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EXHIBIT 10.20
TIMBER PURCHASE AGREEMENT
By this Agreement, executed as of the ____ day of June, 1999, FRONTIER
RESOURCES, LLC ("Frontier"), an Oregon Limited Liability Company, and PIONEER
RESOURCES, LLC ("Pioneer"), an Oregon limited liability company, agree as
follows:
1. PURCHASE AND SALE. Frontier hereby purchases from Pioneer and
Pioneer hereby sells to Frontier "the Timber" (as defined in Section 2, below)
on the real property described on Exhibits A-1 (the "First Property") and A-2
(the "Second Property") attached hereto, which is approximately 15,080 acres
situated in Wheeler, Morrow, Umatilla and Grant Counties, Oregon and Columbia
County Washington. The First Property and the Second Property are herein
collectively referred to as "the Premises".
2. THE TIMBER. The term "the Timber" shall mean the merchantable
timber standing or lying on the Premises during the term of this Agreement which
is included in the following description:
2.1 VOLUME. 18,000 MBF (the "Volume"), net short log Xxxxxxxx
scale, to be designated with blue paint by Pioneer from the timber located on
the Premises. Pioneer agrees to first designate the Timber on the First Property
and shall only designate Timber on the Second Property if the Volume cannot
reasonably be designated on the First Property. Pioneer agrees to designate the
Timber in an orderly and timely fashion so as to not unreasonably interfere or
delay the harvest and removal of the Timber by Frontier.
2.2 SPECIES. Ponderosa xxxx, Xxxxxxx fir, western larch, white
fir, Xxxxxxxxx spruce, and lodgepole pine.
2.3 SIZE. For standing trees, tree segments which will produce
a 16' log to a minimum 6" top, inside bark diameter. For down trees, tree
segments which will produce an 8' log to a minimum 6" top, inside bark diameter.
3. PRICE. The purchase price for the Timber is Four Million
Thirty Three Thousand Nine Hundred Eighty Dollars ($4,033,980) (the "Purchase
Price"). Frontier shall account for and report to Pioneer, in accordance with
Sections 6 and 7 of this Agreement, all volumes of the Timber harvested from the
Premises and all volumes of timber in excess of the Volume harvested from the
Premises. Frontier shall pay Pioneer, in addition to said purchase price, the
following stumpage price for any excess volumes of timber incidentally cut or
removed by Frontier: $288/MBF, net short log Xxxxxxxx scale, all species, camp
run. Title to and risk of loss shall remain with Pioneer for any volume in
excess of the Volume until the timber is severed from the
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xxxxx. However, nothing in the three preceding sentences shall be construed to
allow Frontier to cut or remove any volume of timber substantially in excess of
the volume set forth in Section 2.1, above, or unilaterally to make any material
variance in the logging plan approved by Pioneer pursuant to the provisions of
Section 12.2, below.
4. REMOVAL SCHEDULE. Subject to unusual weather conditions or
other events of force majeure, Frontier will use its best efforts to complete
harvest and removal of the Timber not later than March 31, 2002. Frontier will
promptly notify and confer with Pioneer as soon as Frontier knows of
circumstances that may prevent compliance with the schedule set forth above.
Notwithstanding any such unusual weather conditions or other events of force
majeure, the period within which Frontier shall be required to harvest and
remove the Timber shall not extend beyond December 31, 2002.
5. TERMS OF PAYMENT.
5.1 On execution of this Agreement, Frontier will pay to
Pioneer the Purchase Price. Upon receipt of the Purchase Price, Pioneer shall
deliver to Frontier the timber deeds in the form attached hereto as Exhibits B-1
and B-2 (collectively the "Timber Deeds") and all other documents reasonably
requested by Frontier to effect the intent of this Agreement.
5.2 If, for any reason, the volume of merchantable logs
removed from the Premises is less than the Volume, the purchase price shall not
be adjusted and no portion thereof shall be refundable or rebatable, it being
understood and agreed that Frontier shall have all risk with respect to existing
and future volumes of timber on the Premises and all risk of loss except as set
forth in Section 3 above.
5.3 Unless directed otherwise in writing, Frontier shall make
payments to Pioneer at its address set forth in this Agreement for the purpose
of providing notice.
6. UTILIZATION STANDARDS. Frontier shall remove from the Premises
any merchantable log manufactured from severed timber. Merchantable logs shall
be those logs containing 10 board feet or more of sound, usable wood, and having
a minimum log diameter of 6" inside the bark at the small end and having a
minimum of 8 feet in length. Any log containing less than one-third net
merchantable volume that is inadvertently transported to a log yard shall be the
property of Frontier, but Frontier shall have no obligation to pay for such
culls.
7. SCALING.
7.1 All loads shall be weighed at Frontier log yards, or those
of an affiliate of Frontier, with a scale ticket that notes gross, tare, and net
weights. All mixed species loads will be 100 percent rollout scaled. Loads
sorted by species shall be scaled one in five on a random basis to determine the
applicable board foot per pound conversion factor to be used to calculate
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the volume of those loads weighed, but not scaled. Scaling will follow the rules
and procedures identified under the U.S. Forest Service Handbook, FSH 2409.11,
and/or the "Official Rules" of the Columbia River Log Scaling and Grading
Bureau, January 1, 1982 Edition, Reprinted January 1, 1995. All scaling will be
done at the expense of Frontier, or an affiliate of Frontier, and through an
independent third party log scaling and grading bureau using one of the
above-identified procedures.
