Execution Copy
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
This Contribution, Conveyance and Assumption Agreement, dated as of
November 19, 1997, is entered into by and among U.S. TIMBERLANDS COMPANY, L.P.,
a Delaware limited partnership (the "Partnership"), U.S. TIMBERLANDS MANAGEMENT
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COMPANY, L.L.C., a Delaware limited liability company (formerly known as U.S.
Timberlands Services Company, L.L.C.) ("Old Services"), U.S. TIMBERLANDS KLAMATH
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FALLS, L.L.C., a Delaware limited liability company (the "Operating Company"),
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U.S. TIMBERLANDS HOLDINGS, L.L.C., a Delaware limited liability company
("Holdings"), U.S. TIMBERLANDS SERVICES COMPANY, L.L.C., a Delaware limited
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liability company (formerly known as New Services, L.L.C.) (the "General
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Partner") and RUDEY TIMBER COMPANY, L.L.C., a Delaware limited liability company
("Rudey Timber").
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RECITALS
WHEREAS, Old Services has formed the General Partner contributing
$1,000.00 to it in exchange for all of the interest therein;
WHEREAS, the General Partner, as general partner, and Xxxx X. Xxxxx,
as the organizational limited partner, have formed the Partnership pursuant to
the Delaware Revised Uniform Limited Partnership Act for the purpose of owning
certain member interests in the Operating Company;
WHEREAS, the General Partner contributed $10.00 to the capital of the
Partnership and received a 1% general partner interest therein; and Xxxx X.
Xxxxx contributed $990.00 to the capital of the Partnership and received a 99%
limited partner interest therein;
WHEREAS, U.S. Timberlands Finance Corp. ("Finance Corp."), a Delaware
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corporation, was formed on August 20, 1997 and on August 26, 1997, the
Partnership contributed $1,000.00 to it in exchange for 1,000 shares of common
stock, par value $.01 per share, of Finance Corp. and on October 17, 1997, all
such shares were contributed by the Partnership to the Operating Company;
WHEREAS, Old Services has agreed to contribute to the General Partner
all of its assets in exchange for an additional interest in the General Partner
and the assumption by the General Partner of substantially all of the
liabilities of Old Services as described herein;
WHEREAS, concurrently with the consummation of the transactions
contemplated hereby, the Operating Company will assume $130 million of
indebtedness of Holdings, together with all accrued interest and its obligation
to pay the guarantee fee to Weyerhaeuser Company pursuant to that certain
Indemnity and Operations Agreement dated as of August 30, 1996, between
Holdings, Rudey Timber, Xxxx X. Xxxxx and Weyerhaeuser Company, as amended (the
"Guarantee Fee");
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WHEREAS, the General Partner has agreed to contribute its timber
operations to the Operating Company in exchange for an interest in the Operating
Company and the assumption by the Operating Company of substantially all of the
liabilities of the General Partner as described herein;
WHEREAS, Rudey Timber has agreed to contribute all of its member
interest in the Operating Company to Holdings in exchange for an additional
member interest in Holdings;
WHEREAS, pursuant to the Amended and Restated Agreement of Limited
Partnership of the Partnership (the "Partnership Agreement"), the General
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Partner has agreed to
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contribute to the Partnership, as a capital contribution thereto, all but
1.0101% of its member interest in the Operating Company (the "Operating Company
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LLC Interest") in exchange for (i) the continuation of its general partner
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interest in the Partnership, (ii) the right to receive Incentive Distributions
(as defined in the Partnership Agreement) and (iii) Subordinated Units;
WHEREAS, pursuant to the Partnership Agreement, Holdings has agreed to
contribute to the Partnership, as a capital contribution thereto, all of its
member interests in the Operating Company in exchange for Subordinated
Units;
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the parties to this Agreement undertake and agree as
follows:
ARTICLE I
DEFINITIONS
The following capitalized terms shall have the meanings given below.
"Agreement" means this Contribution, Conveyance and Assumption
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Agreement.
"Effective Time" means 9:00 a.m. Eastern Standard Time on November 19,
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1997.
"Employee Benefits" means sole sponsorship of all employee benefit
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plans and compensation programs of Old Services, including without limitation,
the 401(k) savings plan, the health insurance plan and the medical savings plan
and all trusts, insurance contracts or other funding instruments for such plans
and programs.
