Exhibit



EXHIBIT 10.1                            EXECUTION VERSION



Published CUSIP Numbers: 
Deal:  96216TAL8 
Revolver: 96216TAM6


	
	
	

REVOLVING CREDIT FACILITY AGREEMENT 
 
dated as of 
 
March 6, 2017, 
 
among 
 
WEYERHAEUSER COMPANY, 
 
The LENDERS Party Hereto, 
 
JPMORGAN CHASE BANK, N.A. and 
WELLS FARGO BANK, NATIONAL ASSOCIATION, 
as Co-Administrative Agents,                                                                                                                     and 
 
WELLS FARGO BANK, NATIONAL ASSOCIATION, 
as Paying Agent 
 
___________________________                                                                                                                                                                                                                                                                                                                                                                                                         JPMORGAN CHASE BANK, N.A., WELLS FARGO SECURITIES, LLC,                                                                                                                                       THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED, U.S. BANK NATIONAL ASSOCIATION, THE BANK OF NOVA SCOTIA, PNC CAPITAL MARKETS LLC, COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH and
BRANCH BANKING AND TRUST COMPANY, 
as Joint Lead Arrangers and Joint Bookrunners, 
 
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., 
as Syndication Agent


and


BANK OF AMERICA, N.A., U.S. BANK NATIONAL ASSOCIATION, THE BANK OF NOVA SCOTIA, PNC BANK, NATIONAL ASSOCIATION, COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH and
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agents


 





















TABLE OF CONTENTS
Page


ARTICLE I 
 
Definitions
	
				
	SECTION 1.01.
	Defined Terms
	1
	


	SECTION 1.02.
	Classification of Loans and Borrowings
	21
	


	SECTION 1.03.
	Terms Generally
	22
	


	SECTION 1.04.
	Accounting Terms; GAAP
	22
	


	 
	 
	 




ARTICLE II 
 
The Credits
	
				
	SECTION 2.01.
	Revolving Commitments
	23
	


	SECTION 2.02.
	Loans and Borrowings
	23
	


	SECTION 2.03.
	Requests for Revolving Borrowings
	24
	


	SECTION 2.04.
	Swingline Loans
	25
	


	SECTION 2.05.
	Letters of Credit
	27
	


	SECTION 2.06.
	Funding of Borrowings
	34
	


	SECTION 2.07.
	Interest Elections
	35
	


	SECTION 2.08.
	Termination and Reduction of Commitments
	37
	


	SECTION 2.09.
	Repayment of Loans; Evidence of Debt
	37
	


	SECTION 2.10.
	Prepayment of Loans
	38
	


	SECTION 2.11.
	Fees
	39
	


	SECTION 2.12.
	Interest
	40
	


	SECTION 2.13.
	Alternate Rate of Interest
	41
	


	SECTION 2.14.
	Increased Costs
	41
	


	SECTION 2.15.
	Break Funding Payments
	43
	


	SECTION 2.16.
	Taxes
	44
	


	SECTION 2.17.
	Payments Generally; Pro Rata Treatment; Sharing of Setoffs
	48
	


	SECTION 2.18.
	Mitigation Obligations; Replacement of Lenders
	50
	


	SECTION 2.19.
	Defaulting Lenders
	52
	


	SECTION 2.20.
	Incremental Commitments
	55
	


	SECTION 2.21.
	Extensions
	57
	











i









ARTICLE III 
 
Representations and Warranties
	
				
	SECTION 3.01.
	Organization; Powers
	59
	


	SECTION 3.02.
	Authorization; Enforceability
	60
	


	SECTION 3.03.
	Governmental Approvals; Absence of Conflicts
	60
	


	SECTION 3.04.
	Financial Condition; No Material Adverse Change
	60
	


	SECTION 3.05.
	Properties
	61
	


	SECTION 3.06.
	Litigation
	61
	


	SECTION 3.07.
	Compliance with Laws
	61
	


	SECTION 3.08.
	Investment Company Status
	61
	


	SECTION 3.09.
	Taxes
	61
	


	SECTION 3.10.
	ERISA
	61
	


	SECTION 3.11.
	Disclosure
	61
	


	SECTION 3.12.
	Federal Reserve Regulations
	62
	


	SECTION 3.13.
	Anti-Corruption Laws and Sanctions
	62
	







ARTICLE IV 
 
Conditions
	
				
	SECTION 4.01.
	Effective Date
	62
	


	SECTION 4.02.
	Each Credit Event
	64
	







ARTICLE V 
 
Affirmative Covenants
	
				
	SECTION 5.01.
	Financial Statements and Other Information
	64
	


	SECTION 5.02.
	Notices of Default
	66
	


	SECTION 5.03.
	Existence; Conduct of Business
	66
	


	SECTION 5.04.
	Payment of Taxes
	66
	


	SECTION 5.05.
	Maintenance of Properties
	66
	


	SECTION 5.06.
	Insurance
	66
	


	SECTION 5.07.
	Books and Records; Inspection Rights
	67
	


	SECTION 5.08
	Compliance with Laws
	67
	


	SECTION 5.09
	Use of Credit
	67
	


	SECTION 5.10
	Claim Agreement
	68
	











ii











ARTICLE VI 
 
Negative Covenants
	
				
	SECTION 6.01.
	Secured Indebtedness
	68
	


	SECTION 6.02.
	Sale and Lease-Back Transactions
	70
	


	SECTION 6.03.
	Merger, Consolidation and Other Fundamental Changes
	70
	


	SECTION 6.04.
	Funded Debt Ratio
	70
	


	SECTION 6.05.
	Total Adjusted Shareholders' Equity
	71
	


	SECTION 6.06.
	Change in Business
	71
	







ARTICLE VII 
 
Events of Default
ARTICLE VIII 
 
The Agents
ARTICLE IX 
 
Miscellaneous
	
				
	SECTION 9.01.
	Notices
	77
	


	SECTION 9.02.
	Waivers; Amendments
	80
	


	SECTION 9.03.
	Expenses; Indemnity; Damage Waiver
	82
	


	SECTION 9.04.
	Successors and Assigns
	85
	


	SECTION 9.05.
	Survival
	91
	


	SECTION 9.06
	Counterparts; Integration; Effectiveness
	91
	


	SECTION 9.07.
	Severability
	92
	


	SECTION 9.08.
	Right of Setoff
	92
	


	SECTION 9.09.
	Governing Law; Jurisdiction; Consent  to Service of Process
	92
	


	SECTION 9.10.
	Waiver of Jury Trial
	93
	


	SECTION 9.11.
	Headings
	93
	


	SECTION 9.12.
	Confidentiality
	93
	


	SECTION 9.13.
	Interest Rate Limitation
	94
	


	SECTION 9.14.
	USA PATRIOT Act Notice
	95
	


	SECTION 9.15.
	No Fiduciary Relationship
	95
	


	SECTION 9.16.
	Non-Public Information
	95
	


	SECTION 9.17.
	Acknowledgement and Consent to Bail-In of EEA Financial Institutions
	96
	











iii












SCHEDULES:


Schedule 1.01    —    Unrestricted Subsidiaries
Schedule 2.01    —    Lenders; Commitments
Schedule 2.05    —    LC Commitments
Schedule 3.06    —    Litigation


EXHIBITS:


Exhibit A     —    Form of Assignment and Assumption
Exhibit B    —    Form of Borrowing/Interest Election Request
Exhibit C     —    Form of Claim Agreement
Exhibit D-1     —    Form of U.S. Tax Compliance Certificate for Foreign
Lenders that are not Partnerships for U.S. Federal Income
Tax Purposes
 
Exhibit D-2     —    Form of U.S. Tax Compliance Certificate for Foreign
Participants that are not Partnerships for U.S. Federal
Income  Tax Purposes
 
Exhibit D-3     —    Form of U.S. Tax Compliance Certificate for Foreign
Participants that are Partnerships for U.S. Federal Income
Tax Purposes
 
Exhibit D-4     —    Form of U.S. Tax Compliance Certificate for Foreign
Lenders that are Partnerships for U.S. Federal Income Tax
Purposes
 
Exhibit E    —    Form of Compliance Certificate




iv










REVOLVING CREDIT FACILITY AGREEMENT dated as of March 6, 2017 (this “Agreement”), among WEYERHAEUSER COMPANY, a Washington corporation, the LENDERS party hereto, JPMORGAN CHASE BANK, N.A., as Co-Administrative Agent, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Co-Administrative Agent and Paying Agent.
The parties hereto agree as follows:
ARTICLE I
 
Definitions
SECTION 1.01.  Defined Terms.  As used in this Agreement, the following terms have the meanings specified below:
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Paying Agent.
“Affiliate” means, with respect to a specified Person, another Person that directly or indirectly Controls or is Controlled by or is under common Control with the Person specified.
“Agent” means any Co-Administrative Agent or the Paying Agent.
“Aggregate Revolving Commitment” means, at any time, the sum of the Revolving Commitments of all the Lenders at such time.
“Aggregate Revolving Exposure” means, at any time, the sum of the Revolving Exposures of all the Lenders at such time.
“Agreement” has the meaning set forth in the preamble hereto.
“Anti-Corruption Laws” means all laws, rules and regulations of the United States and Canada applicable to the Borrower or any Restricted Subsidiary from time to time concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977 and the Corruption of Foreign Public Officials Act (Canada).
“Applicable Percentage” means, at any time, with respect to any Lender, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at such time.  If all the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments.
“Applicable Rate” means, for any day, with respect to the facility fees payable hereunder, or with respect to any Base Rate Loan or Eurodollar Loan, as the case may be, 








2



the applicable rate per annum set forth below based upon the Ratings received from S&P and Moody’s:
	
						
	

S&P:
Moody’s:
	Level 1 
A- or higher
A3 or higher
	Level 2
BBB+
Baa1
	Level 3
BBB
Baa2
	Level 4
BBB-
Baa3
	Level 5
BB+ or lower
Ba1 or lower

	Facility Fee
	0.090%
	0.110%
	0.150%
	0.200%
	0.250%

	Eurodollar Loan
	0.910%
	1.015%
	1.100%
	1.175%
	1.250%

	Base Rate Loan
	0.000%
	0.015%
	0.100%
	0.175%
	0.250%








For purposes of the foregoing, (a) in the event either S&P or Moody’s shall not have in effect a Rating (other than by reason of the circumstances referred to in the last sentence of this definition), the Applicable Rate shall be based on the remaining Rating by either S&P or Moody’s, as the case may be, (b) in the event neither S&P nor Moody’s shall have in effect a Rating (other than by reason of the circumstances referred to in the last sentence of this definition), the Applicable Rate shall be based on Level 5, (c) if the Ratings established by S&P or Moody’s shall fall within different Levels, the Applicable Rate shall be based on the higher of the two Ratings, unless the Ratings differ by two or more Levels, in which case the Applicable Rate shall be based on the Level one level below that corresponding to the higher Rating, and (d) if the Rating by S&P or Moody’s shall be changed (other than as a result of a change in the rating system of S&P or Moody’s), such change shall be effective as of the date on which it is first announced by the applicable rating agency, irrespective of when notice of such change is received by the Borrower, the Paying Agent or the Lenders.  Each change in the Applicable Rate shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change.  If the rating system of S&P or Moody’s shall change, or if any such rating agency shall cease to be in the business of rating corporate debt obligations, the Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of a Rating from such rating agency (it being agreed that, notwithstanding anything in Section 9.02 to the contrary, any such amendment may be effected with the consent of the Required Lenders) and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the Rating from such rating agency most recently in effect prior to such change or cessation.
“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinary course of its activities and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.








3



“Arrangers” means JPMorgan Chase Bank, N.A., Wells Fargo Securities, LLC, The Bank of Tokyo-Mitsubishi UFJ, LTD., Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), U.S. Bank National Association, The Bank Of Nova Scotia, PNC Capital Markets LLC, Coöperatieve Rabobank U.A., New York Branch and Branch Banking and Trust Company, in their capacities as the joint lead arrangers and joint bookrunners for the credit facility provided for herein.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee, in the form of Exhibit A or any other form approved by the Paying Agent and the Borrower, in each case with the consent of any Person whose consent is required by Section 9.04 and accepted by the Paying Agent.
“Attributable Debt” means, in respect of any Sale and Lease-Back Transaction at any time, the present value (discounted at the interest rate implicit in such transaction) of the obligation of the lessee for rental payments during the remaining term of the applicable lease (including any period for which such lease has been extended or may, at the option of the lessor, be extended), determined in accordance with GAAP; provided that if such Sale and Lease-Back Transaction results in a Capital Lease Obligation, the amount of “Attributable Debt” represented thereby will be determined in accordance with the definition of “Capital Lease Obligations.
“Backstopped Letter of Credit” has the meaning set forth in Section 2.05(c).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule.
“Bankruptcy Event” means, with respect to any Person, that such Person has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Paying Agent, has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority so long as such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States of America or from the enforcement 








4



of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any agreements made by such Person.
“Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1⁄2 of 1% per annum and (c) LIBOR on such day (or if such day is not a Business Day, the immediately preceding Business Day) for a deposit in dollars with a maturity of one month plus 1% per annum.  For purposes of clause (c) above, LIBOR on any day shall be based on the LIBOR Screen Rate (or, if the LIBOR Screen Rate is not available for such one-month maturity, the Interpolated Screen Rate) at approximately 11:00 a.m., London time, on such day for deposits in dollars with a maturity of one month.  Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or LIBOR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or LIBOR, respectively.
“Base Rate Loan” means a Loan that bears interest at a rate determined by reference to the Base Rate.
“Board of Governors” means the Board of Governors of the Federal Reserve System of the United States of America.
“Borrower” means Weyerhaeuser Company, a Washington corporation, and its successors permitted by Section 6.03.
“Borrowing” means (a) Revolving Loans of the same Type made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect or (b) a Swingline Loan.
“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03 or 2.04, as applicable, which shall be, in the case of any such written request, in the form of Exhibit B or any other form reasonably acceptable to the Paying Agent and the Borrower.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.  








5



A “Change in Control” shall be deemed to have occurred if (a) any “person” or “group” (within the meaning of Rule 13d-5 of the SEC under the Exchange Act as in effect on the date hereof, but excluding any employee benefit plan of the Borrower or its Subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) shall own directly or indirectly, beneficially or of record, shares representing more than 40% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of the Borrower or (b) a majority of the seats (other than vacant seats) on the board of directors of the Borrower shall at any time be occupied by persons who were not (i) directors of the Borrower on the date hereof, (ii) directors nominated or appointed by the management of the Borrower or (iii) directors nominated, appointed or approved by a majority of the directors referred to in the preceding clauses (i) and (ii) or this clause (iii).
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any rule, regulation, treaty or other law, (b) any change in any rule, regulation, treaty or other law or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated or issued.
“Charges” has the meaning set forth in Section 9.13.
“Claim Agreement” means the Claim Agreement dated as of the date hereof executed by the Borrower and WNR, in favor of the Paying Agent for the benefit of the Lenders and the Issuing Banks, substantially in the form of Exhibit C or any other form approved by the Paying Agent.
“Class”, when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans, (b) any Commitment, refers to whether such Commitment is a Revolving Commitment or any other Class of Commitments created pursuant to Section 2.21 and (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class.  Additional Classes of Loans, Borrowings, Commitments and Lenders may be established pursuant to Sections 2.21.
“Co-Administrative Agent” means each of JPMorgan Chase Bank, N.A. and Wells Fargo Bank, National Association, in its capacity as a co-administrative agent hereunder, and its successors in such capacity as provided in Article VIII.








6



“Code” means the Internal Revenue Code of 1986.
“Commitment” means a Revolving Commitment or any other Class of commitment established pursuant to Section 2.21, or any combination thereof (as the context requires).
“Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Borrower pursuant to any Loan Document or the transactions contemplated therein that is distributed to any Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to Section 9.01, including through the Platform.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.
“Credit Party” means each Agent, each Issuing Bank, the Swingline Lender and each other Lender.
“Default” means any event or condition that constitutes, or upon notice, lapse of time or both would constitute, unless cured or waived, an Event of Default.
“Defaulting Lender” means any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, (i) to fund any portion of its Loans, (ii) to fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) to pay to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Paying Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified in such writing, including, if applicable, by reference to a specific Default) has not been satisfied, (b) has notified the Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified in such writing, including, if applicable, by reference to a specific Default) to funding a Loan cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Borrower, an Agent, an Issuing Bank or the Swingline Lender made in good faith to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans, provided that such Lender shall cease to be a Defaulting 








7



Lender pursuant to this clause (c) upon the Borrower, such Agent, such Issuing Bank or the Swingline Lender’s receipt of such certification in form and substance satisfactory to it and the Paying Agent, (d) has become the subject of a Bankruptcy Event or (e) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action.
“Disclosed Matters” means any information disclosed in (a) the Annual Report on Form 10-K of the Borrower for the fiscal year ended December 31, 2016 and all other reports publicly filed by the Borrower with the SEC on Forms 10-K, 10-Q or 8-K since December 31, 2016 and prior to the date hereof, (b) the Annual Report on Form 10-K of Plum Creek Timber Company, Inc. for the fiscal year ended December 31, 2015 and all other reports publicly filed by Plum Creek Timber Company, Inc. with the SEC on Forms 10-K, 10-Q or 8-K since December 31, 2015 and prior to the date hereof, and (c) the actions, suits and proceedings disclosed on Schedule 3.06. 
“dollars” or “$” refers to lawful money of the United States of America.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of any Person described in clause (a) above or (c) any institution established in an EEA Member Country that is a subsidiary of any Person described in clause (a) or (b) above and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any commercial bank, any investment bank, any savings and loan association, any savings bank and any insurance company that, in each case under this clause (d), extends credit or makes or purchases loans in the ordinary course of business, other than, in each case, (i) the Borrower or any Subsidiary, (ii) any Defaulting Lender or (iii) any natural person.
“Environmental Laws” means all rules, regulations, codes, ordinances, judgments, orders, decrees, directives and other laws, and all injunctions, notices or binding agreements, issued, promulgated or entered into by or with any Governmental Authority and relating in any way to the environment, to preservation or reclamation of natural resources, or to health or safety matters (as such relate to Hazardous Materials).








