reimbursement of Buyer's or any affected Designee's extraordinary costs, if
any.
8.6 Casualty or Condemnation. In the event any uninsured loss or
damage occurs to the Assets after the date of this Agreement, but before
Closing, which has an adverse financial impact in excess of fifteen million
dollars ($15,000,000) on the value of the Assets, the parties shall reduce the
Purchase Price by the amount of the adverse financial impact in excess of
fifteen million dollars ($15,000,000). If the parties are unable to agree on
the amount of said reduction within seven (7) days of the occurrence of the
loss or damage, then the amount of reduction shall be resolved by arbitration
pursuant to Section 9.2; provided, however, that if said arbitration has not
been completed by the date set for Closing in Section 3.1, the parties shall
proceed to Close as scheduled, and Subsection 2.1(d) shall apply, including
the provisions relating to the amount of the Deposit payable at Closing. In
the event any insured loss, destruction, casualty or damage occurs to the
Assets after the date of this Agreement, but before Closing, or in the event
condemnation action is instituted on the Assets after the date of this
Agreement, but before Closing, then Seller shall assign to Buyer at Closing
all proceeds from such policies or condemnation action, and there shall be no
adjustment in the Purchase Price. Seller shall maintain its current casualty
policy and property damage insurance policy on the Mill Facility at Warrenton,
Oregon, and on the Chipper Facility through Closing.
8.7 Confidentiality. Hanson and Buyer have previously executed a
Confidentiality Agreement in the form attached hereto as Schedule 8.7.
Notwithstanding anything to the contrary in the Confidentiality Agreement, the
parties hereto covenant and agree that the terms and provisions of this
Agreement and all information and data obtained in connection with this
Agreement shall be treated as Evaluation Material in the Confidentiality
Agreement. Buyer shall require any third party which has not already executed
the Confidentiality Agreement and to which it intends to disclose any
information supplied under the Confidentiality Agreement or this Agreement to
countersign and assume all of the obligations and covenants of the
Confidentiality Agreement and deliver a copy of the Confidentiality Agreement
to Seller, prior to delivery of any information to such third party. If this
Agreement is terminated for any reason, the foregoing covenant shall survive
the termination; if this Agreement is not so terminated, then the foregoing
covenant shall be deemed terminated at Closing.
8.8 Allocation and Tax Matters.
(a). The Purchase Price shall be allocated among the Assets
in accordance with Schedule 8.8 attached hereto. Seller and Buyer agree to
complete IRS form 8594 consistently with the foregoing allocation and to
furnish each other with a copy of such form prepared in draft form within
forty five (45) days prior to the filing due date for such form. Within sixty
(60) days after the Closing, Buyer shall submit to Seller a proposed detailed
allocation schedule which is in all respects consistent with Schedule 8.8.
Thereafter, Buyer and Seller shall use their respective best efforts to
promptly agree to a final detailed schedule. Neither Seller nor Buyer shall
file any tax return or take a position with any taxing authority that is
inconsistent with the foregoing allocation.
(b). For purposes of preparing Washington Real Estate
Excise Tax affidavits provided for in RCW 82.45.150 and computing the transfer
tax in Washington County, Oregon, the parties agree to use the market value
assessment as reflected on the county property tax rolls at the time of
Closing. Buyer has requested that Seller satisfy ORS 93.030 by stating that
the "actual consideration consists of or includes other property or value
given or promised, which is part of the consideration." Buyer agrees to
indemnify, defend, and hold harmless Seller from any investigation, claim,
liability, fine, or penalty arising from the foregoing method of computation
and compliance which Seller has used at Buyer's request. The Buyer agrees to
execute at Closing a Notice of Continuance, incorporated in the Real Estate
Excise Tax Affidavits provided for in RCW 82.45.150, continuing the forest
land classification or designation of that portion of the Timberland
Properties in the State of Washington so classified or designated as provided
in RCW 84.33.140.
8.9 Termination. This Agreement shall be terminated at any time
prior to the Closing:
(a). by mutual written agreement executed by Seller and
Buyer; or
(b). by either party if applicable law (including but not
limited to the HSR Act) prohibits the consummation of the sale and purchase of
the Assets pursuant to this Agreement or if, at the Closing Date, any action,
proceeding or investigation shall have been instituted or threatened in
writing by any governmental agency seeking to enjoin, restrain, prohibit,
impose material conditions upon or obtain substantial damages in respect of,
the transactions contemplated by this Agreement; or
(c). by either party as provided in Section 3.2.
Upon such termination, Escrow Agent shall deliver the
Deposit and any interest accrued thereon to Buyer, and neither of the parties
shall have any liability or further obligation arising out of this Agreement
except as expressly stated in this Agreement.
8.10 Access Pending Closing. Buyer and any Designee may, upon
reasonable notice to Seller, have access to the Timberland Properties, Mill
Facilities, Chipper Facility, real property described in the Long Term Leases,
and other Assets for purposes of conducting due diligence investigations and
preparing for transition of ownership, all in accordance with the terms and
conditions of the Access Agreement previously executed by Buyer and to be
executed by any such Designee, a copy of which is attached hereto as Schedule
8.10.
8.11 Buyer's Due Diligence.
(a). Buyer may conduct due diligence examinations during a
period commencing on the date hereof and ending at the close of business on
the day prior to the Closing Date (the "Due Diligence Period"). In the event
that Buyer makes a reasonable and objective determination that there are Price
Adjustment Items as defined in Section 8.11(d), Buyer will have the right, but
only during the Due Diligence Period, to notify Seller in writing, with
reasonable detail, of said Price Adjustment Items; provided, that no such
written notice given to Seller more than thirty (30) days after the date of
this Agreement shall include a Price Adjustment Item relating to environmental
matters.
(b). In the event Buyer makes a reasonable and objective
determination that there are Price Adjustment Items as defined in Section
8.11(d) which will have an aggregate adverse financial impact of at least the
First Threshold in the Price Adjustment Formula set forth in Section 8.11(e),
Buyer will have the right to deliver to Seller, but only during the Due
Diligence Period, a notice that Buyer is entitled to an adjustment in the
Purchase Price (the "Price Adjustment Notice"), provided that no Price
Adjustment Notice given more than thirty (30) days after the date of this
Agreement shall include a Price Adjustment Item relating to environmental
matters. The Price Adjustment Notice shall be accompanied by a schedule
setting forth in reasonable detail Buyer's computation of the dollar amount of
the Price Adjustment Items. Seller shall either accept the price adjustment
(including the appropriateness of the Price Adjustment Items listed therein)
provided for in the Price Adjustment Notice, in accordance with the Price
Adjustment Formula, or require that the price adjustment (including the
appropriateness of the Price Adjustment Items listed therein) be determined by
arbitration pursuant to Section 9.2. Seller shall be deemed to have elected
to require arbitration unless Seller, within ten (10) days after receipt of
the Price Adjustment Notice and at least five (5) business days prior to the
Closing Date, notifies Buyer that Seller accepts the Price Adjustment Notice.