"Excluded General Partner Assets" means those assets of the General
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Partner described on Schedule I hereto.
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"Excluded Liabilities" means all of the liabilities described on
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Schedule II hereto.
"Excluded Old Services Assets" means cash in the amount of $1 Million.
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"Excluded Old Services Liabilities" means all of the liabilities
---------------------------------
described on Schedule III hereto.
"Existing Indebtedness" means the bank indebtedness of Holdings in the
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principal amount of $130,000,000, together with accrued interest thereon and the
Guarantee Fee.
"General Partner" has the meaning assigned to such term in the
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Recitals to this Agreement.
"General Partner Assets" means all assets owned, leased or held by the
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General Partner, as of the Effective Time, of every kind, character and
description, whether tangible or intangible, whether real, personal or mixed,
whether accrued or contingent, and wherever located, including without
limitation:
(a) all timber sale agreements, site preparation contracts, forestry
contracts, log sales agreements, stumpage sale agreements, logging
contracts, seedling production and supply contracts, grazing leases and
equipment leases;
(b) all motor vehicles, trailers, snowmobiles, tractors, forklifts and
forestry machinery and equipment;
(c) all inventory, including nursery and seed inventory and crops;
(d) all trade names, trade marks, service marks, logos, marks and
symbols of any kind;
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(e) every customer relationship, employee relationship, supplier
relationship and other relationship of any kind;
(f) all books, records, papers, files and instruments of whatever
nature and wherever located, including, without limitation, accounting and
financial records, documentation related to the General Partner Assets,
customer correspondence, sales records, credit reports and other data
relating to the General Partner Assets;
(g) all licenses, permits and authorizations of every kind;
(h) any and all rights, claims and causes of action that the General
Partner may have under warranties, insurance policies or otherwise against
any person or property, whether known or unknown, accrued or contingent,
and whether or not reflected on the books and records of the General
Partner as of the Effective Time, insofar as any of the same relate to the
General Partner Assets prior to the Effective Time and such rights, claims
or causes of action representing reimbursement or recovery of amounts
actually paid by the Partnership or the Operating Company after the
Effective Time;
(i) any and all monies, rents, revenues, accounts receivable or other
proceeds receivable or owning to the General Partner;
(j) all deposits, prepayments and prepaid expenses;
(k) all unbilled receivables; and
(l) every other proprietary right of any kind;
excluding all Excluded General Partner Assets.
"General Partner Assumed Liabilities" means all of the General
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Partner's liabilities arising from or relating to the General Partner Assets, as
of the Effective Time, of every kind,
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character and description, whether matured or unmatured, known or unknown,
accrued or contingent, liquidated or unliquidated, and whether or not reflected
on the books and records of the General Partner as of the Effective Time,
excluding, however, any of such liabilities that constitute Excluded
Liabilities.
"Guarantee Fee" has the meaning assigned to such term in the recitals
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to this Agreement.
"Holdings" has the meaning assigned to such term in the opening
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paragraph of this Agreement.
"Old Services" has the meaning assigned to such term in the opening
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paragraph of this Agreement.
"Old Services Assets" shall mean all assets owned, leased or held by
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Old Services, as of the Effective Time of every kind, character and description,
whether tangible or intangible, whether real, personal or mixed, whether accrued
or contingent, and wherever located, including without limitation all right,
title and interest of Old Services in and to:
(a) all timber sale agreements, site preparation contracts, forestry
contracts, log sales agreements, stumpage sale agreements, logging
contracts, seedling production and supply contracts, grazing leases and
equipment leases;
(b) all motor vehicles, trailers, snowmobiles, tractors, forklifts and
forestry machinery and equipment;
(c) all inventory, including nursery and seed inventory and crops;
(d) all computers, monitors, copiers, printers, fax machines,
typewriters, computer software, furniture and other office equipment and
machinery;
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(e) all trade names, trade marks, service marks, logos, marks and
symbols of any kind;
(f) every customer relationship, employee relationship, supplier
relationship and other relationship of any kind;
(g) all books, records, papers, files and instruments of whatever
nature and wherever located, including, without limitation, accounting and
financial records, documentation related to the Old Services Assets,
customer correspondence, sales records, credit reports and other data
relating to the Old Services Assets;
(h) all licenses, permits and authorizations of every kind;
(i) every other proprietary right of any kind;
(j) the Employee Benefits;
(k) any and all rights, claims and causes of action that Old Services
may have under warranties, insurance policies or otherwise against any
person or property, whether known or unknown, accrued or contingent, and
whether or not reflected on the books and records of Old Services as of the
Effective Time, insofar as any of the same relate to the Old Services
Assets prior to the Effective Time and such rights, claims or causes of
action representing reimbursement or recovery of amounts actually paid by
the Partnership or the Operating Company after the Effective Time;
(l) any and all monies, rents, revenues, accounts receivable or other
proceeds receivable or owing to Old Services;
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(m) all deposits, prepayments and prepaid expenses; and
(n) all unbilled receivables;
excluding the Excluded Old Services Assets.
