MANAGEMENT AGREEMENT
Among
WILLAMETTE INDUSTRIES, INC. ('WI')
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY ('JH')
WILLAMETTE COLUMBIA TIMBER CO. ('WC')
HANCOCK NATURAL RESOURCE GROUP, INC. ('HNRG')
Dated May 15, 1996
MANAGEMENT AGREEMENT
This Agreement is made and entered into May 15, 1996 by and among
WILLAMETTE INDUSTRIES, INC., an Oregon corporation ('WI'), JOHN HANCOCK MUTUAL
LIFE INSURANCE COMPANY, a Massachusetts corporation ('JH'), WILLAMETTE
COLUMBIA TIMBER CO., an Oregon corporation ('WC') and HANCOCK NATURAL RESOURCE
GROUP, INC., a Delaware corporation ('HNRG').
WHEREAS, on May 15, 1996, WI closed the acquisition from HANSON NATURAL
RESOURCES COMPANY, CAVENHAM ENERGY RESOURCES, INC. and CAVENHAM FOREST
INDUSTRIES, INC. (collectively 'Hanson') of, among other assets, certain
timberlands (acquired at closing by WC) located in Columbia, Washington,
Clatsop and Tillamook Counties, Oregon, more particularly described on
Schedule 1.1 to the Purchase Agreement (hereinafter defined) ('Timberlands'),
and
WHEREAS, simultaneously JH and/or its permitted designee (all references
herein to JH as the purchaser of any portion of the Timberlands shall include
its permitted designee) purchased from Hanson, as WI's designee(s), a portion
of the Timberlands, and
WHEREAS, under Asset Sale, Purchase and Transfer Agreement Dated
April 23, 1996 ('Purchase Agreement') between WI and JH, JH has the right to
purchase in the 18 months following May 15, 1996 (or such later date on which
WI closes its said acquisition from Hanson ('Purchase Period') those parcels
of the Timberlands not purchased at said May 15, 1996 closing into which the
parties have divided the Timberlands for such potential future purchase
purposes, including any parcel substituted pursuant to the terms of the
Purchase Agreement ('Future Purchase Parcels'), and
WHEREAS, HNRG as the Investment Manager for JH will be designated as the
Manager hereunder, and
WHEREAS, pending expiration of the Purchase Period, the parties have
agreed that HNRG shall, using the management services of The Campbell Group,
Inc. ('TCG'), manage that portion of the Timberlands during that portion of
the Purchase Period that such are owned by WC, such management to be under the
terms and conditions hereinafter stated, the balance of the Timberlands to be
also managed by TCG during such time in accordance with the standards outlined
in its existing management agreement with JH dated January 1, 1994, the
objective being to have TCG provide for the Timberlands during the Purchase
Period the services herein stated; provided that any exchange parcel
identified in the Purchase Agreement that is hereafter substituted for the
Wilson River Tract portion of the Timberlands shall, if not located in Oregon,
Washington or California, not be subject to this Management Agreement.
NOW, THEREFORE, the undersigned agree as follows:
1. Appointment of Manager. Effective as of WC's acquisition of the
Timberlands, WI hereby appoints and engages HNRG to act as manager (herein
sometimes referred to as 'Manager') of that portion of the Timberlands owned
by WC (herein the 'Managed Timberlands') and to provide the other services
hereinafter described (collectively the 'Services') during the Purchase
Period, subject to the terms and conditions of this Agreement, provided that
(i) any Future Purchase Parcel acquired by JH during the Purchase Period
shall, and (ii) should WI exercise its option under the Purchase Agreement to
withdraw the Wilson River Tract from the status of a Future Purchase Parcel
under the Agreement, upon such acquisition and/or withdrawal, as the case may
be, the Purchase Parcel involved shall automatically be withdrawn from that
portion of the Managed Timberlands subject to this Agreement; and reference
herein to 'Managed Timberlands' shall be interpreted accordingly.
2. Compensation. Neither JH nor HNRG shall be entitled to any
compensation for the performance of their obligations under this Agreement.