7.2 Frontier shall provide Pioneer monthly with copies of
volume reports showing the amount of Timber removed from the Premises during the
preceding month and the amount of any timber in excess of the Volume so removed.
Each such volume report shall be accompanied by payment from Frontier to Pioneer
for any such excess timber.
8. TERM.
8.1 Frontier shall have from the date hereof until March 31,
2002 (the "Termination Date"), to cut and remove the Timber from the Premises,
provided that in the case of an event of force majeure the Termination Date
shall be extended for the period of delay caused by such event of force majeure,
but in no event shall such Termination Date be extended beyond December 31,
2002. Thereafter, all right, title, and interest to the Timber shall revert to
Pioneer. Upon the expiration of the term of this Agreement or any earlier
termination of this Agreement, Frontier shall execute and deliver to Pioneer a
recordable termination and release of all rights, titles, interests, powers and
privileges of Frontier under this Agreement, in form and substance reasonably
acceptable to Pioneer.
8.2 Pioneer acknowledges that Frontier will finance all or a
portion of the purchase price with a secured loan (the "Loan") from First Union
National Bank, as agent ("First Union"). Should Frontier default in making
payments under the Loan to First Union pursuant to said secured loan, such that
First Union, by the terms of First Union's security agreement with Frontier
commences action to succeed to Frontier's rights under this Agreement, then and
only then the Termination Date shall be extended for the benefit of First Union
to the extent reasonably necessary to cut and remove the balance of the Timber
not yet cut and removed by Frontier from the Premises, but in any event not
later than September 30, 2003; provided, however, if First Union shall at any
time discontinue or abandon such action to succeed, then the extension pursuant
to this Section 8.2 shall be deemed to be rescinded and no longer effective.
"First Union" shall include any successor or assignee of First Union other than
Frontier or Xxxx Xxxxxx or any person or entity affiliated with or related to
Frontier or Xxxx Xxxxxx.
8.3 During the term of this Agreement as defined in Sections
8.1 and 8.2, above, Pioneer will not cut or remove any merchantable timber
standing on the Premises.
9. PIONEER'S TITLE. Pioneer hereby warrants that it has not
granted or created any liens, claims, and encumbrances of any kind against the
Timber or the Premises since October 9,
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1998, except those specified on Exhibit C, attached hereto and by this reference
made a part hereof.
10. PASSAGE OF TITLE; RISK OF LOSS. Title to the Timber shall pass
to Frontier upon Pioneer's execution and delivery of the Timber Deed. Frontier
assumes all risk of loss, damage, or injury to the Timber by fire, windstorm,
pestilence, act of God, act of government or other casualty not caused by
Pioneer's negligence or intentional misconduct. Pioneer shall pay for and
maintain their normal aerial and ground fire patrol duties during the fire
seasons for which this contract remains in effect and shall lend their
assistance to the best of their capabilities should a fire occur.
11. TAXES. Pioneer shall pay all taxes levied against the
Premises, including fire patrol tax, during the term hereof, and Frontier shall
pay all taxes levied by reason of Frontier's harvest and removal of the Timber
and any excess timber, including without limitation, the harvest, severance and
privilege tax.
12. HARVEST PRACTICES. Frontier shall conduct its logging
operations on the Premises in an efficient, workmanlike manner, in accordance
with standard good logging practices as the same prevail in eastern Oregon and
pursuant to the provisions of the Oregon Forest Practices Act and in accordance
with the following special provisions:
12.1 Frontier shall at Frontier's expense perform all
requirements of the Oregon Forest Practices Act applicable to Frontier's
activity on the Premises, including filing and delivering all notices to the
State Forester required by the Oregon Forest Practices Act.
12.2 Frontier shall prepare a logging plan for each of the
operations listed in Exhibit A. These plans must be submitted to and approved by
Pioneer prior to commencement of any activity pursuant to this Agreement and
Pioneer shall not delay or withhold approval unreasonably. These plans shall
include, among other things, the names, addresses, and telephone numbers of the
logging contractor and his field representatives, type of logging equipment to
be used, roads to be used, and dates for cutting, yarding, hauling, and current
brush piling and cleanup operations. The plan shall conform to the terms of this
Agreement. A breach of any logging plan approved by Pioneer pursuant to this
Section shall be considered a breach of this Agreement.
12.3 Felling of merchantable trees shall be done so as to
minimize breakage and waste.
12.4 Frontier shall pay all costs of labor and materials and
shall keep the properties of Pioneer free from liens and encumbrances which
result from Frontier's activities on the Premises.
