ASSUMPTION AGREEMENT
THIS
ASSUMPTION AGREEMENT (this “Agreement”) is dated as of January 1, 2009, and made
by Weyerhaeuser NR Company, a Washington corporation (“Obligor”), in favor of
Weyerhaeuser Company, a Washington corporation (“Weyerhaeuser”).
RECITALS
A. Obligor
is a wholly-owned subsidiary of Weyerhaeuser. As a condition to and
in consideration for the contribution by Weyerhaeuser of certain of its assets
to Obligor, Obligor has agreed, as between Weyerhaeuser and Obligor, to assume
certain indebtedness of Weyerhaeuser.
B. The
purpose of this Agreement is to evidence the assumption by Obligor of certain
indebtedness of Weyerhaeuser.
NOW,
THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Obligor hereby agrees
with and for the benefit of Weyerhaeuser from time to time as
follows:
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1.
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Assumption
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(a) As
between Weyerhaeuser and Obligor, Obligor, hereby unconditionally and expressly
assumes the due and punctual performance of all payment obligations (the
“Indebtedness Payment Obligations”) of Weyerhaeuser under and in respect of the
indebtedness of Weyerhaeuser described on Schedule I attached to this Agreement,
including, without limitation, the payment of all principal, interest, any yield
maintenance premium or other prepayment charge in respect of such indebtedness,
costs of enforcement of the rights of the holders of such indebtedness and other
charges, fees and costs arising out of or related to such indebtedness
(collectively, the “Indebtedness”), all to the same extent and with the same
effect as if Obligor had originally executed all agreements, instruments and
other documents evidencing, arising out of or related to such Indebtedness
(collectively, and as amended from time to time, the “Loan Documents”) and had
been named as an additional original obligor therein in respect of the
Indebtedness.
(b) Obligor
shall satisfy the Indebtedness Payment Obligations by making payments (i)
directly to the holders of the Indebtedness (or any trustee acting on behalf of
such holders) or (ii) directly to Weyerhaeuser, as instructed by Weyerhaeuser
from time to time as reimbursement in the event Weyerhaeuser has been required
to make any payments to the holders (or any trustee acting on behalf of such
holders).
(c) Obligor
acknowledges and agrees that no occurrence or circumstance occurring after the
date of this Agreement shall cause a reduction in Obligor’s obligations to
Weyerhaeuser under this Agreement, other than the subsequent payment by Obligor
in cash of the Indebtedness.
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2.
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Assumption
Absolute
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Obligor’s
obligations under this Agreement shall in all respects be continuing, absolute,
unconditional and irrevocable, and shall remain in full force and effect until
all of the Indebtedness has been paid in full. Obligor agrees that
the Indebtedness will be paid strictly in accordance with the terms of each of
the Loan Documents, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of
Weyerhaeuser with respect thereto. The liability of Obligor under
this Agreement shall be absolute, unconditional and irrevocable irrespective
of:
(a) any
change in the time, manner, or place of payment of, or in any other term of, the
Indebtedness or any of the Loan Documents or any other extension, compromise or
renewal of the Indebtedness;
(b) any
reduction, limitation, impairment or termination of the Indebtedness for any
reason, including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and Obligor hereby waives any right to
or claim of) any defense or setoff, counterclaim, recoupment, or termination
whatsoever by reason of the invalidity, illegality, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, the
Indebtedness;
(c) any
amendment to, rescission, waiver or other modification of, or any consent to
departure from, any of the terms of any of the Loan Documents;
(d) any
addition, exchange, release, surrender or non-perfection of any collateral, or
any amendment to or waiver or release or addition of, or consent to departure
from, any guaranty, securing any of the Indebtedness; or
(e) any
other circumstance which might otherwise constitute a defense available to, or a
legal or equitable discharge of, Weyerhaeuser or Obligor.
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3.
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Continued
Liability
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Notwithstanding
the assumption by Obligor of the Indebtedness of Weyerhaeuser pursuant to
Section 1(a), as between Weyerhaeuser and the holders of the Indebtedness,
Weyerhaeuser shall continue to be the primary obligor with respect to the
Indebtedness and Weyerhaeuser shall not be released from its obligations under
the Indebtedness as a result of this Agreement. In no event shall
this Agreement be construed to constitute an assignment or transfer of any of
the rights or obligations of Weyerhaeuser under the Loan Documents.
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4.
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Representations
and Warranties
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Obligor
represents, warrants and affirms for the benefit of the holders of the
Indebtedness as follows:
(a) Obligor
is a corporation duly organized and validly existing under the laws of the state
of Washington with all requisite power and authority to own and operate its
properties, to conduct its business as proposed to be conducted and to enter
into and perform its obligations under this Agreement.