If arbitration is required, Section 2.1(d) shall apply. If Seller accepts the
Price Adjustment Notice, the Purchase Price shall be reduced by the adverse
financial impact as set forth in the Price Adjustment Notice, in accordance
with the Price Adjustment Formula. If it is determined through arbitration
that the adverse financial impact is less than the First Threshold, there will
be no price adjustment, but the amount of financial impact so determined shall
be carried forward as a portion of the First Threshold in making the
calculations in Section 10.4(c). If the arbitrator determines that the
adverse financial impact is in excess of the First Threshold, the Purchase
Price shall be reduced in accordance with the Price Adjustment Formula. The
amount of financial impact so determined shall be carried forward as the
First, Second, or Third Threshold (as applicable) in making the calculations
in Section 10.4(c).
(c). If Buyer provides written notice of Price Adjustment
Items as provided in Subsection (a) above but does not deliver to Seller the
Price Adjustment Notice described in Subsection (b) above during the Due
Diligence Period, Buyer will have the right, within six (6) months after
Closing, to deliver to Seller a notice that Buyer is entitled to an adjustment
in the First Threshold for purpose of Section 10.4 (the "Post Closing
Adjustment Notice"). The Post Closing Adjustment Notice shall be accompanied
by a schedule setting forth in reasonable detail Buyer's computation of the
dollar amount of the Price Adjustment Items that provide the basis for the
Post Closing Adjustment Notice; provided however, the Post Closing Adjustment
Notice cannot allege an adverse financial impact greater than fifteen million
dollars ($15,000,000) (the First Threshold). Seller shall either accept the
adjustment (including the appropriateness of the Price Adjustment Items listed
therein) provided for in the Post Closing Adjustment Notice, in accordance
with the Price Adjustment Formula, or require that the adjustment (including
the appropriateness of the Price Adjustment Items listed therein) be
determined by arbitration pursuant to Section 9.2. Seller shall be deemed to
have elected to require arbitration unless Seller, within ten (10) days after
receipt of the Post Closing Adjustment Notice, notifies Buyer that Seller
accepts the Post Closing Adjustment Notice. The adjustment so determined in
this Subsection (c) shall not adjust the Purchase Price, but shall be carried
forward as a portion of the First Threshold in making the calculations in
Section 10.4(c).
(d). In determining the adverse financial impact for
purposes of Section 8.11(a), the following items shall be taken into account
as Price Adjustment Items:
(i) Failure of Seller to be vested in title in more
than five hundred (500) acres of the Timberland, in the aggregate, or to the
Mill Facilities or Chipper Facility described in the Title Reports attached to
this Agreement as Schedule 4, and the threshold provisions of Section 8.11
shall not apply to any such Price Adjustment Item (i.e., the Purchase Price
shall be reduced by the amount of the adverse financial impact of such Item),
nor shall the reduction in Purchase Price for such Item reduce the threshold
provisions of Section 10.4. As used in this Subsection (i), "vested in title"
means that the applicable Title Report states that the Seller (or any of the
three Sellers) is vested in title (without regard to exceptions or objections
noted in such Title Report).;
(ii) The existence of any exception to title on any
portion of the Timberland: (a) which was not shown on Schedule 4, and (b)
which was not disclosed on any other Schedule attached to this Agreement, and
(c) which materially interferes with the use thereof for the production and
harvesting of timber; provided that the threshold provisions of Section 8.11
shall not apply to such Price Adjustment Item if the exception to title was
created by Seller after the date of the applicable Title Report and was not
either created in the ordinary course or consented to by Buyer, nor shall the
reduction in Purchase Price for such Item reduce the threshold provisions of
Section 10.4.
(iii) The existence of any exception to title on the
Mill Facilities or Chipper Facility: (a) which was not shown on Schedule 4 for
Clatsop County or Wahkiakum County, respectively , and (b) which was not
disclosed on any other Schedule attached to this Agreement, and (c) which
materially interferes with the use of the Mill Facilities or Chipper Facility
for their intended purpose; provided that the threshold provisions of Section
8.11 shall not apply to such Price Adjustment Item if the exception to title
was created by Seller after January 1, 1996, and was not either created in the
ordinary course or consented to by Buyer, nor shall the reduction in Purchase
Price for such Item reduce the threshold provisions of Section 10.4.
(iv) The existence of any exception to title on
Seller's leasehold interest in any of the Long Term Leases assigned to Buyer:
(a) which would have been an exception to title on a Title Report if such
Reports had been prepared for the Long Term Leases, and (b) which was not
disclosed on any Schedule attached to this Agreement, and (c) which materially
interferes with the use thereof for the production and harvesting of timber;
provided that the threshold provisions of Section 8.11 shall not apply if the
exception to title was created by Seller after January 1, 1996, and was not
either created in the ordinary course of business or consented to by Buyer,
nor shall the reduction in Purchase Price for such Item reduce the threshold
provisions of Section 10.4.
(v) The presence of any hazardous substances or
materials, wastes, toxics, or contaminants in, on or under any of the
Indemnification Properties (but only for thirty (30) days after the date of
this Agreement and only to the extent they were not disclosed in Schedule
6.6); provided that with respect to the real property in North Louisiana and
Southwest Louisiana (including the Long Term Leases), the presence of any
hazardous substances or materials, wastes, toxics, or contaminants or any
other effects created by, resulting from or related to oil and gas operations
shall not be taken into account as Price Adjustment Items.
(vi) Any breach of representations of Seller in
Section 6 of this Agreement during the Due Diligence Period, but with respect
to Section 6.6, only if included in a Price Adjust Notice given within thirty
(30) days after the date of this Agreement; provided, that in determining the
adverse financial impact for breach of representations of Seller, any benefit
to Buyer caused by such breaches of representations of Seller and other
breaches of representations of Seller during the Due Diligence Period shall be
offset or taken into account.
(e). Price Adjustment Formula. As used in this Section
8.11 and in Section 10.4(b) and (c), the term "First Threshold" means fifteen
million dollars ($15,000,000); the term "Second Threshold" means twenty five
million dollars ($25,000,000); the term "Third Threshold" means thirty five
million dollars ($35,000,000). If the First Threshold, but not the Second
Threshold, is met, the Purchase Price shall be reduced by fifty percent (50%)
of the amount of the adverse financial impact in excess of the First
Threshold; and if the Second Threshold, but not the Third Threshold, is met,
the Purchase Price shall be additionally reduced by two-thirds of the amount
of the adverse financial impact in excess of the Second Threshold; and if the
Third Threshold is met, the Purchase Price shall be additionally reduced by
one hundred percent (100%) of the amount of the adverse financial impact in
excess of the Third Threshold.