8



“Environmental Liability” means any liability, obligation, loss, claim, action, order or cost, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties and indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the presence, Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means shares of capital stock, partnership interests, membership interests, beneficial interests or other ownership interests, whether voting or nonvoting, in, or interests in the income or profits of, a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing (other than, prior to the date of such conversion, Indebtedness that is convertible into any such Equity Interests).
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any entity, trade or business (whether or not incorporated) that, together with the Borrower or any Subsidiary, is treated as a “single employer” within the meaning of Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived), (b) any failure by any Plan to satisfy the minimum funding standard (within the meaning of Sections 412 and 430 of the Code or Sections 302 and 303 of ERISA) applicable to such Plan, in each case whether or not waived, (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver of the minimum funding standard with respect to any Plan, (d) a determination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code), (e) the incurrence by the Borrower or any Subsidiary or any of their respective ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan, (f) the filing of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (g) the incurrence by the Borrower or any Subsidiary or any of their respective ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan, (h) the receipt by the Borrower or any Subsidiary or any of their respective ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from the Borrower or any Subsidiary or any of their respective ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Section 4245 of ERISA, or in endangered or critical status, within the meaning of Section 305 of ERISA, or terminated, within the meaning of Section 4041A of ERISA or (i) the conditions for imposition of a Lien under Section 303(k) of ERISA shall have been met with respect to any Plan.








9



“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Eurodollar Borrowing” means a Borrowing comprised of Eurodollar Loans.
“Eurodollar Loan” means a Loan that bears interest at a rate determined by reference to LIBOR.
“Eurodollar Reserve Percentage” means, for any day with respect to any Lender, that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors, for determining the reserve requirement (if any) for such Lender in respect of eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D of the Board of Governors).  The Eurodollar Reserve Percentage shall be adjusted automatically on and as of the effective date of any change in any such reserve percentage.
“Event of Default” has the meaning set forth in Article VII.
“Exchange Act” means the United States Securities Exchange Act of 1934.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.18(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.16, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in such Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.16(f) and (d) any U.S. Federal withholding Taxes imposed under FATCA. 
“Existing Credit Agreement” means the Revolving Credit Facility Agreement dated as of September 11, 2013, among the Borrower, Weyerhaeuser Real Estate Company, the lenders, the swing line bank and the initial fronting bank party thereto and JPMorgan Chase Bank, N.A., as administrative agent.
“Existing Letter of Credit” means, in connection with any Person becoming an Issuing Bank hereunder as provided in Section 2.05(j), any then outstanding letter of 








10



credit issued by such Issuing Bank for the account of the Borrower or any Subsidiary that, subject to the limitations on the amount of the LC Exposure set forth in Section 2.05(b), is designated as an Existing Letter of Credit upon notice thereof by the Borrower and such Issuing Bank to the Paying Agent and a representation by the Borrower that the conditions precedent set forth in Sections 4.02(a) and 4.02(b) shall be satisfied immediately after giving effect thereto.
“Existing Maturity Date” has the meaning set forth in Section 2.21(a).
“Existing Revolving Borrowings” has the meaning set forth in Section 2.20(e).
“Extending Lender” has the meaning set forth in Section 2.21(a).
“Extension” has the meaning set forth in Section 2.21(a).
“Extension Agreement” means an Extension Agreement, in form and substance reasonably satisfactory to the Paying Agent and the Borrower, among the Borrower, the Paying Agent and one or more Extending Lenders, effecting an Extension and such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.21.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b) of the Code.
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 1%) of the quotations for such day for such transactions received by the Paying Agent from three Federal funds brokers of recognized standing selected by it; provided that if such rate shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.
“Financial Officer” means, with respect to any Person, the chief financial officer, the principal accounting officer, the treasurer or the controller of such Person.
“Foreign Lender” means a Lender that is not a U.S. Person.
“GAAP” means generally accepted accounting principles in the United States of America, applied in accordance with the consistency requirements thereof.








11



“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national body exercising such powers or functions, such as the European Union or the European Central Bank).
“Guarantee” of or by any Person means any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness of the payment of such Indebtedness, (c) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness; provided, however, that the term Guarantee shall not include endorsements for collection or deposit, in either case in the ordinary course of business.  The amount, as of any date of determination, of any Guarantee shall be the principal amount outstanding on such date of the Indebtedness guaranteed thereby (or, in the case of (i) any Guarantee the terms of which limit the monetary exposure of the guarantor or (ii) any Guarantee of an obligation that does not have a principal amount, the maximum monetary exposure as of such date of the guarantor under such Guarantee (as determined, in the case of clause (i), pursuant to such terms or, in the case of clause (ii), reasonably and in good faith by a Financial Officer of the Borrower)).
“Hazardous Materials”  means all explosive, radioactive, hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Incremental Commitment” means, with respect to any Lender, the commitment, if any, of such Lender, established pursuant to an Incremental Facility Agreement and Section 2.20, to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Revolving Exposure under such Incremental Facility Agreement.
“Incremental Facility Agreement” means an Incremental Facility Agreement, in form and substance reasonably satisfactory to the Paying Agent and the Borrower, among the Borrower, the Paying Agent and one or more Incremental Lenders, 








12



establishing Incremental Commitments and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.20.
“Incremental Lender” means a Lender with an Incremental Commitment.
“Indebtedness” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments (other than, for the avoidance of doubt, performance bonds, surety bonds and similar instruments), (c) all obligations of such Person issued or assumed as the deferred purchase price of property or services due more than six months after such property is acquired or such services are completed (excluding (i) trade accounts payable and accrued expenses, in each case incurred in the ordinary course of business, (ii) deferred compensation payable to directors, officers or employees of the Borrower or any Subsidiary and any such obligations incurred under ERISA and (iii) any purchase price adjustment or earn-out obligation, except, in the case of this clause (iii), to the extent that the amount thereof is due and payable), (d) all Indebtedness of others secured by any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed by such Person, valued, as of any date of determination, at the lesser of (i) the principal amount of such Indebtedness and (ii) the fair market value of such property (as determined in good faith by such Person), (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person and (h) all obligations of such Person as an account party in respect of letters of credit (other than trade related letters of credit issued in the ordinary course of business) and the principal component of all obligations of such Person in respect of bankers’ acceptances.  The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning set forth in Section 9.03(b).
“Information” has the meaning set forth in Section 9.12.
“Interest Election Request” means a request by the Borrower to convert or continue a Revolving Borrowing in accordance with Section 2.07, which shall be, in the case of any such written request, in the form of Exhibit B or any other form reasonably acceptable to the Paying Agent and the Borrower.
“Interest Payment Date” means (a) with respect to any Base Rate Revolving Loan, the last Business Day of each March, June, September and December, (b) with respect to any Eurodollar Revolving Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Revolving Borrowing with an Interest Period of more than three months’ duration, such day or days prior to the 








13



last day of such Interest Period as shall occur at intervals of three months’ duration after the first day of such Interest Period and (c) with respect to any Swingline Loan, the last Business Day of each March, June, September and December.
“Interest Period” means, with respect to any Eurodollar Revolving Borrowing, the period commencing on the date of such Borrowing and ending on the day that is one week or one, two, three or six months thereafter (or, if agreed to by each Lender participating therein, 12 months thereafter or a period of another duration thereafter), as the Borrower may elect; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless (other than in the case of a one-week Interest Period) such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (b) any Interest Period (other than a one-week Interest Period) that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Interpolated Screen Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, a rate per annum which results from interpolating on a linear basis between (a) the applicable LIBOR Screen Rate for the longest maturity for which a LIBOR Screen Rate is available that is shorter than such Interest Period and (b) the applicable LIBOR Screen Rate for the shortest maturity for which a LIBOR Screen Rate is available that is longer than such Interest Period, in each case at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.
“IRS” means the United States Internal Revenue Service. 
“Issuing Banks” means (a) JPMorgan Chase Bank, N.A., (b) Wells Fargo Bank, National Association, (c) The Bank of Tokyo-Mitsubishi UFJ, Ltd. and (d) each other Lender that shall have become an Issuing Bank hereunder as provided in Section 2.05(j) (other than, in each case, any Person that shall have ceased to be an Issuing Bank as provided in Section 2.05(k)), each in its capacity as an issuer of Letters of Credit hereunder.  Each Issuing Bank may, in its discretion but subject to the prior consent of the Borrower, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate (it being agreed that such Issuing Bank shall, or shall cause such Affiliate to, comply with the requirements of Section 2.05 with respect to such Letters of Credit).
“LC Commitment” means, with respect to any Issuing Bank, the maximum permitted amount of the LC Exposure that may be attributable to Letters of Credit that, subject to the terms and conditions hereof, are required to be issued by such Issuing Bank.  The initial amount of each Issuing Bank’s LC Commitment is set forth on Schedule 2.05 








14



or, in the case of any Issuing Bank that becomes an “Issuing Bank” hereunder pursuant to Section 2.05(j), as set forth in a written agreement referred to in such Section, or, in each case, such other maximum permitted amount with respect to any Issuing Bank as may have been agreed in writing (and notified in writing to the Paying Agent) by such Issuing Bank and the Borrower.
“LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate amount of all Letters of Credit remaining available for drawing at such time (assuming compliance at such time with all conditions to drawing) and (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time.  The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time, adjusted to give effect to any reallocation under Section 2.19 of the LC Exposures of Defaulting Lenders in effect at such time.
“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption or an Incremental Facility Agreement, other than any such Person that shall have ceased to be a party hereto pursuant to an Assignment and Assumption.  Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.
“Letter of Credit” means any letter of credit issued pursuant to this Agreement and any Existing Letter of Credit, other than any such letter of credit that shall have ceased to be a “Letter of Credit” outstanding hereunder pursuant to Section 9.05.
“LIBOR” means, with respect to any Eurodollar Borrowing for any Interest Period, the LIBOR Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.  If no LIBOR Screen Rate shall be available at such time for a particular Interest Period but LIBOR Screen Rates shall be available for maturities both longer and shorter than such Interest Period, then LIBOR for such Interest Period shall be the Interpolated Screen Rate.  Notwithstanding the foregoing, if LIBOR, determined as provided above, would otherwise be less than zero, then LIBOR shall be deemed to be zero for all purposes.
“LIBOR Screen Rate” means, for any day and time, with respect to any Eurodollar Borrowing for any Interest Period, the London interbank offered rate as administered by the ICE Benchmark Administration Ltd. (or any other Person that takes over the administration of such rate) for deposits in dollars (for delivery on the first day of such Interest Period) for a period equal in length to such Interest Period as displayed on the Reuters screen page that displays such rate (currently page LIBOR01 or LIBOR02) or, in the event such rate does not appear on a page of the Reuters screen, on the appropriate page of such other information service that publishes such rate from time to time as shall be selected by the Paying Agent from time to time in its reasonable discretion. 








15



“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, encumbrance, hypothecation, charge or security interest on, in or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement relating to such asset; provided that an operating lease shall not be deemed to constitute a Lien.
“Loan Documents” means this Agreement, the Extension Agreements, the Incremental Facility Agreements, any agreement designating an additional Issuing Bank as contemplated by Section 2.05(j), the Claim Agreement and, except for purposes of Section 9.02, any promissory notes delivered pursuant to Section 2.09(c).
“Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement. 
“Material Adverse Effect” means (a) a materially adverse effect on the business, financial condition, operations or properties of the Borrower and the Restricted Subsidiaries, taken as a whole, (b) a materially adverse effect on the ability of the Borrower to perform its payment obligations under any Loan Document or (c) a materially adverse effect on the rights and remedies available to the Paying Agent, the Co-Administrative Agents and the Lenders under the Loan Documents.
“Material Indebtedness” means Indebtedness (other than Indebtedness under the Loan Documents) of the Borrower and the Restricted Subsidiaries in an aggregate principal amount of $150,000,000 or more.
“Material Restricted Subsidiary” means each Restricted Subsidiary (a) the total assets of which (determined on a consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries) equal 5.0% or more of the consolidated total assets of the Borrower and the Restricted Subsidiaries or (b) the revenues of which (determined on a consolidated basis for such Restricted Subsidiary and its Restricted Subsidiaries) equal 5.0% or more of the consolidated revenues of the Borrower and the Restricted Subsidiaries, in each case as of the last day of or for the most recently ended period of four fiscal quarters of the Borrower for which financial statements have been delivered pursuant to Section 5.01 (or, prior to the first such delivery, such period ended December 31, 2016).
“Maturity Date” means the five-year anniversary of the Effective Date, as such date may be extended pursuant to Section 2.21.
“Maturity Date Extension Request” has the meaning set forth in Section 2.21(a).
“Maximum Rate” has the meaning set forth in Section 9.13.
“MNPI” means material information concerning the Borrower or any Subsidiary or their securities that is not Public Information.  For purposes of this definition, “material information” means information concerning the Borrower or the Subsidiaries, or 








16



any of their securities, that could reasonably be expected to be material for purposes of the United States Federal and state securities laws.
“Moody’s” means Moody’s Investors Service, Inc., and any successor to its rating agency business.
“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions.
“Non-Defaulting Lender” means, at any time, any Lender that is not a Defaulting Lender at such time.
“Non-Extending Lender” has the meaning set forth in Section 2.21(a).
“OFAC” means the United States Treasury Department Office of Foreign Assets Control.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, excise, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.18).
“Participant Register” has the meaning set forth in Section 9.04(c)(ii).
“Participants” has the meaning set forth in Section 9.04(c)(i).
“Paying Agent” means Wells Fargo Bank, National Association, in its capacity as paying agent hereunder and under the other Loan Documents, and its successors in such capacity as provided in Article VIII.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.








17



“Plan” means any “employee pension benefit plan”, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any Subsidiary or any of their respective ERISA Affiliates is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Platform” has the meaning set forth in Section 9.01(d).
“Prime Rate” means the rate of interest per annum publicly announced from time to time by the Paying Agent as its prime commercial lending rate in effect at its principal office in New York City.  Each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
“Private Side Lender Representatives” means, with respect to any Lender, representatives of such Lender that are not Public Side Lender Representatives.
“Public Information” means any information that (a) has been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD under the Securities Act and the Exchange Act or (b) does not constitute material information concerning the Borrower or the Subsidiaries or their securities.  For purposes of this definition, “material information” means information concerning the Borrower or the Subsidiaries, or any of their securities, that could reasonably be expected to be material for purposes of the United States Federal and state securities laws.
“Public Side Lender Representatives” means, with respect to any Lender, representatives of such Lender that do not wish to receive MNPI.
“Rating” means, as of any date, (a) the rating by Moody’s or S&P, as the case may be, in effect on such date of the Senior Unsecured Long-Term Debt of the Borrower or (b) if Moody’s or S&P, as the case may be, does not have a rating in effect on such date of the Senior Unsecured Long-Term Debt of the Borrower, the corporate rating of the Borrower by Moody’s or S&P, as applicable.
“Recipient” means any Agent, any Lender and any Issuing Bank, or any combination thereof (as the context requires).
“Register” has the meaning set forth in Section 9.04(b).
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the directors, officers, partners, members, trustees, employees, agents, administrators, managers, representatives and advisors of such Person and of such Person’s Affiliates.








18



“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or within or upon any building, structure, facility or fixture.
“Required Lenders” means, at any time, Lenders having Revolving Exposures and unused Revolving Commitments representing more than 50% of the sum of the Aggregate Revolving Exposure and unused Revolving Commitments at such time.  For purposes of this definition, the amount of Revolving Exposures and unused Revolving Commitments shall be determined by excluding the Revolving Exposure and unused Revolving Commitments of any Defaulting Lender.
“Responsible Officer” means, with respect to any Person, the chief executive officer, the chief financial officer, the principal accounting officer, the treasurer, the controller (or an individual performing an equivalent function) or the general counsel of such Person.
“Restricted Subsidiary” means each Subsidiary that is not an Unrestricted Subsidiary.
“Resulting Revolving Borrowings” has the meaning set forth in Section 2.20(e).
“Revolving Availability Period” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Revolving Commitments.
“Revolving Borrowing” means a Borrowing consisting of Revolving Loans.
“Revolving Commitment” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Revolving Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption or the Incremental Facility Agreement pursuant to which such Lender shall have assumed its Revolving Commitment, as applicable.  The aggregate amount of the Lenders’ Revolving Commitments on the Effective Date is $1,500,000,000.
“Revolving Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans and such Lender’s LC Exposure and Swingline Exposure at such time.
“Revolving Loan” means a revolving loan made by a Lender to the Borrower pursuant to Section 2.01.