"Old Services Assumed Liabilities" means all of Old Services'
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liabilities arising from or relating to the Old Services Assets, as of the
Effective Time, of every kind, character and description, whether matured or
unmatured, known or unknown, accrued or contingent, liquidated or unliquidated,
and whether or not reflected on the books and records of Old Services as of the
Effective Time, excluding, however, any of such liabilities that constitute
Excluded Old Services Liabilities.
"Operating Company" has the meaning assigned to such term in the
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opening paragraph of this Agreement.
"Operating Company LLC Interest" has the meaning assigned to such term
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in the Recitals to this Agreement.
"Partnership" has the meaning assigned to such term in the opening
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paragraph of this Agreement.
"Partnership Agreement" has the meaning assigned to such term in the
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Recitals to this Agreement.
"Restriction" has the meaning assigned to such term in Section 6.5.
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"Restriction-Asset" has the meaning assigned to such term in Section
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6.5.
"Xxxx Timber" has the meaning assigned to such term in the opening
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paragraph of this Agreement.
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"Subordinated Units" has the meaning assigned to such term in the
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Partnership Agreement.
"Weyerhaeuser Agreement" means that certain letter agreement dated May
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14, 1997 by and among Weyerhaeuser Company, Holdings, the Operating Company, Old
Services, Rudey Timber and Xxxx X. Xxxxx.
ARTICLE II
CONTRIBUTIONS TO THE GENERAL PARTNER, THE OPERATING COMPANY AND HOLDINGS
2.1 Contribution of Old Services Assets. Effective as of the Effective
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Time, Old Services hereby grants, contributes, transfers and conveys to the
General Partner, its successors and assigns, for its and their own use forever,
all right, title and interest in and to the Old Services Assets in exchange for
(i) additional member interests in the General Partner and (ii) other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and the General Partner hereby accepts the Old Services Assets, as
a contribution to the capital of the General Partner.
TO HAVE AND TO HOLD the Old Services Assets unto the General Partner,
its successors and assigns, together with all and singular the rights and
appurtenances thereto, subject, however, to the terms and conditions stated in
this Agreement, forever.
2.2 Contribution of General Partner Assets. Effective as of the Effective
--------------------------------------
Time, the General Partner hereby grants, contributes, transfers and conveys to
the Operating Company, its successors and assigns, for its and their own use
forever, all right, title and interest of the General Partner in and to the
General Partner Assets in exchange for (i) member interests in the Operating
Company and (ii) other good and valuable consideration, the receipt and
sufficiency of which are
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hereby acknowledged and the Operating Company accepts the General Partner Assets
as a contribution to the capital of the Operating Company.
TO HAVE AND TO HOLD the General Partner Assets unto the Operating
Company, its successors and assigns, together with all and singular the rights
and appurtenances thereto, subject, however, to the terms and conditions stated
in this Agreement, forever.
2.3 Contribution of Rudey Timber. Effective as of the Effective Time,
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Rudey Timber hereby grants, contributes, transfers and conveys to Holdings, its
successors and assigns, for its and their own use forever, all right, title and
interest of Rudey Timber in and to its member interest in the Operating Company
in exchange for an additional member interest in Holdings, the receipt and
sufficiency of which are hereby acknowledged and Holdings accepts the member
interest in the Operating Company as a contribution to the capital of
Holdings.
TO HAVE AND TO HOLD the member interest in the Operating Company unto
Holdings, its successors and assigns, together with all and singular the rights
and appurtenances thereto, subject, however, to the terms and conditions stated
in this Agreement, forever.