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12.5 Upon written notice to Frontier, Pioneer may temporarily
suspend Frontier's operations on certain portions of the Premises during periods
of extreme fire danger or whenever, in Pioneer's reasonable judgment, such
operations would likely cause excessive damage to lands, water quality, roads or
forest soils because of weather conditions during extreme wet periods. Such
notice from Pioneer pursuant to this Section 12.5 shall specify on which portion
of the Premises Frontier's operations are temporarily suspended and the specific
reasons for such suspension. The Termination Date shall be extended one day for
any portion of any day which Frontier's operations are suspended by Pioneer
pursuant to this Section 12.5.
12.6 Upon completion of all logging operations under this
Agreement, Frontier shall promptly remove all equipment, refuse, wire rope,
litter, scrap and trash brought onto the Premises or deposited along access
roads by Frontier, its agents, contractors or employees. All lunch-box garbage,
empty oil and grease containers, empty cans or anything of a non-biodegradable
nature shall be removed from the Premises on a daily basis.
12.7 Frontier shall be responsible for any trespass outside
the Premises boundary marked on the ground by Pioneer.
12.8 In the event any fuel oil, petroleum products, or other
hazardous wastes are deposited on any part of the Premises or along any access
roads as a result of any activities of Frontier or Frontier's contractors,
Frontier shall promptly notify Pioneer of such fact and shall also immediately
remove and clean up the same in full compliance with all provisions of State and
Federal law. Frontier shall defend, indemnify and save harmless Pioneer against
any and all losses, expenses, damages, claims, fines, charges, liens,
liabilities, actions, causes of action or proceedings of any kind relating to
the environmental condition of the Premises and arising directly or indirectly
out of or in connection with the acts or omissions of Frontier or any of its
agents, contractors or employees.
13. ROAD CONSTRUCTION, USE AND MAINTENANCE. Frontier agrees to and
shall comply with the following terms and provisions in constructing, using and
maintaining all logging roads:
13.1 Frontier shall have the right to build such temporary
roads upon the Premises as may be necessary to log the Premises. No road shall
be constructed, and no existing road shall be used, until such planned
construction or use has been disclosed to and approved by Pioneer as part of the
logging plan as provided in Section 12.2 above. In constructing any road,
Frontier shall abide by applicable State and Federal laws.
13.2 Pioneer shall be responsible for deferred maintenance
charges assessed under the Cooperative Maintenance Agreement with the US Forest
Service for any volume hauled over cost share roads. Frontier shall be
responsible for any other current maintenance or for paying for maintenance of
roads used in performing this Agreement except that if there are other users for
commercial hauling, performance of or payment for maintenance will be a
responsibility
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shared in proportion to use with such other users. Road maintenance shall
include keeping culverts, culvert catch basins, and ditches free of debris,
grading the road surface, and adding of rock to maintain road surface during
periods of log hauling. Within a reasonable period of time after termination of
log hauling, Frontier shall leave roads in a condition equal to or better than
existed prior to Frontier's logging and hauling operations except as otherwise
provided in this Section 13.2. Frontier shall pay all costs in connection with
maintenance work attributable to Frontier's use of the roads.
14. PRESERVATION OF SURVEY MONUMENTS. Should Frontier destroy or
damage any survey monuments on the Premises during Frontier's operations,
Frontier shall have the monuments replaced by a registered professional land
surveyor licensed in Oregon, and shall effect the appropriate filing of the
resurvey with the County Surveyor.
15. DAMAGE TO RESERVED TREES. Reserved trees are those trees on or
off the Premises, including wildlife trees, not to be cut by Frontier. If
Frontier's activities result in damage to reserved trees as reasonably
determined by Pioneer, Frontier shall take such trees and pay for such trees as
liquidated damages double the fair market value therefor. If the State Forest
Practices Officer determines that Frontier has damaged wildlife trees or logs,
then Frontier will be required to remedy the problem in accordance with the
State's instructions at Frontier's expense.
16. SLASH DISPOSAL. Frontier will be responsible for disposal of
slash as required by the Oregon Forest Practice Rules and Statutes except for
burning. Pioneer will be responsible for burning.
17. REFORESTATION. Pioneer shall be responsible for reforestation
work and costs complying with State requirements except in situations where a
violation of the logging plans (referenced in paragraph 12.2) by Frontier or its
contractor has created a reforestation liability. In that case Frontier is
liable for the costs of reforestation to a level acceptable to Pioneer in its
reasonable discretion.
18. FIRE PRECAUTIONS AND SUPPRESSION. Except as otherwise provided
in Section 10 above, during the time that this Agreement remains in force,
Frontier shall independently make every reasonable effort to prevent and
suppress forest fires on the Premises. Frontier shall be responsible for any
expense, liability, or claim of liability resulting from any default by Frontier
in performance of its obligations under this Section 18. Frontier shall defend,
indemnify and hold harmless Pioneer from all liability to governmental
authorities or to public or private parties arising out of Frontier's violation
of law, or from fire resulting from the gross negligence or willful misconduct
of Frontier.
19. ASSUMPTION OF RISKS AND INDEMNITY.
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19.1 Pioneer has made no representations as to the present or
future conditions of or on its property or the character or amount of traffic on
any access roads. Frontier assumes all risks of personal injury or property
damage to itself and its employees, agents and contractors in connection with
operations under this Agreement.