19



“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“Sale and Lease-Back Transaction” means any arrangement with any Person providing for the leasing by the Borrower or a Restricted Subsidiary of any real property in the United States of America (except for temporary leases for a term of not more than three years), which property has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to such Person.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of specially designated Persons maintained by OFAC, the U.S. Department of State, the U.S. Department of Commerce or the Department of Foreign Affairs, Trade and Development (Canada) or (b) any Person owned or controlled by any such Person. 
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by OFAC, the U.S. Department of State, the U.S. Department of Commerce or the Department of Foreign Affairs, Trade and Development (Canada).
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the United States Securities Act of 1933.
“Senior Unsecured Long-Term Debt” means senior, unsecured, non-credit-enhanced long-term indebtedness for borrowed money of the Borrower.
“Shareholders’ Interest in the Borrower and the Restricted Subsidiaries” means, at any time, the aggregate of capital and surplus, including surplus resulting from the March 1, 1913 revaluation of timber and timberlands, of the Borrower and the Restricted Subsidiaries at such time, after deducting the cost of shares of the Borrower held in treasury.
“subsidiary” means, with respect to any Person (herein referred to as the “parent”), any corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Equity Interests having ordinary voting power for the election of directors or other governing body members (other than Equity Interests having such power only by reason of the happening of a contingency) are, at the time any determination is being made, beneficially owned by the parent and/or one or more subsidiaries of the parent.
“Subsidiary” means any subsidiary of the Borrower.








20



“Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time.  The Swingline Exposure of any Lender at any time shall be its Applicable Percentage of the total Swingline Exposure at such time, adjusted to give effect to any reallocation under Section 2.19 of the Swingline Exposures of Defaulting Lenders in effect at such time.
“Swingline Lender” means Wells Fargo Bank, National Association, in its capacity as lender of Swingline Loans hereunder.
“Swingline Loan” means a loan made pursuant to Section 2.04.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Test Period” means, at any time, the last day of the then most recently ended fiscal quarter or fiscal year of the Borrower with respect to which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b).
“Timber Installment Notes Collateral” means any credit support provided in any timber installment note transaction.
“Total Adjusted Shareholders’ Equity” means, as of any date, the consolidated shareholders’ equity of the Borrower that would be reported as “total equity” on a consolidated balance sheet of the Borrower prepared as of such date in accordance with GAAP; provided that, for purposes of calculating “Total Adjusted Shareholders’ Equity”, there shall be excluded (a) any cumulative other comprehensive income or loss, in each case as reflected on the consolidated balance sheet of the Borrower in accordance with GAAP, (b) treasury common shares in the Borrower and (c) the aggregate net book value (after deducting any reserves applicable thereto) of investments in Unrestricted Subsidiaries.
“Total Funded Indebtedness” means, as of any date, the Loans and any other Indebtedness of the Borrower and the Restricted Subsidiaries that would be reported as “long-term debt”, “current maturities of long-term debt” or “short-term debt” on a consolidated balance sheet of the Borrower prepared as of such date in accordance with GAAP, in an amount that would be so reported, provided that, for purposes of calculating “Total Funded Indebtedness”, there shall be excluded (a) any Indebtedness of Unrestricted Subsidiaries, (b) any Indebtedness that is non-recourse to the Borrower and the Restricted Subsidiaries, including any Indebtedness reported as “long-term debt (nonrecourse to the company) held by variable interest entities” on a consolidated balance sheet of the Borrower, and (c) any Indebtedness secured by Timber Installment Notes Collateral in an amount equal to at least 90% of the outstanding principal amount thereof.
“Transactions” means (a) the execution, delivery and performance by the Borrower of this Agreement, the borrowing of Loans, the use of the proceeds thereof and 








21



the issuance of Letters of Credit hereunder and (b) the payment of fees and expenses in connection with the foregoing.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to LIBOR or the Base Rate.
“Unrestricted Subsidiary” means (a) each Subsidiary designated as an Unrestricted Subsidiary on Schedule 1.01 or by a Responsible Officer of the Borrower in the manner provided below, in each case until such time as such Subsidiary is redesignated as a “Restricted Subsidiary” in the manner provided below, and (b) each subsidiary of an Unrestricted Subsidiary.  The Borrower may designate any Subsidiary as an “Unrestricted Subsidiary” by delivering to the Paying Agent a certificate of a Responsible Officer of the Borrower specifying such designation and certifying that immediately after giving effect to such designation no Default shall have occurred and be continuing.  The Borrower may designate any Unrestricted Subsidiary as a “Restricted Subsidiary” by delivering to the Paying Agent a certificate of a Responsible Officer specifying such redesignation and certifying that immediately after giving effect to such designation (i) no Default shall have occurred and be continuing and (ii) the Borrower will, on a pro forma basis as of the last day of the then most recent Test Period, have been in compliance with Sections 6.04 and 6.05.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning set forth in Section 2.16(f)(ii)(B)(3).
“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
“Voting Participant” has the meaning set forth in Section 9.04(c)(iii).
“Voting Participant Notification” has the meaning set forth in Section 9.04(c)(iii).
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“WNR” means Weyerhaeuser NR Company, a Washington corporation.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member 








22



Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
SECTION 1.02.  Classification of Loans and Borrowings.  For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Class (e.g., a “Revolving Loan” or “Revolving Borrowing”) or by Type (e.g., a “Eurodollar Loan” or “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Loan” or “Eurodollar Revolving Borrowing”).
SECTION 1.03.  Terms Generally.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all real and personal, tangible and intangible assets and properties, including cash, securities, accounts and contract rights.  The word “law” shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law), and all judgments, orders, writs and decrees, of all Governmental Authorities.  Except as otherwise provided herein and unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document (including this Agreement and the other Loan Documents) shall, except as otherwise provided herein, be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), and all references to any statute shall be construed as referring to all rules, regulations, rulings and official interpretations promulgated or issued thereunder, (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof and (e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement.
SECTION 1.04.  Accounting Terms; GAAP.  Except as otherwise expressly provided herein, all terms of an accounting or financial nature used herein shall be construed in accordance with GAAP as in effect from time to time; provided that (a) if the Borrower, by notice to the Paying Agent, shall request an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Paying Agent, by notice to the Borrower, shall request an amendment to any provision hereof for such purpose), 








23



regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith and (b) notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any change to GAAP occurring after the date hereof as a result of the adoption of any proposals set forth in the Proposed Accounting Standards Update, Leases (Topic 840), issued by the Financial Accounting Standards Board on August 17, 2010, or any other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) was not required to be so treated under GAAP as in effect on the date hereof.  
ARTICLE II
The Credits
SECTION 2.01.  Revolving Commitments.  Subject to the terms and conditions set forth herein, each Lender agrees to make Revolving Loans to the Borrower from time to time during the Revolving Availability Period in an aggregate principal amount that will not result in (a) such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment or (b) the Aggregate Revolving Exposure exceeding the Aggregate Revolving Commitment.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02.  Loans and Borrowings.  (a)Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans of the same Type made by the Lenders ratably in accordance with their respective Revolving Commitments.  The failure of any Lender to make any Revolving Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Revolving Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Revolving Loans as required.
(b)      Subject to Section 2.13, each Revolving Borrowing shall be comprised entirely of Base Rate Revolving Loans or Eurodollar Revolving Loans, as the Borrower may request in accordance herewith.  Each Lender at its option may make any Revolving Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Revolving Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Revolving Loan in accordance with the terms of this Agreement and (ii) any such domestic or foreign branch or Affiliate of such Lender shall not be entitled to any greater indemnification under Section 2.14 or 2.16 with respect to such Revolving Loan than that to which the applicable Lender (acting through its domestic branch) was entitled on the date on which such Revolving Loan was 








24



made (or, to the extent provided in such Section, would have been entitled as a result of a Change in Law after the date on which such Revolving Loan was made).
(c)      At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000; provided that a Eurodollar Revolving Borrowing that results from a continuation of an outstanding Eurodollar Revolving Borrowing may be in an aggregate amount that is equal to such outstanding Borrowing.  At the time that each Base Rate Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000; provided that a Base Rate Revolving Borrowing may be in an aggregate amount (i) that is equal to the entire unused balance of the Aggregate Revolving Commitment, (ii) that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(f) or (iii) that is required to finance the repayment or prepayment of any Swingline Loan.  Each Swingline Loan shall be in an amount that is an integral multiple of $100,000 and not less than $1,000,000; provided that a Swingline Loan may be in an aggregate amount (i) that is equal to the entire unused balance of the Aggregate Revolving Commitment or (ii) that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(f).  Revolving Borrowings of more than one Type may be outstanding at the same time; provided that there shall not at any time be more than a total of 10 (or such greater number as may be agreed to by the Paying Agent) Eurodollar Revolving Borrowings outstanding.
(d)      Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert to or continue, any Eurodollar Revolving Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.
SECTION 2.03.  Requests for Revolving Borrowings.  To request a Revolving Borrowing, the Borrower shall give notice (which notice may be given by telephone, to be confirmed in writing as set forth below) to the Paying Agent (a) in the case of a Eurodollar Revolving Borrowing, not later than 12:00 p.m., Pacific time, three Business Days before the date of the proposed Borrowing or (b) in the case of a Base Rate Revolving Borrowing, not later than 10:00 a.m., Pacific time, on the day of the proposed Borrowing.  Each such Borrowing Request shall be irrevocable and shall be made (or, in the case of any telephonic Borrowing Request, shall be confirmed promptly) by hand delivery, facsimile or electronic transmission of a “pdf” or similar copy to the Paying Agent of an executed written Borrowing Request.  Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:
(i)    the aggregate amount of such Revolving Borrowing;
(ii)    the date of such Revolving Borrowing, which shall be a Business Day;








25



(iii)    whether such Revolving Borrowing is to be a Base Rate Revolving Borrowing or a Eurodollar Revolving Borrowing;
(iv)    in the case of a Eurodollar Revolving Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and
(v)    the location and number of the account to which funds are to be disbursed or, in the case of any Base Rate Revolving Borrowing requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement or, in the case of any Base Rate Revolving Borrowing requested to finance the repayment or prepayment of any Swingline Loan, an indication to that effect.
If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving Borrowing shall be (i) in the case of a Borrowing Request delivered by the time referred to in clause (a) above, a Eurodollar Revolving Borrowing with an Interest Period of one week’s duration and (ii) otherwise, a Base Rate Revolving Borrowing.  If no Interest Period is specified with respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one week’s duration.  Promptly following receipt of a Borrowing Request in accordance with this Section, the Paying Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Revolving Loan to be made as part of the requested Revolving Borrowing.
SECTION 2.04.  Swingline Loans.  (a)Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Availability Period in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of the outstanding Swingline Loans exceeding $150,000,000 or (ii) the Aggregate Revolving Exposure exceeding the Aggregate Revolving Commitment; provided that during any period of 15 Business Days, there shall be at least one Business Day on which, after giving effect to the repayment or prepayment of Swingline Loans outstanding on such day, no Swingline Loan is outstanding.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b)      To request a Swingline Loan, the Borrower shall give notice (which notice may be given by telephone, to be confirmed in writing as set forth below) to the Swingline Lender, with a copy to the Paying Agent, not later than 12:00 p.m., Pacific time, on the day of the proposed Swingline Loan.  Each such Borrowing Request shall be irrevocable and shall be delivered (or, in the case of any telephonic Borrowing Request, shall be confirmed promptly) by hand delivery, facsimile or electronic transmission of a “pdf” or similar copy to the Paying Agent of an executed written Borrowing Request.  Each such telephonic and written Borrowing Request shall specify the requested date (which shall be a Business Day) and the amount of the requested Swingline Loan and the location and number 








26



of the account of the Borrower to which funds are to be disbursed or, in the case of any Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that has made such LC Disbursement.  The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a wire transfer to the account specified in such Borrowing Request or to the applicable Issuing Bank, as the case may be, by 1:00 p.m., Pacific time (or, if earlier, one hour after the time of receipt by the Swingline Lender of such Borrowing Request), on the requested date of such Swingline Loan.
(c)      The Swingline Lender may by written notice given to the Paying Agent not later than 9:00 a.m., Pacific time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding.  Such notice shall specify the aggregate amount of the Swingline Loans in which the Lenders will be required to participate.  Promptly upon receipt of such notice, the Paying Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans.  Each Lender hereby absolutely and unconditionally agrees to pay, promptly upon receipt of notice as provided above (and in any event, if such notice is received by 9:00 a.m., Pacific time, on a Business Day, no later than 2:00 p.m., Pacific time, on such Business Day, and if received after 9:00 a.m., Pacific time, on a Business Day, no later than 7:00 a.m., Pacific time, on the immediately succeeding Business Day), to the Paying Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans.  Each Lender acknowledges and agrees that, in making any Swingline Loan, the Swingline Lender shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Borrower deemed made pursuant to Section 4.02, unless, at least one Business Day prior to the time such Swingline Loan was made, the Required Lenders shall have notified the Swingline Lender (with a copy to the Paying Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.02(a) or 4.02(b) would not be satisfied if such Swingline Loan were then made.  Each Lender further acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Revolving Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders pursuant to this paragraph), and the Paying Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Lenders.  The Paying Agent shall notify the Borrower of any 








27



participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Paying Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender from the Borrower (or other Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Paying Agent; any such amounts received by the Paying Agent shall be promptly remitted by the Paying Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Paying Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason.  The purchase of participations in a Swingline Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the Borrower of its obligation to repay such Swingline Loan. 
SECTION 2.05.  Letters of Credit.  (a) General; Certain Conditions.  Subject to the terms and conditions set forth herein, each Issuing Bank agrees to issue Letters of Credit for the account of the Borrower or the account of any Subsidiary, denominated in dollars and in a form reasonably acceptable to the applicable Issuing Bank (and to amend (in the form reasonably acceptable to the applicable Issuing Bank), renew or extend Letters of Credit previously issued by it as requested by the Borrower), at any time and from time to time during the Revolving Availability Period; provided that a Letter of Credit shall be issued, amended, renewed or extended only if, and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that, after giving effect to such issuance, amendment, renewal or extension, (i) the face amount of outstanding Letters of Credit issued by any Issuing Bank shall not exceed the LC Commitment of such Issuing Bank (unless otherwise agreed by such Issuing Bank), (ii) the total LC Exposure shall not exceed $150,000,000, (iii) the Revolving Exposure of any Lender shall not exceed the Revolving Commitment of such Lender and (iv) the Aggregate Revolving Exposure shall not exceed the Aggregate Revolving Commitment.  The Borrower unconditionally and irrevocably agrees that, in connection with any Letter of Credit issued for the account of any Subsidiary, it will be fully responsible for the reimbursement of LC Disbursements, the payment of interest thereon and the payment of fees due under Section 2.11(b) to the same extent as if it were the sole account party in respect of such Letter of Credit.  Each Existing Letter of Credit shall be deemed, for all purposes of this Agreement (including paragraphs (d) and (f) of this Section), to be a Letter of Credit issued hereunder.  Notwithstanding anything contained in any letter of credit application or other agreement furnished to any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit, (i) all provisions of such letter of credit application or other agreement purporting to grant Liens in favor of the Issuing Bank to secure obligations in respect of such Letter of Credit shall be disregarded, (ii) in the event that such letter of credit application or other agreement includes representations and warranties, covenants and/or events of default that do not contain the materiality qualifiers, exceptions or thresholds that are applicable to the analogous provisions of this Agreement or the other Loan Documents, or are otherwise more restrictive, the relevant qualifiers, 








28



exceptions and thresholds contained herein or in the other Loan Documents shall be deemed incorporated therein or, to the extent more restrictive, shall be deemed for purposes of such letter of credit application or other agreement to be the same as the analogous provisions of this Agreement or the other Loan Documents and (iii) in the event of any other inconsistency between the terms and conditions of such letter of credit application or other agreement and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall control.
(b)      Notice of Issuance, Amendment, Renewal, Extension.  To request the issuance of a Letter of Credit or the amendment, renewal or extension of an outstanding Letter of Credit (other than an automatic renewal permitted pursuant to paragraph (c) of this Section), the Borrower shall hand deliver, fax or (if arrangements for doing so have been approved by the recipient) transmit by electronic communication of a “pdf” or a similar copy to the applicable Issuing Bank and the Paying Agent, at least two Business Days (or such shorter period as may be acceptable to the applicable Issuing Bank) in advance of the requested date of issuance, amendment, renewal or extension, a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the requested date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to enable the applicable Issuing Bank to prepare, amend, renew or extend such Letter of Credit.  If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any such request.
(c)      Expiration Date.  Each Letter of Credit shall by its terms expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five Business Days prior to the Maturity Date; provided that (A) any Letter of Credit may contain customary automatic renewal provisions agreed upon by the Borrower and the applicable Issuing Bank pursuant to which the expiration date of such Letter of Credit shall automatically be extended for a period of up to 12 months (but not, subject to clause (B) below, to a date later than the date set forth in clause (ii) above), subject to a right on the part of such Issuing Bank to prevent any such renewal from occurring by giving notice to the beneficiary in advance of any such renewal not later than a day in each such 12-month period to be agreed upon at the time such Letter of Credit is issued and (B) any Letter of Credit may expire after the applicable date referred to in clause (ii) above if such Letter of Credit is, at the time it is issued, renewed or extended, cash collateralized or otherwise backstopped in an amount and manner and pursuant to documentation approved in writing by the applicable Issuing Bank and the Paying Agent (such approval to be at the sole discretion of the applicable Issuing Bank and the Paying 








29



Agent) (any such Letter of Credit being referred to as the “Backstopped Letter of Credit”).
(d)      Participations.  By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or any Lender, the Issuing Bank that is the issuer thereof hereby grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.  In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Paying Agent, for the account of such Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank under such Letter of Credit and not reimbursed by the Borrower on the date due as provided in paragraph (f) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason.  Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit, the occurrence and continuance of a Default, any reduction or termination of the Commitments or any force majeure or other event that under any rule of law or uniform practices to which any Letter of Credit is subject (including Section 3.14 of ISP 98 or any successor publication of the International Chamber of Commerce) permits a drawing to be made under such Letter of Credit after the expiration thereof or of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each Lender further acknowledges and agrees that, in issuing, amending, renewing or extending any Letter of Credit, the applicable Issuing Bank shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Borrower deemed made pursuant to Section 4.02, unless, at least one Business Day prior to the time such Letter of Credit is issued, amended, renewed or extended (or, in the case of an automatic renewal permitted pursuant to paragraph (c) of this Section, at least one Business Day prior to the time by which the election not to extend must be made by the applicable Issuing Bank), the Required Lenders shall have notified the applicable Issuing Bank (with a copy to the Paying Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.02(a) or 4.02(b) would not be satisfied if such Letter of Credit were then issued, amended, renewed or extended (it being understood and agreed that, in the event any Issuing Bank shall have received any such notice, no Issuing Bank shall have any obligation to issue, amend, renew or extend any Letter of Credit until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist).