ARTICLE III
CONTRIBUTIONS TO THE PARTNERSHIP
3.1 General Partner Contribution. Effective as of the Effective Time,
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the General Partner hereby grants, contributes, transfers and conveys to the
Partnership, its successors and assigns, for its and their own use forever, all
right, title and interest of the General Partner in and to the Operating Company
LLC Interest in exchange for (i) the continuation of the General Partner's
interest in the Partnership, (ii) the right to receive Incentive Distributions
(as defined in the Partnership Agreement) and receipt of 1,387,963 Subordinated
Units, and (iii) other good and valuable
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consideration, the sufficiency of which is hereby acknowledged and the
Partnership hereby accepts the Operating Company LLC Interest, as a contribution
to the capital of the Partnership.
TO HAVE AND TO HOLD the Operating Company LLC Interest unto the
Partnership, its successors and assigns, together with all and singular the
rights and appurtenances thereto, subject, however, to the terms and conditions
stated in this Agreement, forever.
3.2 Holdings Contribution. Effective as of the Effective Time, Holdings
---------------------
hereby grants, contributes, transfers and conveys to the Partnership, its
successors and assigns, for its and their own use forever, all right, title and
interest of Holdings in and to its member interest in the Operating Company in
exchange for (i) the receipt of 2,894,157 Subordinated Units and (ii) other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged and the Partnership hereby accepts said interest as a contribution
to the capital of the Partnership.
TO HAVE AND TO HOLD the member interest in the Operating Company unto the
Partnership, its successors and assigns, together with all and singular the
rights and appurtenances thereto in anywise belonging, subject, however, to the
terms and conditions stated in this Agreement, forever.
ARTICLE IV
ASSUMPTION OF CERTAIN LIABILITIES
4.1 Assumption of Certain Liabilities by the General Partner. In
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connection with the contribution and transfer of the Old Services Assets to the
General Partner by Old Services, the General Partner hereby assumes and agrees
to duly and timely pay, perform and discharge the Old Services Assumed
Liabilities, to the full extent that Old Services has been heretofore or would
have been in the future, were it not for the execution and delivery of this
Agreement, obligated to pay,
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perform and discharge the Old Services Assumed Liabilities; provided, however,
that said assumption and agreement to duly and timely pay, perform and discharge
the Old Services Assumed Liabilities shall not increase the obligation of the
General Partner with respect to the Old Services Assumed Liabilities beyond that
of Old Services, waive any valid defense that was available to Old Services with
respect to the Old Services Assumed Liabilities or enlarge any rights or
remedies of any third party under any of the Old Services Assumed Liabilities.
4.2 Assumption of Certain Liabilities by the Operating Company. In
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connection with the contribution and transfer of the General Partner Assets to
the Operating Company by the General Partner, the Operating Company hereby
assumes and agrees to duly and timely pay, perform and discharge the General
Partner Assumed Liabilities, to the full extent that the General Partner has
been heretofore or would have been in the future, were it not for the execution
and delivery of this Agreement, obligated to pay, perform and discharge the
General Partner Assumed Liabilities; provided, however, that said assumption and
agreement to duly and timely pay, perform and discharge the General Partner
Assumed Liabilities shall not increase the obligation of the Operating Company
with respect to the General Partner Assumed Liabilities beyond that of the
General Partner, waive any valid defense that was available to General Partner
with respect to the General Partner Assumed Liabilities or enlarge any rights or
remedies of any third party under any of the General Partner Assumed
Liabilities.
4.3 Assumption of Existing Indebtedness by the Operating Company.
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The Operating Company hereby assumes and agrees to discharge the Existing
Indebtedness to the full extent that Holdings has been heretofore or would have
been in the future, were it not for the execution and delivery of this
Agreement, obligated to pay, perform and discharge the Existing Indebtedness;
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provided, however, that said assumption and agreement to duly and timely pay,
perform and discharge the Existing Indebtedness shall not increase the
obligation of the Operating Company with respect to the Existing Indebtedness
beyond that of Holdings, waive any valid defense that was available to Holdings
with respect to the Existing Indebtedness or enlarge any rights or remedies of
any third party under any of the Existing Indebtedness.