19.2 Frontier shall pay for all damage to Pioneer's property
and to the property of any third parties resulting directly or indirectly from
the gross negligence or willful misconduct of Frontier, its employees, agents,
or contractors in performing this Agreement.
19.3 Frontier shall defend, indemnify and save harmless
Pioneer against any and all losses, expenses, damages, claims, fines, charges,
liens, liabilities, actions, causes of action or proceedings of any kind
whatsoever (whether or not arising on account of damage to or loss of property,
or injury to or death of any person) arising directly or indirectly out of or in
connection with the acts or omissions of Frontier or any of its agents,
contractors or employees, except those caused solely by Pioneer's negligence or
intentional misconduct. The foregoing indemnification in favor of Pioneer
includes, without limitations, any claim for injury to persons or property,
nuisance, mechanics' and materialmen' liens, workers' compensation or
unemployment taxes, fines and penalties, and any environmental damages. Frontier
shall perform all its obligations and carry on all its operations and activities
hereunder as an independent contractor and entirely at its own risk and
responsibility. Frontier shall be responsible for activities of its
subcontractors. Frontier will reimburse Pioneer for all costs reasonably
incurred by Pioneer to defend against such claims through attorneys of Pioneer's
choice.
19.4 Pioneer expressly disclaims, and Frontier expressly
acknowledges such disclaimer, making or giving any warranty regarding the costs
or feasibility of logging such timber; Frontier acknowledges relying solely upon
Frontier's own estimates of said costs and feasibility.
20. INSURANCE. At all times during the period of this Agreement
and any extension thereof or until all work required by this Agreement is
completed, Frontier shall have in effect comprehensive property damage and
personal injury liability insurance, including coverage for motor vehicles, as
required by this section. The insurance shall be in the amounts specified and
shall afford the coverage as described below.
Frontier shall have worker's compensation insurance meeting statutory
requirements for all Frontier's employees, and shall require Frontier's
contractors and subcontractors to have worker's compensation insurance covering
all employees involved in operations hereunder.
Within twenty (20) days of written request by Pioneer, Frontier shall
furnish to Pioneer certificates of insurance evidencing that the required
insurance has been issued to Frontier or to its contractors or subcontractors,
as the case may be, and is in force on the date of the certificates. The
insurance shall be written by a company or companies authorized to do business
in the State
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of Oregon. The issuing company or companies shall agree on the certificate or an
attachment thereto that Pioneer shall be given thirty (30) days prior written
notice of intended cancellation of the insurance. Pioneer, its agents, owners
and employees shall be named as additional insured parties under all said
property damage, comprehensive and personal injury liability insurance policies.
Frontier shall at all times during the period of this Agreement and any
extension thereof or until all work required by this Agreement is completed have
in effect loggers broad form property damage and public liability insurance
coverage, with the contractual liability exclusion deleted, in the amounts
specified below:
Bodily Injury or Death:
Each Person $2,000,000
Each Occurrence $2,000,000
Property Damage:
Any One Occurrence $2,000,000
If any said policy shall lapse or shall be canceled at any time during
the life of this Agreement, Pioneer shall have the right immediately to suspend
all of Frontier's logging activities hereunder until insurance requirements are
fully met by Frontier.
21. EXAMINATION OF LOCATIONS AND CONDITIONS. It is understood that
Frontier, before signing this Agreement, has made a careful examination thereof
and an analysis of all requirements and specifications set forth herein; that
Frontier has independently evaluated the character of the work required, and has
not relied upon estimates by Pioneer, and that Frontier has made a careful
examination of the Premises and the location and conditions of work. Pioneer in
no case will be responsible for any loss or cost that may be suffered by
Frontier as a result of the failure of Frontier to be so informed.
22. AUTHORIZED REPRESENTATIVE; INSPECTION. Pioneer and its
designated field representative or representatives shall have the right to
inspect progress of work, and to issue instructions in regard to required
compliance with the terms of this Agreement. Pioneer, through its authorized and
designated representative or representatives, shall at all times be allowed
access to all parts of the logging operations and work locations of Frontier,
and shall be furnished such information and assistance by Frontier, or the
designated representative or representatives of Frontier, as may be reasonably
required to make a complete and detailed inspection.
23. ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement shall be settled by arbitration, except any claim for
injunctive relief pursuant to Section 24.2.1 below or any action in equity to
enforce specific performance pursuant to Section 24.2.3 below. Arbitration shall
take place before a panel of three arbitrators, one chosen by Pioneer, one by
Frontier and the third chosen by the first two. The arbitration shall be held in
such place in the
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metropolitan Portland, Oregon area as may be specified by the arbitrators or a
majority of them and shall be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. The decision of the
panel shall be final and binding and may be enforced, if necessary, in any court
of competent jurisdiction. The determination of which party (or combination of
them) bears the costs and expenses incurred in connection with any such
arbitration proceeding shall be determined by the panel. The panel shall have no
power or jurisdiction to consider evidence with respect to or to render any
award of or judgment for punitive damages
24. DEFAULT.
24.1 Time and strict performance hereunder are the essence of
this Agreement, and it is agreed that any one of the following shall constitute
an event of default:
24.1.1 Failure by Frontier to pay any amount owing to
Pioneer under this Agreement on or before the due date thereof.