3. Acceptance of Appointment; Use of TCG. HNRG hereby accepts the
appointment as Manager and agrees to contract with TCG (for the fees specified
on Exhibit A) to provide the Services in a prudent, efficient and orderly
manner based on TCG's professional judgment and experience. WI agrees that
TCG is experienced in the performance of the Services and fully qualified to
render such Services; it being understood that Manager shall provide all of
the Services directly or indirectly through contract with TCG. Manager's
contract with TCG will include the indemnity provisions substantially the same
as those contained in Exhibit B attached hereto. WI shall accept such
indemnity in lieu of any direct claim against JH or HNRG for damage to the
Managed Timberlands that WI may have against JH or HNRG based on the actions
or omissions of HNRG in the performance of HNRG's obligations under this
Agreement at all times that TCG is utilized by HNRG to perform all of the
Services. Provided always that nothing in this Section 3 or in any other
section of this Agreement shall exonerate JH or HNRG from any liability for
damages resulting from their own negligent or intentional acts or omissions.
Further, HNRG shall exercise the same degree of care regarding the monitoring
of TCG's performance under its contract with TCG to provide the Services that
HNRG normally exercises with regard to TCG's services in managing timberlands
owned by JH in the Pacific Northwest.
4. Harvest Plans. Attached hereto as Exhibit C are Harvest Plans on
each of the Future Purchase Parcels ('Plans') agreed to by the parties to this
Agreement. During the Purchase Period, Manager shall cause timber to be
harvested from each of the Future Purchase Parcels in volumes at least up to,
but not exceeding the minimums and maximums, respectively, specified on
Exhibit C. The Purchase Period as to each Future Purchase Parcel shall, of
course, expire as to each such parcel at the closing of the purchase thereof
by JH or at such earlier time as JH's rights to purchase such parcel shall
terminate. Using anticipated harvest and maintenance costs, together with
anticipated market prices during the Purchase Period, the Plans have been
designed to generate sufficient income from the Future Purchase Parcels to
cover not only all harvest costs and operating expenses for such Parcels, but
also to the extent warranted by market conditions, WI's financing costs (as
agreed to by the parties) for such Parcels (such costs being defined in and
based on the option prices for the Future Purchase Parcels set forth in the
Purchase Agreement). In no event shall any harvest or operating plan under
this Agreement provide for the export to any location outside the United
States of America of logs harvested from any Future Purchase Parcel during the
time such Parcel is owned by WI or WC.
5. Payment of Net Cash Income. All Net Cash Income (as defined on
Exhibit D attached) in excess of agreed upon minimum net working capital
reserves allocated as to each Future Purchase Parcel shall be paid over to WC
by Manager within Forty-five (45) days from the end of each calendar quarter
ending during the Purchase Period and, if JH shall not have purchased such
Future Purchase Parcel, within 45 days from the end of the Purchase Period
(should the Purchase Period end on a day other than the last day of a calendar
quarter) covering the final segment of the Purchase Period. For the purposes
of this Agreement, net cash income shall be computed without any deduction for
costs of reforestation or capital improvements. The Purchase Period for the
purposes of this Agreement shall be deemed to end on the earliest to occur of
the following:
(1) The date that JH notifies WI that JH elects to terminate the
Purchase Period prior to its full scheduled term and to waive
any unexercised option on the unpurchased Future Purchase
Parcel(s).
(2) The date agreed to by JH and WI in writing as the termination
date of the Purchase Period.
(3) The date of the closing of the sale by WI to JH of the last
of the Future Purchase Parcels, JH having previously
purchased (or is purchasing simultaneously) the other four
(three should WI have withdrawn the Wilson River Tract from
the Future Purchase Parcels and substituted therefor an
exchange parcel not located in Oregon, Washington or
California) Future Purchase Parcels.
(4) The date JH forfeits any further rights to exercise any
unexercised purchase option(s) by reason of its failure to
close in a timely fashion, a previously exercised option on a
Future Purchase Parcel(s).
(5) 5:00 p.m. PST on November 14, 1997 (or such later date as the
Purchase Period shall expire by reason of a delay in the
Hanson closing).
6. Purchase Price Credit. At the closing of the purchase by JH of any
Future Purchase Parcel, JH shall be entitled to a credit against the purchase
price thereof of an amount equal to the net cash income from such parcel paid
to WC that is attributable to the Purchase Period. Any such net cash income
not actually paid to WC shall not be deemed a credit against the purchase
price, but shall be payable to JH rather than to WC. As stated, JH may cause
one or more of its permitted designees (as authorized under the Purchase
Agreement) to be the actual buyer or one of the buyers of one or more Future
Purchase Parcels. In such event, any credit against the price of the Future
Purchase Parcel available under this Section shall be available allocably to
such designee(s).