ARTICLE V
INDEMNIFICATION
5.1 Indemnification With Respect to the Weyerhaeuser Agreement. The
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Partnership shall indemnify, defend and hold harmless Xxxx X. Xxxxx and Xxxxx
Timber, their respective members, officers and directors and their respective
successors and assigns from and against any and all claims, demands, costs,
liabilities (including, without limitation, liabilities arising by way of active
or passive negligence) and expenses (including court costs and reasonable
attorneys' fees) of every kind, character and description, arising from or
relating to the Weyerhaeuser Agreement.
5.2 Indemnification With Respect to Excluded Old Services Liabilities.
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Old Services shall indemnify, defend and hold harmless the General Partner, its
officers and directors and its successors and assigns from and against any and
all claims, demands, costs, liabilities (including, without limitation,
liabilities arising by way of active or passive negligence) and expenses
(including court costs and reasonable attorneys' fees) of every kind, character
and description, whether known or unknown, accrued or contingent, and whether or
not reflected on the books and records of Old Services as of the Effective Time,
arising from or relating to the Excluded Old Services Liabilities.
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5.3 Indemnification With Respect to Excluded Liabilities. Old Services
----------------------------------------------------
and the General Partner shall indemnify, defend and hold harmless the
Partnership, the Operating Company, their respective officers and directors and
their respective successors and assigns from and against any and all claims,
demands, costs, liabilities (including, without limitation, liabilities arising
by way of active or passive negligence) and expenses (including court costs and
reasonable attorneys' fees) of every kind, character and description, whether
known or unknown, accrued or contingent, and whether or not reflected on the
books and records of Old Services or the General Partner as of the Effective
Time, arising from or relating to (i) the Excluded Liabilities and the Excluded
Old Services Liabilities or (ii) any failure of Old Services or the General
Partner to comply with any applicable bulk sales law of any jurisdiction in
connection with the transfer of the General Partner Assets to the Operating
Company.
5.4 Indemnification With Respect to General Partner Assumed Liabilities.
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The Operating Company shall indemnify, defend and hold harmless the General
Partner and Old Services, and their respective officers, directors, successors
and assigns from and against any and all claims, demands, costs, liabilities
(including, without limitation, liabilities arising by way of active or passive
negligence) and expenses (including court costs and reasonable attorneys' fees)
of every kind, character and description, whether known or unknown, accrued or
contingent, and whether or not reflected on the books and records of the General
Partner as of the Effective Time, arising from or relating to the General
Partner Assumed Liabilities.
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ARTICLE VI
MISCELLANEOUS
6.1 Subrogation. The contribution of the General Partner Assets made
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under Section 2.2 is made with full rights of substitution and subrogation of
the Operating Company, and all persons claiming by, through and under the
Operating Company, to the extent assignable, in and to all covenants and
warranties by the predecessors-in-title of the General Partner, and with full
subrogation of all rights accruing under applicable statutes of limitation and
all rights of action of warranty against all former owners of the General
Partner Assets.
6.2 Waiver of Bulk Sales Laws. Each of the parties hereto hereby
-------------------------
waives compliance with any applicable bulk sales law or any similar law in any
applicable jurisdiction in respect of the transactions contemplated by this
Agreement.
6.3 Further Assurances. From time to time after the date hereof, and
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without any further consideration, Old Services and the General Partner shall
each execute, acknowledge and deliver all such additional deeds, assignments,
bills of sale, conveyances, instruments, notices, releases, acquittances and
other documents, and will do all such other acts and things, all in accordance
with applicable law, as may be necessary or appropriate (i) more fully to assure
the Operating Company, its successors and assigns, all of the properties,
rights, titles, interests, estates, remedies, powers and privileges by this
Agreement granted to the Operating Company or intended so to be, (ii) more fully
and effectively to vest in the Operating Company and its successors and assigns
beneficial and record title to the General Partner Assets hereby contributed and
assigned to the Operating Company or intended so to be and to put the Operating
Company in actual possession and control of the
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General Partner Assets and to more fully and effectively carry out the purposes
and intent of this Agreement.
