Contract
10.2
First Amendment dated as of September 14, 2009 to the $1,200,000,000 Competitive
Advance and Revolving Credit Facility Agreement, dated as of December 19,
2006
FIRST
AMENDMENT
FIRST AMENDMENT, dated as of September
14, 2009 (this “Amendment”), to the
$1,200,000,000 Competitive Advance and Revolving Credit Facility Agreement,
dated as of December 19, 2006 (the “Credit Agreement”),
among Weyerhaeuser Company, a Washington corporation (“Weyerhaeuser”),
Weyerhaeuser Real Estate Company, a Washington corporation (“WRECO”, together with
Weyerhaeuser, the “Borrowers”), JPMorgan
Chase Bank, N.A., a national banking association (“JPMorgan Chase Bank”)
and Citibank, N.A., a national banking association (“Citibank”), as
initial fronting banks, JPMorgan Chase Bank and Citibank, as swing line banks,
JPMorgan Chase Bank, as administrative agent (the “Administrative
Agent”), Citibank, as syndication agent, Bank of America, N.A., Deutsche
Bank Securities Inc. and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as
documentation agents, Xxxxxx Xxxxxxx Bank, as co-documentation agent, and the
lenders named therein (the “Lenders”).
WITNESSETH
WHEREAS, pursuant to the Credit
Agreement, the Lenders have agreed to make, and have made, certain loans and
other extensions of credit to the Borrowers;
WHEREAS, the Borrowers have requested
that certain provisions of the Credit Agreement be amended as set forth herein;
and
WHEREAS, the Required Lenders are
willing to agree to such amendments on the terms set forth herein.
NOW, THEREFORE, in consideration of the
premises and mutual covenants contained herein, the parties hereto agree as
follows:
SECTION
1. Defined
Terms.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Credit Agreement.
SECTION
2. Reduction of
Commitments. The
Commitment of each Lender is hereby automatically reduced on the Effective Date
(as defined below) to the amount set forth opposite such Lender’s name on Schedule 1.01
attached hereto.
SECTION
3. Removal
of WRECO as a Borrower. As of the Effective Date,
notwithstanding anything to the contrary in the Credit Agreement, (a) WRECO
shall cease to be a Borrower thereunder and the Lenders shall not have any
obligation to make Loans to WRECO and (b) all references to the “Borrower” and
“Borrowers” (and any related provisions) in the Credit Agreement shall be
construed accordingly.
SECTION
4. Amendments. (a) Section
1.01 of the Credit Agreement is hereby amended as of the Effective Date by
replacing the reference to the amount “$1,200,000,000” set forth in the
definition of “Total Commitment” with “$400,000,000”.
(b) Section
2.04(a) of the Credit Agreement is hereby amended as of the Effective Date by
deleting the table therein in its entirety and inserting in lieu thereof the
following table:
“
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S&P:
Xxxxx’x:
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Level 1
A- or better
A3 or better
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Xxxxx 0
XXXx
Xxx0
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Xxxxx 3
BBB
Baa2
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Xxxxx 0
XXX-
Xxx0
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Xxxxx 5
Below BBB-
Below Baa3
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|||||||||||||||
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Facility
Fee
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0.15 | % | 0.175 | % | 0.20 | % | 0.25 | % | 0.30 | % | ||||||||||
”
(c)
Section 2.06(d) of the Credit Agreement is hereby amended as of the Effective
Date by deleting the table therein in its entirety and inserting in lieu thereof
the following table:
“
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S&P:
Xxxxx’x:
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Level 1
A- or better
A3 or better
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Xxxxx 0
XXXx
Xxx0
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Xxxxx 3
BBB
Baa2
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Xxxxx 0
XXX-
Xxx0
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Xxxxx 5
Below BBB-
Below Baa3
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|||||||||||||||
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Eurodollar
Loan:
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1.35 | % | 1.575 | % | 1.80 | % | 2.00 | % | 2.20 | % | ||||||||||
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Base
Rate Loan:
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0.35 | % | 0.575 | % | 0.80 | % | 1.00 | % | 1.20 | % | ||||||||||
”
(d)
Section 6.01 of the Credit Agreement is hereby amended as of the Effective Date
by deleting the existing paragraph (e) in its entirety and inserting in lieu
thereof the following new paragraph (e):
“(e) Net
Worth. At any time permit Weyerhaeuser’s Total Adjusted
Shareholders’ Interest to be less than $3,000,000,000. ”
SECTION 5. Conditions
to Effectiveness of Amendment. This
Amendment shall become effective on the date on which the following conditions
precedent have been satisfied or waived (the “Effective
Date”):
(a) The
Administrative Agent shall have received a counterpart of this Amendment,
executed and delivered by a duly authorized officer of each of (i) the Borrowers
and (ii) the Required Lenders.
(b) The
Administrative Agent shall have received payment of all fees, as well as
expenses for which invoices have been presented on or before the date hereof,
which are required to be paid in connection with this Amendment.