9. Default; Remedies; Arbitration.
9.1 Default; Remedies. Time is of the essence of this Agreement.
If either party fails or refuses to carry out this Agreement according to its
terms, the other party shall be entitled to the remedies set forth below.
(a). Buyer's Default.
(i) Buyer's Failure to Complete Purchase. Except as
otherwise provided in this Agreement, in the event Buyer fails, without legal
excuse, to complete the purchase of the Assets pursuant to this Agreement, the
Deposit (and all interest accrued thereon) shall be forfeited to Seller as the
sole and exclusive remedy available to Seller for such failure.
(ii) Buyer's Other Defaults. Nothing in Subsection
9.1 (a) shall affect or limit Seller's rights with respect to any cause of
action arising from any other breach or default of the Agreement by Buyer.
(b). Seller's Default. Except as otherwise provided in
this Agreement, in the event Seller fails or refuses to complete the purchase
of the Assets or is otherwise in breach or default of its obligations in this
Agreement, Buyer shall be entitled to a refund of the Deposit (and all
interest accrued thereon) without prejudice to Buyer's right to terminate the
Agreement and/or pursue any and all remedies available at law or in equity by
reason of Seller's breach or default, including without limitation, specific
performance and damages for any failure by Seller to perform the obligations
to be performed by it from and after the date of this Agreement; provided,
however, that Buyer's sole remedy against Seller for Seller's breach of
Section 6 and the representations set forth therein shall be as set forth in
Section 8.11 and the indemnification by Seller of Buyer as set forth in
Section 10.
9.2 Arbitration. This Agreement shall not be subject to
termination except as specifically provided in this Agreement. Any question,
controversy or claim arising under or relating to this Agreement, including
without limitation any such matter pertaining to an alleged event having a
Material Adverse Effect or any adjustment of the Purchase Price, or for any
breach hereof, shall be settled by arbitration in accordance with the rules of
the American Arbitration Association and the provisions of the laws of the
State of Washington relating to arbitration, as said rules and laws are in
effect on the date of this Agreement. The arbitration shall be conducted in
Vancouver, Washington, by and before a single arbitrator, who is experienced
in the problem or problems in dispute, to be agreed upon by the Seller and
Buyer, or if they are unable to agree upon an arbitrator within ten (10) days
after written demand by either party for arbitration, then, at the written
request of either party, the arbitrator shall be appointed by the American
Arbitration Association, or failing such appointment, by the Superior Court in
and for the County of Clark, State of Washington. Proceedings to obtain a
judgment with respect to any award rendered hereunder shall be undertaken in
accordance with the law of the State of Washington including the conflicts of
laws provisions thereof.
Each party shall pay one-half of the arbitrator's fees and
expenses. Upon application to the arbitrator, the parties shall be entitled
to limited discovery, including only exchange of documents and only
depositions on such terms as the arbitrator may allow for purposes of fairness
and to reduce the overall time and expense of the arbitration.
10. Indemnification and Related Matters.
10.1 Indemnification.
(a) Seller agrees to defend, indemnify and hold Buyer and
its parents, subsidiaries, affiliates, predecessors, successors and assigns
(and their respective officers, directors, employees and agents) harmless from
and against any and all loss, claims, liabilities, damages, costs and
expenses, including attorneys fees incurred with respect to third parties
("Damages") resulting from, based upon, or arising out of:
(i) all of the Excluded Liabilities set forth in
Section 1.8(b);
(ii) Subject to Section 10.4, and taking into account
any adjustments made for such breach in Section 8.11, breaches of Seller's
representations set forth in Section 6;
(iii) Subject to Section 10.4, claims of third parties
that are asserted after Closing, to the extent the basis of such claims arose
prior to Closing; provided, that this Subsection (iii) shall only apply to a
claim which will result in loss to Buyer in excess of $100,000; and provided
further, that the indemnity in this Subsection (iii) shall not apply at all to
matters disclosed on Schedule 6.4 or to matters covered by Section 8.11 or to
matters for which Buyer is indemnifying Seller as provided in this Agreement;
(iv) Subject to Section 10.4, permits, licenses, or
Contracts (which are not Material Contracts) assumed by Buyer pursuant to
Section 1.8 but which were not disclosed to Buyer in any Schedule attached to
this Agreement; provided, that this Subsection (iv) shall only apply to a
permit, license, or Contract: (a) which will require Buyer to pay more than
$100,000 in any twelve-month period, and (b) which will not expire and cannot
be terminated within twelve months of Closing without penalty, liability, or
premium, and (c) which provides no material benefit to Buyer;
(v) all actions, claims, suits, proceedings, demands,
assessments, judgments, costs and expenses, including attorneys' fees
(incurred with respect to third parties), with respect to the foregoing.
(b). Buyer agrees to save, defend, indemnify and hold
Seller and its general partners, parents, subsidiaries, affiliates,
predecessors, successors and assigns (and their respective officers,
directors, employees and agents) harmless from and against any loss, claims,
liabilities, damages, costs and expenses, including attorneys' fees incurred
with respect to third parties ("Damages") resulting from, based upon, or
arising out of:
(i) any breaches, occurring before, at or after
Closing, of Contracts, Long Term Leases, permits, licenses, and all other
agreements and obligations transferred or assigned to Buyer;
(ii) the operation, management or condition of the
Assets or Northwest Business or Remaining Louisiana Businesses, whether
arising before, at or after the Closing, excluding only those matters covered
by Section 10.1 (a)(i) above; and
(iii) all matters assumed by the Buyer pursuant to
any and all provisions of this Agreement or any related agreement.
(iv) all actions, claims, suits, proceedings,
demands, assessments, judgments, costs and expenses, including attorneys' fees
(incurred with respect to third parties), with respect to the foregoing.
Wherever this Agreement provides for Buyer's indemnification of Seller,
the term "Seller" shall mean each or all of CERI, CFII, and Hanson.
10.2 Determination of Damages; Claims. In calculating any
amounts payable to Buyer pursuant to Section 10.1 (a) or payable to Seller
pursuant to Section 10.1 (b), Seller or Buyer, as the case may be, shall
receive credit for (i) any reduction in tax liability as a result of the facts
giving rise to the claim for indemnification, and (ii) any insurance
recoveries.