30



(e)      Disbursements.  Each Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit issued by it and shall promptly notify the Paying Agent and the Borrower by telephone (confirmed by hand delivery, facsimile or electronic transmission of a “pdf” or similar copy) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f)      Reimbursements.  If an Issuing Bank shall make an LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Paying Agent an amount equal to such LC Disbursement not later than 12:00 p.m., Pacific time, on the second Business Day immediately following the day that the Borrower receives notice of such LC Disbursement; provided that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.04 that such payment be financed with a Base Rate Revolving Borrowing or a Swingline Loan and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Base Rate Revolving Borrowing or Swingline Loan.  If the Borrower fails to reimburse any LC Disbursement by the time specified above, the Paying Agent shall notify each Lender of such failure, the payment then due from the Borrower in respect of the applicable LC Disbursement and such Lender’s Applicable Percentage thereof.  Promptly following receipt of such notice, each Lender shall pay to the Paying Agent its Applicable Percentage of the amount then due from the Borrower, in the same manner as provided in Section 2.06 with respect to Revolving Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders pursuant to this paragraph), and the Paying Agent shall promptly remit to the applicable Issuing Bank the amounts so received by it from the Lenders.  If any Lender shall not have paid to the Paying Agent its Applicable Percentage of the amount then due from the Borrower as provided in the preceding sentence, such Lender shall pay interest on such amount, for each day from and including the date such amount is required to be paid in accordance with this paragraph to but excluding the date such amount is paid, to the Paying Agent for the account of the applicable Issuing Bank at, for the first such date, the Federal Funds Effective Rate and, for each day thereafter, the Base Rate.  Promptly following receipt by the Paying Agent of any payment from the Borrower pursuant to this paragraph, the Paying Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear.  Any payment made by a Lender pursuant to this paragraph to reimburse an Issuing Bank for an LC Disbursement (other than the funding of a Base Rate Revolving Borrowing or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.  








31



(g)      Obligations Absolute.  The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (f) of this Section is absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision thereof or hereof, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, (iv) any force majeure or other event that under any rule of law or uniform practices to which any Letter of Credit is subject (including Section 3.14 of ISP 98 or any successor publication of the International Chamber of Commerce) permits a drawing to be made under such Letter of Credit after the stated expiration date thereof or of the Commitments or (v) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this paragraph, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.  None of the Agents, the Lenders, the Issuing Banks or any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit, any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any other act, failure to act or other event or circumstance; provided that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of an Issuing Bank (with such absence to be presumed unless otherwise determined by a court of competent jurisdiction in a final and nonappealable judgment), such Issuing Bank shall be deemed to have exercised care in each such determination.  In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.








32



(h)      Interim Interest.  If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement in full, at the rate per annum then applicable to Base Rate Revolving Loans; provided that if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of this Section, Section 2.12(d) shall apply.  Interest accrued pursuant to this paragraph shall be paid to the Paying Agent, for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (f) of this Section to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment, and shall be payable on demand or, if no demand has been made, on the date on which the Borrower reimburses the applicable LC Disbursement in full.
(i)      Cash Collateralization.  If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Paying Agent or the Required Lenders demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Paying Agent, in the name of the Paying Agent and for the benefit of the Lenders, an amount in cash equal to the LC Exposure as of such date; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of Article VII.  The Borrower also shall deposit cash collateral in accordance with this paragraph as and to the extent required by Section 2.10(b) or 2.19(c), but in no event in excess of 100% of the LC Exposure.  Each such deposit shall be held by the Paying Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement.  The Paying Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account.  Other than any interest earned on the investment of such deposits, which investments shall be made as reasonably agreed by the Paying Agent and the Borrower and at the Borrower’s risk and expense, such deposits shall not bear interest.  Interest or profits, if any, on such investments shall accumulate in such account.  Moneys in such account shall be applied by the Paying Agent to reimburse the Issuing Banks for LC Disbursements for which they have not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to, in the case of any such application at a time when any Lender is a Defaulting Lender (but only if, after giving effect thereto, the remaining cash collateral shall be less than the aggregate LC Exposure of all the Defaulting Lenders), the consent of each Issuing Bank), be applied to satisfy other obligations of the Borrower under this Agreement.  If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of 








33



an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived.  If the Borrower is required to provide an amount of cash collateral hereunder pursuant to Section 2.10(b), such amount (to the extent not applied as aforesaid) shall be returned to the Borrower to the extent that, after giving effect to such return, no excess shall exist under Section 2.10(b) and no Event of Default shall have occurred and be continuing.  If the Borrower is required to provide an amount of cash collateral pursuant to Section 2.19(c), such amount (to the extent not applied as aforesaid) shall be returned to the Borrower as promptly as practicable to the extent that, after giving effect to such return, no Issuing Bank shall have any exposure in respect of any outstanding Letter of Credit that is not fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or the remaining cash collateral and no Event of Default shall have occurred and be continuing.
(j)      Designation of Additional Issuing Banks.  The Borrower may, at any time and from time to time, designate as additional Issuing Banks one or more Lenders that agree to serve in such capacity as provided below.  The acceptance by any Lender of an appointment as an Issuing Bank hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Paying Agent and which shall set forth the LC Commitment of such new Issuing Bank, executed by the Borrower, the Paying Agent and such new Issuing Bank and, from and after the effective date of such agreement, (i) such Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and (ii) references herein to the term “Issuing Bank” shall be deemed to include such Lender in its capacity as an issuer of Letters of Credit hereunder.
(k)      Termination of an Issuing Bank.  The Borrower may terminate the appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing a written notice thereof to such Issuing Bank, with a copy to the Paying Agent.  Any such termination shall become effective upon the date set forth in such notice; provided that no such termination shall become effective until and unless the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (or its Affiliates) shall have been reduced to zero.  At the time any such termination shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the terminated Issuing Bank pursuant to Section 2.11(b).  Notwithstanding the effectiveness of any such termination, the terminated Issuing Bank shall remain a party hereto and shall continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such termination, but shall not issue any additional Letters of Credit.
(l)      Issuing Bank Reports to the Paying Agent.  Unless otherwise agreed by the Paying Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section, report in writing to the Paying Agent (i) periodic activity (for such period or recurrent periods as shall be requested by 








34



the Paying Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancellations and all disbursements and reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the stated amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date and amount of such LC Disbursement, (iv) on any Business Day on which the Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the amount of such LC Disbursement and (v) on any other Business Day, such other information as the Paying Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.
(m)      LC Exposure Determination. For all purposes of this Agreement, the amount of a Letter of Credit that by its terms provides for one or more automatic increases in the stated amount thereof shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases (other than any increase consisting of the reinstatement of an amount previously drawn thereunder and reimbursed), whether or not such maximum stated amount is in effect at the time of determination.
SECTION 2.06.  Funding of Borrowings.  (a) Each Lender shall make (i) each Eurodollar Revolving Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 9:00 a.m., Pacific time, and (ii) each Base Rate Revolving Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 1:00 p.m., Pacific time (or, if earlier, two hours after the time of delivery to the Paying Agent of the applicable Borrowing Request), in each case to the account of the Paying Agent most recently designated by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided in Section 2.04.  The Paying Agent will make Revolving Loans available to the Borrower by remitting the amounts so received, in like funds, promptly (and, in any event, by (i) 9:30 a.m., Pacific time, in the case of Eurodollar Revolving Loans and (ii) 1:30 p.m., Pacific time, in the case of Base Rate Revolving Loans) to the account specified by the Borrower in the applicable Borrowing Request; provided that (A) the proceeds of Base Rate Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f) shall, by such time, be remitted by the Paying Agent to the Issuing Bank specified by the Borrower in the applicable Borrowing Request and (B) the proceeds of Base Rate Revolving Loans made to finance the repayment or prepayment of a Swingline Loan shall, by such time, be remitted to the Swingline Lender.
(b)      Unless the Paying Agent shall have received notice from a Lender prior to the proposed date of any Revolving Borrowing that such Lender will not make available to the Paying Agent such Lender’s share of such Revolving 








35



Borrowing, the Paying Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance on such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Revolving Borrowing available to the Paying Agent, then the applicable Lender and the Borrower severally agree to pay to the Paying Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Paying Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Paying Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to such Revolving Borrowing.  If the Borrower and such Lender shall pay such interest to the Paying Agent for the same or an overlapping period, the Paying Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays such amount to the Paying Agent, then such amount shall constitute such Lender’s Revolving Loan included in such Revolving Borrowing.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Paying Agent.
SECTION 2.07.  Interest Elections.  (a)Each Revolving Borrowing initially shall be of the Type and, in the case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period as specified in the applicable Borrowing Request or as otherwise provided in Section 2.03.  Thereafter, the Borrower may elect to convert such Revolving Borrowing to a Revolving Borrowing of a different Type or to continue such Revolving Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods therefor, all as provided in this Section.  The Borrower may elect different options with respect to different portions of the affected Revolving Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Revolving Loans comprising such Revolving Borrowing, and the Revolving Loans comprising each such portion shall be considered a separate Revolving Borrowing.  This Section shall not apply to Swingline Loans.
(b)      To make an election pursuant to this Section, the Borrower shall give notice (which notice may be given by telephone, to be confirmed in writing as set forth below) to the Paying Agent of such election by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each such Interest Election Request shall be irrevocable and shall be made (or, in the case of any telephonic Interest Election Request, shall be confirmed promptly) by hand delivery, facsimile or electronic transmission of a “pdf” or similar copy to the Paying Agent of an executed written Interest Election Request.  Each telephonic and written Interest 








36



Election Request shall specify the following information in compliance with Section 2.02:
(i)    the Revolving Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Revolving Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Revolving Borrowing);
(ii)    the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii)    whether the resulting Revolving Borrowing is to be a Base Rate Revolving Borrowing or a Eurodollar Revolving Borrowing; and
(iv)    if the resulting Revolving Borrowing is to be a Eurodollar Revolving Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a Eurodollar Revolving Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one week’s duration.
(c)      Promptly following receipt of an Interest Election Request in accordance with this Section, the Paying Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Revolving Borrowing.
(d)      If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be continued as a Eurodollar Revolving Borrowing for an additional Interest Period of one week.  Notwithstanding any contrary provision hereof, if an Event of Default under clause (h) or (i) of Article VII has occurred and is continuing with respect to the Borrower, or if any other Event of Default has occurred and is continuing and the Paying Agent, at the request of the Required Lenders, has notified the Borrower of the election to give effect to this sentence on account of such other Event of Default, then, in each such case, so long as such Event of Default is continuing, (i) no outstanding Revolving Borrowing may be converted to or continued as a Eurodollar Revolving Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted to a Base Rate Revolving Borrowing at the end of the Interest Period applicable thereto.








37



SECTION 2.08.      Termination and Reduction of Commitments.  (a)Unless previously terminated, the Revolving Commitments shall automatically terminate on the Maturity Date.
(b)      The Borrower may at any time terminate, or from time to time permanently reduce, the Revolving Commitments; provided that (i) each reduction of the Revolving Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.10, the Aggregate Revolving Exposure would exceed the Aggregate Revolving Commitment.
(c)      The Borrower shall notify the Paying Agent of any election to terminate or reduce the Revolving Commitments under paragraph (b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying the effective date thereof.  Promptly following receipt of any such notice, the Paying Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that any such notice may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Paying Agent on or prior to the specified effective date) if such condition is not satisfied.  Any termination or reduction of the Revolving Commitments shall be permanent.  Each reduction of the Revolving Commitments pursuant to this Section (and not, for the avoidance of doubt, any reduction resulting from the termination of any Revolving Commitment of any Lender as provided in Section 2.18(b)) shall be made ratably among the Lenders in accordance with their respective Revolving Commitments.
SECTION 2.09.  Repayment of Loans; Evidence of Debt.  (a)The Borrower hereby unconditionally promises to pay (i) to the Paying Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan of such Lender on the Maturity Date and (ii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of (A) the Maturity Date and (B) the date that is the 15th Business Day after the date that such Swingline Loan is made.
(b)      The records maintained by the Paying Agent and the Lenders shall be prima facie evidence, absent manifest error, of the existence and amounts of the obligations of the Borrower in respect of the Loans, LC Disbursements, interest and fees due or accrued hereunder; provided that in the event of any inconsistency between the records maintained by the Paying Agent and any Lender, the records maintained by the Paying Agent shall control; provided further that the failure of the Paying Agent or any Lender to maintain such records or any error therein shall not in any manner affect the obligation of the Borrower to pay any amounts due hereunder in accordance with the terms of this Agreement.








38



(c)      Any Lender may request that Loans made by it be evidenced by a promissory note.  In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Paying Agent and the Borrower (each such approval not to be unreasonably withheld, delayed or conditioned).  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the payee named therein (or to such payee and its registered assigns).
SECTION 2.10.  Prepayment of Loans.  (a)The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to the requirements of this Section.
(b)      In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall, within one Business Day of receiving written notice of such excess from the Paying Agent, prepay Revolving Borrowings or Swingline Loans (or deposit cash collateral in an account with the Paying Agent in accordance with Section 2.05(i)) in an aggregate amount equal to such excess. 
(c)      The Borrower shall give notice (which notice may be given by telephone, to be confirmed in writing by hand delivery, facsimile or electronic transmission of a “pdf” or similar copy) to the Paying Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) of any optional prepayment under paragraph (a) of this Section and, to the extent practicable, any mandatory prepayment under paragraph (b) of this Section (i) in the case of prepayment of a Eurodollar Revolving Borrowing, not later than 12:00 p.m., Pacific time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Revolving Borrowing, not later than 11:00 a.m., Pacific time, on the date of prepayment (which shall be a Business Day) or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 p.m., Pacific time, on the date of prepayment (which shall be a Business Day).  Each such notice shall be irrevocable and shall specify the prepayment date, the Borrowing or Borrowings to be prepaid and the principal amount of each such Borrowing or portion thereof to be prepaid; provided that a notice of prepayment of any Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Paying Agent on or prior to the specified date of prepayment) if such condition is not satisfied.  Promptly following receipt of any such notice (other than a notice relating solely to Swingline Loans), the Paying Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing 








39



of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment.
(d)      Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in such Borrowing.  Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12 and, subject to Section 2.15, shall be without premium or penalty.  
SECTION 2.11.  Fees.  (a) The Borrower agrees to pay to the Paying Agent for the account of each Lender a facility fee, which shall accrue at the Applicable Rate on the amount of the Revolving Commitment of such Lender, whether used or unused, during the period from and including the Effective Date to but excluding the date on which such Revolving Commitment terminates; provided that if such Lender continues to have any Revolving Exposure after its Revolving Commitment terminates, then such facility fee shall continue to accrue on the daily amount of such Lender’s Revolving Exposure from and including the date on which its Revolving Commitment terminates to but excluding the date on which such Lender ceases to have any Revolving Exposure.  Accrued facility fees shall be payable in arrears on the last Business Day of March, June, September and December of each year and on the date on which the Revolving Commitments terminate, commencing on the first such date to occur after the Effective Date; provided that any facility fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand.  All facility fees shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  
(b)      The Borrower agrees to pay (i) to the Paying Agent for the account of each Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving Loans on the daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting fee, which shall accrue at a rate as is mutually agreed between the applicable Issuing Bank and the Borrower on the daily amount of the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date of termination of the Revolving Commitments and the date on which there ceases to be any such LC Exposure, as well as such Issuing Bank’s customary fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.  Accrued participation fees and fronting fees shall be payable in arrears on the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the Effective Date; provided that all such fees shall 








40



be payable on the date on which the Revolving Commitments terminate and any such fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand.  Any other fees payable to an Issuing Bank pursuant to this paragraph shall be payable within 30 days after written demand.  All participation fees and fronting fees shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(c)      The Borrower agrees to pay to the Paying Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrower and the Paying Agent.
(d)      All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Paying Agent (or to an Issuing Bank, in the case of fees payable to it) for distribution, in the case of facility fees and Letter of Credit participation fees, to the Lenders entitled thereto.  Fees paid shall not be refundable under any circumstances (except as otherwise expressly agreed).
SECTION 2.12.  Interest.  (a) The Loans comprising each Base Rate Revolving Borrowing shall bear interest at the Base Rate plus the Applicable Rate.
(b)      The Loans comprising each Eurodollar Revolving Borrowing shall bear interest at LIBOR for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c)      Each Swingline Loan shall bear interest at (i) the Base Rate plus the Applicable Rate or (ii) such other rate per annum as shall be mutually agreed by the Borrower and the Swingline Lender in its sole discretion (it being understood that any such other per annum rate agreed by the Borrower and the Swingline Lender in respect of any Swingline Loan shall not be less than the Swingline Lender’s cost of funds for such Swingline Loan).
(d)      Notwithstanding the foregoing, if any principal of or interest on any Loan, any LC Disbursement or any fee payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% per annum plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other such amount, 2% per annum plus the rate applicable to Base Rate Revolving Loans as provided in paragraph (a) of this Section.
(e)      Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and upon termination of the Revolving Commitments; provided that (i) interest accrued pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in the event of any repayment or 