7. Property Related Services. The Manager shall develop and
implement, and periodically review and update, an operating plan (including
the Plans discussed in Section 4 above) and operating budget for each Future
Purchase Parcel. No such operating plan or operating budget shall be
implemented in any aspect until such plan or budget has been approved in
writing by WC. WC agrees that it will approve or disapprove any operating
plan or budget and any proposed variation therefrom within ten (10) business
days from the date WC receives such in writing. As used herein, 'business
days' shall mean all weekdays that WI's executive offices in Portland, Oregon
are open for business. The Manager will endeavor to obtain all necessary
permits and approvals to operate and manage each Future Purchase Parcel as
commercial timberlands; shall endeavor to obtain relief or abatements from
governmental and quasi-governmental bodies with jurisdiction over each Future
Purchase Parcel as appropriate; shall negotiate and conclude agreements and
arrangements to maintain each Future Purchase Parcel as commercial timberland,
including without limitation agreements and arrangements with contractors,
subcontractors, and forestry specialists and experts; and take such other
action as may be reasonable under the circumstances including without
limitation the contracting for the harvesting of timber or other products from
the Future Purchase Parcels.
All contracts, agreements or easements of any nature whatsoever
entered into by Manager or by TCG in the performance of the Services shall
contain a specific provision, unless WI or WC shall otherwise agree in
writing, that such shall be terminable, by WI or WC, to the extent that such
relates to Future Purchase Parcels then owned by WC or WI, without notice, and
without penalty or premium, upon the expiration or termination of this
Management Agreement.
The parties recognize that TCG manages extensive timberlands for JH
in Oregon, Washington and California, and that subject to the plans and the
specific provisions and limitations of this Agreement, HNRG shall engage TCG
to act as Manager's agent in managing the Managed Timberlands by performing
the scope of management that TCG is currently providing for the other
timberlands of JH in the aforesaid states. A specific enumeration of such
management duties that TCG is now performing for Manager on other properties
is set forth on Exhibit F attached.
In the event of emergencies or natural disasters that threaten the
value or well-being of the Managed Timberlands, Manager shall have the
obligation to protect the Property and the right to expend up to a sum equal
to the greater of (i) $25,000.00 or (ii) an amount that excess any applicable,
budgeted line item by not more than 15%, in extra-budgetary funds for such
purpose without prior approval of WC or WI, subject to all other provisions of
this Agreement. Manager shall notify WC immediately of any such expenditure
and the reason therefor. In the event of any such emergency or natural
disaster which necessitates an expenditure of funds in excess of the monetary
limitations set forth above, Manager shall obtain the approval of WC or WI
before expending any such excess funds above the monetary limits set above,
and Manager shall seek such approval in a timely manner.
Provided always that none of the following items as to the Managed
Timberlands shall be undertaken by Manager without the prior written consent
of WC; which consent will not be unreasonably withheld:
(1) New road or bridge construction.
(2) Repairs, improvements or maintenance of an existing road or
bridge (which items shall be deemed items of operational
expense and not as capital improvement items) with an
anticipated cost in excess of $500,000.
(3) Any other work that is normally classified in the timber
industry as a capital improvement (rather than as an
operational expense).
(4) Any actions not within the scope of an operating plan
approved by WI or WC.
Anticipating that JH will be purchasing the Future Purchase Parcels, neither
WI nor WC shall, during the Purchase Period, have the right to unilaterally
direct Manager to construct any capital improvements on any Future Purchase
Parcel.
At all times, WI and/or WC shall have the right, at the expense of
WI or WC, to monitor the activities of TCG in managing the Managed
Timberlands, including the inspection at all reasonable times of any records
of TCG directly relevant thereto.