10.3 Defense of Claims by Third Parties. If any claim is made
against Buyer or Seller that, if sustained, would give rise to a liability of
the other under this Agreement, Buyer or Seller, as the case may be, shall
promptly cause notice of the claim to be delivered to the other and shall
afford the other and its counsel, at the other's sole expense, the opportunity
to defend, with counsel reasonably satisfactory to the party against which
such claim is made, or settle the claim. If either party takes said
opportunity to settle the claim, such party shall obtain a release of the
other party in any settlement agreement with the third party.
10.4 Limitations on the Indemnification.
(a). With respect to Seller's indemnification of Buyer
pursuant to Subsections 10.1(a) (ii), (iii), and (iv), Buyer shall promptly
inform Seller in writing of each such matter, as and when Buyer becomes aware
of such matter, and shall keep complete and accurate records of actual damages
incurred by Buyer as a result thereof.
(b). Seller's indemnification of Buyer pursuant to Subsections
10.1(a) (ii), (iii), and (iv) shall not commence until Buyer has incurred
actual loss or damage, including, in the case of matters involving third
parties, costs and attorney's fees incurred by Buyer ("Actual Loss"), in the
aggregate, in excess of the First Threshold for the matters described in said
Subsections. Actual loss shall also include actual loss or damage suffered by
any Designee which would have been suffered by Buyer had all the Assets been
transferred to Buyer. After Buyer has incurred Actual Loss in excess of the
First Threshold but less than the Second Threshold, Seller's indemnification
of Buyer pursuant to Subsection 10.1(a) (ii), (iii), and (iv) shall obligate
Seller to compensate Buyer for fifty percent (50%) of Actual Loss incurred by
Buyer in excess of said First Threshold. After Buyer has incurred Actual Loss
in excess of the Second Threshold but less than the Third Threshold, Seller's
indemnification of Buyer pursuant to Subsection 10.1(a) (ii), (iii), and (iv)
shall obligate Seller to compensate Buyer for two-thirds (2/3) of Actual Loss
incurred by Buyer in excess of the Second Threshold. After Buyer has incurred
Actual Loss in excess of the Third Threshold, Seller's indemnification of
Buyer pursuant to Subsection 10.1(a) (ii), (iii), and (iv) shall obligate
Seller to compensate Buyer for one hundred percent (100%) of Actual Loss
incurred by Buyer in excess of the Third Threshold.
(c). In determining the Thresholds of Seller's
indemnification of Buyer in Subsection (b) above, there shall be taken into
account the amounts carried forward from the Thresholds attained pursuant to
Section 8.11(b) and (c). By way of example, if it is determined, by mutual
agreement or arbitration, that there is an adverse financial impact of
fourteen million dollars ($14,000,000) in Section 8.11(b) or (c), Buyer would
only have to incur Actual Loss of one million dollars ($1,000,000) to reach
the First Threshold in Subsection (b) above. By way of another example, if it
is determined that there is an adverse financial impact of thirty four million
dollars ($34,000,000) in Section 8.11(b), Buyer would only have to incur
Actual Loss of one million dollars ($1,000,000) to pass through the First and
Second Thresholds and reach the Third Threshold in Subsection (b) above.
(d) Notwithstanding anything to the contrary to this
Agreement, Seller shall not be obligated to indemnify Buyer on any claim for
indemnification submitted by Buyer to Seller after December 31, 1998, except
for matters arising under Section 10.1 (a)(i).
11. Employee Matters.
11.1 Definitions.
(a). Employees. The term "Employees" shall mean all of the
persons actively employed by Seller at the Northwest and Remaining Louisiana
Businesses in daily operations in hourly or salaried status immediately
preceding the Closing, and those persons identified in Schedule 11.2(f) as
employed by Seller in daily operation of the Business who are either a) on
disability, or b) on leave of absence. This does not include persons listed
in Schedule 11.1(a), which lists executive officers of Seller.
(b). Transferring Employees. All Employees, except
Bargaining Unit Employees, who apply for, are offered, and who accept
employment with Buyer on the Closing Date or within 90 days thereafter.
(c). Bargaining Unit Employee. Any Employee in an
operation of the Northwest Business who is covered by the terms of a
collective bargaining agreement between a labor organization and Seller
immediately prior to the Closing Date.
(d). List of Employees. Schedule 11.1(d) sets forth a true
and correct list of all Employees, together with their respective job titles,
hourly rates or base salary, date of birth, Social Security number, and most
recent date of hire (or credited service), as of ten (10) days prior to the
date of this Agreement, and will be updated to be true and correct as of ten
(10) days prior to the Closing Date.
11.2 Applications/Hiring.
(a). Within ten (10) days after the date this Agreement is
signed, Buyer will provide applications for employment to all Seller's
Employees, as defined in 11.1(d) above, provided that Buyer may also notify
Seller of positions which it may not wish to continue. Buyer and Seller will
cooperate in preparing Employee meetings.
(b). Employees from whom applications will be solicited by
Buyer will also be provided with a document or documents setting forth the
essential terms and conditions of employment under which Buyer intends to
operate the Assets. Buyer will consider applications from all Employees of
Seller who apply for employment under such terms and conditions of employment
pursuant to its normal hiring procedure. If applications acceptable to Buyer
are received from Seller's Salaried Employees, offers of employment shall be
extended within fifteen (15) working days of application receipt or as soon as
reasonably practical thereafter. Offers to other Employees who submit
application and who are acceptable to Buyer will be extended on or before the
Closing Date.
(c). Salaried Terms and Conditions. Solicitations of
Seller's salaried Employees who submit applications for employment with Buyer
will be made on terms and conditions of employment consistent with and
generally applicable to Buyer's salaried work force in positions of like
status and pay. However, in order to minimize Seller's severance cost, Buyer
agrees to offer employment to at least fifty-five (55) Salaried Employees (or
to such lesser number if such lesser number of Salaried Employees apply), and
that for those Salaried Employees offered employment, at least 85% will be
hired at 96% or more of their Base pay with Seller as listed in Schedule
11.1(d).
During the twelve (12) month period following Closing, Buyer
agrees to provide employment consideration in filling open positions in the
Portland metropolitan area (which are not filled from within) to the Employees
shown on Schedule 11.1(d) who are not offered employment prior to Closing.
(d). Nonunion Hourly Terms and Conditions. Solicitations
of Seller's nonunion hourly Employees who submit applications for employment
with Buyer will be made as Buyer may determine on terms and conditions of
employment consistent with their existing terms and conditions or terms and
conditions consistent with and generally applicable to Buyer's nonunion hourly
work force in positions of like status and pay in similar type operations of
Buyer in the same region or geographic proximity.
(e). Bargaining Unit Employees. Buyer does not accept or
assume the terms of any collective bargaining agreement of Seller. If, as a
result of processing applications under paragraph (b) above, a majority of the
Employees to whom Buyer extends offers of employment are from Seller's
bargaining unit, Buyer will recognize the current collective bargaining agent
of such Employees.