(c) The
conditions precedent to the amendment dated the date hereof to the Borrowers’
$1.0 Billion Competitive Advance and Revolving Credit Facility Agreement (the
“$1.0 Billion Credit
Agreement”), dated as of December 19, 2006, among Weyerhaeuser, WRECO,
JPMorgan Chase Bank and Citibank, as initial fronting banks, JPMorgan Chase Bank
and Citibank, as swing line banks, JPMorgan Chase Bank, as administrative agent,
Citibank, as syndication agent, Bank of America, N.A., Deutsche Bank Securities
Inc. and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as documentation agents, Xxxxxx
Xxxxxxx Bank, as co-documentation agent, and the lenders named therein, shall
have been satisfied (other than the condition precedent that the conditions
precedent to this Amendment shall have been satisfied). Once
effective, such amendment will (i) reduce the amount of loans available to WRECO
as a borrower under the $1.0 Billion Credit Agreement from $400,000,000 to
$200,000,000, (ii) modify the net worth covenant contained in the $1.0 Billion
Credit Agreement in the same manner as set forth in this Amendment and (iii)
amend the facility fees and applicable margin under the $1.0 Billion Credit
Agreement in the same manner as set forth in this Amendment.
(d) No
Loans shall be outstanding to WRECO as a Borrower under the Credit
Agreement.
SECTION
6. Representations and
Warranties. The Borrowers
hereby represent and warrant that (a) each of the representations and warranties
contained in Article III of the Credit Agreement shall be, after giving effect
to this Amendment, true and correct in all material respects as if made on and
as of the Effective Date (unless such representations and warranties are stated
to relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier
date); provided, that each
reference to the Credit Agreement therein shall be deemed to be a reference to
the Credit Agreement after giving effect to this Amendment and (b) after giving
effect to this Amendment, no Default or Event of Default shall have occurred and
be continuing.
SECTION
7. Effects
on Credit Documents. (a)
Except as specifically amended herein, all Loan Documents shall continue to be
in full force and effect and are hereby in all respects ratified and
confirmed.
(b) The
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of any Lender or the Administrative Agent
under any of the Loan Documents, nor constitute a waiver of any provision of the
Loan Documents.
SECTION
8. GOVERNING LAW; WAIVER OF
JURY TRIAL. THIS AMENDMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. EACH PARTY HERETO HEREBY AGREES AS SET FORTH FURTHER IN
SECTIONS 9.07 AND 9.11 OF THE CREDIT AGREEMENT AS IF SUCH SECTIONS WERE SET
FORTH IN FULL HEREIN.
SECTION 9. Amendments; Execution in
Counterparts. (a)
This Amendment shall not constitute an amendment of any other provision of the
Credit Agreement not referred to herein and shall not be construed as a waiver
or consent to any further or future action on the part of the Borrowers that
would require a waiver or consent of the Required Lenders or the Administrative
Agent. Except as expressly amended hereby, the provisions of the
Credit Agreement are and shall remain in full force and effect.
(b) This
Amendment may not be amended nor may any provision hereof be waived except
pursuant to a writing signed by the Borrowers, the Administrative Agent and the
Required Lenders. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts,
including by means of facsimile or electronic transmission, each of which when
so executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
[Remainder
of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be duly executed and delivered by their respective
proper and duly authorized officers as of the day and year first above
written.
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WEYERHAEUSER
COMPANY
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By:
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Name:
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Title:
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WEYERHAEUSER
REAL ESTATE COMPANY
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By:
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A., as Administrative
Agent
and as a Lender
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By:
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Name:
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Title:
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[ ]
as a Lender
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By:
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Name:
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Title:
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Schedule
1.01
Commitments
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Name of Lender
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Revolving Credit
Commitment
|
|||
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JPMorgan
Chase Bank, N.A.
|
$ | 32,727,272.73 | ||
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Xxxxxx
Xxxxxxx Bank, N.A.
|
$ | 32,727,272.73 | ||
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Citibank,
N.A.
|
$ | 32,727,272.73 | ||
|
Deutsche
Bank AG New York Branch
|
$ | 28,727,272.73 | ||
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Bank
of America, N.A.
|
$ | 28,727,272.73 | ||
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The
Bank of Tokyo-Mitsubishi UFJ, Ltd.
|
$ | 28,727,272.73 | ||
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The
Bank of Nova Scotia
|
$ | 22,727,272.73 | ||
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CIBC
Inc.
|
$ | 22,727,272.73 | ||
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Xxxxxxx
Street Commitment Corp
|
$ | 22,727,272.73 | ||
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Wachovia
Bank, N.A.
|
$ | 16,363,636.36 | ||
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The
Royal Bank of Scotland plc
|
$ | 16,363,636.36 | ||
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PNC
Bank, National Association
|
$ | 16,363,636.36 | ||
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The
Bank of New York Mellon
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$ | 15,454,545.46 | ||
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CoBank,
ACB
|
$ | 12,909,090.90 | ||
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Xxxxx
Fargo Bank, N.A.
|
$ | 9,090,909.09 | ||
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Royal
Bank of Canada
|
$ | 9,090,909.09 | ||
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Sumitomo
Mitsui Banking Corporation
|
$ | 9,090,909.09 | ||
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Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A. “Rabobank International”
New York Branch |
$ | 9,090,909.09 | ||
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Fortis
Capital Corp.
|
$ | 6,363,636.36 | ||
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U.S.
Bank National Association
|
$ | 6,363,636.36 | ||
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Mizuho
Corporate Bank, Ltd.
|
$ | 6,363,636.36 | ||
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Westpac
Banking Corporation
|
$ | 6,363,636.36 | ||
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Australia
and New Zealand Banking Group Limited
|
$ | 6,363,636.36 | ||
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AgFirst
Farm Credit Bank
|
$ | 1,818,181.82 | ||
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TOTAL
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$ | 400,000,000 | ||