8. Bank Account; Cash Flow. Cash flow from the Managed Timberlands
will be collected, segregated for accounting purposes as to each Future
Purchase Parcel, and held by the Manager in a bank account or accounts
maintained in the Manager's name, but which shall be identified on the books
and records of the Manager and the applicable bank as a customer account of
the Manager held for the benefit of WC. Moneys in such account(s) shall be
segregated from other moneys belonging to the Manager. The Manager shall pay
all property related expenses out of such account(s) (including, without
limitation, the fees due TCG and all property related taxes and assessments).
The Manager shall maintain in such bank account a reasonable
working capital reserve at all times. Manager shall advance any cash needed
to fund the initial timber operations on the Future Purchase Parcels under
this Agreement, to be repaid, without interest or other compensation for the
use of such funds, from the initial income receipts (prior to any payments to
WC) from the Future Purchase Parcel for which such initial cash was advanced.
If, at any time, the amount of cash in the account, together with the cash
flow expected to be received by the Manager from the Managed Timberlands, is
insufficient to pay the operational expenses (but not including reforestation
or capital improvement costs) of the Managed Timberlands (including the
monthly management fees due TCG), the Manager shall provide additional working
capital.
Funds required to pay for reforestation costs and capital
improvements shall be advanced by Manager, but shall not be paid from the
income generated by harvest activity on the Future Purchase Parcels. Should
JH purchase any Future Purchase Parcel on which such reforestation or capital
improvements are located, JH shall receive no credit for the costs of such
items against the purchase price due WC therefor, but should JH not so
purchase, WC shall reimburse Manager for the costs of such reforestation or
capital improvements paid by Manager (not to include any interest or other
compensation for use of such funds), related to a Future Purchase Parcel, but
only if such were included and even if included only to the extent authorized,
in an operating plan or budget approved in writing by WC or WI, such
reimbursement to be paid within Thirty (30) days of the date JH's option
rights to so purchase have terminated or expired for any reason whatsoever.
9. Unreimbursed Advances for Expenses. Should the Purchase Period as
to a Future Purchase Parcel terminate or expire without JH or its permitted
designee purchasing same, the Manager shall be promptly reimbursed by WC for
all unreimbursed operational expenses incurred in connection with such
unpurchased Parcel (but only if such expenses were within the scope of an
operating plan or budget (or variance therefrom) approved in writing by WI or
WC), and paid from moneys advanced by Manager, including but not limited to:
all fees charged by TCG (or its replacement); and fees payable to federal,
state and other governmental units or agencies; costs of insurance and
insurance brokers; audit and accounting fees of independent accountants; legal
fees, closing costs and other expenses relating to the Services; all direct
on-site expenses, such as property surveillance, site preparation, insect,
animal and stocking control, fire suppression and other reasonable and
customary or appropriate activities.
10. The Campbell Group, Inc. Should TCG be unable for any reason to
perform the Services required of HNRG hereunder, or should TCG's Services be
terminated by HNRG for a material breach of its duties regarding the Managed
Timberlands or of that portion of the Timberlands owned by JH, WC and JH shall
promptly agree upon a replacement for TCG. In such event, reference herein to
'TCG' shall mean such replacement for TCG, unless the content of this
Agreement shall otherwise require. As under the terms of the Purchase
Agreement, while WI or JH will be the initial purchaser from Hanson, TCG will
be the ultimate purchaser from JH, WC or WI of a number of tangible personal
property items required to operate the Timberlands, as well as the potential
employer of several employees formerly employed by Hanson who are experienced
and familiar with the operation of the Timberlands, HNRG shall cause TCG to
agree prior to TCG's undertaking its duties with regard to the Managed
Timberlands that, at such time, for whatever reason whatsoever, TCG is
discharged or resigns from its status as the actual service provider, TCG
shall sell and HNRG (or its new service provider) shall buy at the price paid
therefor by TCG or the then current fair market value, whichever is less, all
personal property items so purchased by TCG, excluding only those items whose
use is limited to property not included in the Timberlands or which have been
disposed of as being unnecessary to the performance of the Services.