All Bargaining Unit Employees of the Northwest Business who
accept employment with the Buyer and who commence such employment immediately
after the Closing Date shall receive wages and benefits in accordance with the
terms of employment established by Buyer, or, assuming recognition of a
bargaining agent as described above, pursuant to any collective bargaining
agreements negotiated by Buyer and the bargaining agent of such Employees
after the Closing Date.
(f). Disabled Employees/Leave of Absences. Employees
identified in Schedule 11.2(f) who make application, are offered, and accept
employment must begin employment with Buyer no later than the first working
day of the sixth (6th) month following the month in which the Closing Date
occurs unless otherwise provided by law or extended by Buyer.
11.3 Employment Obligations of Seller and Buyer.
(a). Buyer's Obligations/Employment Claims.
(i) Subject to the provisions of Section 11.4 and
Section 11.5, Buyer agrees to assume all employment-related obligations
accruing on or after the Closing Date pertaining to Transferring Employees
including, without limitation, compensation for services performed for Buyer
(and related employment and withholding taxes); benefits accrued under any
Buyer-sponsored employee welfare or pension benefit plan (as defined under
ERISA Sections 3(1) and 3(2), respectively); benefits accrued under any other
employee benefit plan or arrangement of Buyer covering the Transferring
Employees; and workers' compensation benefits with respect to claims relating
to events occurring on or after the Closing Date or filed more than one-
hundred eighty (180) days after the Closing Date, regardless of date of
accident or illness.
(ii) Buyer will retain all liability for all claims,
losses, damages, and expenses (including, without limitation, reasonable
attorney's fees), and other liabilities and obligations relating to or arising
out of all unfair labor practice charges, wrongful termination litigation,
employment discrimination charges, severance claims, health and welfare
claims, retirement claims and any other claims related to employment and based
upon Buyer's conduct on or after the Closing Date which are filed within
applicable statutes of limitations.
(b). Seller's Obligation/Employment Claims.
(i) Subject to the provisions of Section 11.4 and
11.5, Seller agrees to assume all employment related obligations with respect
to all Employees accruing prior to the Closing Date including, without
limitation, compensation for services performed for Seller (and related
employment and withholding taxes); benefits accrued under any Seller sponsored
employee welfare or pension plan (as defined under ERISA Sections 3(1) and
3(2) respectively) covering the Employees or former Employees prior to or
after the Closing Date; benefits accrued under any other employee benefit plan
or arrangement of Seller covering the Employees or former Employees prior to
or after the Closing Date; and workers' compensation benefits with respect to
claims filed before the Closing Date or within one hundred eighty (180) days
after the Closing Date and relating to events occurring prior to the Closing
Date.
(ii) Seller will retain all liability for any and all
claims, losses, damages, and expenses (including, without limitation,
reasonable attorney's fees) and other liabilities and obligations relating to
or arising out of all unfair labor practice charges, wrongful termination
litigation, employment discrimination charges, severance claims, health and
welfare claims, asbestos claims, retirement claims, OSHA citations and any
other claims arising out of any employment and based upon Seller's conduct
occurring prior to the Closing Date including actions filed as of the Closing
Date or filed thereafter within applicable statutes of limitations.
(c). COBRA. Seller shall be responsible for the health
care coverage of any Employees as may be required by COBRA under affected
Seller Welfare Plans. After the Closing Date, Seller shall ensure that the
option of continuing health care coverage under the Seller Welfare Plans is
extended to the Employees to the extent required by COBRA. Buyer shall be
responsible for providing health care continuation coverage as required by
COBRA to any Transferring Employees terminated by Buyer after the Closing
Date.
(d). Vacation Obligations/Transferring Employees.
(i) Vacation earned as of May 1, 1996 and to be
taken in 1996 by Transferring Employees under Seller's vacation policy will be
credited to Transferring Employees on the Closing Date to the extent not then
taken. Buyer shall grant Transferring Employees time off with pay (vacation)
for this full credited amount, or pay in lieu of time off for any portion not
taken by December 31, 1996. Within fifteen (15) days after the actual date of
Closing Seller shall pay to Buyer the amount of such earned vacation pay
payable by Buyer to such Transferring Employees.
(ii) Vacation accruing in 1996 to be taken in 1997 by
Transferring Employees will be determined in accordance with Buyer's vacation
policy. In the application of Buyer's vacation policy, Buyer shall recognize
service of such Employees with Seller and its predecessors to the extent
Seller recognized such service under its vacation policy. Seller shall
provide Buyer, on or before the Closing Date, with a list of such recognized
service including the number of vacation weeks earned under Seller's Plan for
all Employees as of May 1, 1996. For those Transferring Employees who remain
in Buyer's employment until at least January 1, 1997, Buyer will accrue
vacation from January 1, 1996 notwithstanding the fact that the Transferring
Employees were not its Employees until after the Closing Date. For those who
do not remain in employment with Buyer until year end, vacation will accrue
1/12 pro rata for each completed calendar month of employment between the
Closing Date and December 31, 1996.
(e). Severance Pay Obligations.
(i) Seller assumes all severance pay obligations, if
any, for all Employees who are not hired by Buyer pursuant to Seller's
policies, plans, or agreements relating to severance from employment.
(ii) Any Salaried Transferring Employee hired by
Buyer who is terminated during the first six (6) months following the month in
which the Closing Date occurs, for reasons other than cause or misconduct,
shall receive severance pay from Buyer equal to that which he or she would
have received under Seller's severance pay policies as written on January 1,
1996, generally applicable to Seller's Employees in like positions and pay
status in the same amount which would have been payable had such Salaried
Transferring Employee not been hired by Buyer. Seller shall provide Buyer
with copies of its applicable policies as soon as reasonably practical after
signing of this Agreement.
(iii) Any Salaried Transferring Employee hired by
Buyer who is terminated by Buyer after the six (6) month period in (ii) above
or any other Transferring Employee will receive severance pay, if any, in
accordance with Buyer's severance pay policies uniformly applicable to other
Employees in positions of similar status and pay. In the application of such
policies, Buyer shall recognize the Transferring Employee's service with
Seller from his or her most recent date of hire with Seller.
11.4 Employee Benefits.
(a). All Transferring Employees of the Northwest or
Remaining Louisiana Businesses who accept employment with Buyer and commence
such employment immediately on the Closing Date will be, starting on the
Closing Date, covered by Buyer's existing employee benefit plans in accordance
with their terms and will be subject to Buyer's existing employment policies,
as applicable to Buyer's Employees who are similarly situated. Transferring
Employees shall be credited with their service with Seller from their most
recent date of hire for purposes of vesting, participation and eligibility
(but not benefit calculations, except as provided in Section 11.5(c)
pertaining to certain Salaried Employees), under Buyer's plans and policies,
as though such service had been with Buyer.
