EXHIBIT 10.4
TIMBER HARVEST AGREEMENT
------------------------
between
Xxxxxxxx-Xxxxx Timber Company
and
Xxxxxxxx-Xxxxx Company
January 1, 1998
TABLE OF CONTENTS
Page
ARTICLE 1
Purposes of Agreement; Construction
1.1 Purposes of this Agreement......................................... 2
ARTICLE 2
Definitions
2.1 Certain Terms Defined.............................................. 2
2.2 Section References................................................. 2
ARTICLE 3
Basic Agreement
3.1 Timberlands Management............................................ 2
3.2 Harvest of Timber................................................. 2
3.3 Term of Agreement................................................. 3
3.4 Timberlands Subject to this Agreement............................. 3
ARTICLE 4
Compliance, Etc.
4.1 Compliance with Legal Requirements................................ 3
4.2 Indemnity......................................................... 4
4.3 Responsibility for Contractors.................................... 4
4.4 Construction and Maintenance of Roads............................. 5
I
ARTICLE 5
Harvest Plans
5.1 Contents of Harvest Plan.......................................... 5
5.2 Requirements for Harvest Plan..................................... 6
5.3 Changes in Harvest Plan Due to Unforeseen Circumstances........... 6
5.4 Compliance With Reporting and other Legal Requirements............ 7
5.5 Marking Timber and Boundaries..................................... 7
5.6 Interim Harvest Plan.............................................. 8
ARTICLE 6
Harvest of Timber
6.1 Obligation to Harvest; Required Volumes........................... 8
6.2 Stumpage Prices................................................... 8
6.3 Payments.......................................................... 9
6.4 Scaling........................................................... 10
6.5 Monthly Logging Reports........................................... 10
6.6 Allocation of Costs; Payment of Taxes............................. 11
6.7 Records........................................................... 11
6.8 Disclaimer of Warranties.......................................... 11
6.9 Xxxxxxxx-Xxxxx'x Right to Harvest Timber.......................... 11
ARTICLE 7
Logging Practices, Etc
7.1 Logging Practices in General...................................... 12
7.2 Protection of Improvements; Boundaries; Access; Trespass.......... 12
7.3 Fire Safety; Environmental Matters................................ 12
7.4 Post-Harvest Cleanup.............................................. 13
7.5 Responsibility for Contractors.................................... 13
7.6 Notice of Violations.............................................. 14
7.7 Indemnity......................................................... 14
7.8 Xxxxxxxx-Xxxxx Inspection; Claims Relating to Damage
or Incomplete and/or Underutilized Harvest....................... 14
II
ARTICLE 8
Title Matters
8.1 Xxxxxxxx-Xxxxx'x Title to Timberlands............................. 15
8.2 Timber Co.'s Rights to Cut........................................ 16
8.3 Title and Risk of Loss to Cut Timber.............................. 16
8.4 Grant of Access Rights............................................ 16
8.5 Timber Co. to Permit No Liens..................................... 17
ARTICLE 9
Disposition of Timberlands
9.1 No Transfer Without Timber Co. Consent; Exceptions................ 17
ARTICLE 10
Insurance
10.1 Timber Co. Insurance.............................................. 18
10.2 Timber Co. Contractors............................................ 18
10.3 Policy Terms of Timber Co. Insurance.............................. 19
10.4 Xxxxxxxx-Xxxxx Insurance.......................................... 20
10.5 Xxxxxxxx-Xxxxx Contractors........................................ 20
10.6 Policy Terms of Xxxxxxxx-Xxxxx Insurance.......................... 21
10.7 Claims............................................................ 22
ARTICLE 11
Suspension of Performance for Force Majeure
11.1 Suspension of Obligations......................................... 22
11.2 Extension of Time................................................. 22
ARTICLE 12
Default; Remedies
III
12.1 Timber Co. Default................................................ 22
12.2 Xxxxxxxx-Xxxxx Default............................................ 23
12.3 Remedies.......................................................... 24
12.4 Termination....................................................... 24
12.5 Right of Other Party To Perform................................... 24
ARTICLE 13
Arbitration of Disputes........................................... 25
ARTICLE 14
Assignment
14.1 Assignment Prohibited............................................. 27
14.2 Exception for Assignment to Corporate Successor................... 28
14.3 Partial Assignment by Timber Co. Permitted........................ 28
ARTICLE 15
Condemnation
15.1 Effect of Condemnation............................................ 28
15.2 Condemnation Award................................................ 29
15.3 Notice............................................................ 29
ARTICLE 16
Notices
16.1 Notices........................................................... 29
ARTICLE 17
Miscellaneous
17.1 Successors and Assigns............................................ 30
17.2 No Agency or Fiduciary Relationship............................... 30
17.3 No Third-Party Beneficiaries...................................... 30
IV
17.4 Attorneys' Fees................................................... 30
17.5 Entire Agreement.................................................. 30
17.6 Amendments; Waiver................................................ 31
17.7 Governing Law..................................................... 31
17.8 Counterparts...................................................... 31
17.9 Partial Invalidity................................................ 31
17.10 Further Assurances................................................ 32
17.11 Headings.......................................................... 32
17.12 Jurisdiction and Venue............................................ 32
Appendices and Exhibits
Appendix A Defined Terms
Exhibit A Harvest Plan Data Sheet and Price Sheet
V
TIMBER HARVEST AGREEMENT
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THIS TIMBER HARVEST AGREEMENT (this "Agreement"), effective as of January
1, 1998, between Xxxxxxxx-Xxxxx Timber Company, a Mississippi corporation
("Timber Co."), and Xxxxxxxx-Xxxxx Company ("Xxxxxxxx-Xxxxx"), a Mississippi
corporation,
W I T N E S S E T H:
WHEREAS, Xxxxxxxx-Xxxxx owns and controls approximately 328,000 acres of
timberlands (the "Timberlands") along the Mississippi River between Louisiana
and Southern Illinois that are being held and managed for investment; and
WHEREAS, Xxxxxxxx-Xxxxx has considerable expertise in the management of
timberlands; and
WHEREAS, the employees and officers of Timber Co. have considerable
expertise in harvesting and merchandising timber and have secured Xxxxxxxx-Xxxxx
Lumber Company ("Lumber Co.") and Xxxxxxxx-Xxxxx Veneers, L.P. ("Veneers, L.P.")
and others as customers; and
WHEREAS, Timber Co. desires to assure a steady and reliable source of raw
materials for its customers; and
WHEREAS, both parties hereto desire to enter into an agreement under which
Xxxxxxxx-Xxxxx will manage the Timberlands and Timber Co. will harvest a portion
of the Timber existing on the date hereof from the Timberlands and will make
payments with respect to such harvested Timber under a contract governed by
section 631(b) of the Internal Revenue Code of 1986, as amended (the "Code"),
all as hereinafter more specifically provided.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Xxxxxxxx-Xxxxx and Timber Co. agree as follows:
ARTICLE 1
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Purposes of Agreement; Construction
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1.1 Purposes of this Agreement. The following (the "Agreement
--------------------------
Purposes") are the major purposes of this Agreement:
(a) to secure to Timber Co. a source of Merchantable Timber to supply
raw materials for Lumber Co. and Veneers, L.P. and others; and
(b) to secure to Xxxxxxxx-Xxxxx, during the Term hereof, treatment
pursuant to (S) 631(b) of the Code and to harvest Xxxxxxxx-Xxxxx'x Merchantable
Timber.
ARTICLE 2
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Definitions
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2.1 Certain Terms Defined. As used in this Agreement, the terms listed in
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Appendix A attached hereto shall have the meanings set forth therein (such
definitions to be equally applicable to the singular and plural forms of the
terms defined).
2.2 Section References. Unless otherwise provided herein, all references
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to numbered sections, articles or exhibits shall refer to the sections and
articles of this Agreement and the exhibits attached to this Agreement.
ARTICLE 3
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Basic Agreement
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3.1 Timberlands Management. Throughout the Term, Xxxxxxxx-Xxxxx shall
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manage and maintain, at its cost, all of the Timberlands in accordance with the
terms and provisions of Article 4 and the other applicable terms and provisions
of this Agreement and as may be amended from time to time.
3.2 Harvest of Timber. During the Term, Timber Co. shall harvest the
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Merchantable Timber designated in the Harvest Plan to be harvested in the Term,
in
2
accordance with the applicable terms and provisions of Article 6 and the other
applicable terms and provisions of this Agreement. Notwithstanding anything in
this Agreement to the contrary, Xxxxxxxx-Xxxxx agrees that it shall have no
right to receive any payments under this Agreement if such payments would cause
Xxxxxxxx-Xxxxx to fail to qualify as a real estate investment trust (a "REIT")
for federal income tax purposes.
3.3 Term of Agreement. The term of this Agreement (the "Term") shall
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commence on January 1, 1998 (the "Commencement Date") and shall expire on
December 31, 1998 (the "Expiration Date").
3.4 Timberlands Subject to this Agreement. The Timberlands subject to
-------------------------------------
this Agreement designated in the Harvest Plan attached hereto shall be subject
to this Agreement throughout the Term.
ARTICLE 4
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Compliance, Etc.
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4.1 Compliance with Legal Requirements. (a) Throughout the Term,
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Xxxxxxxx-Xxxxx at its expense shall comply in all material respects with all
Applicable Laws now or hereafter in effect relating to the ownership,
management and operation of the Timberlands including applicable Environmental
Laws, except to the extent such compliance is the responsibility of Timber Co.
pursuant to the applicable terms and provisions of Article 7 and the other
applicable terms and provisions of this Agreement. Without limiting the
generality of the foregoing, Xxxxxxxx-Xxxxx shall prepare and file with the
applicable Governmental Authorities all notices, reports, applications,
statements or other filings required under Applicable Laws, and shall obtain, as
and when required under Applicable Laws, all Governmental Approvals relating to
the ownership, management and operation of the Timberlands (except those for
which Timber Co. is responsible pursuant to Section 5.4). Promptly upon Timber
Co.'s request, Xxxxxxxx-Xxxxx shall deliver to Timber Co. copies of all required
Governmental Approvals or other reasonable evidence of Xxxxxxxx-Xxxxx'x
compliance with such Applicable Laws. Xxxxxxxx-Xxxxx shall keep Timber Co.
generally apprised of material notices to or filings with Governmental
Authorities given or made by Xxxxxxxx-Xxxxx.