41



prepayment of any Loan (other than a prepayment of a Base Rate Revolving Loan prior to the end of the Revolving Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of a Eurodollar Revolving Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(f)      All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Base Rate at times when the Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  The applicable Base Rate or LIBOR shall be determined by the Paying Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest.  If prior to the commencement of any Interest Period for a Eurodollar Revolving Borrowing:
(a)      the Paying Agent determines (which determination shall be prima facie evidence absent manifest error) that adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or
(b)      the Paying Agent is advised by the Required Lenders that LIBOR for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Eurodollar Revolving Borrowing for such Interest Period;
then the Paying Agent shall give notice (which may be telephonic, by facsimile or by electronic transmission of a “pdf” or similar copy) thereof to the Borrower and the Lenders as promptly as practicable and, until the Paying Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar Revolving Borrowing shall be ineffective, and such Revolving Borrowing shall be continued as a Base Rate Revolving Borrowing, and (ii) any Borrowing Request for a Eurodollar Revolving Borrowing shall be treated as a request for a Base Rate Revolving Borrowing.
SECTION 2.14.  Increased Costs.  (a) If any Change in Law shall:
(i)    impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or Issuing Bank; 
(ii)    impose on any Lender or Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) 








42



affecting this Agreement or Eurodollar Revolving Loans made by such Lender or any Letter of Credit or participation therein; or
(iii)    subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of the term “Excluded Taxes” and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall be to increase the cost to such Lender or other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, Issuing Bank or other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, Issuing Bank or other Recipient hereunder (whether of principal, interest or any other amount), in each case by an amount reasonably deemed by such Lender, Issuing Bank or other Recipient to be material, then, from time to time upon request of such Lender, Issuing Bank or other Recipient, the Borrower will pay to such Lender, Issuing Bank or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, Issuing Bank or other Recipient, as the case may be, for such additional costs or expenses incurred or reduction suffered.
(b)      If any Lender or Issuing Bank determines that any Change in Law affecting such Lender or Issuing Bank or any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has had or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit, Swingline Loans held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy or liquidity) by an amount reasonably deemed by such Lender or Issuing Bank to be material, then, from time to time upon request of such Lender or Issuing Bank, the Borrower will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.
(c)      If, and for so long as, any Lender shall be required pursuant to the requirements of the Board of Governors to maintain reserves with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities” in 








43



Regulation D of the Board of Governors), then, from time to time upon request of such Lender, the Borrower will pay to such Lender additional interest on the applicable Eurodollar Revolving Loans of such Lender at a rate per annum determined by such Lender up to but not exceeding the excess of (i) (A) the applicable LIBOR divided by (B) one minus the Eurodollar Reserve Percentage over (ii) the applicable LIBOR.  
(d)      A certificate of a Lender or other Recipient setting forth in reasonable detail the basis and calculation of the amount or amounts necessary to compensate such Lender or other Recipient or its holding company, as the case may be, as specified in paragraph (a), (b) or (c) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender or other Recipient, as the case may be, the amount shown as due on any such certificate within 30 days after receipt thereof.
(e)      Failure or delay on the part of any Lender or other Recipient to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or other Recipient pursuant to this Section for any increased costs or expenses incurred or reductions suffered more than 180 days prior to the date that such Lender or other Recipient, as the case may be, notifies the Borrower of the Change in Law or other event giving rise to such increased costs or expenses or reductions and of such Lender’s or other Recipient’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or expenses or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(f)      Notwithstanding any other provision of this Section to the contrary, no Lender, Issuing Bank or other Recipient shall request, or be entitled to receive, any compensation pursuant to this Section unless it shall be the general policy or practice of such Lender, Issuing Bank or other Recipient to seek compensation in similar circumstances under comparable provisions of other credit agreements, if any.
SECTION 2.15.  Break Funding Payments.  In the event of (a) the payment of any principal of any Eurodollar Revolving Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Revolving Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert or continue any Eurodollar Revolving Loan on the date specified in any notice delivered pursuant hereto (other than any notice deemed ineffective as contemplated under Section 2.13 and other than any failure to borrow as a result of a failure to make a Loan by any Lender as required hereunder), (d) the failure to prepay any Eurodollar Revolving Loan on a date specified therefor in any notice of prepayment given by the Borrower (whether or not such notice may be revoked in accordance 








44



with the terms hereof) or (e) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.18(b) (other than in reliance on clause (iii) thereof), then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event in accordance with this Section.  Such loss, cost or expense to any Lender shall be deemed to consist of an amount reasonably determined by such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such Loan had such event not occurred, at LIBOR (determined without regard to any floor set forth in the definition thereof) that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate such Lender would bid if it were to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the London interbank market.  In no event shall such loss, cost or expense include the loss of anticipated profits or loss of any interest rate floor or any administrative, processing or similar fees.  A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section (which shall set forth the basis for requesting and the method of calculating such compensation) shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any loss, cost or expense shown on such certificate incurred or suffered more than 30 days prior to the date that such Lender delivers such certificate to the Borrower.
SECTION 2.16.  Taxes.  (a)  Payments Free of Taxes.  Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b)      Payment of Other Taxes by the Borrower.  The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.  
( c)      Evidence of Payment.  Upon request by the Paying Agent, as soon as practicable after any payment of Taxes by the Borrower to a Governmental 








45



Authority pursuant to this Section, the Borrower shall deliver to the Paying Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Paying Agent.
(d)      Indemnification by the Borrower.  The Borrower shall indemnify each Recipient, upon written request therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability shall be delivered to the Borrower by a Lender (with a copy to the Paying Agent), or by the Paying Agent on its own behalf or on behalf of a Lender, and shall be conclusive absent manifest error.  The Borrower shall pay such Recipient the amount shown as due on any such certificate within 30 days after receipt thereof.  If any Recipient becomes entitled to a refund of Indemnified Taxes for which such Recipient has received payment from the Borrower hereunder, such Recipient shall, at the expense of the Borrower, use its reasonable efforts (consistent with internal policy, and legal and regulatory restrictions) to obtain such refund. If any Recipient receives a refund or is entitled to claim a tax credit in respect of any Indemnified Taxes for which such Recipient has received payment from the Borrower hereunder, such Recipient shall promptly notify the Borrower of such refund or credit and shall, within 30 days after receipt of a request by the Borrower (or promptly upon receipt, if the Borrower has requested application for such refund or credit pursuant hereto), repay such refund or amount of credit to the Borrower, net of all out-of-pocket expenses of such Recipient and without interest; provided that the Borrower, upon the request of such Recipient, agrees to return such refund or amount of credit (plus penalties, interest or other charges) to such Recipient in the event such Recipient is required to repay such refund or such credit is denied or subsequently determined to be unavailable.  
(e)      Indemnification by the Lenders.  Each Lender shall, within 10 days after demand therefor, severally indemnify the Borrower and the Paying Agent for (i) any Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Paying Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(c)(ii) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Paying Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, as determined by the Paying Agent or the Borrower in good faith, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that, in the 








46



case of the Borrower, such indemnification shall not apply to Indemnified Taxes.  A certificate as to the amount of such payment or liability delivered to any Lender by the Paying Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Paying Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Paying Agent to the Lender from any other source against any amount due to Paying Agent under this paragraph (e). The agreements in this paragraph (e) shall survive the resignation and/or replacement of the Paying Agent, any assignment of rights by, or replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other obligations hereunder.
(f)      Status of Lenders.  (i)  Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Paying Agent (as applicable), at the time or times reasonably requested by the Borrower or the Paying Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Paying Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Paying Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Paying Agent as will enable the Borrower or the Paying Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding any other provision of this Section, a Lender shall not be required to deliver any form pursuant to this Section that such Lender is not legally able to deliver.  
(ii)    Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person: 
(A)    any Lender that is a U.S. Person shall deliver to the Borrower and the Paying Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Paying Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax; 
(B)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Paying Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Paying Agent), whichever of the following is applicable:
(1)      in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed 








47



originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2)      executed originals of IRS Form W-8ECI;
(3)      in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or
(4)      to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner;
(C)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Paying Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Paying Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Paying Agent to determine the withholding or deduction required to be made; and








48



(D)    if a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Paying Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Paying Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Paying Agent as may be necessary for the Borrower and the Paying Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.
(iii)    Each Lender claiming any additional amounts payable pursuant to this Section 2.16 shall use reasonable efforts (consistent with internal policy and legal and regulatory restrictions) to file any certificate or document requested by the Borrower or to change the jurisdiction of its applicable lending office if, in the reasonable judgment of such Lender, the making of such a filing or change (A) would eliminate or reduce the amount payable pursuant to this Section 2.16 in the future and (B) would not be materially disadvantageous to such Lender or require the disclosure of information that such Lender reasonably considers to be confidential. 
(iv)    Each Lender and the Paying Agent agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Paying Agent in writing of its legal inability to do so.  
(g)      Defined Terms.  For purposes of this Section, the term “Lender” includes any Issuing Bank and the term “applicable law” includes FATCA.
(h)      Survival.  Each party’s obligations under this Section shall survive the resignation or replacement of the Paying Agent or any assignment of rights by, or the replacement of, a Lender or an Issuing Bank, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document. Solely for purposes of clause (D) of paragraph (f)(ii) of this Section, “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
SECTION 2.17.  Payments Generally; Pro Rata Treatment; Sharing of Setoffs.  (a) The Borrower shall make each payment required to be made by it hereunder or under any other Loan Document prior to the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior 








49



to 12:00 p.m., Pacific time), on the date when due, in immediately available funds, without any defense, setoff, recoupment or counterclaim.  Any amounts received after such time on any date may, in the discretion of the Paying Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to such account as may be specified by the Paying Agent, except that payments required to be made directly to any Issuing Bank or the Swingline Lender shall be so made, payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein.  The Paying Agent shall distribute any such payment received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof.  If any payment under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.  All payments under each Loan Document shall be made in dollars.
(b)      If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c)      If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Paying Agent of such fact and shall purchase (for cash at face value) participations in the Revolving Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the amount of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amounts of principal of and accrued interest on their Revolving Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (for the avoidance of doubt, as in effect from time to time), including pursuant to Sections 2.18(b), 2.19, 2.20 and 2.21 or any Extension Agreement or Incremental 








50



Facility Agreement, or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or participations in LC Disbursements or Swingline Loans to any Person that is an Eligible Assignee (as such term is defined from time to time).  The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d)      Unless the Paying Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Paying Agent for the account of the Lenders or Issuing Banks hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or Issuing Banks, as the case may be, the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, as the case may be, severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Paying Agent in accordance with banking industry rules on interbank compensation.
(e)      If any Lender shall fail to make any payment required to be made by it hereunder to or for the account of any Agent, any Issuing Bank or the Swingline Lender, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations in respect of such payment until all such unsatisfied obligations have been discharged or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender pursuant to Sections 2.04(c), 2.05(d), 2.05(f), 2.06(b), 2.16(e), 2.17(d) and 9.03(c), in each case in such order as shall be determined by the Paying Agent in its discretion.
SECTION 2.18.  Mitigation Obligations; Replacement of Lenders.  (a) If any Lender or Issuing Bank requests compensation under Section 2.14, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or Issuing Bank or to any Governmental Authority for the account of any Lender or Issuing Bank pursuant to Section 2.16, then such Lender or Issuing Bank shall use reasonable efforts to designate a different lending office for funding or booking its Loans or Letters of Credit hereunder or to assign and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates if, in the reasonable judgment of such Lender or Issuing Bank, such designation or assignment and delegation (i) would eliminate or reduce amounts payable pursuant to 








51



Section 2.14 or 2.16, as the case may be, in the future and (ii) would not subject such Lender or Issuing Bank to any unreimbursed cost or expense and would not otherwise be disadvantageous.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or Issuing Bank in connection with any such designation or assignment and delegation.
(b)      If (i) any Lender (or any Participant in respect of any Lender) requests compensation under Section 2.14, (ii) the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender (or any Participant in respect of any Lender) or any Governmental Authority for the account of any Lender (or any Participant in respect of any Lender) pursuant to Section 2.16, (iii) any Lender has become a Defaulting Lender, (iv) any Lender has failed to accept an Extension Offer made to such Lender and with respect to which all other Lenders of the applicable Class have accepted such Extension Offer or are being (or have been) replaced or whose Commitments are being (or have been) terminated, in each case in accordance with this Section or (v) any Lender has failed to consent to a proposed amendment, waiver, discharge or termination that under Section 9.02 requires the consent of all the Lenders (or all the affected Lenders) and with respect to which the Required Lenders (or, if more than one Class of Lenders shall then exist, in circumstances where Section 9.02 does not require the consent of the Required Lenders, a majority in interest of the Lenders of the relevant Class) shall have granted their consent, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Paying Agent, (A) terminate the Commitments of such Lender and prepay outstanding Loans of such Lender in full (or terminate the Commitment and prepay Loans of the relevant Class), in each case without any obligation to terminate any Commitment, or prepay any Loan, of any other Lender (other than solely pursuant to Section 2.10(b)), or (B) require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04, but with the processing and recordation fee being waived by the Paying Agent in such instance), all its interests, rights (other than its existing rights to payments pursuant to Section 2.14 or 2.16) and obligations under this Agreement and the other Loan Documents (or, in the case of any such assignment and delegation resulting from a failure to provide a consent, all its interests, rights and obligations under this Agreement and the other Loan Documents as a Lender of a particular Class) to an Eligible Assignee that shall assume such obligations (which may be another Lender, if a Lender accepts such assignment and delegation); provided that, in the case of any such assignment and delegation under clause (B) above, (1) the Borrower shall have received the prior written consent of the Paying Agent (and, in circumstances where its consent would be required under Section 9.04, each Issuing Bank and the Swingline Lender) with respect to such Eligible Assignee, in each case, which consent shall not be unreasonably withheld, delayed or conditioned, (2) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and, if applicable, participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and 








52



all other amounts payable to it hereunder (if applicable, in each case only to the extent such amounts relate to its interest as a Lender of the relevant Class) from the assignee and/or the Borrower, (3) in the case of any such assignment and delegation relating to a request for compensation under Section 2.14, such assignment and delegation will result in a reduction in such compensation and (4) such assignment and delegation does not conflict with applicable law.  A Lender shall not be required to make any such assignment and delegation, or to have its Commitments and Loans so terminated or repaid, if, prior thereto, as a result of a waiver or consent by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation, or to cause such termination or repayment, have ceased to apply.  Each party hereto agrees that an assignment and delegation required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Paying Agent and the assignee and that the Lender required to make such assignment and delegation need not be a party thereto.
SECTION 2.19.  Defaulting Lenders.  Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a)      facility fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.11(a);
(b)      the Revolving Commitments and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c)      if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i)    the Swingline Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(d) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated disregarding such Defaulting Lender’s Revolving Commitment) but only to the extent that (A) the sum of all Non-Defaulting Lenders’ Revolving Exposures after giving effect to such reallocation would not exceed the sum of all Non-Defaulting Lenders’ 








53



Revolving Commitments and (B) the conditions set forth in Section 4.02 are satisfied at such time;
(ii)    if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Paying Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii)    if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv)    if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.11(b) shall be adjusted to give effect to such reallocation; and
(v)    if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees payable under Section 2.11(a) with respect to such Defaulting Lender’s Revolving Commitment (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and all participation fees payable under Section 2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized;
(d)      so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.19(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders 








54



in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein); and
(e)      payment of principal, interest, fees or other amounts received by the Paying Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Paying Agent from a Defaulting Lender pursuant to Section 2.17(d) shall be applied at such time or times as may be determined by the Paying Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Paying Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or the Swingline Lender hereunder; third, to cash collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender in accordance with the procedures set forth in Section 2.05(i); fourth, as the Borrower may request (so long as no Default shall have occurred and be continuing), to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Paying Agent; fifth, if so determined by the Paying Agent and the Borrower, to be held in a deposit account and released pro rata in order to (i) satisfy such Defaulting Lender’s potential future funding obligations with respect to Revolving Loans under this Agreement and (ii) cash collateralize the Issuing Banks’ future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with the procedures set forth in Section 2.05(i); sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, an Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default shall have occurred and be continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of any Revolving Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (B) such Revolving Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Revolving Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Revolving Loans of, or LC Disbursements owed to, such Defaulting Lender.  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.19 shall be deemed paid to and redirected by such Defaulting Lender, and such Defaulting Lender irrevocably consents hereto.