(b). With respect to Buyer medical coverage, there shall be
no waiting period for participation by Transferring Employees or their
dependents and they shall be credited with any deductibles satisfied under
Seller's medical plans for claims incurred during calendar year 1996 in
meeting the deductible requirements of Buyer's plans. Buyer will also waive
any preexisting condition restrictions under the Buyer Welfare Plans with
respect to Transferring Employees or their dependents.
(c). Buyer will provide no benefit coverage to a
Transferring Employee or his or her dependents to the extent that such person
has not reported to work and continues to be eligible by reason of disability
under the Seller Welfare Plans in accordance with their terms as in effect
immediately prior to the Closing Date.
(d). In particular, but without limitation, (i) claims for
medical, hospital or other health care expenses incurred by Transferring
Employees or their dependents on or after the Closing Date shall be covered
under the Buyer Welfare Plans, subject to the limitations thereof and claims
for such expenses incurred by Transferring Employees or their dependents prior
to the Closing Date shall be covered, subject to the limitations thereof (but
in accordance with the terms of this Agreement), under Seller's Welfare Plans;
(ii) claims of Transferring Employees or their dependents for life insurance,
accidental death and dismemberment and disability benefits with respect to
death, disability or other injury occurring on or after the Closing Date shall
be covered under Buyer's Welfare Plans, and claim for such benefits with
respect to death, disability or injury occurring prior to the Closing Date
shall be covered under Seller's plans (as applicable). The amount and type of
benefits payable in any case shall be determined in accordance with the terms
of the applicable Welfare Plan. Seller and Buyer acknowledge that certain
Transferring Employees who will have attained age 65 or age 55 and 5 years of
service for purposes of Seller's retiree medical plan as of the Closing Date
will be eligible to elect retiree medical coverage under Seller's retiree
medical plan, but only if they do so immediately after the Closing Date; that
such coverage requires payment of contributions in an amount determined by
Seller pursuant to Seller's retiree medical plan with respect to all
participants in such retiree plans and is secondary to active coverage under
Buyer's medical plans while the Transferring Employees are participating in
any of Buyer's medical plans which may cover such Employees.
11.5 Retirement Plan Matters.
(a). Seller Retirement Plans. "Seller Retirement Plans"
shall mean the Cavenham Forest Industries Inc. Retirement Plan for Hourly Paid
Employees and Cavenham Forest Industries Inc. Retirement Plan for Salaried
Employees.
(b). Vesting of Benefits. As of the Closing Date, all
Transferring Salaried Employees shall become fully vested in their accrued
benefits under the Seller Retirement Plans. Buyer will recognize past service
credited under the Seller's Retirement Plan for purposes of determining
vesting requirements under Buyer's Plan for Transferring Employees.
(c). Determination of Benefits/Payment of Supplement.
Seller will provide Buyer with a statement, within 180 days of Closing,
listing credited service and accrued benefits (expressed as a Single Life
Annuity) through the Closing Date as determined under Seller's Plan for
Salaried Employees (the "CSAB Statement"). Such accrued benefit amounts shall
be listed in the CSAB Statement for each Transferring Employee. The accrued
benefit amount shall be calculated by Seller's actuary, Hewitt Associates, in
consultation with Seller and Buyer (and, at Buyer's option, Buyer's actuary),
using assumptions shown on the CSAB Statement in conjunction with Seller's
current retirement plan formula. Buyer shall provide each Transferring
Salaried Employee, upon retirement, a supplemental retirement benefit under
its Salaried Retirement Plan, or under such other form of supplemental plan or
payment acceptable to Buyer, (a "Supplement") equal to:
(i) the age 62 Single Life Annuity amount, taking
into account the credited service listed in the CSAB Statement as applied to
the benefit formula of Buyer's Salaried Retirement Plan, using compensation
with Buyer at retirement, minus,
(ii) the amount of accrued benefit set forth in the
CSAB Statement for each such Transferred Salaried Employee.
If the Supplement is provided under Buyer's Salaried
Retirement Plan, such Supplement shall be adjusted pursuant to any options
elected by such Employee pursuant to such plan. If provided outside of
Buyer's Salaried Retirement Plan, such Supplement will be calculated on an
actuarial equivalent basis, using assumptions no less favorable than the
assumptions listed on Schedule 11.5(c) which are used by Seller in determining
the accrued benefit amount. Such Supplement shall be in addition to any
benefits earned by such Employees as a participant in Buyer's Salaried
Retirement Plan based upon their credited service with Buyer and compensation
from Buyer after the Closing Date.
(d). Hourly Retirement Plan. For hourly Transferring
Employees and Bargaining Unit Employees, Seller remains responsible for all
liabilities of the Cavenham Forest Industries Inc. Retirement Plan for Hourly
Paid Employees for benefits accrued as of the Closing Date. After the Closing
Date, Buyer will provide an appropriate Hourly Retirement Plan for all
Transferring Employees and an appropriate retirement plan for all Bargaining
Unit Employees consistent with Buyer's existing retirement plans covering
similarly situated Employee throughout the country. Buyer will credit
Transferring Employees with service since their most recent date of hire with
Seller for purposes of meeting the vesting requirements of Buyer's plan
covering such Employees.
11.6 Employee Payroll Information. Seller shall transfer to
Buyer copies of any records relating to withholding and payment of income and
unemployment taxes (federal, state and local) and FICA and FUTA taxes with
respect to wages paid to Employees hired by Buyer for the calendar year in
which the Closing occurs (including, without limitation, Forms W-4 and
Employee's Withholding Allowance Certificate). Buyer shall provide such
Employees with Forms W-2, Wage and Tax Statement, for the calendar year in
which the Closing occurs setting forth the wages paid and taxes withheld with
respect to such Employees for such calendar year by Seller and Buyer as
predecessor and successor Employees, respectively, as provided by Revenue
Procedure 84-77.
11.7 No Third-Party Beneficiary. This Agreement is being entered
into solely for the benefit of the parties hereto, and the parties do not
intend that any Employee or any other person shall be a third-party
beneficiary of the covenants by either Seller or Buyer contained in this
Agreement; provided, however, that any Transferring Salaried Employee shall
have the right to directly enforce the provisions of Section 11.5(c) against
Buyer, and if legal action is instituted in connection therewith, the
prevailing party shall be entitled to its reasonable attorney fees as set by
the court or courts at trial and on any appeal.