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4.2 Indemnity. Xxxxxxxx-Xxxxx hereby agrees to indemnify, save, defend
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and hold harmless Timber Co. and its officers, agents, contractors,
subcontractors, licensees, invitees and employees ("Timber Co. Indemnified
Parties") from all loss, cost, liability and expense resulting from injury to or
death of any person or persons (including, without limitation, Timber Co.'s
officers, agents, contractors, subcontractors, licensees, invitees and
employees), or destruction of or damage to property (including, without
limitation, the property of any Timber Co. Indemnified Party), or any other
claim of a third party against any Timber Co. Indemnified Party, arising out of
or connected with, either directly or indirectly, the performance by Xxxxxxxx-
Xxxxx of its obligations hereunder, the presence on the Timberlands of Xxxxxxxx-
Xxxxx or any partner, officer, agent, employee, contractor, subcontractor,
licensee or invitee of Xxxxxxxx-Xxxxx, or the condition of the Timberlands or
any portion thereof or improvement thereon, including, without limitation, the
presence on the Timberlands of any hazardous substances or the failure of the
Timberlands to comply with Applicable Laws, except to the extent such injury,
death, destruction, damage or other claim is caused by the negligence or willful
misconduct of Timber Co. or the breach by Timber Co. of its obligations under
this Agreement or is the subject of Timber Co.'s indemnification obligation
under Section 7.7. The obligations of Xxxxxxxx-Xxxxx under this Section 4.2
shall survive the expiration or termination of this Agreement.
4.3 Responsibility for Contractors.
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(a) In the event that Xxxxxxxx-Xxxxx contracts with a contractor or
subcontractor of any tier to perform any portion of the Timber management
operations described in this Agreement as being performed by Xxxxxxxx-Xxxxx, it
shall ensure that any such contractor or subcontractor shall be made aware of
and shall abide by all pertinent provisions of this Agreement.
(b) All obligations, duties, liabilities, and responsibilities of
Xxxxxxxx-Xxxxx arising pursuant to the provisions of this Agreement, or
otherwise in law or in equity, shall apply with equal force to the employees,
agents, contractors of any tier, licensees and suppliers of Xxxxxxxx-Xxxxx
involved in operations hereunder where the context permits, and Xxxxxxxx-Xxxxx
shall be responsible and liable to Timber Co. for the activities of such
parties.
(c) Specific use of the terms "subcontractor," "agent," "contractor,"
and the like in certain sections of this Agreement, and omissions of such terms
in other sections, shall not be deemed to nullify or restrict the force and
effect of this Section
4
only to such sections where such terms are specifically used. Use of the term
"Xxxxxxxx-Xxxxx" in any section giving rise to duties or obligations of
Xxxxxxxx-Xxxxx shall be deemed to include the subcontractors, agents,
contractors, employees, and licensees of Xxxxxxxx-Xxxxx where context permits.
4.4 Construction and Maintenance of Roads. Xxxxxxxx-Xxxxx shall, at its
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expense, design, construct and (except as otherwise provided in Section 7.8(b))
maintain, or shall cause its hunting club tenants and/or contractors to design,
construct and maintain, the present system of roads throughout the Timberlands.
Timber Co. shall, at its expense, design, construct and maintain or obtain all
applicable permits necessary for all roads or river transportation sites
necessary for logging, log loading, and log transportation. Notwithstanding the
foregoing, to the extent it is customary for logging contractors to construct
temporary logging roads or perform road maintenance work in connection with
logging operations or construct and maintain river transportation loading sites,
Timber Co. may arrange for logging contractors to perform such work; in such
cases, the costs of such work will be borne by Timber Co.
ARTICLE 5
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Harvest Plans
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5.1 Contents of Harvest Plan. Xxxxxxxx-Xxxxx shall prepare and deliver to
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Timber Co., no later than January 31, 1998, a Harvest Plan (a "Harvest Plan")
for the Term. The Harvest Plan shall include, for each Block included therein
and for the Term, the following information:
(a) A listing (a "Harvest Plan Data Sheet"), broken down by Block, of
each Compartment proposed to be harvested, and showing for each such Compartment
(i) the acreage; (ii) the estimated volumes to be harvested of each Fiber
Category in such Compartment, and the estimated volumes of each specie to be
harvested in such Compartment (excluding Products which are estimated to
constitute less than five percent (5%) of the total volume of a Fiber Category
in such Compartment); and (iii) whether such Compartment is available for
harvest throughout the Term or stating the portion of the Term when the
Compartment will be available for harvest. Each Harvest Plan Data Sheet shall
describe any known special restrictions or procedures (such as procedures to
protect any environmentally-sensitive areas) which will affect harvest
operations; and
5
(b) A summary compilation of the data set forth in the Harvest Plan
Data Sheets (a "Harvest Plan Summary"), broken down by Block and showing totals
for the Timberlands subject to the Harvest Plan, listing the following
information: (i) estimated volumes of each Fiber Category and (ii) estimated
volumes of each specie within each Fiber Category.
5.2 Requirements for Harvest Plan. The Harvest Plan shall be consistent
-----------------------------
with the following requirements:
(a) The Harvest Plan shall be consistent with the Agreement Purposes
and shall provide for the harvest of 110 million board feet of saw timber and
660,000 tons of pulpwood; and
(b) If harvest operations in some but not all Compartments are
expected to be materially affected by high water or winter weather, the Harvest
Plan shall include a sufficient number of Compartments which are located in
areas where harvest operations may be performed in high water or winter weather
to permit Timber Co. to harvest the volumes contemplated by the Harvest Plan.
5.3 Changes in Harvest Plan Due to Unforeseen Circumstances.
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(a) In the event that, at any time, landslide, mudslide, high water,
subsidence or any other cause of damage to or blockage of a road or river
materially impairs access to a Compartment which is to be harvested during the
Term or if any Force Majeure would materially impair harvest operations on such
Compartment, and either party reasonably believes that suitable access for
harvest equipment and logging trucks will not be available, or that the
impairment of harvest operations will not be corrected, in time to complete the
harvest of the affected Compartment during the Term, then the Harvest Plan shall
be modified to delete the affected Compartment and substitute in its place a
Compartment or Compartments which is or are generally comparable in volumes,
types, and species of Merchantable Timber available for harvest. Such
substitute Compartment or Compartments shall be selected by mutual agreement and
the Harvest Plan shall be deemed modified to reflect such substitution.
(b) In the event that, at any time during the Term, Timber Co.
reasonably believes that the Compartments which are to be harvested during the
Term will produce materially different volumes of any one or more species or
Fiber Categories than the volumes reflected in the Harvest Plan, then Timber
Co., upon request to Xxxxxxxx-Xxxxx, shall have the right to modify the Harvest
Plan by substituting
6
alternative Compartments. Upon receipt of such request, Xxxxxxxx-Xxxxx shall
cooperate with Timber Co. in identifying alternative Compartments for harvest
that will more nearly conform to the terms of the Harvest Plan. Any modification
to the Harvest Plan made pursuant to this Section 5.3(b) shall be reflected in a
written instrument, signed by both parties, in which the parties indicate their
consent to such modification.
(c) Any changes to the Harvest Plan pursuant to this Section 5.3 shall
be consummated only upon the receipt of an opinion of counsel to the effect that
such change will not adversely affect the status of Xxxxxxxx-Xxxxx as a REIT for
federal income tax purposes.
5.4 Compliance With Reporting and other Legal Requirements. In the event
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that Applicable Law requires that any Governmental Authority or other Person
receive any notice, plan or information regarding a contemplated harvest of
forest products or requires that any Governmental Approval be obtained in
connection therewith or requires any other action respecting a contemplated
harvest, Timber Co. shall take all actions necessary to comply in all material
respects with such Applicable Law. Xxxxxxxx-Xxxxx shall provide such
cooperation as may be necessary to enable Timber Co. to so comply, but Xxxxxxxx-
Xxxxx shall not be required to incur any material expense in providing such
cooperation. Promptly upon Xxxxxxxx-Xxxxx'x request, Timber Co. shall deliver
to Xxxxxxxx-Xxxxx copies of all required Governmental Approvals or other
reasonable evidence of Timber Co.'s compliance with such Applicable Laws.
Timber Co. shall keep Xxxxxxxx-Xxxxx generally apprised of material notices to
or filings with Governmental Authorities given or made by Timber Co.
5.5 Marking Timber and Boundaries. Prior to Timber Co.'s commencement of
-----------------------------
harvest operations on any Compartment, Xxxxxxxx-Xxxxx shall xxxx as needed the
Compartment boundaries and any environmentally sensitive areas on or adjacent to
the Compartment and, if the Compartment is to be selectively harvested,
Xxxxxxxx-Xxxxx shall xxxx the trees to be cut or shall provide a description of
the method by which Timber Co. is to determine which trees are to be cut
(collectively, "Site Marking"). Timber Co. will give notice to Xxxxxxxx-Xxxxx
of the date on which Timber Co. proposes to commence harvest operations on a
Compartment and Xxxxxxxx-Xxxxx shall commence the Site Marking of such
Compartment prior to commencement of harvest.
7
5.6 Interim Harvest Plan. Xxxxxxxx-Xxxxx shall prepare and deliver
--------------------
to Timber Co., no later than December 31, 1997, a plan (an "Interim Harvest
Plan"). The Interim Harvest Plan shall include, for each Block included in such
Interim Harvest Plan and for the month of January 1998, information similar to
that required to be included in the Harvest Plan pursuant to Section 5.1. The
rights and obligations of the parties under this Agreement with respect to the
Harvest Plan shall similarly apply to the parties with respect to the Interim
Harvest Plan.
ARTICLE 6
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Harvest of Timber
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6.1 Obligation to Harvest; Required Volumes.
---------------------------------------
(a) Xxxxxxxx-Xxxxx shall permit Timber Co. to cut and remove, and
Timber Co. shall cut and remove, the Merchantable Timber to be harvested in
accordance with the Harvest Plan (as such Harvest Plan may be modified in
accordance with the provisions of Article 5). Upon and subject to the terms and
conditions of this Agreement, Timber Co. shall make payments with respect to all
such Merchantable Timber.
(b) Timber Co. may log the Compartments specified in the Harvest Plan
in such order as Timber Co. may elect, subject to acceptable site conditions,
but Timber Co. shall use its best efforts to provide ten (10) days notice to
Xxxxxxxx-Xxxxx but in no event less than two (2) business days notice prior to
commencing logging on a Compartment, which notice shall specify the Compartment
and the dates on which Timber Co. intends to commence and complete logging. In
scheduling harvests, Timber Co. shall make reasonable accommodations to permit
Xxxxxxxx-Xxxxx or its assignees or designees to perform scheduled silvicultural
activities. In the event that any required Site Marking on a Compartment will
not have been commenced on the date specified in such notice as the date Timber
Co. intends to commence logging, Xxxxxxxx-Xxxxx shall so notify Timber Co.
within one (1) business day after receipt of Timbers Co.'s notice and Xxxxxxxx-
Xxxxx and Timber Co. will in good faith determine the date upon which site
marking will commence.