24.1.2 Failure by either party to keep and perform
any agreement, covenant or condition hereunder (other than a payment default by
Frontier under Section 24.1.1), if such failure shall continue for a period of
thirty (30) days after written notice thereof from the other party; provided,
however, if such failure to perform is not curable within such 30-day period, it
shall not be an event of default if the non-performing party, promptly after
such notice, commences such actions as shall be necessary to cure such failure,
diligently pursues such curative action and completes the cure of such failure
as soon as reasonably possible.
24.2 In the event Frontier defaults in any manner set forth
herein, Pioneer shall have the right to exercise any one or more of the
following rights, powers, and remedies, which shall, to the full extent
permitted by law, be cumulative and not alternative:
24.2.1 to obtain injunctive relief with respect to
any breach of or default under this Agreement; provided, however, Pioneer shall
not have the right to enjoin harvest practices which comply with the provisions
of this Agreement; and provided further, no injunction against Frontier with
respect to a breach or default by Frontier shall be effective against the Bank
or a Successor (as defined in Section 8.2), but nothing in this section shall
prevent Pioneer from obtaining an injunction against the Bank or such Successor
for its own acts or omissions in breach or violation of this Agreement.
24.2.2 to recover damages from Frontier's breach of
contract;
24.2.3 to specifically enforce this Agreement by suit
in equity.
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24.3 Nothing contained in this Section 24 shall be deemed or
construed to extend the Termination Date as determined under Section 8 above.
25. ATTORNEY'S FEE. In the event any arbitration, suit or action
is filed by either party hereto to enforce any of the terms, covenants or
provisions of this Agreement, or to rescind the same, the party prevailing in
any such proceeding, or any appeal therefrom, shall be entitled to reasonable
attorney's fees at the trial level and on appeal or review to be established by
the arbitration panel or Court, and expert witness fees, together with all costs
otherwise recoverable under Oregon law, from the non-prevailing party.
26. ACCESS. Pioneer makes no representations or warranties,
express or implied, with respect to rights of access to any portion of the
Premises. Pioneer hereby assigns to Frontier, which assignment shall terminate
upon the expiration or earlier termination of this Agreement, Pioneer's rights
in any easements, permits, or licenses granting Pioneer ingress and egress to
the Premises over or through land owned by third parties, provided that such
assignment shall be non-exclusive and Pioneer shall continue to have and may
also exercise all such rights.
27. ASSIGNMENT. Pioneer shall have the right to assign this
Agreement, in whole or in part, upon notice to but without Frontier's consent.
Frontier shall have the right to assign this Agreement, in whole or in part,
upon notice to but without Pioneer's consent.
28. REPRESENTATIONS. Each party represents and warrants to the
other that: (i) it is a limited liability company duly organized and validly
existing under the laws of the State of Oregon; (ii) it has full right, power
and authority to enter into this Agreement and to consummate the transactions
contemplated by, and otherwise to comply with and perform its respective
obligations under this Agreement; (iii) all action necessary to confirm such
authority has been duly and lawfully taken, except that, with respect to
Pioneer, the consent and/or subordination of Pioneer's lenders may be necessary;
(iv) upon execution hereof, this Agreement shall constitute the valid and
binding agreement of each party in accordance with its terms, except as such
terms may be affected by applicable bankruptcy, insolvency, reorganization,
moratorium or similar debtor relief laws from time to time in effect or general
principles of equity, regardless of whether such enforceability is considered in
equity or at law; and (v) neither execution nor performance of this Agreement
will violate the terms of any provision of its Articles of Organization,
Operating Agreement or any note, loan agreement, commitment agreement, lease or
other material contract or agreement to which it is a party, except that, with
respect to Pioneer, the consent and/or subordination of Pioneer's lenders may be
necessary. Each party shall deliver to the other a certified copy of a
resolution of its Management Committee authorizing the execution of this
Agreement or such other evidence of authority that is reasonably acceptable to
the other.
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29. NOTICES. Any notice or demand required or permitted to be
given under the terms of this Agreement shall be deemed to have been duly given
or made if given by any of the following methods:
29.1 Deposited in the United States mail, in a sealed
envelope, postage prepaid, by registered or certified mail, return receipt
requested, or hand delivered, respectively addressed as follows:
If to Pioneer: Xxxxx X. Xxxxxxxx
Pioneer Resources, LLC
00 X. Xxxxxxxxx Xxxx, Xxxxx X
Xxxxxx, XX 00000
If to Frontier: Xxxx Xxxxxx
Frontier Resources, LLC
X.X. Xxx 000
00000 Xxxxx Xxxx
Xxxxxx, XX 00000
29.2 Sent to the above address via an established national
overnight delivery service (such as Federal Express) charges prepaid; or
29.3 Sent via any electronic communications method, provided
the sender obtains written confirmation of receipt of the communication by the
electronic communication equipment at the office of the addressee listed above;
provided also that, if this method is used, the party shall immediately follow
such notice with a second notice in one of the methods set forth in subsections
29.1 or 29.2 above. Notices shall be effective three business days after mailing
if sent by United States mail, one business day after dispatch if sent by
overnight delivery service, and upon delivery if hand delivered or sent by an
electronic communications method.