11.8 Labor Matters. As of the date hereof, but not as of the
Closing Date or any other date, except as set forth in Schedule 11.8,
(i) within the last two years the Seller has not experienced any material work
stoppage due to labor disagreements with respect to the Northwest or Remaining
Louisiana Businesses; (ii) Seller is a party to a collective bargaining
agreement relating to the Northwest Business; (iii) there is no unfair labor
practice charge or complaint against the Seller relating the Northwest and
Remaining Louisiana Businesses pending or, to the knowledge of the Seller,
threatened, before the National Labor Relations Board or other similar local
tribunal; (iv) there is no labor strike, request for representation, slowdown
or stoppage actually pending or to the knowledge of the Seller, threatened
against or affecting the Seller relating to the Northwest and Remaining
Louisiana Businesses; (v) to the knowledge of the Seller, no question
concerning representation as defined in the National Labor Relations Act is
pending or threatened against Seller respecting the Northwest and Remaining
Louisiana Businesses; and (vi) no arbitration proceeding arising out of or
under any collective bargaining agreement relating to the Northwest and
Remaining Louisiana Businesses is pending or, to the knowledge of the Seller,
is threatened.
11.9 Indemnification. Anything in this Agreement to the contrary
notwithstanding, the Buyer agrees to indemnify the Seller against and hold the
Seller harmless from any and all claims, losses, damages, expenses,obligations
and liabilities arising out of or otherwise in respect of any failure of the
Buyer to discharge their respective obligation under this Section 11.
Anything in this Agreement to the contrary notwithstanding, the Seller agrees
to indemnify the Buyer against and hold the Buyer harmless from any and all
claims, losses, damages, expenses, obligations and liabilities arising out of
or otherwise in respect of any failure of Seller to discharge their respective
obligation under this Section 11. This indemnity shall survive closing.
12. Miscellaneous.
12.1 Finders. Buyer and Seller respectively represent and
warrant that they have not employed or utilized the services of any broker or
finder in connection with this Agreement or the transactions contemplated by
it. Seller shall indemnify and hold Buyer harmless from and against any and
all claims for brokers' commissions made by any third party as a result of
this Agreement and the transaction contemplated hereunder to the extent that
any such commission was incurred, or alleged to have been incurred, by,
through or under Seller. Buyer shall indemnify and hold Seller harmless from
and against any and all claims for brokers' commissions made by any third
party as a result of this Agreement and transactions contemplated hereunder to
the extent that any such commission was incurred, or alleged to have been
incurred, by, through or under Buyer.
12.2 Entire Agreement. This Agreement (with its Schedules and
Exhibits) contains, and is intended as, a complete statement of all of the
terms of the arrangements between the parties with respect to the matters
provided for, supersedes any previous agreements and understandings between
the parties with respect to those matters, and cannot be changed or terminated
orally.
12.3 Governing Law. Seller and Buyer each hereby consent to
personal jurisdiction in any action brought with respect to this Agreement and
the transactions contemplated hereunder in the State of Washington and to the
arbitration described in Section 9.2. Section 9.1 of this Agreement shall be
governed by and construed in accordance with the law of the State of
Washington generally, and RCW 64.04.005 specifically, without giving effect to
conflicts of law principles thereof. The balance of this Agreement shall be
governed by and construed in accordance with the laws of the State of
Washington, including the conflicts of laws principles thereof.
12.4 Tables of Contents and Headings. The table of contents and
section headings of this Agreement and titles given to Schedules to this
Agreement are for reference purposes only and are to be given no effect in the
construction or interpretation of this Agreement.
12.5 Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally or mailed by registered mail, return receipt requested, to the
parties at the following addresses (or to such address as a party may have
specified by notice given to the other party pursuant to this provision):
If to Buyer to:
Willamette Industries, Inc.
1300 S.W. Fifth Avenue, Suite 3800
Portland, Oregon 97201
Attention: Chief Financial Officer
With a copy to:
Miller, Nash, Wiener, Hager & Carlsen
111 S.W. Fifth Avenue, Suite 3500
Portland, Oregon 97204
Attention: J. Franklin Cable
If to Seller, to:
Cavenham Forest Industries Inc.
1800 SW First Avenue, Suite 500
Portland, OR 97201
Attention: President
With a copy to:
Cavenham Energy Resources Inc.
1800 SW First Avenue, Suite 500
Portland, OR 97201
Attention: President
With a copy to:
Hanson Natural Resources Company
1800 SW First Avenue, Suite 500
Portland, Oregon 97201
Attention: Co-President
With a copy to:
Hanson Industries
99 Wood Avenue South
Iselin, New Jersey 08830
Attention: General Counsel
With another copy to:
Cavenham Forest Industries Inc.
1800 SW First Avenue, Suite 500
Portland, OR 97201
Attention: General Counsel
12.6 Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement which shall remain in full force and
effect.
12.7 Further Assurances and Assistance. Buyer and Seller agree
that each will execute and deliver to the other any and all documents, in
addition to those expressly provided for herein, that may be necessary or
appropriate to effectuate the provisions of this Agreement, whether before, at
or after the Closing. Seller agrees that, at any time and from time to time
after the Closing, it will execute and deliver to Buyer such further
assignments or other written assurances as Buyer may reasonably request to
perfect and protect Buyer's title to the Assets.
12.8 Survival. The terms, covenants, agreements, representations
and warranties contained in or made pursuant to this Agreement together with
all indemnities and undertakings contained herein shall survive the Closing,
subject to the time limits specified herein, if any, delivery of the Purchase
Price and delivery and/or recordation of the instruments of conveyances and
assignment, bills of sale, assignments of contract rights and other closing
documents, and shall not be deemed to have been merged in any of the documents
delivered at the Closing, irrespective of any investigation made by or on
behalf of any party.
12.9 Waiver. Any party may waive compliance by another with any
of the provisions of this Agreement. No waiver of any provision shall be
construed as a waiver of any other provision. Any waiver must be in writing
and signed by the party waiving such provision.
12.10 Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. Except as expressly set forth in Section
11.7, nothing in this Agreement shall create or be deemed to create any third
party beneficiary rights in any person or entity not a party to this
Agreement, including any such person or entity asserting rights as a third
party beneficiary with respect to environmental matters. No assignment of
this Agreement or of any rights or obligation hereunder may be made by either
party (by operation of law or otherwise) without the prior written consent of
the other and any attempted assignment without the required consent shall be
void; provided, however, that no such consent shall be required of Buyer to
assign its rights under this Agreement to one or more Designees, but no such
assignment by Buyer of its rights or obligations hereunder shall relieve Buyer
of any of its obligations to Seller under this Agreement. Further, no such
consent shall be required of Seller to assign its rights or obligations under
this Agreement to one or more Affiliates of Seller, but no such assignment by
seller of its rights or obligations hereunder shall relieve Seller of any of
its obligations to Buyer hereunder.