11. Reports and Audits. Within sixty (60) days following the end of
each calendar quarter ending during the Purchase Period, and within 60 days
following the end of the Purchase Period, the Manager shall provide WI with a
quarterly report summarizing activity by Future Purchase Parcel during the
applicable period, including harvest activity, a cash flow statement and a
cash reconciliation showing the balances held in any bank account maintained
pursuant to this Agreement. Within 60 days following the end of the calendar
year and, if later, the end of the Purchase Period, Manager shall also provide
WI with a modified balance sheet and modified income statement (but not
including any depletion items, the calculation of which shall remain the
responsibility of WI) covering the Managed Timberlands for the period(s) such
were owned by WC for the respective periods. WI, at its own expense, upon not
less than five business day's prior written notice to the Manager and TCG
shall have the right to inspect and audit the Manager's and TCG's books and
records (Manager shall cause TCG to allow such inspection and audit) relating
solely to performance of the Services under this Agreement, including all
costs, expenses and fees incurred or paid hereunder and directly related to
the Managed Timberlands. Provided, that should such audit disclose that the
cash income from the Managed Timberlands for a tax-reporting period of WI or
WC has been understated by at least 5% or that the expenses for any such
period have been overstated by at least 5%, Manager shall promptly reimburse
WI or WC upon demand for the reasonable costs of such audit. In all events,
Manager shall provide all available information regarding the Managed
Timberlands as may reasonably be required to facilitate the timely filing by
WC and WI of income tax returns and other legally required forms. Provided
always that such information or other reports or financial data to be provided
under this Section 11 need not include audited data or accrual basis
statements complying with generally accepted accounting principles so long as
such data is of the type Manager normally requires of TCG relative to other
timberlands managed by TCG for Manager. Further, no information or reports
shall be required of Manager that cannot be compiled from the records of
Manager or of TCG. The audit and records inspection rights set forth in this
Section 11 shall survive termination of this Agreement.
12. Vernonia Office and Storage Facilities Equipment and GIS Lease.
Currently, the employees providing management services for the Managed
Timberlands are officed in or operate from office and storage facilities
located on one of the Future Purchase Parcels. During the term of this
Management Agreement until such time as JH or its designee shall purchase the
last Parcel available for purchase under the Purchase Agreement, WC and/or WI,
whichever may be the owner of the Vernonia office and storage facilities, the
equipment (including computer hardware and software) now located in such
office and storage facilities and the holder of the lessee's interest in Sun
Sparc Columbia GIS Lease #00123911-00001 ('Lease'), shall permit HNRG and its
timber manager to utilize such facilities, equipment and items covered by the
Lease to the extent such are now located in the Vernonia office and were used
in the operation of Timberlands (which includes any real property covered by
the Purchase Agreement owned in fee by Hancock or a designee thereof) by
Hanson, in consideration of the rental set forth herein, for performance of
the services called for in this Agreement. The monthly rental charge for such
utilization shall be $650.00, plus $1,641.93 to cover the monthly rental
obligation under the Lease (prorated for partial months), said $650 being
payable at the end of the month or partial month to which the charge is
attributable. Manager shall make the Rental payments due under the Lease
directly to the lessor thereunder, at the times provided for therein, during
the term of this Agreement. In addition, HNRG shall maintain such facilities,
equipment and leased items in good condition and repair, normal wear and tear
and structural repairs excepted, as well as maintaining fire and extended
coverage casualty insurance thereon to the extent of the full insurable value
thereof; provided, that in all events, the leased items shall be insured and
maintained as set forth in the Lease. Any other obligations required of the
lessee under the Lease shall be assumed by Manager for the term of this
Agreement to the extent such relates to the Managed Timberlands. The total
cost of such monthly rental, repairs, insurance and any other obligations set
forth in this Section 12 or under the Lease shall be deemed an operating
expense and shall be allocated 14% to each Future Purchase Parcel (17%, should
the Wilson River parcel be withdrawn by WI and for which a substitute parcel
is not provided that is subject to this Agreement, from the effective date of
such withdrawal) still owned by WC or WI at the end of each month, with the
balance treated as an operating expense of that portion of the Timberlands
owned by JH or a designee thereof as of the allocation date. At such time as
JH or its designee purchases the last of the Future Purchase Parcels, title to
all such facilities, equipment and the lessee's interest in the Lease (to the
extent assignable and to the extent such applies to the Timberlands then owned
by Hancock or a designee thereof) shall be conveyed to JH or its designee.
13. Guarantee by WI. WI hereby guarantees the performance by WC of all
of WC's obligations under this Agreement.