6.4 Power of Attorney. The General Partner hereby constitutes and
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appoints the Operating Company, its successors and assigns, its true and lawful
attorney-in-fact with full power of substitution for it and in its name, place
and stead or otherwise on behalf of the General Partner, its successors and
assigns, and for the benefit of the Operating Company, its successors and
assigns, to demand and receive from time to time the General Partner Assets and
to execute in the name of the General Partner and its successors and assigns
instruments of conveyance, instruments of further assurance and to give receipts
and releases in respect of the same, and from time to time to institute and
prosecute in the name of the Operating Company or the General Partner for the
benefit of the Operating Company, as may be appropriate, any and all proceedings
at law, in equity or otherwise which the Operating Company, its successors and
assigns may deem proper in order to collect, assert or enforce any claims,
rights or titles of any kind in and to the General Partner Assets, and to defend
and compromise any and all actions, suits or proceedings in respect of any of
the General Partner Assets and to do any and all such acts and things in
furtherance of this Agreement as the Operating Company, its successors or
assigns shall deem advisable. The General Partner hereby declares that the
appointment hereby made and the powers hereby granted are coupled with an
interest and are and shall be irrevocable and perpetual and shall not be
terminated by any act of the General Partner, its successors or assigns or by
operation of law.
6.5 Consents; Restriction on Assignment. If there are prohibitions
-----------------------------------
against or conditions to the conveyance of any assets conveyed herein without
the prior written consent of third parties, including, without limitation,
governmental agencies (other than consents of a ministerial nature
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which are normally granted in the ordinary course of business), which if not
satisfied would result in a breach of such prohibitions or conditions or would
give an outside party the right to terminate the Operating Company's rights with
respect to such assets (herein called a "Restriction"), then any provision
contained in this Agreement to the contrary notwithstanding, the transfer of
title to or interest in each such asset (herein called the "Restriction-Asset")
pursuant to this Agreement shall not become effective unless and until such
Restriction is satisfied, waived or no longer applies. When and if such a
Restriction is so satisfied, waived or no longer applies, to the extent
permitted by applicable law and any applicable contractual provisions, the
assignment of the Restriction-Asset subject thereto shall become effective
automatically as of the Effective Time, without further action on the part of
the Operating Company, Old Services or the General Partner. Old Services, the
General Partner and the Operating Company agree to use their best efforts to
obtain satisfaction of any Restriction on a timely basis. The description of the
assets as a "Restriction-Asset" shall not be construed as an admission that any
Restriction exists with respect to the transfer of such assets. In the event
that any Restriction-Asset exists, Old Services and the General Partner, as the
case may be, agree to hold such Restriction-Asset in trust for the exclusive
benefit of the Operating Company and to otherwise use its best efforts to
provide the Operating Company with the benefits thereof, and Old Services and
the General Partner will enter into other agreements, or take such other action
as it deems necessary, in order to help ensure that the Operating Company has
the assets and concomitant rights necessary to enable it to operate the General
Partner Assets contributed to the Operating Company in all material respects as
they were operated prior to the Effective Time.
6.6 Costs. The Operating Company shall pay all sales, use and
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similar taxes arising out of the contributions, conveyances and deliveries to be
made hereunder, and shall pay all
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documentary, filing, recording, transfer, deed, and conveyance taxes and fees
required in connection therewith. In addition, the Operating Company shall be
responsible for all costs, liabilities and expenses (including court costs and
reasonable attorneys' fees) incurred in connection with the satisfaction or
waiver of any Restriction pursuant to Section 6.5.
6.7 Headings: References: Interpretation. All Article and Section
------------------------------------
headings in this Agreement are for convenience only and shall not be deemed to
control or affect the meaning or construction of any of the provisions hereof.
The words "hereof," "herein" and "hereunder" and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole, including,
without limitation, all Schedules and Exhibits attached hereto, and not to any
particular provision of this Agreement. All references herein to Articles,
Sections, Schedules and Exhibits shall, unless the context requires a different
construction, be deemed to be references to the Articles and Sections of this
Agreement and the Schedules and Exhibits attached hereto, and all such Schedules
and Exhibits attached hereto are hereby incorporated herein and made a part
hereof for all purposes. All personal pronouns used in this Agreement, whether
used in the masculine, feminine or neuter gender, shall include all other
genders, and the singular shall include the plural and vice versa. The use
herein of the word "including" following any general statement, term or matter
shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items
or matters, whether or not non-limiting language (such as "without limitation,"
"but not limited to," or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters that
could reasonably fall within the broadest possible scope of such general
statement, term or matter.