6.2 Stumpage Prices. (a) Timber Co. shall make payments with respect to
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all Merchantable Timber cut in any calendar quarter at a price (per MBF, per
cord or per ton, as applicable under then current Industry Practice) equal to
the Market Stumpage Price prevailing during such quarter for the applicable
Product, as deter-
8
mined in accordance with this Section 6.2. Market Stumpage Prices shall be
established each calendar quarter, for each Fiber Category and, if Market
Stumpage Prices are different for different species, diameter classes or other
classifications within a Fiber Category, for each specific Product to be
harvested.
(b) Except as otherwise provided in Sections 6.2(c) and 6.2(d), the
term "Market Stumpage Price" means the fair market price of the standing timber,
determined by considering relevant data including, but not limited to, third
party stumpage sales.
(c) If the parties are unable to reach agreement as to the Market
Stumpage Price of any Product on or prior to the fifteenth (15/th/) day of the
applicable calendar quarter of the Term, then the parties shall submit the
dispute to a consulting forester selected by agreement of Timber Co. and
Xxxxxxxx-Xxxxx, who shall determine such Market Stumpage Price using the
methodology described in Section 6.2(b) no later than the end of the second
month of such calendar quarter. The consulting forester's determination of such
Market Stumpage Price shall be binding upon Xxxxxxxx-Xxxxx and Timber Co. The
parties shall each bear half of the cost of such forester's services. If the
parties are unable to agree upon a consulting forester within twenty (20)
business days after the beginning of the applicable calendar quarter, then the
consulting forester shall be chosen by arbitration in accordance with Article
13.
(d) In the event that the parties have not agreed upon the Market
Stumpage Price for any Product by the first day of the applicable calendar
quarter of the Term, then until such Market Stumpage Price has been determined,
the Payment Amount shall be calculated as if the Market Stumpage Price for such
Product for the immediately preceding quarter were the Market Stumpage Price for
the current quarter and a reconciliation Payment shall be made concurrently with
the succeeding regular Payment.
6.3 Payments. (a) No later than the sixteenth (16/th/) day of each
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month, Timber Co. will remit to Xxxxxxxx-Xxxxx the amount equal to the sum of
the volume of individual Products cut and scaled times their respective Market
Stumpage Prices for the preceding month (such amount being the "Monthly
Payment"). All payments to be made under this Agreement by either party to the
other shall be made in lawful money of the United States to the other party at
its address for notices as provided in Section 16.1, or at the request of the
party entitled to payment, by wire transfer or automatic funds transfer to such
account as such party may designate in writing from time to time.
9
(b) Any amount payable under this Agreement which is not paid when due
shall bear interest, from the date payment is due through the date paid, at a
variable rate (the "Default Rate") equal to the sum of (i) the Prime Rate then
in effect, plus (ii) two (2) percent.
6.4 Scaling. (a) Except as may otherwise be specifically provided herein,
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the Merchantable Timber cut under this Agreement shall be scaled or weighed as
promptly as practicable after cutting, at Timber Co.'s log yard or such other
place as Timber Co. may designate, by a competent and qualified log scaler
employed or contracted by Timber Co. The scaler shall keep complete log scaling
records, and the scaler's records and procedures shall be subject to checking
and inspection by the representatives of Timber Co. and Xxxxxxxx-Xxxxx at all
reasonable times. The cost of such scaling shall be borne by Timber Co.
(b) The scaler shall provide scale tickets in five (5) parts for
distribution as follows: one to be retained by the scaler; and the remainder to
be delivered to Xxxxxxxx-Xxxxx, Timber Co., Timber Co.'s logger, and the
logger's trucker.
(c) Timber Co. and Xxxxxxxx-Xxxxx agree that the scaler shall employ
customary scaling standards including reasonable provisions for deductions for
defects in accordance with Industry Practice. Sample scaling using a reasonable
sample of each shipment shall be permitted.
(d) Timber Co. shall bear the risk that Products harvested under this
Agreement shall have a higher frequency or severity of defects than is reflected
at the time of the scaling of such Products, and Timber Co. shall not be
entitled to any discount or price reduction for any such defects subsequently
discovered.
6.5 Monthly Logging Reports. No later than sixteen (16) days after the
-----------------------
last day of each calendar month, Timber Co. shall deliver to Xxxxxxxx-Xxxxx with
its Monthly Payment a report (a "Monthly Logging Report") setting forth (a) for
each Compartment from which any Product was scaled during such month, the volume
of each shipment of such Product scaled, the destination to which each shipment
of such Product was delivered, the Market Stumpage Price then in effect for such
Product shipment, the price for such Product shipment derived by applying such
Market Stumpage Price to such volume, and the total price for all Products
scaled from such Compartment derived by adding together all such Product
shipment prices; and (b) for each Block, the totals for such month of the
Product shipment volumes and
10
Product prices of each Product included in the portion of the Monthly Logging
Report described in clause (a) above.
6.6 Allocation of Costs; Payment of Taxes. (a) Timber Co. shall pay all
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of its own costs including Costs of Log and Haul. Xxxxxxxx-Xxxxx shall pay all
of its own costs including all costs and expenses arising from or related to the
ownership, management and operation of the Timberlands.
(b) All yield taxes, sales taxes, harvest taxes, severance taxes and
other taxes assessed in respect of Timber harvested shall be paid when due by
Timber Co. except so long as the validity or amount of such taxes is being
diligently protested in good faith and by appropriate proceedings (provided that
such taxes shall be paid notwithstanding such protest if necessary to avoid
interest and penalties). Xxxxxxxx-Xxxxx shall pay all taxes, assessments and
other governmental impositions relating to the ownership, management and
operation of the Timberlands when due, except so long as the validity or amount
of such taxes is being diligently protested in good faith and by appropriate
proceedings (provided that such taxes shall be paid notwithstanding such
protest if necessary to avoid interest and penalties).
6.7 Records. (a) Timber Co. shall maintain detailed operating and
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financial records of all harvest operations carried out pursuant to this
Agreement, including operating records setting forth the volumes of each Product
cut and scaled and the date and location of each scaling. Timber Co. shall
maintain such records relating to the Term for not less than three (3) years
after the end of the Term. Such records shall be available for review by
Xxxxxxxx-Xxxxx or its representatives at Timber Co.'s offices at any time during
normal business hours on not less than three (3) days' prior notice.
6.8 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS
------------------------
AGREEMENT, Xxxxxxxx-Xxxxx MAKES NO WARRANTY, EXPRESS OR IMPLIED, IN FACT, BY LAW
OR OTHERWISE, CONCERNING THE QUALITY OR CHARACTER OF THE TIMBER HARVESTED
HEREUNDER AND HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE.
6.9 Xxxxxxxx-Xxxxx'x Right to Harvest Timber. Xxxxxxxx-Xxxxx reserves the
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right during the Term to harvest Timber from the Timberlands, in addition to the
Timber to be harvested by Timber Co. as specified in the Harvest Plan for the
Term,
11
provided that Xxxxxxxx-Xxxxx'x harvesting operations shall not at any time
impede or interfere with Timber Co.'s harvesting operations.
ARTICLE 7
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Logging Practices, Etc.
----------------------
7.1 Logging Practices in General. All Merchantable Timber with respect to
----------------------------
which Timber Co. shall make payments hereunder shall be cut in accordance with
the applicable Harvest Plan, and Timber Co. shall remove all Merchantable Timber
cut from the logging areas. Timber severed hereunder shall be cut as close to
the ground as practicable and utilized in such manner as to yield the greatest
value and quantity of merchantable timber. Timber Co. agrees to cut and remove
the Merchantable Timber harvested pursuant to this Agreement in accordance with
Prudent Logging Practices and to conform in all material respects to the
applicable Harvest Plan and all Applicable Laws in conducting logging operations
hereunder. All logging and transportation contractors engaged by Timber Co.
shall meet standard industry competency standards.
7.2 Protection of Improvements; Boundaries; Access; Trespass. (a) In
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conducting its logging operations, Timber Co. shall take reasonable precautions
to avoid damage to crops, existing roads, culverts, bridges, fences, utility
poles and lines, and all other structures and improvements. Timber Co. shall,
with reasonable promptness, repair any such damage at its cost.
(b) Timber Co. shall at its own expense obtain all necessary permits,
consents and/or approvals from adjacent landowners and Governmental Authorities
necessary to obtain or maintain access to the Timberlands and to conduct logging
and log transportation activities. Xxxxxxxx-Xxxxx will cooperate in good faith
with Timber Co. to secure such permits, consents and/or approvals including
consenting to reasonable reciprocal access to the Timberlands or other
reasonable consideration in the circumstances. Timber Co. shall use diligent
efforts to avoid the commission of any trespass onto lands which are not part of
the Timberlands, and, except to the extent Xxxxxxxx-Xxxxx'x Site Marking is
incomplete or inaccurate, Timber Co. shall be solely responsible for any damages
arising from any trespass onto any such lands.
7.3 Fire Safety; Environmental Matters. (a) In conducting its logging
----------------------------------
operations, Timber Co. shall exercise and shall cause its contractors to
exercise every reasonable precaution against fire. In the event any fire
results from Timber Co.'s
12
logging operations, Timber Co. shall promptly exert every reasonable effort to
suppress such fire. Costs incurred by Timber Co. in such fire suppression
efforts due to fires resulting from Timber Co.'s operations shall be Timber
Co.'s sole responsibility.
(b) In conducting its logging operations, Timber Co. shall exercise
and shall cause its contractors to exercise every reasonable precaution against
damage to rivers, streams, lakes, riparian areas and other environmentally
sensitive areas of which it has knowledge, and shall comply in all material
respects with all applicable Environmental Laws.
7.4 Post-Harvest Cleanup. When logging of a Compartment has been
--------------------
completed, (a) Timber Co. shall remove from such Compartment all equipment,
supplies and waste, and (b) to the extent it is customary for such work to be
performed by a logging contractor, Timber Co. shall cause its logging
contractors to (i) lop and scatter all slash within one hundred (100) feet of
any road; and (ii) restore all landing areas in a manner suitable for Timber-
growing.