14. Emergency Control. Anything to the contrary in this Agreement
notwithstanding, upon the threatened or actual occurrence of a fire or similar
emergency involving actual or threatened material damage to any part of the
Managed Timberlands, WI and/or WC shall have the option to temporarily
terminate all rights of Manager hereunder to physically manage all or a
designated portion of the Managed Timberlands and to assume complete physical
management and control thereof during an 'Assumption Period' (directly and/or
using the services of a third party or parties) for the duration (to be
determined in WC's or WI's reasonable discretion) of such actual or threatened
emergency situation. Any such assumption of physical management and control
shall be effective upon receipt by JH and TCG of an appropriate notification
('Assumption Notice') specifying the basis for such and the portion, if less
than all, of the Managed Timberlands involved. Such a control assumption
shall terminate only upon receipt by JH and TCG of written notice of such
termination at least two business days prior to the termination date. All
duties and responsibilities of Manager under this Agreement as to physical
control of the portion of the Managed Timberlands subject to an Assumption
Notice shall be suspended for the period of such assumption. However, Manager
shall cause TCG, to all feasible extent, to assist WI or WC, both personnel-
wise and equipment-wise during the Assumption Period. All actions of WI and
WC during such Assumption Period shall conform to industry standards for
Northwest Oregon commercial timberlands taking into account the nature of the
special situation causing the Assumption Notice to be given. Reasonable
expenditures by WC or WI in connection with the effected property during the
Assumption Period shall be repayable from the timber sales off of the Future
Purchase Parcel in question, but need not be advanced by Manager.
15. Fire Suppression Standards. Manager shall cause TCG to prepare and
submit to WC, as soon as reasonably practicable, a proposed outline of the
fire suppression standards for the Managed Timberlands. Upon approval thereof
(in the form so submitted or as modified) by WC, Manager shall instruct TCG to
comply with such standards with regard to the Managed Timberlands.
16. Default. In the event Manager fails to carry out its obligations
under this Agreement in any material respect and if such failure is not cured
within 30 days after written notice of such default, WC may, at its option,
terminate this Agreement without prejudice to any claim it may have for
damages suffered by it as a result of Manager's default. Provided that if the
failure by Manager is not reasonably curable in 30 days, WC shall not have
such termination option if Manager shall commence to cure such default within
said 30-day cure period and shall diligently pursue such correction until
completed.
17. Title. WI and WC agree that at all times a Purchase Parcel is
subject to rights to purchase by JH (or other permitted purchaser) under the
Purchase Agreement, fee title thereto shall be vested in WC or WI.
18. Arbitration. Any question, controversy or claim arising under or
relating to this Agreement, including without limitation any failure to agree
upon a replacement for TCG (see Section 10 hereof) or the failure to agree
upon an operating plan or operating budget (see Section 7 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 Oregon
relating to arbitration, as said rules and laws are in effect on the date of
this Agreement. The arbitration shall be conducted in Portland, Oregon, by
and before a single arbitrator, who is experienced in the problem or problems
in dispute, to be agreed upon by WC and HNRG, 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 Circuit Court of the State of Oregon, Multnomah County,
for proceedings to obtain a judgment with respect to any award rendered
hereunder shall be undertaken in accordance with the law of the State of
Oregon including the conflicts of laws provisions thereof.
19. No Recordation. Neither this Agreement nor a memorandum hereof
shall be recorded in any jurisdiction or public record.
20. 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.
21. Tables of Contents and Headings. The table of contents and section
headings of this Agreement and titles given to Exhibits to this Agreement are
for reference purposes only and are to be given no effect in the construction
or interpretation of this Agreement.
22. Term and Termination. Unless the term of this Agreement is
extended or sooner terminated by written agreement of the parties hereto, this
Agreement shall continue in full force and effect until the termination of the
Purchase Period.
23. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and may be delivered personally or by commercial
overnight carrier, telecopied, telegraphed, telexed, or mailed (postage
prepaid via the US postal service) to the applicable party at the following
address (or at such other address as the party may designate in writing from
time to time); however, any such notice or communication shall be deemed to be
delivered only when actually received by the party to whom it is addressed:
JH and HNRG: Hancock Natural Resource Group, Inc.,
200 Clarendon Street
P.O. Box 111
Boston, MA 02117
Attention: Daniel P. Christensen
Fax: (617) 572-4090
Copy to: The Campbell Group, Inc.