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6.8 Successors and Assigns. The Agreement shall be binding upon and
----------------------
inure to the benefit of the parties signatory hereto and their respective
successors and assigns.
6.9 No Third Party Rights. The provisions of this Agreement are
---------------------
intended to bind the parties signatory hereto as to each other and are not
intended to and do not create rights in any other person or confer upon any
other person any benefits, rights or remedies and no person is or is intended to
be a third party beneficiary of any of the provisions of this Agreement.
6.10 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
6.11 Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of New York applicable to
contracts made and to be performed wholly within such state without giving
effect to conflict of law principles thereof, except to the extent that it is
mandatory that the law of some other jurisdiction, wherein the assets are
located, shall apply.
6.12 Severability. If any of the provisions of this Agreement are
------------
held by any court of competent jurisdiction to contravene, or to be invalid
under, the laws of any political body having jurisdiction over the subject
matter hereof, such contravention or invalidity shall not invalidate the entire
Agreement. Instead, this Agreement shall be construed as if it did not contain
the particular provision or provisions held to be invalid, and an equitable
adjustment shall be made and necessary provision added so as to give effect to
the intention of the parties as expressed in this Agreement at the time of
execution of this Agreement.
6.13 Deed; Xxxx of Sale; Assignment. To the extent required by
------------------------------
applicable law, this Agreement shall also constitute a "deed," "xxxx of sale" or
"assignment" of the Assets.
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6.14 Amendment or Modification. This Agreement may be amended or
-------------------------
modified from time to time only by the written agreement of all the parties
hereto.
6.15 Integration. This Agreement supersedes all previous
-----------
understandings or agreements between the parties, whether oral or written, with
respect to its subject matter. This document is an integrated agreement which
contains the entire understanding of the parties. No understanding,
representation, promise or agreement, whether oral or written, is intended to be
or shall be included in or form part of this Agreement unless it is contained in
a written amendment hereto executed by the parties hereto after the date of this
Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first above written.
U.S. TIMBERLANDS COMPANY, L.P.,
a Delaware limited partnership
By: U.S. Timberlands Services Company, L.L.C.
(formerly known as New Services, L.L.C.)
as General Partner
By:__________________________
Name:________________________
Title:_______________________
U.S. TIMBERLANDS MANAGEMENT
COMPANY, L.L.C., (formerly known as
U.S. Timberlands Services Company L.L.C.),
a Delaware limited liability company
By:__________________________
Name:________________________
Title:_______________________
U.S. TIMBERLANDS KLAMATH,
FALLS, L.L.C.,
a Delaware limited liability company
By:__________________________
Name:________________________
Title:_______________________
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U.S. TIMBERLANDS HOLDINGS, L.L.C.,
a Delaware limited liability company
By:__________________________
Name:________________________
Title:_______________________
U.S. TIMBERLANDS SERVICES
COMPANY, L.L.C. (formerly known as
New Services, L.L.C.),
a Delaware limited liability company
By:__________________________
Name:________________________
Title:_______________________
RUDEY TIMBER COMPANY, L.L.C.,
a Delaware limited liability company
By:__________________________
Name:________________________
Title:_______________________
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SCHEDULE I
Excluded General Partner Assets
-------------------------------
1. All computers, monitors, copiers, printers, fax machines, typewriters,
computer software, furniture and other office equipment and machinery.
2. Employee Benefits.
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SCHEDULE II
Excluded Liabilities
--------------------
1. All of the liabilities of the General Partner to the extent that such
liabilities relate solely to the Excluded General Partner Assets.
2. All federal state and local income tax liabilities attributable to the
operations of the General Partner Assets prior to the Effective Time,
including any such income tax liabilities that may result from the
consummation of the transactions contemplated by this Agreement.
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SCHEDULE III
Excluded Old Services Liabilities
---------------------------------
1. All federal state and local income tax liabilities attributable to the
operations of the Old Services Assets prior to the Effective Time,
including any such income tax liabilities that may result from the
consummation of the transactions contemplated by this Agreement.
2. The obligation of Old Services to distribute the Excluded Old Services
Assets to Xxxx Xxxxxxxx.
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