7.5 Responsibility for Contractors.
------------------------------
(a) In the event Timber Co. contracts with a contractor or
subcontractor of any tier to perform any portion of the logging or
transportation operations described in this Agreement as being performed by
Timber Co., it shall ensure that any such contractor or subcontractor shall be
made aware of and shall abide by all pertinent provisions of this Agreement.
(b) All obligations, duties, liabilities, and responsibilities of
Timber Co. arising pursuant to the provisions of this Agreement, or otherwise in
law or in equity, shall apply with equal force to the employees, agents,
contractors of any tier, licensees and suppliers of Timber Co. involved in
logging or transportation operations hereunder where the context permits, and
Timber Co. shall be responsible and liable to Xxxxxxxx-Xxxxx for the activities
of such parties.
(c) Specific use of the terms "subcontractor," "agent," "contractor,"
and the like in certain sections of this Agreement, and omissions of such terms
in other sections, shall not be deemed to nullify or restrict the force and
effect of this Section only to such sections, where such terms are specifically
used. Use of the term "Timber Co." in any section giving rise to duties or
obligations of Timber Co. shall be
13
deemed to include the subcontractors, agents, contractors, employees, suppliers,
and licensees of Timber Co. where context permits.
7.6 Notice of Violations. If Timber Co. receives any notice from any
--------------------
Governmental Authority or any other Person alleging that Timber Co.'s logging or
transportation operations are in violation of any Applicable Law or that Timber
Co., in conducting such operations, has violated any rights of such Person, and
the amount of damages arising from the alleged violation, or the cost of curing
or correcting the violation, if adversely determined, could reasonably be
expected to exceed One Hundred Thousand Dollars ($100,000.00), then Timber Co.
shall, within ten (10) days after receiving such notice, deliver to Xxxxxxxx-
Xxxxx a notice describing the allegation in reasonable detail.
7.7 Indemnity. Timber Co. hereby agrees to indemnify, save, defend and
---------
hold harmless Xxxxxxxx-Xxxxx and its officers, agents, contractors,
subcontractors, licensees, invitees and employees ("Xxxxxxxx-Xxxxx Indemnified
Parties") from all loss, cost, liability and expense resulting from injury to or
death of any person or persons (including, without limitation, Xxxxxxxx-Xxxxx'x
officers, agents, contractors, subcontractors, licensees, invitees and
employees), or destruction of or damage to property (including, without
limitation, the property of any Xxxxxxxx-Xxxxx Indemnified Party), or any other
claim of a third party against any Xxxxxxxx-Xxxxx Indemnified Party, arising out
of or connected with, either directly or indirectly, the performance by Timber
Co. of its obligations hereunder, the presence on the Timberlands of Timber Co.
or any partner, officer, agent, employee, contractor, subcontractor, licensee or
invitee of Timber Co., except to the extent such injury, death, destruction,
damage or other claim is caused by the negligence or willful misconduct of
Xxxxxxxx-Xxxxx or the breach by Xxxxxxxx-Xxxxx of its obligations under this
Agreement or is the subject of Xxxxxxxx-Xxxxx'x indemnification obligation under
Section 4.2. The obligations of Timber Co. under this Section 7.7 shall survive
the expiration or termination of this Agreement.
7.8 Xxxxxxxx-Xxxxx Inspection; Claims Relating to Damage or Incomplete
------------------------------------------------------------------
and/or Underutilized Harvest. (a) Xxxxxxxx-Xxxxx and its representatives shall
----------------------------
have the right to visit and inspect any logging site during logging operations
at any time; provided that all such visits and inspections shall be conducted in
a manner so as to minimize interference with Timber Co.'s performance under this
Agreement. Xxxxxxxx-Xxxxx shall take all precautions to protect the safety of
its representatives and its property in connection with any such inspection.
14
(b) As to each Compartment being harvested, Timber Co. shall give
Xxxxxxxx-Xxxxx notice of the date on which Timber Co. expects to complete
logging operations on such Compartment not less than three (3) days prior to
such date. If, upon Xxxxxxxx-Xxxxx'x inspection of a Compartment, Xxxxxxxx-
Xxxxx notifies Timber Co. prior to the completion of logging (i.e., before
Timber Co.'s logging contractor or logging personnel have moved off the site) of
damage (other than ordinary wear and tear) caused by Timber Co. to the logging
site, adjacent areas or logging roads, Timber Co. shall cause such damage to be
repaired promptly. If upon such inspection, Xxxxxxxx-Xxxxx notifies Timber Co.
prior to completion of logging that Timber Co. has failed to complete the
harvest of such Compartment in accordance with the Harvest Plan (e.g., failure
to cut and remove all Timber required to be harvested), or has materially
underutilized the Merchantable Timber cut (e.g., failure to properly classify
timber as saw timber or pulpwood or failure to buck properly) Timber Co. shall
cure such failure promptly. If Timber Co. shall not cure such failure promptly
or otherwise be unable to cure such failure, Xxxxxxxx-Xxxxx will notify Timber
Co. of the amount of lost revenue or damage arising from such failure. Such
amount will be due with the next payment; provided, however, that such amount
will be payable only upon the receipt of an opinion of counsel to the effect
that payment of such amount (i) will either be treated under Section 631(b) or
will not cause payments for harvests of timber under this Contract not to be
treated under Section 631(b), and (ii) will not adversely affect the status of
Xxxxxxxx-Xxxxx as a REIT for federal income tax purposes. If Xxxxxxxx-Xxxxx
notifies Timber Co. of any such damage (other than damage occurring after an
Xxxxxxxx-Xxxxx inspection) or any such incomplete or underutilized harvest after
Timber Co.'s logging contractor or logging personnel have moved off the site,
Timber Co. shall have no obligation to repair any damage or cure any failure to
complete the harvest, and Xxxxxxxx-Xxxxx hereby waives any claim for such damage
(other than damage occurring after the Xxxxxxxx-Xxxxx inspection) or failure
unless notice thereof is given prior to completion of logging operations.
ARTICLE 8
---------
Title Matters
-------------
8.1 Xxxxxxxx-Xxxxx'x Title to Timberlands. (a) Xxxxxxxx-Xxxxx hereby
-------------------------------------
represents and warrants that, except as provided in the following sentence,
Xxxxxxxx-Xxxxx is, and covenants that it will throughout the Term remain, the
owner of fee title to all of the Timberlands subject to the Harvest Plan, and
will defend the same and the validity and priority of Timber Co.'s rights under
this Agreement against the lawful claims of all Persons whomsoever; and
Xxxxxxxx-Xxxxx further represents and warrants that, except as provided in the
following sentence, the Timberlands subject to the Harvest Plan, are, and
covenants that the Timberlands subject to the Harvest Plan, will throughout the
Term remain, free and clear of all liens and encumbrances of any kind, nature or
description, save and except only the following (collectively,
15
"Permitted Exceptions"): real property taxes for the current fiscal year not
delinquent, those matters which are disclosed in the public real property
records as of the date of this Agreement, those matters which would be disclosed
by a land survey or an inspection of the Timberlands subject to the Harvest
Plan, and those matters which would not, individually or in the aggregate,
materially impair the rights of Timber Co. under this Agreement or materially
reduce the value of Timber Co.'s interests under this Agreement.
(b) Xxxxxxxx-Xxxxx shall have the right to grant licenses or other
limited use rights to third parties for grazing or recreational use of the
Timberlands subject to the Harvest Plan, only so long as no such use shall (i)
cause material damage to the Timberlands subject to the Harvest Plan or (ii)
materially interfere with Timber Co.'s operations on such Timberlands.
8.2 Timber Co.'s Rights to Cut. From and after the Commencement Date and
--------------------------
during the entire Term, Timber Co. shall have, as to all of the Timber growing
on the Timberlands from time to time and subject to any Harvest Plan, only the
rights to cut such Timber as provided in this Agreement.
8.3 Title and Risk of Loss to Cut Timber. Title to all Timber included in
------------------------------------
the Harvest Plan pursuant to this Agreement remains in Xxxxxxxx-Xxxxx until it
has been cut in the case of standing Timber.
8.4 Grant of Access Rights. During the entire Term, Xxxxxxxx-Xxxxx shall
----------------------
provide, and hereby grants to, Timber Co. and its officers, agents, employees,
contractors, subcontractors and consultants full and free access at all times to
the Timberlands and the nonexclusive right to use all roads and other means of
ingress to and egress from the Timberlands. Without limiting the generality of
the foregoing, Xxxxxxxx-Xxxxx hereby assigns to Timber Co. the nonexclusive
right to use any easement, right of way, license or permit for access heretofore
or hereafter granted to Xxxxxxxx-Xxxxx ("Access Rights") by any Person to the
extent necessary or useful to Timber Co. in connection with this Agreement. To
the extent such assignment of any Access Right requires the consent or approval
of the grantor of such Access Right, Xxxxxxxx-Xxxxx shall use its best efforts
to obtain such consent and deliver the same to Timber Co. At Timber Co.'s
reasonable request, Xxxxxxxx-Xxxxx shall execute and deliver to Timber Co. a
separate assignment of any Access Right, in such form as Timber Co. may
reasonably request.
16
8.5 Timber Co. to Permit No Liens. Timber Co. shall not permit or suffer
-----------------------------
any lien or liens to be enforced on or against the Timberlands, nor any of the
improvements thereon nor any Timber thereon, for work, labor, materials,
supplies or equipment furnished by or at the request of Timber Co., and Timber
Co. shall hold Xxxxxxxx-Xxxxx harmless against and defend Xxxxxxxx-Xxxxx against
any and all such liens. If Timber Co. fails to remove or bond against any such
lien within twenty (20) days after written notice thereof to Timber Co.,
Xxxxxxxx-Xxxxx shall have the right to pay any amount required to release and
discharge any such lien or liens, or to defend any action brought thereon, and
to pay any judgment entered therein, and Timber Co. shall be liable to Xxxxxxxx-
Xxxxx for all reasonable costs (including reasonable attorneys' fees) incurred
by Xxxxxxxx-Xxxxx or for the payment of any of said liens or any judgments
obtained thereon; provided, however, that Timber Co.'s obligations under this
Section 8.5 shall be suspended so long as (i) Timber Co. is reasonably and in
good faith contesting the amount or validity of such lien by appropriate
proceedings, and (ii) Timber Co. shall take all actions necessary (including
payment of or bonding against such lien) to avoid a foreclosure of any such
lien.