55



In the event that the Paying Agent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders as the Paying Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage, and such Lender (upon consummation of the foregoing) will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided further that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender having been a Defaulting Lender.
SECTION 2.20.  Incremental Commitments.  (a) The Borrower may on one or more occasions, by written notice to the Paying Agent, establish any Incremental Commitments, provided that the aggregate amount of all Incremental Commitments to be established hereunder on any date shall not exceed during the term of this Agreement the sum of (x) $750,000,000 and (y) the aggregate amount of Commitments terminated under Section 2.18(b).  Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which date shall not be less than five Business Days (or such shorter period as may be agreed by the Paying Agent) after the date on which such notice is delivered to the Paying Agent), (ii) the amount of the Incremental Commitments requested to be established and (iii) the identity of each Person proposed to become an Incremental Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any Person that the Borrower proposes to be an Incremental Lender, if such Person is not then a Lender, must, if such approval would then be required under Section 9.04 for an assignment to such Person of a Commitment, be approved by the Paying Agent, each Issuing Bank and the Swingline Lender (each such approval not to be unreasonably withheld, delayed or conditioned).
(b)      The terms and conditions of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with the Revolving Commitments and Revolving Loans; provided that the Borrower at its election may pay upfront or closing fees with respect to Incremental Commitments without paying such fees with respect to the other Revolving Commitments.
(c)      The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Paying Agent; provided that no Incremental Commitments shall become 








56



effective unless (i) at the time of effectiveness of such Incremental Commitments and after giving effect thereto (A) no Default shall have occurred and be continuing or would result therefrom and (B) the representations and warranties of the Borrower set forth in Article III are true and correct in all material respects, in each case, on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case to the effect that such representation and warranty is true and correct in all material respects on and as of such prior date, and (ii) the Borrower shall have delivered to the Paying Agent (A) a certificate of a Responsible Officer of the Borrower confirming the satisfaction of the conditions set forth in clauses (i)(A) and (i)(B) above and (B) such legal opinions, board resolutions, secretary’s certificates and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered on the Effective Date under Section 4.01) by the Paying Agent in connection with any such transaction.  Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Paying Agent and the Borrower, to give effect to the provisions of this Section.  The Paying Agent agrees that its consent to any amendment to this Agreement or any other Loan Document as contemplated above, or to the form and substance of any Incremental Facility Agreement, will not be unreasonably withheld, delayed or conditioned.
(d)      Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (iii) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”.  For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Lender holding such Incremental Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(e)      On the date of effectiveness of any Incremental Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Commitments shall be deemed to be repaid, (ii) each Incremental Lender that shall have had a Revolving Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Paying Agent in same day funds an amount (so long as such amount is greater than zero) 








57



equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Incremental Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Paying Agent in same day funds an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) after the Paying Agent receives the funds specified in clauses (ii) and (iii) above, the Paying Agent shall pay to each Lender the portion of such funds (so long as such portion is greater than zero) that is equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Incremental Commitments, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Paying Agent in accordance with Section 2.03 (and the Borrower shall deliver such Borrowing Request), (vi) each Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Commitments) and (vii) the Borrower shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings.  The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.15 if the date of the effectiveness of such Incremental Commitments occurs other than on the last day of the Interest Period relating thereto.
(f)      The Paying Agent shall notify the Lenders promptly upon receipt by the Paying Agent of any notice from the Borrower referred to in Section 2.20(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.20(e). 
SECTION 2.21.  Extensions.  (a) The Borrower may, at any time or from time to time but not more than twice during the term of this Agreement, by written notice 








58



to the Paying Agent (which shall promptly deliver a copy to each of the Lenders), given not less than 30 days prior to the Maturity Date at any time in effect, request (each, a “Maturity Date Extension Request”) that the Lenders extend the Maturity Date for an additional one-year period (each, an “Extension”); provided that after giving effect to any such Extension, the period of time remaining prior to the Maturity Date (as so extended) shall not exceed five years from the effective date of such Extension.  Each Lender shall, by notice to the Borrower and the Paying Agent given not later than the 20th day after the date of the Paying Agent’s receipt of the Maturity Date Extension Request, advise the Borrower and the Paying Agent whether or not it agrees to the requested Extension (each Lender agreeing to a requested Extension being called an “Extending Lender”, and each Lender declining to agree to a requested Extension being called a “Non-Extending Lender”).  Any Lender that has not so advised the Borrower and the Paying Agent by such day shall be deemed to have declined to agree to the requested Extension and shall be a Non-Extending Lender.  If Lenders constituting the Required Lenders shall have agreed to a Maturity Date Extension Request, then the Maturity Date shall, solely as to the Extending Lenders, be extended by one year to the anniversary of the Maturity Date theretofore in effect.  The decision to agree or withhold agreement to any Maturity Date Extension Request shall be at the sole discretion of each Lender. The Revolving Commitment of each Non-Extending Lender shall terminate on the Maturity Date in effect prior to giving effect to the applicable Extension (such Maturity Date being called the “Existing Maturity Date”).  The principal amount of any outstanding Loans made by Non-Extending Lenders, together with any accrued interest thereon and any accrued fees and other amounts payable to or for the account of such Non-Extending Lenders hereunder, shall be due and payable on the Existing Maturity Date, and on the Existing Maturity Date the Borrower shall also make such other prepayments of the Loans pursuant to Section 2.10 as shall be required in order that, after giving effect to the termination of the Revolving Commitments of, and all payments to, Non-Extending Lenders pursuant to this sentence, (i) no Lender’s Revolving Exposure shall exceed such Lender’s Revolving Commitment and (ii) the Aggregate Revolving Exposure shall not exceed the Aggregate Revolving Commitment. 
(b)      An Extension shall be effected pursuant to an Extension Agreement executed and delivered by the Borrower, each applicable Extending Lender and the Paying Agent; provided that no Extension Agreement shall become effective unless (i) at the time of effectiveness of such Extension and after giving effect thereto (A) no Default shall have occurred and be continuing or would result therefrom and (B) the representations and warranties of the Borrower set forth in Article III are true and correct in all material respects, in each case, on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case to the effect that such representation and warranty is true and correct in all material respects on and as of such prior date, and (ii) the Borrower shall have delivered to the Paying Agent (A) a certificate of a Responsible Officer of the Borrower confirming the satisfaction of the conditions set forth in clauses (i)(A) and (i)(B) above and (B) such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested (consistent in all material respects with the 








59



documents delivered on the Effective Date under Section 4.01) by the Paying Agent in connection therewith.  The Paying Agent shall promptly notify each Lender as to the effectiveness of each Extension Agreement.  Each Extension Agreement may, without the consent of any Lender other than the applicable Extending Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Paying Agent and the Borrower, to give effect to the provisions of this Section, including any amendments necessary to treat the applicable Revolving Loans and/or Revolving Commitments of the Extending Lenders as the same Class as the existing Revolving Loans and Revolving Commitments or as a new Class of Loans and/or Commitments hereunder (including for purposes of prepayments and voting and to enable such new Class of Loans and/or Commitments to be extended under this Section); provided that (i) the borrowing and repayment (except for repayments required upon the maturity and repayments made in connection with a permanent repayment and termination of the applicable Commitments) of Loans under the Commitments of such new Class and the remaining Revolving Commitments shall be made on a ratable basis as between the Commitments of such new Class and the remaining Revolving Commitments, (ii) the allocation of the participation exposure with respect to any then-existing or subsequently issued or made Letter of Credit or Swingline Loan shall be made on a ratable basis as between the Commitments of such new Class and the remaining Revolving Commitments (and the applicable Extension Agreement shall contain reallocation and cash collateralization provisions, in form and substance reasonably satisfactory to the Paying Agent and the Borrower, with respect to Letters of Credit and Swingline Loans outstanding on the Maturity Date) and (iii) the Revolving Availability Period and the Maturity Date, as such terms are used in reference to Letters of Credit issued by any Issuing Bank or Swingline Loans, may not be extended without the prior written consent of such Issuing Bank or the Swingline Lender, as applicable.  The Paying Agent agrees that its consent to any amendment to this Agreement or any other Loan Document as contemplated above, or to the form and substance of any Extension Agreement, will not be unreasonably withheld, delayed or conditioned.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders, on the Effective Date and as of each other date the representations and warranties are required to be or deemed made pursuant to this Agreement, that:
SECTION 3.01.  Organization; Powers.  The Borrower and each Restricted Subsidiary is (a) duly organized, validly existing and (to the extent the concept is applicable in such jurisdiction) in good standing under the laws of the jurisdiction of its organization, (b) has all requisite corporate or other organizational power and authority required for the 








60



ownership and operation of its properties and the conduct of its business as now conducted and (c) is qualified to do business in every jurisdiction where such qualification is required, except in each case referred to in clauses (a) (other than with respect to the Borrower), (b) and (c), for failures that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.02.  Authorization; Enforceability.  The execution, delivery and performance by the Borrower of the Loan Documents are within its corporate powers and have been duly authorized by all necessary corporate action.  This Agreement has been duly executed and delivered by the Borrower and constitutes, and each other Loan Document, when executed and delivered by the Borrower, will constitute, a legal, valid and binding obligation of the Borrower, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03.  Governmental Approvals; Absence of Conflicts.  The execution, delivery and performance by the Borrower of the Loan Documents (a) do not require any consent or approval of, registration or filing with or any other action by any Governmental Authority, except such as have been, or substantially contemporaneously with the initial borrowing hereunder will be, obtained or made and are (or will so be) in full force and effect, (b) will not violate any applicable law or order of any Governmental Authority, (c) will not violate the charter or by-laws or other organization document of the Borrower, (d) will not violate or result (alone or with notice or lapse of time, or both) in a default under any indenture or other agreement or instrument binding upon Borrower or any Restricted Subsidiary or any of their assets and (e) will not result in the creation or imposition of any Lien on any asset now owned or hereafter acquired by the Borrower or any Restricted Subsidiary, except in each case referred to in clauses (a), (b), (d) and (e), to the extent that any such failure to obtain or make or any such violation, default or payment, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.04.  Financial Condition; No Material Adverse Change.  (a)The Borrower has heretofore furnished to the Lenders or filed with the SEC its consolidated balance sheet and consolidated statements of operations, comprehensive income, changes in equity and cash flows as of and for the fiscal year ended December 31, 2016, audited by and accompanied by the opinion of KPMG LLP, independent registered public accounting firm.  Such financial statements present fairly, in all material respects, the financial position and results of operations of the Borrower and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP.
(b)      Except for the Disclosed Matters and except for changes in operating results arising in the ordinary course of business, there has been no material adverse change in the business, financial condition, operations or properties of the Borrower and the Restricted Subsidiaries, taken as a whole, since December 31, 2016.








61



SECTION 3.05.  Properties.  The Borrower and each Restricted Subsidiary has good title to, or valid leasehold or other limited property interests in, all its property, except for Liens not prohibited by Section 6.01 and except where the failure to have such title or leasehold or other interest, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06.  Litigation.  There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened in writing against or affecting the Borrower or any Restricted Subsidiary (a) except for the Disclosed Matters, that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (b) that involve any of the Loan Documents or the Transactions.
SECTION 3.07.  Compliance with Laws.  Except for the Disclosed Matters, the Borrower and each Restricted Subsidiary is in compliance with all laws, including all orders of Governmental Authorities, applicable to it or its property (including Environmental Laws), except where the failure to comply, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.  
SECTION 3.08.  Investment Company Status.  The Borrower is not an “investment company” as defined in the Investment Company Act of 1940.
SECTION 3.09.  Taxes.  The Borrower and each Restricted Subsidiary has filed or caused to be filed all Federal, state and local tax returns required to have been filed and has paid or caused to be paid all taxes required to have been paid by it, except (a) payment of taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Restricted Subsidiary, as applicable, has set aside on its books reserves with respect thereto to the extent required by GAAP or (b) to the extent that the failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10.  ERISA.  No ERISA Event has occurred or, to the knowledge of the Borrower, is reasonably expected to occur that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11.  Disclosure.  None of the reports, certificates or other written information furnished by or on behalf of the Borrower to any Agent or any Lender in connection with the negotiation of this Agreement or furnished hereunder on or prior to the Effective Date (as modified or supplemented by all other information so furnished on or prior to the Effective Date), when taken as a whole and together with the Disclosed Matters, contains as of the Effective Date any material misstatement of fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that (a) with respect to financial projections or other forward-looking information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by it to be reasonable at the time made and at the time made available to the Co-Administrative Agents 








62



(it being understood that financial projections or other forward-looking information are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower, that actual results or events may differ significantly from the projected or forecasted results or events and such differences may be material) and (b) no representation is made herein with respect to information of a general economic or industry specific nature.
SECTION 3.12.  Federal Reserve Regulations.  No part of the proceeds of the Loans will be used by the Borrower or its Subsidiaries for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors), or extending credit for the purpose of purchasing or carrying margin stock, in each case, in a manner that entails a violation (including on the part of any Lender) of any of the regulations of the Board of Governors, including Regulations U and X.  
SECTION 3.13.  Anti-Corruption Laws and Sanctions.  The Borrower has implemented and maintains policies and procedures designed to reasonably ensure compliance by the Borrower and the Restricted Subsidiaries and their respective directors, officers, employees and agents (in each case acting in their capacities as such) with applicable Anti-Corruption Laws and Sanctions, and the Borrower and its Restricted Subsidiaries and, to the knowledge of the Borrower, their respective officers, directors and employees are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.  None of the Borrower or any Restricted Subsidiary or, to the knowledge of the Borrower, any of their respective directors, officers or employees is a Sanctioned Person.  The Borrower will not request any Borrowing or Letter of Credit, and the Borrower will not use, and will not permit its Subsidiaries and its or their respective directors, officers, employees and agents to use, the proceeds of any Borrowing or any Letter of Credit (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, to the extent such activities, business or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the United States or in Canada, or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
ARTICLE IV
 Conditions
SECTION 4.01.  Effective Date.  The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 9.02):
(a)      The Co-Administrative Agents shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) evidence satisfactory to the Co-Administrative Agents (which may include a facsimile transmission or electronic transmission of a “pdf” or similar copy 








63



of a signature by such party of a counterpart hereof) that such party has signed a counterpart of this Agreement and (ii) an executed copy of the Claim Agreement.
(b)      The Co-Administrative Agents shall have received a written opinion (addressed to the Agents, the Lenders and the Issuing Banks and dated the Effective Date) of each of (i) Cravath, Swaine & Moore LLP, special New York counsel to the Borrower, and (ii) Jose Quintana, Senior Counsel, as counsel for the Borrower, in each case in form and substance reasonably satisfactory to the Co-Administrative Agents.
(c)      The Co-Administrative Agents shall have received such customary documents and certificates in connection with the effectiveness of this Agreement as the Co-Administrative Agents may reasonably request relating to the organization, existence and good standing of the Borrower and the authorization of the Transactions, all in form and substance reasonably satisfactory to the Co-Administrative Agents.
(d)      The Co-Administrative Agents shall have received a certificate, dated the Effective Date and signed by a Responsible Officer of the Borrower, confirming (i) satisfaction of the condition set forth in paragraph (b) of Section 4.02 and (ii) that the representations and warranties of the Borrower set forth in Article III are true and correct in all material respects on and as of the Effective Date as if made on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case to the effect that such representation and warranty is true and correct in all material respects on and as of such prior date.
(e)      The Co-Administrative Agents shall have received all fees and expenses due and payable on or prior to the Effective Date, and in the case of expenses, to the extent invoiced in reasonable detail at least two Business Days prior to the Effective Date.
(f)      On or prior to the Effective Date, all principal, accrued and unpaid interest, fees and other amounts due or outstanding under the Existing Credit Agreement shall have been or shall be paid in full and the commitments thereunder shall have been or shall be terminated, and the Co-Administrative Agents shall have received a customary payoff letter in evidence thereof.
(g)      The Lenders shall have received, at least three Business Days prior to the Effective Date (or such later date as the Co-Administrative Agents shall reasonably agree), all documentation and other information about the Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, in each case, that has been requested by the Co-Administrative Agents in writing at least 10 Business Days prior to the Effective Date.








64



The Paying Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding.  
SECTION 4.02.  Each Credit Event.  The obligation of each Lender to make a Loan on the occasion of any Borrowing (other than any conversion or continuation of any Loan), and of each Issuing Bank to issue, amend to increase the amount thereof, renew (other than an automatic renewal permitted under Section 2.05(c)) or extend any Letter of Credit, is subject to receipt of the request therefor in accordance herewith and to the satisfaction of the following conditions:
(a)      The representations and warranties of the Borrower set forth in Sections 3.01, 3.02, 3.03, 3.05, 3.08, 3.12 and 3.13 shall be true and correct in all material respects, in each case on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, in each case at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects on and as of such prior date.
(b)      At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing or would result therefrom.
On the date of any Borrowing (other than any conversion or continuation of any Loan) or the issuance, amendment to increase the amount thereof, renewal (other than an automatic renewal permitted under Section 2.05(c)) or extension of any Letter of Credit, the Borrower shall be deemed to have represented and warranted that the conditions specified in paragraphs (a) and (b) of this Section have been satisfied.