12.11 Best Knowledge. As used in this Agreement "to the best of
Seller's knowledge" shall mean actual knowledge possessed by William B. Freck,
the Division General Counsel for Seller, David E. Harris, the Division Chief
Financial Officer of Seller, Richard E. Dahlin, the Division Vice President
for the Northwest Business, and Lee T. Alford, the Division Vice President for
the Remaining Louisiana Businesses, all of whom are executive officers of
Seller, and any of the forest managers or the mill manager of Seller; and "to
the best of Buyer's knowledge" shall mean actual knowledge possessed by any
executive officer or supervisory employee of Buyer.
12.12 Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but which together shall
constitute one and the same Agreement.
12.13 No Recordation. Neither this Agreement nor a memorandum
hereof shall be recorded in any jurisdiction or public record.
12.14 Transitional Services. At the request of Buyer, Seller
will continue to provide accounting, payroll, and general administration
services to Buyer for a reasonable period of time after the Closing on a basis
consistent with past practice. At the request of Seller, Buyer will continue
to provide accounting, payroll, and general administration services to Seller
for a reasonable period of time after the Closing on a basis consistent with
past practice.
12.15 INTENTIONALLY LEFT BLANK
12.16 Notice of Reforestation Requirements. In accordance with
ORS 527.665, Schedule 12.16 is notice to Buyer of Seller's reforestation
requirements pursuant to the Oregon Forest Practices Act.
12.17 Buyer's Designees. Notwithstanding that Buyer's Designees
may be the "grantees" and "assignees" on conveyance instruments executed by
Seller pursuant to Section 3.4, Buyer's assumption of liabilities as provided
in Section 1.8(a) and in the instruments described in Section 3.4 shall in no
way be diminished; at Closing Buyer shall, at Seller's request, execute the
Bill of Sale, Assignment, Acceptance, and Assumption, and the assignments of
other Contracts, permits and licenses described in Section 3.4 for the Assets
to be transferred to Buyer's Designees, notwithstanding that the Designees
also execute such instruments for such Assets. With respect to Section 11,
Buyer shall cause each of its Designees, as applicable, to comply with all
obligations of Buyer under Section 11; provided, such Designee's terms and
conditions of employment (including vacation policies, severance policies, and
other benefit plans) shall be substituted for Buyer's terms and conditions of
employment (including vacation policies, severance policies, and other benefit
plans); and provided, further, that with respect to Section 11.5(c), if a
Designee does not have a defined benefit retirement plan, the Supplement (for
this purpose calculated by using Buyer's retirement plan formula and the
actuarial assumptions set forth on Schedule 11.5(c)) shall be provided to the
Transferring Employee hired by such Designee through an alternative form (such
as a single-life annuity or a lump sum payment of the present value of such
Supplement). Buyer shall indemnify, defend, and hold harmless Seller from all
claims, actions, suits, and liabilities arising from the Designees against
Seller by reason of this Agreement or the transactions contemplated herein;
provided, that Buyer may submit, on behalf of a Designee, any such claim,
action, suit, or liability that Buyer is entitled to submit under this
Agreement.
12.18 No Presumptions. This Agreement is a result of
negotiations between Seller and Buyer, both of whom are represented by counsel
of their choosing. No presumption shall exist in favor of either party
concerning the interpretation of the documents constituting this Agreement by
reason of which party drafted the documents.
12.19 Disclaimer Required by Oregon Statute. THE PROPERTY
DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT
PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND
REGULATIONS, WHICH, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR
SITING OF A RESIDENCE. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE
PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE
CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES AND EXISTENCE OF
FIRE PROTECTION FOR STRUCTURES.
12.20 Joint and Several Liability of Seller. Hanson, CERI, and
CFII are jointly and severally liable for the representations, warranties,
covenants and obligations of Seller in this Agreement.
Dated 3/12/96
SELLER: Cavenham Forest Industries Inc.,
a Delaware corporation
By: /s/ R. A. Carson
Title: President
SELLER: Cavenham Energy Resources Inc.,
a Delaware corporation
By: /s/ R. A. Carson
Title: President
Hanson Natural Resources Company
By Cavenham Forest Industries Inc.,
general partner
By: /s/ R. A. Carson
Title: President
BUYER: Willamette Industries, Inc.,
an Oregon corporation
By: /s/ Steven R. Rogel
Title: President & CEO
SCHEDULES
Schedule 1.1(a) description of parcels of real property (Timberland)
Schedule 1.1(c) buildings, improvements, roads, bridges,
permits, and easements on or appurtenant to real
property
Schedule 1.1(d) related facilities
Schedule 1.1(e) other rights related to real property
Schedule 1.1(g) description of Mineral Rights held separate from
Timberland
Schedule 1.2 description of Mill Facilities, permits, rights,
contracts and licenses related thereto
Schedule 1.3 Long Term Leases
Schedule 1.4(b) mobile equipment, machinery, equipment,
tools, fixtures and furniture
Schedule 1.4(d) contracts (including service contracts,
sales and purchase orders and
commitments), leases, permits and
licenses not related to real property
Schedule 1.5(h) excluded personal property located at Portland office
or elsewhere
Schedule 1.8 form of Assignment, Acceptance, and
Assumption Agreement
Schedule 1.8(b)(ii) accrued expenses
Schedule 1.8(b)(iv) exceptions for Affiliates of Seller
Schedule 1.9 form of offer for Chipper Facility and Site for right
of first refusal
Schedule 1.10 form of offer for Wauna Acreage for right of first
refusal
Schedule 2.1(a) Escrow Agreement
Schedule 3.4(a) instruments of transfer to real property
Schedule 3.4(a)(a) form of bill of sale with indemnity
Schedule 3.4(a)(a)(a) form of assignment for Long Term Leases
Schedule 4. title reports and commitments
Schedule 5(a) operating plan
Schedule 5(b) harvesting formula
Schedule 5(c) real estate plan
Schedule 6.3 Material Contracts
Schedule 6.4 claims, litigation, proceedings,
governmental investigations
Schedule 6.6 environmental conditions
Schedule 8.7 confidentiality agreement
Schedule 8.8 allocation
Schedule 8.10 access agreement
Schedule 11.1(a) list of executive officers
Schedule 11.1(d) list of all Employees in Northwest Business and
Remaining Louisiana Businesses
Schedule 11.2(f) list of disabled employees/leave of
absences
Schedule 11.5(b) list of Transferring Salaried Employees credited
service
Schedule 11.5(c) actuarial assumptions
Schedule 11.8 labor matters
Schedule 12.16 reforestation requirements
Asset Sale, Purchase and Transfer Agreement - Hanson Natural Resources Co., Cavenham Energy Resources Inc., Cavenham Forest Industries Inc., and Willamette Industries Inc.
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