ARTICLE 9
---------
Disposition of Timberlands
--------------------------
9.1 No Transfer Without Timber Co. Consent; Exceptions. Without the prior
--------------------------------------------------
written consent of Timber Co., Xxxxxxxx-Xxxxx shall not sell, transfer, assign
or convey the Timberlands subject to the Harvest Plan, or any portion thereof or
interest therein or any Timber located thereon and shall not permit the
transfer, assignment or conveyance of a Controlling Interest in Xxxxxxxx-Xxxxx,
whether voluntarily or by operation of law. The sale, transfer, assignment or
conveyance of all or any portion of the Timberlands subject to the Harvest Plan
or any Timber located thereon or the transfer, assignment or conveyance of a
Controlling Interest in Xxxxxxxx-Xxxxx, whether voluntarily or by operation of
law, without the prior written consent of Timber Co., shall constitute an
Xxxxxxxx-Xxxxx Event of Default. Notwithstanding anything contained herein to
the contrary, Xxxxxxxx-Xxxxx hereby waives any right it now has or may hereafter
have to require Timber Co. to prove an impairment of its rights as a condition
to enforcing Xxxxxxxx-Xxxxx'x covenants under this Section 9.1.
17
ARTICLE 10
----------
Insurance
---------
10.1 Timber Co. Insurance. Timber Co. agrees to carry and maintain at
--------------------
all times during the term of this Agreement:
(a) a policy or policies of liability insurance with limits of not
less than One Million Dollars ($1,000,000.00) protecting Timber Co. and
Xxxxxxxx-Xxxxx against sums payable as damages because of injury to or
destruction of property of others (whether by fire or otherwise), including the
loss of the use thereof, arising out of an occurrence directly connected with
the logging operations herein described or other operations of Timber Co., its
employees, agents, contractors, subcontractors, licensees, invitees or business
visitors incidental to such logging and management operations, including but not
limited to: (i) damage to or destruction of trucks, trailers or railroad cars,
or other property of others while logs are being loaded or unloaded; provided
that Timber Co. shall not be required to insure against damage to or destruction
of standing Timber or felled or bucked Timber.
(b) a policy of insurance covering automobile, bodily injury,
liability, and property damage on its automobiles with coverage for death or
injury to persons and property damage and a limit of not less than Five Hundred
Thousand Dollars ($500,000.00). (The word "automobile" shall mean any land motor
vehicle, trailer or semi-trailer used for transporting logs, goods or
passengers.)
(c) Workers' Compensation Insurance in compliance with the laws of the
respective States in which the subject Timberlands are located.
10.2 Timber Co. Contractors. During the Term of this Agreement, Timber Co.
----------------------
shall assure that any contractor (of any tier) or agent employed by Timber Co.
to perform any of the work described herein shall be covered by insurance with
the following coverages:
(a) Policies of automobile, bodily injury, liability and property
damage insurance, with coverages of at least Five Hundred Thousand Dollars
($500,000.00) for death of or any injury to any one person, Five Hundred
Thousand Dollars ($500,000.00) for any one accident causing death or injury, and
Two Hundred Thousand Dollars ($200,000.00) for property damage coverage. (The
word "automo-
18
bile" shall mean any land motor vehicle, trailer or semi-trailer used for
transporting logs, goods, or passengers).
(b) Workers' Compensation Insurance in compliance with the laws of the
respective States in which the subject Timberlands are located.
10.3 Policy Terms of Timber Co. Insurance. Any insurance carried by Timber
------------------------------------
Co. to the extent required by Section 10.2 shall be written by licensed
insurance companies with a Best's Rating of A or better. Each policy shall be
endorsed to provide that:
(a) With the exception of workers' compensation coverage, Xxxxxxxx-
Xxxxx shall be an additional insured with the understanding that any obligation
imposed upon Timber Co. (including, without limitation, the liability to pay
premiums) shall be the sole obligation of Timber Co. and not that of Xxxxxxxx-
Xxxxx;
(b) The insurer thereunder waives all rights of subrogation against
Xxxxxxxx-Xxxxx, any right of set off and counterclaim and any other right to
deduction whether by attachment or otherwise;
(c) Such insurance shall be primary without right of contribution of
any other insurance carried by Xxxxxxxx-Xxxxx with respect to its interests as
such in the Timberland;
(d) If such insurance is cancelled for any reason whatsoever,
including nonpayment of premium, or any substantial change is made in the
coverage which affects the interests of Xxxxxxxx-Xxxxx, such cancellation or
change shall not be effective as to Xxxxxxxx-Xxxxx for thirty (30) days after
receipt by Xxxxxxxx-Xxxxx of written notice sent by registered mail from each
insurer of such cancellation or change; and
(e) Any liability insurance policy shall be endorsed to provide that,
inasmuch as the policy is written to cover more than one (1) insured, all terms,
conditions, insuring agreements and endorsements, with the exception of limits
of liability, shall operate in the same manner as if there were a separate
policy covering such insured.
19
Timber Co. shall provide Xxxxxxxx-Xxxxx with certificates evidencing the
insurance carried by Timber Co. hereunder at reasonable intervals as requested
by Xxxxxxxx-Xxxxx.
10.4 Xxxxxxxx-Xxxxx Insurance. Xxxxxxxx-Xxxxx agrees to carry and maintain
------------------------
at all times during the term of this Agreement:
(a) a policy or policies of liability insurance with limits of not
less than One Million Dollars ($1,000,000.00) protecting Xxxxxxxx-Xxxxx and
Timber Co. against sums payable as damages because of injury to or destruction
of property of others (whether by fire or otherwise), including the loss of the
use thereof, arising out of an occurrence directly connected with the operations
herein described or other operations of Xxxxxxxx-Xxxxx, its employees, agents,
contractors, subcontractors, licensees, invitees or business visitors incidental
to such logging and management operations; provided that Xxxxxxxx-Xxxxx shall
not be required to insure against damage to or destruction of standing Timber or
felled or bucked Timber.
(b) a policy of insurance covering automobile, bodily injury,
liability, and property damage on its automobiles with coverage for death or
injury to persons and property damage and a limit of not less than Five Hundred
Thousand Dollars ($500,000.00). (The word "automobile" shall mean any land motor
vehicle, trailer or semi-trailer used for transporting logs, goods or
passengers.)
(c) Workers' Compensation Insurance in compliance with the laws of the
respective States in which the Timberlands are located.
10.5 Xxxxxxxx-Xxxxx Contractors. During the Term of this Agreement,
--------------------------
Xxxxxxxx-Xxxxx shall assure that any contractor (of any tier) or agent employed
by Xxxxxxxx-Xxxxx to perform any of the work described herein shall be covered
by insurance with the following coverages:
(a) Policies of automobile, bodily injury, liability and property
damage insurance, with coverages of at least Five Hundred Thousand Dollars
($500,000.00) for death of or any injury to any one person, Five Hundred
Thousand Dollars ($500,000.00) for any one accident causing death or injury, and
Two Hundred Thousand Dollars ($200,000.00) for property damage coverage. (The
word "automobile" shall mean any land motor vehicle, trailer or semi-trailer
used for transporting logs, goods, or passengers).
20
(b) Workers' Compensation Insurance in compliance with the laws of the
respective States in which the subject Timberlands are located.
10.6 Policy Terms of Xxxxxxxx-Xxxxx Insurance. Any insurance carried by
----------------------------------------
Xxxxxxxx-Xxxxx to the extent required by Section 10.3 shall be written by
licensed insurance companies with a Best's Rating of A or better. Each policy
shall be endorsed to provide that:
(a) With the exception of workers' compensation coverage, Timber Co.
shall be an additional insured with the understanding that any obligation
imposed upon Xxxxxxxx-Xxxxx (including, without limitation, the liability to pay
premiums) shall be the sole obligation of Xxxxxxxx-Xxxxx and not that of Timber
Co.;
(b) The insurer thereunder waives all rights of subrogation against
Timber Co., any right of set off and counterclaim and any other right to
deduction whether by attachment or otherwise;
(c) Such insurance shall be primary without right of contribution of
any other insurance carried by Timber Co. with respect to its interests as such
in the Timberlands;
(d) If such insurance is cancelled for any reason whatsoever,
including nonpayment of premium, or any substantial change is made in the
coverage which affects the interests of Timber Co., such cancellation or change
shall not be effective as to Timber Co. for thirty (30) days after receipt by
Timber Co. of written notice sent by registered mail from each insurer of such
cancellation or change; and
(e) Any liability insurance policy shall be endorsed to provide that,
inasmuch as the policy is written to cover more than one (1) insured, all terms,
conditions, insuring agreements and endorsements, with the exception of limits
of liability, shall operate in the same manner as if there were a separate
policy covering such insured.
Xxxxxxxx-Xxxxx shall provide Timber Co. with certificates evidencing the
insurance carried by Xxxxxxxx-Xxxxx hereunder at reasonable intervals as
requested by Timber Co.
21
10.7 Claims. With regard to any claim under the policies of insurance
------
carried by either party, the party responsible for carrying such insurance under
this Article 10 shall be responsible for adjusting claims under such policy.
ARTICLE 11
----------
Suspension of Performance for Force Majeure
-------------------------------------------
11.1 Suspension of Obligations. Any obligations, covenants or conditions
-------------------------
imposed upon either party under this Agreement shall (subject to the terms of
Section 5.3(a)) be suspended while and to the extent that compliance or
performance by such party (the "Excused Party") is substantially impaired or
prevented by any one or more of the following: fires, drought, infestation,
pestilence, disease, floods and the elements, accidents, riots, wars, delays in
transportation, interference by government action, changes in Applicable Laws,
strikes, lock-outs, picketing or other form of labor trouble (whether or not
participated in by the employees of the Excused Party or arising from a dispute
with or unfair labor practices charged against the Excused Party) or any other
causes beyond the reasonable control of the Excused Party, whether similar or
dissimilar to the causes specifically mentioned (each a "Force Majeure").
11.2 Extension of Time. Within ten (10) days after commencement (or
-----------------
discovery) of any Force Majeure, the Excused Party shall forward written notice
thereof to the other party and thereupon all time periods set forth in this
Agreement or any plan prepared pursuant to this Agreement for performance of an
obligation shall be extended for a period equal to each period of suspension
during which the Excused Party is prevented from performing its obligations
under this Agreement by reason of the Force Majeure. Upon discontinuance or
termination of any Force Majeure, the Excused Party shall resume within a
reasonable time and prosecute with due diligence the obligations so suspended.