30. MODIFICATION. No modification of this Agreement shall be valid
unless made in writing and duly executed by Pioneer and Frontier.
31. NO WAIVER. The failure of either party to insist upon prompt
and strict performance of any of the terms or conditions in this Agreement shall
not constitute a waiver of such party's right to insist upon strict performance
thereafter or in other instances.
32. GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the state of Oregon, except for its
rules pertaining to conflicts of laws.
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33. COUNTERPARTS, EXECUTION BY FACSIMILE. This Agreement may be
executed in several counterparts, each of which will be deemed to be an original
and all of which will together constitute one in the same instrument. Delivery
of an executed copy of this Agreement by facsimile transmission will be deemed
to be an execution and delivery of this Agreement on the date of such
transmission by the party so delivering such a copy, provided that the party so
delivering such a copy via facsimile transmission shall deliver the executed
original of this Agreement to the other party herein within three (3) days of
the date of delivery of the copy sent via the facsimile transmission.
34. ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS. This document
constitutes the entire agreement between the parties and merges and replaces all
prior negotiations, discussions, representations, warranties, and agreements of
the parties with respect to the subject matter hereof. Because this Agreement
has been the subject of negotiation between the parties, the rule of
construction that any ambiguity is to be construed against the drafter shall not
apply. This Agreement shall be binding upon and inure to the benefit of the
respective successors and permitted assigns of the parties. In the event of any
conflict between this Agreement and any exhibit attached hereto, the terms of
this Agreement shall be controlling. The covenants, agreements, representations
and warranties made herein shall survive the closing of this transaction and
shall not merge into the Timber Deeds or the recording thereof.
35. CLOSING.
35.1 This transaction shall close in escrow at Oregon Title
Insurance Company, Eugene, Oregon, on or before June ___, 1999, provided that if
(a) the conditions set forth in Section 35.2 have not been satisfied or waived
by Frontier and (b) Pioneer has not unconditionally received the Purchase Price
in cash, both on or before June ___, 1999, then this Agreement shall be deemed
automatically terminated and neither party shall have any further rights or
obligations hereunder.
35.2 Frontier's obligations to close are subject to and
conditioned upon written approval from its Lender, First Union, of (i) this
Agreement, (ii) the Timber Deed attached hereto as Exhibits B-1 and B-2, (iii)
the Subordination Agreement to be provided by Pioneer's Lender, First Union
National Bank, and (iv) a commitment from a title insurance company to insure
the first lien of First Union National Bank's security interest in the Timber,
subject only to exceptions to title which First Union National Bank shall
approve.
35.3 Pioneer shall pay any transfer or excise taxes due as a
result of the purchase and sale under this Agreement or as a result of recording
the Timber Deeds. Frontier and Pioneer shall evenly split the payment of all
title insurance costs, recording fees and other closing costs in connection with
such closing.
Executed as of the date first set forth above.
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PIONEER RESOURCES, LLC FRONTIER RESOURCES, LLC
By: By:
----------------------------- ------------------------------
Name: Xxxxx X. Xxxxxxxx Name:
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Title: Vice President Title:
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Schedule of Exhibits:
A: Legal Description of Premises
B-1: Statutory Bargain and Sale Deed (Oregon)
B-2: Quitclaim Deed (Washington)
C: Exceptions to Title
13 - TIMBER PURCHASE AGREEMENT
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EXHIBIT A-1
Legal Description of the First Property