(b) This
Agreement constitutes a legal, valid and binding obligation of Obligor
enforceable against it in accordance with its terms.
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5.
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Binding
Effect, Etc.
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This
Agreement shall be binding upon Obligor and its successors and assigns and shall
inure to the benefit of each of Weyerhaeuser and their respective successors and
assigns; provided, however, that Obligor may not assign any of its obligations
or rights under this Agreement. Weyerhaeuser is the intended
beneficiary of the obligations of Obligor under this Agreement and shall be
entitled to commence and pursue any action or proceeding against Obligor with
respect to Obligor’s obligations under this Agreement.
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6.
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Amendments
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This
Agreement may not be amended, supplemented, modified or otherwise terminated
without the prior written consent of Weyerhaeuser.
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7.
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Counterparts
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This
Agreement may be executed by one or more of the parties to this Agreement in any
number of separate counterparts, each of which, when so executed, shall be
deemed an original, and all of said counterparts taken together shall be deemed
to constitute but one and the same instrument.
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8.
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Severability
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The
illegality or unenforceability of any provision of this Agreement shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement.
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9.
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Headings
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Section
and subsection headings in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose or be given any substantive effect.
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10.
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No
Waiver; Remedies
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No
failure on the part of Weyerhaeuser to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by
law.
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11.
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Governing
Law; Jurisdiction
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(a) THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF WASHINGTON, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
(b) ANY
LEGAL ACTION OR PROCEEDINGS WITH RESPECT TO THIS AGREEMENT OR ANY LOAN DOCUMENT
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE
STATE, OF WASHINGTON, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, OBLIGOR
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. OBLIGOR IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NONCONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY LOAN DOCUMENT RELATED HERETO OR THERETO. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF WEYERHAEUSER TO COMMENCE PROCEEDINGS OR BRING
ANY ACTION OR OTHERWISE PROCEED AGAINST OBLIGOR IN ANY COURT OF ANY OTHER
JURISDICTION.
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12.
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Waiver
of Jury Trial
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OBLIGOR
WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
WEYERHAEUSER AGAINST ANY OBLIGOR, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. OBLIGOR AGREES THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, OBLIGOR FURTHER AGREES THAT ITS RIGHT TO A TRIAL BY JURY
IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT.
[The
remainder of this page is intentionally left blank.]
IN
WITNESS WHEREOF, the undersigned has caused this Agreement to be duly executed
and delivered on the date first above written.
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WEYERHAEUSER
NR COMPANY
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By:
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Xxxxxxx
X. Xxxxx
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Vice
President and Treasurer
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ACKNOWLEDGED
AND AGREED TO BY:
WEYERHAEUSER
COMPANY
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By:
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Xxxxxxx
X. Xxxxx
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Vice
President and Treasurer
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Schedule
I
Outstanding
Indebtedness
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Type
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Issue
Date
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Maturity
Date
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Original
Principal
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Rate
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Repurchases
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Balance
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||||||||||||||
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Debenture
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09/27/1991
12:00:00 AM
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10/01/2021
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150,000,000.00 | 9.0 | 0.00 | 150,000,000.00 | ||||||||||||||
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Debenture
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03/01/1993 12:00:00
AM
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03/01/2013
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250,000,000.00 | 7.50 | -94,389,000.00 | 155,611,000.00 | ||||||||||||||
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Debenture
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07/01/1993
12:00:00 AM
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07/01/2013
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250,000,000.00 | 7.25 | -121,474,000.00 | 128,526,000.00 | ||||||||||||||
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Debenture
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07/15/1993 12:00:00
AM
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07/15/2023
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250,000,000.00 | 7.13 | -58,911,000.00 | 191,089,000.00 | ||||||||||||||
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Debenture
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01/15/1995 12:00:00
AM
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01/15/2025
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300,000,000.00 | 8.50 | 0.00 | 300,000,000.00 | ||||||||||||||
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Debenture
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03/15/1995 12:00:00
AM
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03/15/2025
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250,000,000.00 | 7.95 | -113,967,000.00 | 136,033,000.00 | ||||||||||||||
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Debenture
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07/01/1996 12:00:00
AM
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07/01/2026
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200,000,000.00 | 7.35 | -137,688,000.00 | 62,312,000.00 | ||||||||||||||
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Debenture
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07/01/1996 12:00:00
AM
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07/01/2026
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200,000,000.00 | 7.85 | -100,101,000.00 | 99,899,000.00 | ||||||||||||||
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Debenture
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08/01/1997 12:00:00
AM
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08/01/2017
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300,000,000.00 | 6.95 | -19,216,000.00 | 280,784,000.00 | ||||||||||||||