ARTICLE V
 Affirmative Covenants
Until the Commitments shall have expired or been terminated, the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full, all Letters of Credit shall have expired or been terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that: 
SECTION 5.01.  Financial Statements and Other Information.  The Borrower will furnish to the Paying Agent, on behalf of each Lender:
(a)      within 95 days after the end of each fiscal year of the Borrower, its consolidated balance sheet and related consolidated statements of 








65



operations, comprehensive income, changes in equity and cash flows as of the end of or for such fiscal year, together with the notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, all audited by and accompanied by the opinion of KPMG LLP or another independent registered public accounting firm of recognized national standing (which shall not be qualified in any material respect, it being understood and agreed that any qualification solely with respect to management’s assessment of the internal controls over financial reporting of an acquired business shall not in any event be considered material) to the effect that such consolidated financial statements present fairly in all material respects the financial position and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis as of the end of or for such fiscal year in accordance with GAAP consistently applied, except as noted therein;
(b)      within 50 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, its consolidated balance sheet and related consolidated statements of operations, comprehensive income and cash flows as of the end of or for such fiscal quarter (other than in the case of the consolidated statement of cash flows) and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer of the Borrower as presenting fairly in all material respects the financial position and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP as of the end of or for such period, except as therein noted, subject to year-end audit adjustments and the absence of footnotes (which certification requirement shall be deemed satisfied by the execution by a Financial Officer of the Borrower of the certification required to be filed with the SEC pursuant to Item 601 of Regulation S‐K);
(c)      no later than two Business Days after the required time of delivery of financial statements under clause (a) or (b) above, a certificate (substantially in the form of Exhibit E hereto) of a Financial Officer of the Borrower (i) certifying that, to the knowledge of such Financial Officer, no Default or Event of Default has occurred or, if a Default or an Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail demonstrating compliance with the covenants contained in Sections 6.04 and 6.05 and (iii) including a reconciliation setting forth adjustments made to such financial statements to make the computations set forth in clause (ii) above; and
(d)      promptly after any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower and the Restricted Subsidiaries as the Paying Agent (or any Lender or Issuing Bank through the Paying Agent) may reasonably request (other than information (i) that 








66



constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure is prohibited by applicable law or by any contractual obligation or (iii) that is subject to attorney client or similar privilege or constitutes attorney work product).
Information required to be delivered pursuant to clauses (a), (b) and (d) of this Section shall be deemed to have been delivered if such information, or one or more reports containing such information, shall have been posted by the Paying Agent on the Platform or shall be available on the website of the SEC at http://www.sec.gov or on the website of the Borrower at http://www.weyerhaeuser.com.  Information required to be delivered pursuant to this Section may also be delivered by electronic communication of a “pdf” or similar copy.
SECTION 5.02.  Notices of Default.  Upon a Responsible Officer of the Borrower obtaining knowledge of the occurrence of any Default or Event of Default, the Borrower will furnish to the Paying Agent prompt written notice thereof, specifying the nature and extent thereof and the corrective action (if any) proposed to be taken with respect thereto.
SECTION 5.03.  Existence; Conduct of Business.  The Borrower and each Restricted Subsidiary will do or cause to be done all things necessary to preserve, renew and keep in full force and effect (a) its legal existence and (b) the rights, licenses, permits, privileges, franchises, authorizations and United States registered patents, copyrights and trademarks necessary or desirable in the conduct of its business; provided that the foregoing shall not (i) apply (other than in the case of clause (a) with respect to the Borrower) to the extent the failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (ii) prohibit any transaction permitted under Section 6.03 or (iii) prohibit the liquidation or dissolution of any Restricted Subsidiary to the extent the assets of such Restricted Subsidiary are transferred to the Borrower or another Restricted Subsidiary or are disposed of in a transaction permitted by this Agreement.
SECTION 5.04.  Payment of Taxes.  The Borrower and each Restricted Subsidiary will pay its tax liabilities before the same shall become delinquent or in default, except where (a) (i) the validity or amount thereof is being contested in good faith by appropriate proceedings and (ii) the Borrower or such Restricted Subsidiary has set aside on its books reserves with respect thereto to the extent required by GAAP or (b) the failure to make payment would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05.  Maintenance of Properties.  The Borrower and each Restricted Subsidiary will keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, except where the failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06.  Insurance.  The Borrower and each Restricted Subsidiary will maintain, with financially sound and reputable (as determined by the Borrower in good faith) third-party insurers, insurance in such amounts (giving effect to any self-insurance), 








67



to such an extent and against such risks as is customary for companies in the same or similar business (as determined by the Borrower in good faith), it being understood and agreed that it is not customary for such companies to insure timberlands against any damage or casualty.
SECTION 5.07.  Books and Records; Inspection Rights.  The Borrower and each Restricted Subsidiary will keep proper books of record and account in which full, true and correct entries in accordance with GAAP in all material respects are made in respect of all financial transactions and matters involving the assets and business of the Borrower or such Restricted Subsidiary, as the case may be (it being understood and agreed that any foreign Restricted Subsidiaries may maintain books and records in a manner permitting financial statements to be prepared in conformity with generally accepted accounting principles that are applicable in their respective jurisdictions of organization).  The Borrower and each Restricted Subsidiary will permit the Paying Agent, on behalf of the Lenders, at the expense of the Paying Agent or the Lenders unless an Event of Default has occurred and is continuing, (a) to visit and inspect its financial records and properties and to make extracts from such financial records and (b) to discuss its business affairs and financial condition with its officers and independent accountants (so long as a representative of the Borrower is present, or the Borrower has consented to the absence of such a representative), all at such reasonable times during normal business hours and upon reasonable advance notice to the Borrower; provided that (i) unless an Event of Default has occurred and is continuing, the Paying Agent may not exercise such rights more often than once during any calendar year and (ii) neither the Borrower nor any Restricted Subsidiary shall be required to provide any information (A) that constitutes non-financial trade secrets or non-financial proprietary information, (B) in respect of which disclosure is prohibited by applicable law or by any contractual obligation or (C) that is subject to attorney client or similar privilege or constitutes attorney work product.
SECTION 5.08.  Compliance with Laws.  The Borrower and each Restricted Subsidiary will comply with all laws, including all orders of any Governmental Authority, applicable to it or its property (including Environmental Laws), except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.  The Borrower will implement and maintain policies and procedures designed to reasonably ensure compliance by the Borrower and the Restricted Subsidiaries and their respective directors, officers, employees and agents (in each case acting in their capacities as such) with applicable Anti-Corruption Laws and Sanctions. 
SECTION 5.09.  Use of Credit.  The proceeds of the Loans will be used solely for general corporate purposes of the Borrower and the Subsidiaries, including for working capital purposes, to refinance or otherwise repay or prepay any Indebtedness and to finance acquisitions, stock repurchases and capital expenditures.  Letters of Credit will be issued for general corporate purposes of the Borrower and the Subsidiaries.  The Borrower will not request any Borrowing or Letter of Credit, and the Borrower will not use, and will not permit its Subsidiaries and its or their respective directors, officers, employees and agents to use, the proceeds of any Borrowing or any Letter of Credit (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything 








68



else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, to the extent such activities, business or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the United States, or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
SECTION 5.10.  Claim Agreement.  The Borrower will perform, observe and comply with each of its covenants and agreements in the Claim Agreement, and do or cause to be done all things necessary to keep the Claim Agreement in full force and effect.

ARTICLE VI
 Negative Covenants
Until the Commitments shall have expired or been terminated, the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full, all Letters of Credit shall have expired or been terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01.  Secured Indebtedness.  (a)The Borrower will not, and will not permit any Restricted Subsidiary to, issue, assume or guarantee any indebtedness for money borrowed (hereinafter in this Section 6.01 referred to as “debt”) if such debt is secured by a deed of trust, mortgage, pledge, security interest or other lien or encumbrance (any deed of trust, mortgage, pledge, security interest or other lien or encumbrance being hereinafter in this Section 6.01(a) referred to as a “mortgage”) upon or with respect to any timber or timberlands of the Borrower or such Restricted Subsidiary located in the States of Washington, Oregon, Arkansas, Oklahoma, Mississippi, North Carolina, Georgia or Louisiana, or upon or with respect to any principal manufacturing plant (as defined in Section 6.01(b)) of the Borrower or such Restricted Subsidiary located anywhere in the United States of America, in either case now owned or hereafter acquired, without in any such case effectively providing, concurrently with the issuance, assumption or guarantee of any such debt, that the Loans and Letters of Credit (together with, if the Borrower shall so determine, any other Indebtedness of or guarantee by the Borrower or such Restricted Subsidiary ranking equally with the Loans or Letters of Credit and then existing or thereafter created) shall be secured equally and ratably with (or prior to) such debt for so long as such debt is so secured; provided, however, that the foregoing restrictions shall not be applicable to:
(i)    mortgages upon or with respect to any property of the Borrower or any Restricted Subsidiary securing debt to the Borrower or a Restricted Subsidiary;
(ii)    mortgages upon or with respect to any property acquired, constructed or improved by the Borrower or any Restricted Subsidiary which are created, incurred or assumed contemporaneously with, or within 180 days 








69



after, such acquisition or the completion of such construction or improvement, to secure or provide for the payment of any part of the purchase price of such property or the cost of such construction or improvement, or mortgages upon or with respect to any property existing at the time of acquisition thereof by the Borrower or any Restricted Subsidiary; provided that in the case of any such construction or improvement the mortgage shall not apply to any property theretofore owned by the Borrower or any Restricted Subsidiary other than any property on which the property so constructed is located (including any related rights) or to which the improvement relates;
(iii)    any mortgage existing on any timber or timberlands of any Person or upon or with respect to any principal manufacturing plant of any Person at the time of acquisition by the Borrower or any Restricted Subsidiary of such Person; and
(iv)    any extension, renewal or replacement of any mortgage referred to in clause (ii) or (iii) above; provided that the principal amount of debt secured thereby shall not exceed the principal amount of debt so secured at the time of such extension, renewal or replacement and any fees, discount, premium and expenses relating to such extension, renewal or replacement, and that such extension, renewal or replacement shall be limited to all or part of the property subject, or that upon the acquisition thereof would have become subject, to the mortgage so extended, renewed or replaced.
(b)      Notwithstanding the provisions of paragraph (a) of this Section 6.01, the Borrower or any Restricted Subsidiary may issue, assume or guarantee secured debt that would otherwise be subject to the foregoing restrictions in an aggregate principal amount that, together with the aggregate principal amount of all other such debt of the Borrower and the Restricted Subsidiaries outstanding at such time (for the avoidance of doubt, other than any debt secured in reliance on paragraph (a) of this Section 6.01) and all Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions permitted because the Borrower would be entitled to incur debt secured by a mortgage on the property to be leased without equally and ratably securing the Loans pursuant to paragraph (a) of this Section 6.01, and other than Sale and Lease-Back Transactions the proceeds of which have been applied in accordance with Section 6.02(b)), does not at the time exceed 5% of Shareholders’ Interest in the Borrower and the Restricted Subsidiaries as of the last day of the then most recently ended Test Period (or, prior to the end of the first Test Period, December 31, 2016). 
(c)      For purposes of this Section 6.01, (i) the term “principal manufacturing plant” shall not include any manufacturing plant that, in the reasonable opinion of the Board of Directors of the Borrower, is not a principal 








70



manufacturing plant of the Borrower and the Restricted Subsidiaries; and (ii) the following types of transactions shall not be deemed to create debt secured by a mortgage: (A) the sale, mortgage or other transfer of timber in connection with an arrangement under which the Borrower or any Restricted Subsidiary is obligated to cut such timber or a portion thereof in order to provide the transferee with a specified amount of money, however determined; and (B) the mortgage of any property of the Borrower or any Restricted Subsidiary in favor of any Governmental Authority to secure (i) partial, progress, advance or other payments to the Borrower or any Restricted Subsidiary pursuant to the provisions of any contract or statute and (ii) Indebtedness consisting of industrial development, pollution control or other revenue bonds or similar instruments issued or guaranteed by any Governmental Authority.
SECTION 6.02.  Sale and Lease-Back Transactions.  The Borrower will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Lease-Back Transaction unless (a) the Borrower or such Restricted Subsidiary would be entitled under Section 6.01 to incur debt (as defined in Section 6.01) secured by a mortgage on the property to be leased without equally and ratably securing the Loans or (b) the Borrower applies an amount equal to the fair value (as determined by the Board of Directors of the Borrower) of the property so leased to the retirement, within 90 days of the effective date of any such Sale and Lease-Back Transaction, of debt incurred or assumed by the Borrower or a Restricted Subsidiary which by its terms matures at, or is extendible or renewable at the option of the obligor to, a date more than 12 months after the date of the creation of such debt.
SECTION 6.03.  Merger, Consolidation and Other Fundamental Changes.  The Borrower will not merge or consolidate with or into any other Person, or sell, transfer or otherwise dispose of all or substantially all of its consolidated properties or assets to any Person in a single transaction or in a series of related transactions, unless: (a) in the case of a merger or consolidation, the Borrower is the surviving or resulting Person or (b) (i) in the case of a merger or consolidation, the surviving or resulting Person is or (ii) in the case of any such sale, transfer or other disposition, the transferee Person is, in either case, organized in the United States of America or any State thereof and shall expressly assume, pursuant to customary documentation reasonably satisfactory to the Co-Administrative Agents, the obligations of the Borrower under this Agreement and the other Loan Documents (whereupon such Person shall succeed to, and be substituted for, and may exercise every right and power of the Borrower under this Agreement and the other Loan Documents with the same effect as if such Person had been named as the Borrower herein and, in the case of any such sale, transfer or other disposition, the Borrower shall be relieved of all obligations and covenants under this Agreement and the other Loan Documents).
SECTION 6.04.  Funded Debt Ratio.  The Borrower will not permit Total Funded Indebtedness as of the last day of any Test Period to exceed 65% of the sum of Total Adjusted Shareholders’ Equity and Total Funded Indebtedness, in each case, as of the last day of such Test Period.








71



SECTION 6.05.  Total Adjusted Shareholders’ Equity.  The Borrower will not permit Total Adjusted Shareholders’ Equity as of the last day of any Test Period to be less than $3,000,000,000.
SECTION 6.06.  Change in Business.  The Borrower will not engage, and will not permit any Restricted Subsidiary to engage, to any material extent in any businesses other than the businesses conducted by the Borrower and the Restricted Subsidiaries as of the date hereof, except for businesses that are ancillary thereto, or reasonable extensions, developments and modifications thereof or are otherwise reasonably related thereto.

ARTICLE VII
Events of Default
If any of the following events (“Events of Default”) shall occur:  
(a)      the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b)      the Borrower shall fail to pay (i) any interest on any Loan or (ii) any fee or any other amount (other than an amount referred to in clause (a) of this Article), in each case payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of (A) in the case of clause (i), five Business Days and (B) in the case of clause (ii), five Business Days after notice thereof from the Paying Agent to the Borrower;
(c)      any representation or warranty made or deemed made by the Borrower in any Loan Document or in any document required to be delivered pursuant to any Loan Document, or in any certificate delivered on behalf of the Borrower pursuant to a Loan Document, shall prove to have been false or misleading in any material respect when made or deemed made;
(d)      the Borrower shall fail to observe or perform any covenant or agreement contained in Section 5.02, 5.03(a) (with respect to the legal existence of the Borrower) or 5.09 or in Article VI;
(e)      the Borrower shall fail to observe or perform any covenant or agreement contained in any Loan Document (other than those specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 30 days after written notice thereof from the Paying Agent to the Borrower;








72



(f)      the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal, interest, termination payment or other payment obligation and regardless of amount) in respect of any Material Indebtedness when and as the same shall become due and payable, and such failure shall continue after the applicable grace period, if any, has expired;
(g)      any default occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity, or that continues after the applicable grace period, if any, specified in the agreement or instrument related to such Material Indebtedness and permits the holder or holders of such Material Indebtedness or any trustee or agent on its or their behalf, with or without the giving of notice, to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to any secured Indebtedness that becomes due as a result of the voluntary sale or transfer or other disposition of or damage to the assets securing such Indebtedness;
(h)      an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material Restricted Subsidiary or its debts, or of a substantial part of its assets, under any Federal or state bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Restricted Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i)      the Borrower or any Material Restricted Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation (other than any liquidation of a Restricted Subsidiary permitted by Section 5.03), reorganization or other relief under any Federal or state bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding or (v) make a general assignment for the benefit of creditors, or the board of directors (or similar governing body) of the Borrower or any Material Restricted Subsidiary (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to above in this clause (i) or clause (h) of this Article;








73



(j)      the Borrower or any Material Restricted Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k)      one or more final judgments requiring the payment of money in an aggregate amount in excess of $200,000,000 (other than any such judgment covered by insurance to the extent the insuror has been notified thereof in writing and has not denied liability therefor), shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgment;
(l)      one or more ERISA Events shall have occurred that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect; 
(m)      a Change in Control shall occur; or
(n)      the Claim Agreement shall cease, for any reason, to be in full force and effect, or the Borrower shall contest the validity or enforceability thereof;
then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Paying Agent may, or at the request of the Required Lenders shall, by notice to the Borrower, take any or all of the following actions, at the same or different times:  (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other monetary obligations of the Borrower hereunder, shall become due and payable immediately, and (iii) require the deposit of cash collateral in respect of LC Exposure as provided in Section 2.06(i), in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in the case of any event with respect to the Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically terminate, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other monetary obligations of the Borrower hereunder, shall immediately and automatically become due and payable and the deposit of such cash collateral in respect of LC Exposure shall immediately and automatically become due, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.  










74



ARTICLE VIII
 The Agents
Each of the Lenders and the Issuing Banks hereby irrevocably appoints each of the entities named as the Paying Agent or a Co-Administrative Agent in the heading of this Agreement and its successors to serve in such capacity under the Loan Documents, and authorizes each of the Agents to execute, deliver and administer the Loan Documents and to take such actions and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.   
The Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not an Agent (and the term “Lender” or “Lenders” or “Issuing Bank” or “Issuing Banks” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as such Agent in its individual capacity), and such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or Affiliate thereof or any other Person that may do business with or own Equity Interests in the Borrower as if such Person were not an Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks.
The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents.  In performing its functions and duties under this Agreement, each Agent shall act solely as agent of the Lenders and shall not assume, or be deemed to have assumed, any relationship of agency or trust with or for the Borrower.  Without limiting the generality of the foregoing, (a) the Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) no Agent shall have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent exercise (including in connection with any transaction contemplated by Section 2.20, 2.21 or 6.03) or that such Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents), provided that no Agent shall be required to take any action that, in its opinion, could be contrary to any Loan Document or applicable law or may expose it to liability, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for 








75



the failure to disclose, any information relating to the Borrower, or any Subsidiary or Affiliate of the Borrower, that is communicated to or obtained by the Person serving as such Agent or any of its Affiliates in any capacity.  No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents), which consent or request, as applicable, shall be binding upon all Lenders, or in the absence of its own gross negligence, bad faith or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment).  The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default” and stating the nature of the Default) is given to any Agent by the Borrower, a Lender or an Issuing Bank, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the due execution, legality, sufficiency, validity, enforceability, effectiveness, genuineness  or value of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than, in the case of any Agent, to confirm receipt of items expressly required to be delivered to such Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to such Agent.  
Each Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof).  Each Agent also shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and may act upon any such statement prior to receipt of written confirmation thereof.  In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, each Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless such Agent shall have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit.  Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.