Sale Name: Xxxxxxx Creek (Part of Existing Kinzua Timber Deed) - Appraisal Name:
Xxxxxxx
Legal: Xxx 00, X0X, X00X, Xxx
Xxx 00, X0X, X00X, All
Sec 36, T5S, R30E, N1/2
Sale Name: Scaffold - Appraisal Name: Buckaroo
Legal: Sec 6, T6S, R30E, Xxx 0, Xxx 0, Xxx 0, X0/0 NE1/4, SE1/4 NW1/4, E1/2
XX0/0, XX0/0
Xxx 0, X0X, X00X, All
Sec 18, T6S, R30E, All
Xxx 00, X0X, X00X, X0/0 XX0/0, XX0/0 XX0/0
Xxx 00, X0X, X00X, SE1/4
Sale Name: Sulphur Gulch - Appraisal Name: Elk Grove
Legal: Xxx 0, X0X, X00X, X0/0 XX0/0, X0/0 XX0/0, X0/0 XX0/0, XX0/0 XX0/0
Xxx 0, X0X, X00X, E1/2 SE1/4
Sec 12, NW1/4 NW1/4
Sale Name: Seven Mile (Xxxx Forth Timber Deed) - Appraisal Name: Xxxx Forth
Timber Deed
Legal: Sec 32, T1S, R33E, SE1/4
Xxx 00, X0X, X00X, X0/0 XX0/0, X0/0 XX0/0, X0/0 NE1/4, SW1/4 NE1/4,
N1/2 SE1/4, SW1/4 XX0/0
Xxx 00, X0X, X00X, NW1/4
Sale Name: Desolation (Part of Existing Kinzua Timber Deed) - Appraisal Name:
Desolation
Legal: Xxx 0, X0X, X00X, Xxx 0, X0/0 XX0/0, X0/0
Xxx 0, X0X, X00X, X0/0 XX0/0
Xxx 00, X0X, X00X, W1/2 NW1/4, NE1/4 NW1/4, NW1/4 NE1/4
Sale Name: Baptist - Appraisal Name: Xxxxxxx
Xxxxx: Xxx 0, X0X, X00X, XX0/0 XX0/0, XX0/0
Xxx 0, X0X, X00X, W1/2 NW1/4
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Sale Name: Xxxx Z #2 - Appraisal Name: Xxxxx 0
Xxxxx: Xxx 00, X0X, X00X, XX0/0 XX0/0
Xxx 00, X0X, X00X, E1/2 NW1/4, SW1/4 NE1/4, SW1/4 SW1/4, SE1/4 SW1/4,
NE1/4 XX0/0
Xxx 0, X0X, X00X, E1/2 NW1/4, NE1/4
Sale Name: Opal South - Appraisal Name: Xxxxx 0
Xxxxx: Xxx 00, X0X, X00X, XX0/0, E1/2 XX0/0, X0/0 XX0/0
Xxx 0, X0X, X00X, SW1/4 XX0/0
Xxx 0, X0X, X00X, S1/2 XX0/0
Xxx 0, X0X, X00X, SE1/4 SE1/4, X0/0 XX0/0
Xxx 0, X0X, X00X, XX0/0
Xxx 0, X0X, X00X, NW1/4 XX0/0
Xxx 0, X0X, X00X, X0/0
Xxx 00, X0X, X00X, XX0/0, X0/0 NW1/4
Sale Name: B&C Board - Appraisal Name: Xxxxx Ranch
Legal: Xxx 00, X 0X, X00X, X0/0 XX0/0, X0/0 SE1/4, NE1/4 SE1/4, SE1/4 NE1/4
Xxx 00, X 0X, X00X, XX0/0 XX0/0, XX0/0 XX0/0
Xxx 00, X 0X, X00X, XX0/0 NW1/4
Sale Name: Blakes OR - Appraisal Name: Blake Ranch
Legal: Xxx 0, X0X, X00X, X0/0 X0/0, X0/0 XX0/0, XX0/0
Xxx 00, X0X, X 00X, XX0/0 NW1/4, NW1/4 NE1/4
Sale Name: Parkers Mill - Appraisal Name: Part in Xxxxx Ranch, part in Block 3
Legal:
Sec 28, T5S, R26E, NW1/4 NE1/4 (Block 3), SE1/4 NE1/4 (Xxxxx Ranch),
SW1/4 NE1/4 (Block 3), SE 1/4 (NW1/4 SE1/4 is Block 3; S1/2 SE1/4 &
NE1/4 SE1/4 are Xxxxx Ranch)
Xxx 00, X 0X, X00X, XX0/0 (X0/0 XX0/0 & XX0/0 XX0/0 are Block 3; SE1/4
NE1/4 is Xxxxx Ranch), N1/2 SE1/4 (Xxxxx Xxxxx)
Xxx 00, X 0X, X00X, X0/0 NW1/4 (NW1/4 NW1/4 is Block 3, SW1/4 NW1/4 is
Xxxxx Ranch)
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Sale Name: Browns Helo - Appraisal Name: Xxxxx 0
Xxxxx: Xxx 00, X0X, X00X, XX0/0, X0/0 XX0/0
Xxx 00, X0X, X00X, Xxx 0, Xxx 0, Xxx 0, XX0/0 XX0/0,X0/0 XX0/0, XX0/0
Sec 24, T6S, R24E, Xxx 0
Xxx 00, X0X, X00X, Xxx 0, XX0/0 NW1/4, E1/2 SE1/4
Xxx 00, X0X, X00X, Xxx 0, XX0/0 NW1/4, W1/2 NE1/4, NE1/4 SE1/4
Sale Name: Camas Pool - Appraisal Name: Block 3
Legal: Sec 16, T6S, R25E, X0/0XX0/0,
Xxx 00, X0X, X00X, XX0/0 NW1/4, NE1/4 NW1/4, SE1/4 NW1/4, S1/2 XX0/0,
XX0/0
Xxx 00, X0X, X00X, E1/2 NE1/4, NE1/4 SE1/4, SE1/4 XX0/0, XX0/0 XX0/0
Xxx 00, X0X, X00X, X0/0
Xxx 00, X0X, X00X, X0/0 XX0/0
Xxx 00, X0X, X00X, NE1/4, S1/2 NW1/4, SW1/4, X0/0 XX0/0
Xxx 00, X0X, X00X, NW1/4, W1/2 NE1/4, SE1/4, E1/2 SW1/4
Sale Name: Jug Creek - Appraisal Name: Part in Xxxxx Ranch, part in Xxxxxxx
Creek
Legal: Xxx 00, X0X, X00X, XX0/0 (Xxxxx Xxxxx)
Xxx 0, X0X, X00X, NW1/4 SW1/4 (Xxxxx Ranch), SE1/4 SW1/4 (Xxxxx Ranch),
SW1/4 SW1/4 (Xxxxx Ranch)
Xxx 00, X0X, X00X, XX0/0 (Xxxxxxx Creek), S1/2 SE1/4 (Xxxxxxx Creek)
Sec 18, T5S, R27E, NW1/4 NW1/4 (Xxxxx Ranch), SE1/4 SW1/4 (Xxxxxxx
Creek), S1/2 SE1/4 (Xxxxx Ranch)
Xxx 00, X0X, X00X, X0/0 XX0/0 (Xxxxxxx Creek)
Sec 20, T5S, R27E, W1/2 NW1/4 (Xxxxxxx Creek)
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EXHIBIT A-2
Legal Description of the Second Property
Sale Name: Summerfield Ridge - Appraisal Name: Xxxxxxx Xxxxx
Xxxxx: Xxx00, X0X, X00X, X0/0, X0/0 N1/2, NE1/4 NW1/4, NW1/4 XX0/0
Xxx 00, X0X, X00X, E1/2, E1/2 W1/2
Sale Name: Xxxxxx - Appraisal Name: Block 3
Legal: Xxx 0, X0X, X00X, Xxx
Xxx 0, X0X, X00X, All
Sec 7, T6S, R27E, X0/0
Xxx 0, X0X, X00X, X0/0 X0/0