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Debenture
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10/08/1997 12:00:00
AM
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10/01/2027
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300,000,000.00 | 6.95 | 0.00 | 300,000,000.00 | ||||||||||||||
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Debenture
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01/30/1998
12:00:00 AM
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02/01/2018
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100,000,000.00 | 7.00 | -37,658,000.00 | 62,342,000.00 | ||||||||||||||
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Debenture
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03/12/2002
12:00:00 AM
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03/15/2032
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1,250,000,000.00 | 7.38 | 0.00 | 1,250,000,000.00 | ||||||||||||||
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Debenture
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12/17/2002 12:00:00
AM
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12/15/2033
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275,000,000.00 | 6.88 | 0.00 | 275,000,000.00 | ||||||||||||||
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IRB-Fixed
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04/21/1992 12:00:00
AM
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04/01/2022
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61,200,000.00 | 6.80 | 0.00 | 61,200,000.00 | ||||||||||||||
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IRB-Fixed
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04/21/1992
12:00:00 AM
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04/01/2022
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27,000,000.00 | 6.70 | 0.00 | 27,000,000.00 | ||||||||||||||
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Medium
Term Notes
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04/22/1993 12:00:00
AM
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04/22/2013
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5,000,000.00 | 7.25 | 0.00 | 5,000,000.00 | ||||||||||||||
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Medium
Term Notes
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06/22/1993 12:00:00
AM
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06/25/2013
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20,000,000.00 | 7.30 | 0.00 | 20,000,000.00 | ||||||||||||||
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Medium
Term Notes
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07/06/1993
12:00:00 AM
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07/08/2013
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10,300,000.00 | 7.18 | 0.00 | 10,300,000.00 | ||||||||||||||
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Medium
Term Notes
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07/14/1993 12:00:00
AM
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07/15/2013
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3,000,000.00 | 7.17 | 0.00 | 3,000,000.00 | ||||||||||||||
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Medium
Term Notes
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07/21/1993 12:00:00
AM
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07/22/2013
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5,000,000.00 | 7.14 | 0.00 | 5,000,000.00 | ||||||||||||||
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Medium
Term Notes
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07/21/1993 12:00:00
AM
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07/22/2013
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26,200,000.00 | 7.13 | 0.00 | 26,200,000.00 | ||||||||||||||
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Medium
Term Notes
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06/05/1998 12:00:00
AM
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06/05/2009
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10,000,000.00 | 6.45 | 0.00 | 10,000,000.00 | ||||||||||||||
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Medium
Term Notes
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06/05/1998 12:00:00
AM
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06/05/2012
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3,500,000.00 | 6.60 | 0.00 | 3,500,000.00 | ||||||||||||||
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Medium
Term Notes
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06/17/1998 12:00:00
AM
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06/17/2009
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5,000,000.00 | 6.45 | 0.00 | 5,000,000.00 | ||||||||||||||
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Medium
Term Notes
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06/18/1998 12:00:00
AM
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06/18/2013
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10,000,000.00 | 6.60 | 0.00 | 10,000,000.00 | ||||||||||||||
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Medium
Term Notes
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06/18/1998 12:00:00
AM
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06/18/2009
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3,200,000.00 | 6.45 | 0.00 | 3,200,000.00 | ||||||||||||||
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Medium
Term Notes
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07/06/1998 12:00:00
AM
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07/07/2009
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3,000,000.00 | 6.45 | 0.00 | 3,000,000.00 | ||||||||||||||
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Medium
Term Notes
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07/08/1998 12:00:00
AM
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07/09/2012
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7,500,000.00 | 6.60 | 0.00 | 7,500,000.00 | ||||||||||||||
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Medium
Term Notes
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07/09/1998 12:00:00
AM
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07/09/2010
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3,000,000.00 | 6.50 | 0.00 | 3,000,000.00 | ||||||||||||||
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Medium
Term Notes
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07/14/1998 12:00:00
AM
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07/14/2009
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32,000,000.00 | 6.45 | 0.00 | 32,000,000.00 | ||||||||||||||
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Medium
Term Notes
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08/19/1998 12:00:00
AM
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09/19/2009
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20,000,000.00 | 6.45 | 0.00 | 20,000,000.00 | ||||||||||||||
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Notes-Fixed
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03/12/2002 12:00:00
AM
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03/15/2012
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1,750,000,000.00 | 6.75 | -316,878,000.00 | 1,433,122,000.00 | ||||||||||||||
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Notes-Fixed
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12/17/2002 12:00:00
AM
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12/15/2009
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325,000,000.00 | 5.25 | -288,036,000.00 | 36,964,000.00 | ||||||||||||||
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Notes-Variable
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09/24/2007 12:00:00
AM
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09/24/2009
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450,000,000.00 |
Variable
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-154,650,000.00 | 295,350,000.00 | ||||||||||||||
| 5,411,932,000.00 | ||||||||||||||||||||