ARTICLE 12
----------
Default; Remedies
-----------------
12.1 Timber Co. Default. Each of the following events (each a "Timber Co.
------------------
Event of Default") shall constitute an event of default by Timber Co. hereunder:
22
(a) Timber Co. fails to pay Xxxxxxxx-Xxxxx any amount owed hereunder
within thirty (30) business days after receipt of written notice from Xxxxxxxx-
Xxxxx that such amount is due;
(b) Timber Co. fails to perform or comply with any other material
obligation of Timber Co. under this Agreement and fails to remedy such default
within thirty (30) days after receipt of written notice from Xxxxxxxx-Xxxxx to
do so (or, where the default cannot be cured by the payment of money and cannot
be completely remedied within said thirty (30) days, Timber Co. fails to
commence to remedy such default within that period or fails after commencement
to prosecute the remedying thereof with due diligence or complete the remedying
thereof within a reasonable time); and
(c) Timber Co. is dissolved or liquidated without this Agreement being
or having been assigned to a Corporate Successor in accordance with Section
14.2.
12.2 Xxxxxxxx-Xxxxx Default. Each of the following events (each an
----------------------
"Xxxxxxxx-Xxxxx Event of Default") shall constitute an event of default by
Xxxxxxxx-Xxxxx hereunder:
(a) Xxxxxxxx-Xxxxx fails to pay Timber Co. any amount owed hereunder
within thirty (30) business days after receipt of written notice from Timber Co.
that such amount is due;
(b) an Event of Default described in Section 9.1 occurs;
(c) Xxxxxxxx-Xxxxx fails to perform or comply with any other material
obligation of Xxxxxxxx-Xxxxx under this Agreement and fails to remedy such
default within thirty (30) days after receipt of written notice from Timber Co.
to do so (or, where the default cannot be cured by the payment of money and
cannot be completely remedied within said thirty (30) days, Xxxxxxxx-Xxxxx fails
to commence to remedy such default within that period or fails after
commencement to prosecute the remedying thereof with due diligence or complete
the remedying thereof within a reasonable time); and
(d) Xxxxxxxx-Xxxxx is dissolved or liquidated without this Agreement
being or having been assigned to a Corporate Successor in accordance with
Section 14.2.
23
12.3 Remedies. Upon the occurrence of an Event of Default by either party
--------
hereto, the non-defaulting party shall, subject to Section 12.4, have the right
to pursue all remedies available to such party at law or in equity in connection
with such Event of Default, including the right:
(a) to money damages in the amount necessary to compensate the non-
defaulting party for all reasonably foreseeable losses and costs caused by the
Event of Default, together with interest on any award of money damages from the
date of the Event of Default until paid at the Default Rate; and
(b) to injunctive or other equitable relief, including the right to
specific enforcement of the defaulting party's obligations (the parties each
acknowledging that money damages may be an inadequate remedy for a default under
this agreement).
12.4 Termination. (a) This Agreement may be terminated:
-----------
(i) by Timber Co. (A) upon the occurrence of an Xxxxxxxx-Xxxxx Event
of Default described in Section 12.2(b) or Section 12.2(d), or (B) if
Xxxxxxxx-Xxxxx, willfully and without reasonable justification, repudiates
this Agreement and ceases to perform its obligations under this Agreement;
or
(ii) by Xxxxxxxx-Xxxxx (A) upon the occurrence of a Timber Co. Event
of Default described in Section 12.1(c), or (B) if Timber Co., willfully
and without reasonable justification, repudiates this Agreement and ceases
to perform its obligations under this Agreement.
12.5 Right of Other Party To Perform. If either party (a "defaulting
-------------------------------
party") fails to perform any covenant or obligation hereunder on its part to be
performed, and such failure shall continue for ninety (90) days (or such shorter
period as may be reasonable under emergency circumstances) after written notice
thereof by the other party ("non-defaulting party"), the nondefaulting party
may, without waiving or releasing the defaulting party from any obligation
hereunder, perform any such covenant or obligation required to be performed by
the defaulting party, but the non-defaulting party shall not be obligated to do
so. All amounts incurred by the non-defaulting party and all necessary costs of
such performance incurred by the non-defaulting party, together with interest
thereon at the Default Rate from the date of such payment or performance by the
non-defaulting party, shall be paid (and the defaulting party covenants to make
such payment) to the non-defaulting party on demand.
24
ARTICLE 13
----------
Arbitration of Disputes
-----------------------
ANY CLAIM, CONTROVERSY OR DISPUTE, (COLLECTIVELY, "DISPUTE"), WHETHER
SOUNDING IN CONTRACT, STATUTE, TORT, FRAUD, MISREPRESENTATION OR OTHER LEGAL
THEORY, RELATED DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, OR ITS PERFORMANCE,
NEGOTIATION, FORMATION, INTERPRETATION, ADMINISTRATION, RENEWAL OR OTHERWISE,
WHENEVER BROUGHT AND WHETHER BETWEEN ANY OF THE PARTIES TO THIS AGREEMENT OR
BETWEEN ANY OF THE PARTIES TO THIS AGREEMENT AND THE EMPLOYEES, AGENTS OR
AFFILIATED BUSINESSES OF ANY OTHER PARTY, SHALL BE RESOLVED BY ARBITRATION AS
PRESCRIBED IN THIS SECTION, WHETHER OR NOT SUCH DISPUTE RELATES TO A PROVISION
OF THIS AGREEMENT THAT SPECIFICALLY REFERS TO THIS ARTICLE 13, OR RELATES TO ANY
SPECIFIC PROVISION OF THIS AGREEMENT AT ALL.
THE ARBITRATION SHALL BE TRIPARTITE, WITH EACH OF THE TWO PARTIES TO
THE DISPUTE APPOINTING AN ARBITRATOR, AND WITH THE TWO ARBITRATORS THUS
APPOINTED (THE "PARTY ARBITRATORS") APPOINTING A SINGLE NEUTRAL ARBITRATOR.
SUCH NEUTRAL ARBITRATOR SHALL BE A RETIRED FEDERAL OR MISSISSIPPI JUDGE. THE
ARBITRATORS SHALL CONDUCT THE ARBITRATION UNDER THE THEN-CURRENT COMMERCIAL
ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA"). THE
NEUTRAL ARBITRATOR SHALL BE SELECTED BY MUTUAL AGREEMENT OF THE PARTY
ARBITRATORS, OR IF THEY ARE UNABLE TO REACH AGREEMENT ON THE ARBITRATOR WITHIN
THIRTY (30) DAYS AFTER WRITTEN NOTICE BY ONE PARTY TO THE OTHER(S) INVOKING THIS
ARBITRATION PROVISION, IN ACCORDANCE WITH AAA PROCEDURES FOR THE SELECTION OF
NEUTRAL ARBITRATORS, FROM A LIST OF RETIRED FEDERAL OR MISSISSIPPI JUDGES
MAINTAINED BY THE AAA FOR USE IN MISSISSIPPI. THE ARBITRATION SHALL BE CONDUCTED
IN MISSISSIPPI AT A PLACE DETERMINED BY THE ARBITRATORS AND ALL EXPEDITED
PROCEDURES PRESCRIBED BY THE AAA COMMERCIAL ARBITRATION RULES SHALL APPLY.
25
THE NEUTRAL ARBITRATOR ACTING ALONE MAY RULE ON PROCEDURAL QUESTIONS,
INCLUDING THE TIME AND PLACE OF HEARINGS, THE MANNER AND METHOD OF SUBMISSION OF
EVIDENCE, PROOFS AND ARGUMENTS, AND ON DISCOVERY ISSUES. THE NEUTRAL ARBITRATOR
SHALL LIMIT THE SCOPE OF DISCOVERY TO MATTERS RELEVANT TO THE ISSUES IN QUESTION
AND SHALL ESTABLISH REASONABLE TIME LIMITS WITHIN WHICH PARTIES TO THE
ARBITRATION MUST COMMENCE AND COMPLETE DISCOVERY. IN ALL OTHER MATTERS, THE ACT
OR DECISION OF AT LEAST TWO OF THE ARBITRATORS SHALL BE THE ACT OF THE
ARBITRATORS. THE ARBITRATORS, BY A VOTE OF AT LEAST TWO OF THEM, MAY PROVIDE
THAT THE HEARING OF EVIDENCE AND ARGUMENT SHALL TAKE PLACE ONLY BEFORE THE
NEUTRAL ARBITRATOR.
THE ARBITRATORS SHALL MAKE A FINAL DECISION AND AWARD, BY THE
CONCURRENCE OF AT LEAST TWO OF THEM, IN A WRITING SIGNED BY AT LEAST TWO OF
THEM. THE ARBITRATORS SHALL HAVE AUTHORITY ONLY TO GRANT SPECIFIC PERFORMANCE
AND TO ORDER OTHER EQUITABLE RELIEF AND TO AWARD COMPENSATORY DAMAGES, BUT SHALL
NOT HAVE THE AUTHORITY TO AWARD PUNITIVE DAMAGES OR OTHER NONCOMPENSATORY
DAMAGES. THE ARBITRATORS SHALL AWARD TO THE PREVAILING PARTY ITS REASONABLE
ATTORNEYS' FEES AND COSTS AND OTHER EXPENSES INCURRED IN THE ARBITRATION, EXCEPT
THAT THE PARTIES SHALL SHARE EQUALLY THE FEES AND EXPENSES OF THE NEUTRAL
ARBITRATOR AND EACH PARTY SHALL PAY THE FEES AND EXPENSES OF THE PARTY
ARBITRATOR SELECTED BY SUCH PARTY. THE ARBITRATORS' DECISION AND AWARD SHALL BE
FINAL AND BINDING AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATORS MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
NO DISPUTE WHICH IS REQUIRED TO BE ARBITRATED UNDER THIS ARTICLE 13
SHALL BE THE SUBJECT OF ANY ACTION IN COURT OR OTHER TRIBUNAL THAN THE
ARBITRATION PROCEDURE CONTEMPLATED HEREBY, EXCEPT A JUDICIAL PROCEEDING TO
REQUIRE ARBITRATION OR TO RECORD, REDUCE TO JUDGMENT, OR ENFORCE AN AWARD MADE
IN THE ARBITRATION PROCEDURE CONTEMPLATED HEREBY. IF ANY PARTY FILES A JUDICIAL
OR ADMINISTRATIVE ACTION ASSERTING CLAIMS SUBJECT TO ARBITRATION AS PRESCRIBED
26
HEREIN, AND ANOTHER PARTY SUCCESSFULLY OPPOSES SUCH ACTION OR COMPELS
ARBITRATION OF SAID CLAIMS, THE PARTY FILING SAID ACTION SHALL PAY THE OTHER
PARTY'S COSTS AND EXPENSES INCURRED IN OPPOSING SUCH ACTION OR COMPELLING SUCH
ARBITRATION, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES.