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EXHIBIT B-1
STATUTORY BARGAIN AND SALE TIMBER DEED
PIONEER RESOURCES, LLC, an Oregon limited liability company ("Grantor")
conveys to FRONTIER RESOURCES, LLC, an Oregon limited liability company
("Grantee"), without any covenants or warranties of title except as expressly
set forth below, all of the "Timber" (as defined below) on those certain parcels
of land situated in Wheeler, Morrow, Umatilla and Grant Counties, Oregon,
described below:
SEE EXHIBIT A ATTACHED HERETO
AND INCORPORATED HEREIN (the "Land")
Together with the rights to enter upon the Land, to cut and remove the
Timber and to build, maintain and repair roads, all subject to and in accordance
with the provisions of the Timber Purchase Agreement, which is defined below.
The true consideration for this conveyance is the sum of
$______________.
As used herein, the term "Timber" shall mean the merchantable timber
standing or lying on the Land during the term of this Deed which is included in
the definition of "Timber" set forth in the Timber Purchase Agreement.
Grantee shall have until March 31, 2002 (the "Termination Date") to cut
and remove the Timber. Provided however, at the election of Grantee, the
Termination Date shall be extended for the period of any delay(s) in Grantee's
harvest and removal of the Timber due to acts of God, acts of government, labor
disputes, strikes, weather conditions or other events of force majeure beyond
the reasonable control of Grantee. If any such extension shall apply, Grantee
shall use its best efforts to complete its full performance hereunder as soon as
possible thereafter. Notwithstanding the foregoing, in no event shall the
Termination Date be extended beyond December 31, 2002; provided, however, the
Termination Date may be extended under certain other limited circumstances, to
the extent expressly provided in the Timber Purchase Agreement, to a date not
later than September 30, 2003.
On the Termination Date, all right, title and interest in and to any
remaining Timber shall revert automatically to the Grantor herein, it successors
and assigns, without the requirement of any action by any party hereto.
Grantor hereby warrants to Grantee that Grantor has not granted or
created any liens, claims, and encumbrances of any kind against the Timber or
the Land since October 9, 1998, except those specified on EXHIBIT B attached
hereto and incorporated herein.
This Timber Deed has been executed and delivered, and accepted, subject
to the terms and provisions of that certain Timber Purchase Agreement dated as
of June ___, 1999 between Grantor and Grantee ("Timber Purchase Agreement"),
which by this reference is hereby incorporated herein.
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EXECUTED as of the ___ day of June, 1999.
GRANTOR:
PIONEER RESOURCES, LLC, an Oregon limited
liability company
By:
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Name: Xxxxx X. Xxxxxxxx
Its: Vice President
STATE OF )
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) ss.
County of )
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This instrument was acknowledged before me on June ____, 1999, by Xxxxx
X. Xxxxxxxx, Vice President of PIONEER RESOURCES, LLC, an Oregon limited
liability company.
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NOTARY PUBLIC FOR OREGON
My Commission Expires:
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[NOTARIAL SEAL]
Upon recording return to:
Frontier Resources, LLC
X.X. Xxx 000
00000 Xxxxx Xxxx
Xxxxxx, XX 00000
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EXHIBIT B-2
AFTER RECORDING RETURN TO:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxx, Xxxxxxxxxx & Xxxxx
0000 X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
QUITCLAIM DEED
(Washington)
REFERENCE NUMBER(S) of related documents: none
Grantor: Pioneer Resources, LLC, an Oregon limited liability company
Grantee: Frontier Resources, LLC, an Oregon limited liability company
Abbreviated Legal Description: Portion of S6 & S8, T8N, R40E, WM
Full Legal Description Located on Page Exhibit A
Assessor's Property Tax Parcel Account Number:
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