One S.W. Columbia
Suite 1720
Portland, OR 97258
Attention: Stanley G. Renecker or John Gilleland
Fax: (503) 275-9667
WI: Willamette Industries, Inc.
2730 Pacific Blvd. S.E.
P.O. Box 907
Albany, Oregon 97231
Attention: Duane McDougall, Vice President
Building Materials Group
Fax: (541) 967-7183
WC: Willamette Columbia Timber Co.
2730 Pacific Blvd. S.E.
P.O. Box 907
Albany, Oregon 97231
Attention: Duane McDougall, Vice President
Fax: (541) 967-7183
24. Waivers and Amendments. This Agreement may be amended or
modified, and the terms and conditions hereof may be waived, only by a written
instrument signed by each of the parties hereto. No delay on the part of any
party in exercising any right or power hereunder shall operate as a waiver of
any such right or power, and no single waiver (or partial exercise) of any
right or power shall preclude any other exercise thereof or of any other right
or power.
25. Assignments; Binding Effect. Neither this Agreement, nor any
right or obligations hereunder, may be assigned (whether by operation of law
or otherwise) without the prior written consent of the other parties hereto;
provided WI may assign this Agreement and its rights and obligations hereunder
to a wholly-owned subsidiary if, at the time of such assignment, WI shall
irrevocably and unconditionally guaranty payment and performance of such
wholly-owned subsidiary's obligations under this Agreement pursuant to a
guaranty agreement reasonably acceptable in form and substance to Manager.
This Agreement and all rights and obligations of the respective parties shall
be binding upon and enure to the benefit of the permitted successors and
assigns of each party.
26. Governing Law. This Agreement shall be administered, construed
and enforced according to the laws of the State of Oregon (without regard to
any conflict of laws provision).
27. Entire Agreement; Severability. This Agreement embodies the
entire understanding of the parties and supersedes any prior agreements or
understandings with respect to the subject matter hereof, but not including
the Purchase Agreement. Should one or more of the provisions of this
Agreement be held by any court to be invalid, void or unenforceable, the
remaining provisions shall nevertheless remain in full force and effect.
28. Attorneys Fees. Should any litigation be commenced between any
party to this Agreement for specific performance, injunction, declaratory
relief, damages, or any other remedy provided by law, the prevailing party, in
addition to such other relief as may be granted in such action, shall be
entitled to recover from the losing party a reasonable sum as and for its
costs and attorneys' fees incurred both at and in preparation for arbitration,
trial and any appeal or review, such sums to be set by the arbitrator(s) or
court(s) before which the matter is heard. This provision shall include costs
and attorneys' fees incurred in Bankruptcy Court, including those pertaining
to issues unique to bankruptcy.
29. Exhibits. The following Exhibits are attached to this Agreement:
Exhibit A. Property Management Fees. The Campbell Group, Inc.
Exhibit B. Indemnity provisions.
Exhibit C. Harvest Plans.
Exhibit D. Definition of Net Cash Income.
Exhibit E. Specific Enumeration of TCG's Management Duties For
Manager or Manager's Existing Northwest Properties.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered as of the date first written above.
WILLAMETTE INDUSTRIES, INC., an Oregon corporation
By: /s/ J. A. Parsons
Name: J. A. Parsons
Title: Executive Vice President, CFO
WILLAMETTE COLUMBIA TIMBER CO., an Oregon corporation
By: /s/ J. A. Parsons
Name: J. A. Parsons
Title: Vice President
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
BY: HANCOCK NATURAL RESOURCE GROUP, INC. Its Investment Manager
By: /s/ Wm. R. Gordan
Name: Wm. R. Gordan
Title: President and CEO
Exhibits to Management Agreement
Exhibit A Property Management Fees. The Campbell Group, Inc.
Exhibit B Indemnity Provisions
Exhibit C Harvest Plans
Exhibit D Definition of Net Cash Income
Exhibit E Specific Enumeration of TCG's Management Duties for Manager
or Manager's Existing Northwest Properties
Management Agreement - Willamette Industries Inc., John Hancock Mutual Life Insurance Co., Willamette Columbia Timber Co. and Hancock Natural Resource Group Inc.
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