NOTICE: BY INITIALLING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS "ARBITRATION OF
DISPUTES" PROVISION DECIDED BY ARBITRATION AS PROVIDED ABOVE AND YOU ARE GIVING
UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR TO
HAVE A JURY TRIAL. BY INITIALLING IN THE SPACE BELOW YOU ARE GIVING UP YOUR
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. IF YOU REFUSE TO SUBMIT TO ARBITRATION
AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE LAW. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS
VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION
TO ARBITRATION AS SET FORTH IN THAT PROVISION.
Timber Co. Initials: __________ Xxxxxxxx-Xxxxx Initials: __________
ARTICLE 14
----------
Assignment
----------
14.1 Assignment Prohibited. Except as otherwise expressly permitted under
---------------------
Section 14.2 or Section 14.3, neither Timber Co. nor Xxxxxxxx-Xxxxx shall,
either voluntarily or by operation of law, assign or transfer this Agreement or
any rights hereunder or interest herein, or agree to do so (each of the
foregoing defined herein as a "Transfer"), without the express prior written
consent of the other party, which consent such other party may grant or withhold
in its sole discretion. Any Purported Transfer (whether voluntary or
involuntary, by operation of law or otherwise) without the consent of the other
party shall, at the option of such other party, be void and/or constitute an
Event of Default under this Agreement.
27
14.2 Exception for Assignment to Corporate Successor. Upon and subject to
-----------------------------------------------
the terms and conditions of this Section 14.2, either party (a "transferor") may
assign or transfer all, but not less than all, of its right, title and interest
in, to and under this Agreement and all of its obligations under this Agreement,
without the consent of the other party to this Agreement, to any of the
following (each a "Corporate Successor"): any corporation or entity Controlled
by the transferor, or to the surviving corporation or entity in the event of a
consolidation or merger of the transferor into such surviving corporation or
entity, or to a transferee as part of a transfer of all or substantially all of
the assets of the transferor (such assignment or transfer being a "Transfer");
provided that, in any such case, (i) in the case of a Transfer by Xxxxxxxx-
Xxxxx, the transferee shall, simultaneously with such Transfer, acquire all of
the Timberlands subject to the Harvest Plan, (ii) the transferee shall assume,
in a writing reasonably satisfactory to the non-transferring party, all of the
obligations of the transferor under this Agreement, and (iii) the transferor
shall pay all costs and expenses in connection with the Transfer, including,
without limitation, all fees and expenses incurred by the non-transferring
party.
14.3 Partial Assignment by Timber Co. Permitted. (a) Timber Co. shall
------------------------------------------
have the right, from time to time, to assign to any Person or Persons the right
to harvest during the Term any portion of the Timber specified to be harvested
in the Harvest Plan for such Term, provided that: (i) the assignee shall comply
with all of the terms and provisions of this Agreement applicable to the
assigned rights; and (ii) no such assignment shall reduce or otherwise modify
the primary obligations of Timber Co. under this Agreement.
ARTICLE 15
----------
Condemnation
------------
15.1 Effect of Condemnation. In the event any portion of the Timberlands
----------------------
subject to the Harvest Plan is taken for public or quasi-public use in or by
reason of any condemnation proceeding or proceedings in eminent domain, this
Agreement shall terminate as to the portion so taken effective upon transfer of
title pursuant to such taking, and Xxxxxxxx-Xxxxx will, subject to the
reasonable agreement of Timber Co., substitute a comparable Compartment or
Compartments.
28
15.2 Condemnation Award. Any award in any such proceedings, and any
------------------
payment in consideration of a voluntary transfer under threat of eminent domain,
with respect to the Timberlands or standing Timber on the Timberlands shall
belong to Xxxxxxxx-Xxxxx insofar as such award is based upon the value of the
property taken, except for awards for Timber the title to which has passed to
Timber Co. Any award in any such proceedings with respect to Timber the title
to which has passed to Timber Co., or with respect to the value of rights-of-way
and right of access under this Agreement, or with respect to good will lost or
expenses or losses incurred by Timber Co. shall belong to Timber Co.
15.3 Notice. Xxxxxxxx-Xxxxx shall promptly notify Timber Co. in writing of
------
the commencement or threat deemed material by Xxxxxxxx-Xxxxx of any condemnation
proceeding or proceedings in eminent domain.
ARTICLE 16
----------
Notices
-------
16.1 Notices. Any notice or other communications required to be made in
-------
writing pursuant hereto shall be effective only if in writing. Notices shall be
delivered to the party's address set forth below, or to such other address as
such party may specify by written notice in accordance with this Section 16.1,
by United States mail with postage thereon fully prepaid, or by a recognized
commercial delivery service, or by facsimile transmission:
If to Timber Co: 0000 X. Xxxxxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx Xxxx
Facsimile No.: (000) 000-0000
If to Xxxxxxxx-Xxxxx: 0000 X. Xxxxxx Xx.
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx Xx.
Facsimile No.: (000) 000-0000
29
ARTICLE 17
----------
Miscellaneous
-------------
17.1 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto, and to their respective successors
in interest and assigns permitted hereunder, and wherever reference in this
Agreement is made to either of the parties hereto, such reference shall be
deemed to include, wherever applicable, also a reference to the successors and
permitted assigns of said party.
17.2 No Agency or Fiduciary Relationship. It is understood and agreed that
-----------------------------------
Timber Co. and Xxxxxxxx-Xxxxx are independent entities; and that all operations
of Timber Co. hereunder shall be performed entirely for Timber Co.'s account and
not as an agent, representative, employee or contractor of Xxxxxxxx-Xxxxx; and
that all operations of Xxxxxxxx-Xxxxx hereunder shall be performed entirely for
Xxxxxxxx-Xxxxx'x account and not as an agent, representative, employee or
contractor of Timber Co. Nothing in this Agreement shall be construed as
creating any partnership or other fiduciary relationship between Timber Co. and
Xxxxxxxx-Xxxxx.
17.3 No Third-Party Beneficiaries. No Person other than Timber Co. and
----------------------------
Xxxxxxxx-Xxxxx shall have any rights under this Agreement. Timber Co. and
Xxxxxxxx-Xxxxx do not intend that any other Person shall be a third-party
beneficiary of this Agreement or any covenant, condition or provision herein.
17.4 Attorneys' Fees. If Xxxxxxxx-Xxxxx or Timber Co. shall bring suit or
---------------
take any other action against the other party to compel performance of or to
recover for breach of any covenant, agreement or condition of this Agreement, or
for declaratory relief, or to otherwise enforce its rights hereunder, the losing
party shall pay to the prevailing party its reasonable attorneys' fees in
addition to the amount of any judgment and costs (including attorneys' fees and
costs in any appeal), and the breaching party shall pay to the nonbreaching
party its reasonable attorney's fees and other costs incurred in connection with
any enforcement action which does not involve rendering a judgment, including,
without limitation, in connection with any bankruptcy or insolvency proceeding
involving the breaching party.
17.5 Entire Agreement. This Agreement, including all Appendices, Exhibits
----------------
and Schedules attached hereto, and the Harvest Plan in effect from time to time,
together with any other agreements or documents expressly incorporated herein
30
or therein by reference, shall constitute the entire and integrated agreement
among the parties with respect to the subject matter hereof; and all prior
negotiations, understandings, agreements and instruments with respect to such
subject matter are hereby superseded and shall be of no force and effect.
17.6 Amendments; Waiver. Neither this Agreement nor any of the terms
------------------
hereof may be terminated, amended, supplemented, waived or modified orally, but
only by an instrument in writing signed by the party against which the
enforcement of the termination, amendment, supplement, waiver or modification
shall be sought. The failure of either party to object to or to assert any
remedy by reason of the other party's failure to perform or observe any covenant
or term hereof or the failure of either party to assert any rights by reason of
the happening or non-happening of any condition hereof shall not be deemed a
waiver of any right to assert and enforce any remedy arising by reason of such
failure or the happening or non-happening of such condition or a waiver of any
rights arising from any subsequent failure of such other party to perform or
observe the same or any other term or covenant or by reason of the subsequent
happening or non-happening of the same or any other condition. No custom or
practice which may develop between the parties hereto during the Term shall be
deemed a waiver of, or in any way affect, the right of the parties hereto to
insist upon performance in strict accordance with the terms hereof.
17.7 Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the laws of the State of Mississippi applicable to agreements
made and to be performed entirely within that state, including all matters of
construction, validity and performance.
17.8 Counterparts. This Agreement and any amendments, supplements or
------------
modifications hereof may be executed in more than one counterpart each of which
shall be deemed to be an original but all of which taken together shall be
deemed a single instrument.
17.9 Partial Invalidity. In the event that any provision of this Agreement
------------------
shall for any reason be determined to be invalid, illegal, or unenforceable in
any respect, the parties hereto shall attempt in good faith to agree to such
amendments, modifications, or supplements to this Agreement and take such other
appropriate actions as shall, to the maximum extent practicable in light of such
determination, implement and give effect to the intentions of the parties as
reflected herein. The provisions of this Agreement not so affected shall remain
in full force and effect.
31
17.10 Further Assurances. Timber Co. and Xxxxxxxx-Xxxxx further covenant to
------------------
cooperate with one another in all reasonable respects necessary to consummate
and give effect to the transactions contemplated by this Agreement (including
executing and delivering such instruments or other writings as the other party
may reasonably request), and each will take all reasonable actions within its
authority to secure cooperation of any necessary third parties.
17.11 Headings. The headings of the sections of this Agreement are for
--------
convenience of reference only and shall not affect the meanings or construction
of any provision of this Agreement.
17.12 Jurisdiction and Venue. EACH PARTY HEREBY IRREVOCABLY AND
----------------------
UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT
OF ANY JUDGMENT IN RESPECT THEREOF, INCLUDING, WITHOUT LIMITATION, ENTRY OF
JUDGMENT UPON ANY AWARD RENDERED BY ARBITRATORS IN ACCORDANCE WITH THIS
AGREEMENT, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE
STATE OF MISSISSIPPI, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE
DISTRICT OF MISSISSIPPI, AND APPELLATE COURTS FROM ANY THEREOF;
(b) WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE THAT ANY
SUCH ACTION OR PROCEEDING WAS BROUGHT IN ANY INCONVENIENT COURT;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL
(OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH PARTY
AT ITS ADDRESS FOR NOTICES PURSUANT TO SECTION 16.1;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT THE
SERVICE OF PROCESS IN ANY
32
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION; AND
(e) WAIVES TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
33
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
XXXXXXXX-XXXXX TIMBER COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
------------------------------
Title: Vice President
XXXXXXXX-XXXXX COMPANY
By: /s/ X. X. Xxxxxx, Xx.
-----------------------------
Title: Treasurer
34
APPENDIX A
----------
Defined Terms
-------------
"AAA" shall have the meaning given in Article 13.
---
"Access Rights" shall have the meaning given in Section 8.4.
-------------
"Agreement" shall mean this Timber Harvest Agreement, including all
---------
Exhibits and Appendices attached hereto and the Harvest Plan, as the same may be
amended, modified or supplemented from time to time.
"Agreement Purposes" shall have the meaning given in Section 1.1.
------------------
"Xxxxxxxx-Xxxxx" shall mean Xxxxxxxx-Xxxxx Company and any Person who
--------------
may succeed to its rights and obligations under this Agreement.
"Xxxxxxxx-Xxxxx Event of Default" shall have the meaning given in
-------------------------------
Section 12.2.
"Xxxxxxxx-Xxxxx Indemnified Parties" shall have the meaning given in
----------------------------------
Section 7.7.
"Applicable Law" shall mean, as to any Person, all laws (statutory or
--------------
common), treaties, rules, regulations, determinations, orders, judgments,
ordinances, decrees, injunctions, writs, interpretations or Governmental
Approvals, in each case applicable to or binding on such Person or any of its
property or to which such Person or any of its property is subject.
"Best's Rating" shall mean the rating assigned to an insurer from time
-------------
to time as published in A. M. Best Company, Inc.'s insurance reports, or in the
event such reports cease to be published, the rating in an alternative generally
recognized insurance company rating report which would be equivalent to a Best's
rating.
"Block" shall mean the geographic area in which Xxxxxxxx-Xxxxx owns
-----
Timberlands which Xxxxxxxx-Xxxxx has identified as such in the past, which area
constitutes a distinct forest management area.
35
"Code" shall have the meaning given in the Preamble hereto.
----
"Commencement Date" shall have the meaning given in Section 3.3.
-----------------
"Compartment" shall mean a Timber-growing site of approximately 160
-----------
acres on which the growing conditions (such as soil composition, drainage,
aspect, elevation, etc.) are of general uniformity, such that the site is an
appropriate forest management unit.
"Controlling Interest" shall mean a direct or indirect beneficial
--------------------
ownership interest in any Person which confers upon the holder thereof Control
of such Person.
"Control," "Controlled" and "Controlling" shall mean (i) as to a
------- ---------- -----------
corporation, direct or indirect beneficial ownership of 50% or more of the
aggregate voting power of the voting securities of such corporation, (ii) as to
a partnership, direct or indirect beneficial ownership of a Controlling Interest
of a general partner of such partnership, and (iii) as to a partnership, limited
liability company or other entity, the direct or indirect beneficial ownership
of 50% or more of the voting power of the ownership interests in such entity.
"Corporate Successor" shall have the meaning given in Section 14.2.
-------------------
"Costs of Log and Haul" means, with respect to any shipment of a
---------------------
Product harvested and delivered under this Agreement, the actual costs incurred
by Timber Co. (whether out-of-pocket costs or internal costs of Timber Co. for
personnel and equipment) in logging and transporting such Product to the mill
where it is to be processed, including, without limitation, all costs of
personnel, equipment, fuel, licenses and taxes (including yield taxes or sales
taxes which Timber Co. is required to pay in accordance with Section 6.6(b))
incurred in obtaining access to the logging site; transporting logging equipment
to and from the logging site; preparing the logging site for logging operations;
felling, delimbing and bucking Timber; skidding logs to a sorting and staging
area; sorting logs for transport; loading logs onto logging trucks; performing
road repairs and maintenance; completing post-harvest operations at the logging
site; transporting logs to a destination mill; and supervising the work of
contractors. Notwithstanding the foregoing, Costs of Log and Haul shall not
include any amount incurred for any work to the extent such amount is in excess
of the reasonable cost (under applicable market conditions) for the same work
(but Timber Co. shall not be required to accept a low bid for work if Timber Co.
believes a higher bid will provide a better value due to greater reliability,
trustworthiness, efficiency or
36
skill of the higher bidder). Any item of Costs of Log and Haul which relate to
multiple shipments of Products shall be fairly allocated among those shipments.
"Default Rate" shall have the meaning given in Section 6.3(b).
------------
"Environmental Laws" shall mean any and all federal, state and local
------------------
laws, regulations, ordinances, codes and policies, and any and all judicial or
administrative interpretations thereof by governmental authorities relating to
pollution or protection of the environment, of natural resources, of wildlife or
of public health and safety, including, without limitation, those relating to
emissions, discharges, releases or threatened releases of Hazardous Materials
into the environment, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, release, transport or handling
of Hazardous Materials, and any and all orders and decrees pursuant thereto.
"Event of Default" shall mean an Xxxxxxxx-Xxxxx Event of Default or a
----------------
Timber Co. Event of Default.
"Excused Party" shall have the meaning given in Section 11.1.
-------------
"Expiration Date" shall have the meaning given in Section 3.3.
---------------
"Fiber Categories" shall mean, collectively, Hardwood Merchantable
----------------
Sawtimber, Hardwood Merchantable Pulpwood, Softwood Merchantable Sawtimber and
Softwood Merchantable Pulpwood.
"Force Majeure" shall have the meaning given in Section 11.1.
-------------
"Governmental Approvals" shall mean all consents, rights, exemptions,
----------------------
concessions, permits, easements, rights of way, licenses, authorizations,
certificates, orders, franchises, determinations or other approvals of or
notices to or filings with any Governmental Authority.
"Governmental Authority" shall mean any governmental department,
----------------------
commission, board, regulatory authority, bureau, legislative body, agency, or
any instrumentality of any federal, state, local or municipal government or
domestic court.
37
"Hardwood" shall mean Timber of those species, commonly referred to as
--------
"hardwood," which are deciduous and have broad leaves (such as oak, cottonwood,
hackberry, sweet gum, ash, sycamore, willow, poplar and hickory).
"Harvest Plan" shall have the meaning set forth in Section 5.1.
------------
"Harvest Plan Data Sheet" shall have the meaning given in Section
-----------------------
5.1(a).
"Harvest Plan Summary" shall have the meaning given in Section 5.1(b).
--------------------
"Hazardous Materials" shall mean substances which are explosive,
-------------------
corrosive, radioactive or toxic and any substances defined as hazardous
substances, hazardous materials, toxic substances, toxic air contaminants or
hazardous wastes under federal, state or local laws or regulations, including
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. (S) 9601 et seq.), the Superfund Amendments and
-- ----
Reauthorization Act of 1986 (Pub. L. 99-499, 100 Stat. 1617 (October 17,
1986)), and all amendments to these laws and regulations adopted or publications
promulgated pursuant to these laws. Hazardous Materials shall also include,
without limitation, those asbestos-containing materials defined and described in
Environmental Protection Agency Report No. 560/5-85-024 (June 1985), or any
related or successor report, or other applicable government regulations defining
or describing such materials.
"Market Stumpage Price" shall have the meaning given in Section
---------------------
6.2(b).
"MBF" shall mean one thousand (1000) board feet, and a board foot is a
---
standard unit of measure for Timber, logs and lumber equal to a board one foot
(1') wide, one foot (1') long and one inch (1") thick.
"Merchantable Pulpwood" shall mean wood fiber other than Merchantable
---------------------
Sawlogs which, under Industry Practice, is saleable for use as raw materials in
the manufacturing of fiberboard, oriented strandboard, paper products or other
processed wood products.
"Merchantable Sawlog" shall mean, generally, a log of suitable size
-------------------
and quality for the production of lumber as determined in accordance with
Industry Practice.
38
"Merchantable Timber" shall mean Timber that will produce at least one
-------------------
(1) Merchantable Sawlog or Merchantable Pulpwood.
"Monthly Logging Report" shall have the meaning given in Section 6.5.
----------------------
"Monthly Payment" shall have the meaning set forth in Section 6.3(a).
---------------
"Permitted Exceptions" shall have the meaning given in Section 8.1(a).
--------------------
"Person" shall mean an individual, a partnership, a limited liability
------
company, a corporation, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental entity (or any department, agency
or political subdivision thereof).
"Prime Rate" shall mean the publicly announced prime rate or reference
----------
rate charged on the relevant date by the Memphis Office of NationsBank (or any
successor bank thereto), or if there is no such publicly announced rate, the
rate quoted by such bank in pricing ninety (90) day commercial loans to
substantial commercial borrowers.
"Product" shall mean a subcategory of a Fiber Category which, as of
-------
the relevant time, has a distinct Market Stumpage Price based on its species,
size, quality or other characteristics. For example, two Merchantable Sawlogs
of the same species may have different prices per board foot based on their
different diameters; each would constitute a distinct Product. Conversely, two
Merchantable Pulpwood logs of different diameters and different species would
constitute a single Product if they would realize the same price per ton. A
single log may consist of multiple Products (e.g., the small end may be of
insufficient diameter to constitute a Merchantable Sawlog, but may constitute
Merchantable Pulpwood).
"Prudent Logging Practices" shall mean those practices, procedures,
-------------------------
methods, specifications and standards, including, but not limited to, best
management practices as may be required by applicable law, as the same may
change from time to time, as are commonly utilized by experienced and competent
loggers of timberlands of significant size in the applicable Resource Region as
good, safe and prudent logging practices.
"Site Marking" shall have the meaning given in Section 5.5.
------------
39
"Softwood" shall mean Timber of those species, commonly referred to as
--------
"softwood," which are conifers and generally nondeciduous, such as firs, pines,
spruce and cedar.
"Term" shall have the meaning given in Section 3.3.
----
"Timber" shall mean a tree or trees standing uncut in the xxxxx and
------
which is more than six years old.
"Timber Co." shall mean Xxxxxxxx-Xxxxx Timber Co., a Mississippi
----------
corporation, and any Person who may succeed to its rights and obligations under
this Agreement.
"Timber Co. Event of Default" shall have the meaning given in Section
---------------------------
12.1.
"Timber Co. Indemnified Parties" shall have the meaning given in
------------------------------
Section 4.2.
"Timberlands" shall mean the Timber-growing property from time to time
-----------
owned or leased by Xxxxxxxx-Xxxxx and a portion of which is subject to the
Harvest Plan and accordingly is subject to this Agreement. Such Timberlands
consist in the aggregate of approximately 328,000 acres along the Mississippi
River between Louisiana and Southern Illinois, and are more precisely described
on Exhibit A hereto.
"Transfer" shall have the meaning given in Section 14.2.
--------
40