76



Each Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agent.  Each Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of any Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facility provided for herein as well as activities as an Agent.  No Agent shall be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence, bad faith or willful misconduct.
Subject to the terms of this paragraph, each Agent may resign at any time from its capacity as such.  In connection with such resignation, such Agent shall give notice of its intent to resign to the other Agents, the Lenders, the Issuing Banks and the Borrower.  Upon any such notice of resignation by any Co-Administrative Agent, the retiring Co-Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, without any other further act or deed on the part of such retiring Co-Administrative Agent or any other Person, and all the rights, powers, privileges and duties of the Co-Administrative Agents or any of them shall be vested solely in the remaining Co-Administrative Agent (or, if both of the Co-Administrative Agents shall have retired, in the Paying Agent).  Upon any such notice of resignation by the Paying Agent, the Required Lenders shall have the right, subject to the consent of the Borrower (other than during the existence of an Event of Default under clause (a), (b), (h) or (i) of Article VII), which consent of the Borrower shall not be unreasonably withheld, delayed or conditioned, to appoint a successor.  If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Paying Agent gives notice of its intent to resign, then the retiring Paying Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor, subject to the consent of the Borrower (other than during the existence of an Event of Default under clause (a), (b), (h) or (i) of Article VII), which consent of the Borrower shall not be unreasonably withheld, delayed or conditioned, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank.  Upon the acceptance of its appointment as Paying Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent, and the retiring Paying Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents.  The fees payable by the Borrower to a successor Paying Agent shall be the same as those payable to its predecessor unless otherwise agreed by the Borrower and such successor.  Notwithstanding the foregoing, in the event no successor Paying Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Paying Agent gives notice of its intent to resign, the retiring Paying Agent may give notice of the effectiveness of its resignation to the other Agents, the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Paying Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, without any other further act or deed on the part of such retiring Paying Agent or any other Person, and (b) the Required Lenders shall succeed 








77



to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent; provided that (i) all payments required to be made hereunder or under any other Loan Document to the Paying Agent for the account of any Person other than the Paying Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Paying Agent shall also directly be given or made to each Lender and each Issuing Bank.  Following the effectiveness of any Co-Administrative Agent’s or the Paying Agent’s resignation from its capacity as such, the provisions of this Article and Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Agent, its sub‐agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an Agent and in respect of the matters referred to in the proviso under clause (a) above.
Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon any Agent, any Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon any Agent, any Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, any Agent or the Lenders on the Effective Date.
Notwithstanding anything herein to the contrary, neither any Arranger nor any Person named on the cover page of this Agreement as a Syndication Agent or a Documentation Agent shall have any duties, responsibilities or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as the Paying Agent, a Co-Administrative Agent, a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder.
The provisions of this Article (other than provisions of this Article providing the Borrower with a consent right, all of which shall also be for the benefit of the Borrower) are solely for the benefit of the Agents, the Lenders and the Issuing Banks, and the Borrower shall not have any rights as a third party beneficiary of any such provisions.

ARTICLE IX
 Miscellaneous
SECTION 9.01.  Notices.  (A) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) 








78



of this Section), all notices and other communications provided for herein shall be in writing and, subject to the requirements of clause (i) below, shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by email or fax, as follows:
(i)    if to the Borrower, by email to cashmanu@weyerhaeuser.com, with a copy, in the case of any notice of Default or otherwise in respect of Article VII, to jose.quintana@weyerhaeuser.com and laura.smith@weyerhaeuser.com, in each case, with each such email notice of Default or otherwise in respect of Article VII to be promptly followed by delivery of a copy thereof by overnight courier service to 220 Occidental Avenue South, Seattle, Washington 98104, Attention: Treasury;
(ii)    if to Wells Fargo Bank, National Association, as a Co-Administrative Agent and the Paying Agent, to Danielle Coty, MAC D1109-019, 1525 West W.T. Harris Boulevard, Charlotte, North Carolina, 28262, Attention: Syndication Agency Services (email: AgencyServices.Requests@WellsFargo.com and Danielle.Coty@wellsfargo.com, fax: (844) 879-5899, phone: (704) 427-3708), with a copy to Matthew Perrizo, 10 S Wacker Drive, 22nd Floor, Chicago, Illinois 60606 (email: Matthew.J.Perrizo@wellsfargo.com, fax: (312) 553-4783, phone: (312) 630-2366);
(iii)    if to JPMorgan Chase Bank, N.A., as Co-Administrative Agent, to Alex Rogin, 560 Mission Street, 19th Floor, San Francisco, California 94105, (email: alex.m.rogin@jpmorgan.com, fax: (415) 315-5722; phone: (415) 315-5706);
(iv)    if to any Issuing Bank, to it at its address (or email or fax number) most recently specified by it in a notice delivered to the Paying Agent and the Borrower (or, in the absence of any such notice, to the address (or email or fax number) set forth in the Administrative Questionnaire of the Lender that is serving as such Issuing Bank or is an Affiliate thereof);
(v)    if to the Swingline Lender, to Wells Fargo Bank, National Association, Danielle Coty, MAC D1109-019, 1525 West W.T. Harris Boulevard, Charlotte, North Carolina, 28262, Attention: Syndication Agency Services (email: AgencyServices.Requests@WellsFargo.com and Danielle.Coty@wellsfargo.com, fax: (844) 879-5899, phone: (704) 427-3708), with a copy to Matthew Perrizo, 10 S Wacker Drive, 22nd Floor, Chicago, Illinois 60606 (email: Matthew.J.Perrizo@wellsfargo.com, fax: (312) 553-4783, phone: (312) 630-2366); and
(vi)    if to any other Lender, to it at its address (or email or fax number) set forth in its Administrative Questionnaire.








79



Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by fax shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient); and notices delivered through electronic communications to the extent provided in paragraph (b) of this Section shall be effective as provided in such paragraph.
(b)      Notices and other communications to the Lenders and Issuing Banks hereunder may be delivered or furnished by electronic communications (including email and Internet and intranet websites); provided that the foregoing shall not apply to notices under Article II to any Lender or Issuing Bank if such Lender or Issuing Bank, as applicable, has notified the Paying Agent that it is incapable of receiving notices under such Article by electronic communication.  Any notices or other communications to the Co-Administrative Agents, the Paying Agent or the Borrower may be delivered or furnished by electronic communications pursuant to procedures approved by the recipient thereof prior thereto; provided that approval of such procedures may be limited or rescinded by any such Person by notice to each other such Person.
(c)      Any party hereto may change its address or email or fax number for notices and other communications hereunder by notice to the other parties hereto.
(d)      The Borrower agrees that the Agents may, but shall not be obligated to, make any Communication by posting such Communication on Debt Domain, Intralinks, Syndtrak or a similar electronic transmission system (the “Platform”).  The Platform is provided “as is” and “as available”.  Neither any Agent nor any of its Related Parties warrants, or shall be deemed to warrant, the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications.  No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made, or shall be deemed to be made, by any Agent or any of its Related Parties in connection with the Communications or the Platform.  In no event shall any Agent or any of its Related Parties have any liability to the Borrower, any Lender, any Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or any Agent’s transmission of the Communications through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses result from the gross negligence, bad faith or willful misconduct of such Agent or any of its Related Parties (as determined by a court of competent jurisdiction in a final and nonappealable judgment); provided, however, that in no event shall any Agent or any of its Related Parties have any liability to the Borrower, any Lender, any Issuing Bank or any other Person for special, indirect, 








80



consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with or as a result of the foregoing.
SECTION 9.02.  Waivers; Amendments.  (a) No failure or delay by any Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Agents, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of any Loan Document or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.  Without limiting the generality of the foregoing, the execution and delivery of this Agreement, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether any Agent, any Issuing Bank or any Lender may have had notice or knowledge of such Default at the time.
(b)      None of this Agreement, any other Loan Document or any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Paying Agent or the Co-Administrative Agents and the Borrower with the consent of the Required Lenders; provided that no such agreement shall:
(i)    increase the Commitment of any Lender without the written consent of such Lender (it being understood that a waiver, amendment or modification of any condition precedent set forth in Section 4.02 or of any covenant or Default shall not constitute an increase of any Commitment of any Lender);
(ii)    reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby (it being understood that determination of the rate of interest in respect of the Swingline Loans as provided in Section 2.12(c), whether or not such rate as so determined would be less than the rate of interest applicable to Base Rate Revolving Loans, shall not constitute a reduction of the rate of interest); provided that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the default rate or to change the amount of the default rate specified in Section 2.12(d);
(iii)    postpone the scheduled final maturity date of any Loan, or the required date of reimbursement of any LC Disbursement, or any date for the payment of any interest or fees payable hereunder, or reduce the amount 








81



of, waive or excuse any such payment, or postpone the scheduled final expiration date of any Commitment, in each case, without the written consent of each Lender directly and adversely affected thereby (it being understood that a waiver, amendment or modification of any covenant or Default shall not constitute a postponement, waiver or excuse of any payment of principal, interest, fees or other amounts); provided that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the default rate or to change the amount of the default rate specified in Section 2.12(d);
(iv)    change Section 2.17(b) or 2.17(c) in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender; or
(v)    change any of the provisions of this Section 9.02(b), the percentage set forth in the definition of the term “Required Lenders” or any other provision of this Agreement specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent thereunder, without the written consent of each Lender; provided that, with the consent of the Required Lenders, the provisions of this Section and the definition of the term “Required Lenders” may be amended to include references to any new Class of Loans or Commitments created under this Agreement (or to Lenders extending such Loans or Commitments) on substantially the same basis as the corresponding references relating to the existing Revolving Loans, Revolving Commitments or Lenders;
provided further that no such agreement shall amend, modify, extend or otherwise affect the rights or obligations of any Co-Administrative Agent, the Paying Agent, any Issuing Bank or the Swingline Lender without the prior written consent of such Co-Administrative Agent, the Paying Agent, such Issuing Bank or the Swingline Lender, as the case may be.
(c)      Notwithstanding any other provision of this Section to the contrary:
(i)    any provision of this Agreement or any other Loan Document may be amended, without consent of any Lender or Issuing Bank (except as expressly set forth in such Sections), in the manner provided in Sections 2.05(j), 2.05(k), 2.20 and 2.21 or the definition of the term “LC Commitment”, and each Lender and Issuing Bank hereby expressly authorizes and directs the Paying Agent to enter into any such amendment;
(ii)    any provision of this Agreement or any other Loan Document may be amended (without the consent of any Lender or Issuing Bank) by an agreement in writing entered into by the Borrower and the Co-Administrative 








82



Agents to cure any obvious error or any ambiguity, omission, defect or inconsistency;
(iii)    any provision of this Agreement or any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Co-Administrative Agents, the Paying Agent and the Borrower (A) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share in the benefits of this Agreement and the other Loan Documents with the Revolving Loans and the accrued interest and fees in respect thereof and (B) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders, provided that no Lender shall be obligated to commit to or hold any part of such credit facilities; and
(iv)    notwithstanding anything in paragraph (b) of this Section to the contrary, no consent with respect to any amendment, waiver or other modification of this Agreement or any other Loan Document shall be required of (A) any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (i), (ii) or (iii) of paragraph (b) of this Section and then only in the event such Defaulting Lender shall be affected by such amendment, waiver or other modification, or (B) in the case of any amendment, waiver or other modification referred to in the first proviso of paragraph (b) of this Section, any Lender that receives payment in full of the principal of and interest accrued on each Loan made by, and all other amounts owing to, such Lender or accrued for the account of such Lender under this Agreement at the time such amendment, waiver or other modification becomes effective and whose Commitments terminate by the terms and upon the effectiveness of such amendment, waiver or other modification.
(d)      The Paying Agent or the Co-Administrative Agents, as the case may be, may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, waivers or other modifications on behalf of such Lender.  Any amendment, waiver or other modification effected in accordance with this Section shall be binding upon each Person that is at the time thereof a Lender and each Person that subsequently becomes a Lender.
SECTION 9.03.  Expenses; Indemnity; Damage Waiver.  (a) Except as provided in Section 5.07, the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses (including due diligence expenses, syndication expenses and travel expenses) incurred by each Co-Administrative Agent, the Paying Agent, each Arranger and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for any of the foregoing (which shall be limited to a single firm of primary counsel and, if reasonably determined by the Paying Agent to be reasonably necessary, a single firm 








83



of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions)), in connection with the structuring, arrangement and syndication of the credit facility provided for herein, as well as the preparation, execution, delivery and administration of this Agreement, the other Loan Documents and any related documentation or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by any Co-Administrative Agent, the Paying Agent, any Arranger, any Issuing Bank or any Lender, including the reasonable fees, charges and disbursements of counsel for any of the foregoing (which shall be limited to a single firm of primary counsel and, if reasonably determined by the Paying Agent to be reasonably necessary, a single firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions), and, in the case of an actual or perceived conflict of interest, a single additional firm of counsel (or local counsel) for each group of affected parties that is similarly situated), in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of‐pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b)      The Borrower shall indemnify each Co-Administrative Agent (and any sub-agent thereof), the Paying Agent, each Arranger, each Lender and each Issuing Bank, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”), against, and hold each Indemnitee harmless from, any and all losses, claims, damages, penalties, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee (which shall be limited to a single firm of counsel for all Indemnitees, taken as a whole, and, if reasonably determined by the Paying Agent to be reasonably necessary, a single firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole, and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrower of such conflict, a single additional firm of counsel (or local counsel) for each group of affected Indemnitees that are similarly situated), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the structuring, arrangement and the syndication of the credit facility provided for herein, the preparation, execution, delivery and administration of this Agreement, the other Loan Documents or any other agreement or instrument contemplated hereby or thereby, the performance by the parties to this Agreement or the other Loan Documents of their respective obligations hereunder or thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by any Issuing Bank to honor a demand for payment under 








84



a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by the Borrower or any Subsidiary, or any other Environmental Liability related in any way to the Borrower or any Subsidiary, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and whether initiated against or by any party to this Agreement or any other Loan Document, any Affiliate of any of the foregoing or any third party (and regardless of whether any Indemnitee is a party thereto); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, penalties, liabilities and related expenses resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its Related Parties (as determined by a court of competent jurisdiction in a final and nonappealable judgment), (y) a material breach of the obligations of such Indemnitee or any of its Related Parties under the Loan Documents (as determined by a court of competent jurisdiction in a final and nonappealable judgment) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Borrower, any of its Subsidiaries or any of their respective Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as a Co-Administrative Agent, the Paying Agent, an Arranger or any other titled role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or a material breach of the obligations of such Indemnitee or any of its Related Parties under the Loan Documents (in each case, as determined by a court of competent jurisdiction in a final and nonappealable judgment)).  If any Indemnitee shall have received any payment from the Borrower under this paragraph, such Indemnitee shall (and, in the case of any such Indemnitee that is not a party hereto, the Indemnitees that are party hereto and that are Related Parties thereof shall cause such Indemnitee to) refund all amounts received by it under this paragraph in excess of those to which it shall have been entitled under the terms of this paragraph.  This paragraph shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim. 
(c)      To the extent that the Borrower fails to indefeasibly pay any amount required to be paid by it under paragraph (a) or (b) of this Section to any Co-Administrative Agent (or any sub-agent thereof), the Paying Agent, any Issuing Bank, the Swingline Lender or any Related Party of any of the foregoing (and without limiting their obligation to do so), each Lender severally agrees to pay to such Co-Administrative Agent (or any such sub-agent), the Paying Agent, such Issuing Bank, the Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against 








85



such Co-Administrative Agent (or such sub-agent), the Paying Agent, such Issuing Bank or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for any Co-Administrative Agent (or any such sub-agent), the Paying Agent, any Issuing Bank or the Swingline Lender in connection with such capacity.  For purposes of this Section, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the total Revolving Exposures and unused Commitments at the time (or most recently outstanding and in effect).
(d)      To the fullest extent permitted by applicable law, (i) the Borrower shall not assert, or permit any of its Affiliates or Related Parties to assert, and the Borrower hereby waives, any claim against any Indemnitee for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet), except to the extent such claims result from the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its Related Parties or a material breach of the obligations of such Indemnitee or any of its Related Parties under the Loan Documents (in each case, as determined by a court of competent jurisdiction in a final and nonappealable judgment), and (ii) no party hereto shall assert, or permit any of its Affiliates or other Related Parties to assert, and each hereby waives, any claim against any other party, or any of their Affiliates or any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof, provided that nothing in this clause (ii) shall diminish obligations of the Borrower under paragraphs (a) and (b) of this Section.
(e)      All amounts due under this Section shall be payable within 30 days after written demand therefor, together with customary backup documentation in reasonable detail.
SECTION 9.04.  Successors and Assigns.  (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i) other than as provided in Section 6.03, the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Co-Administrative Agents, the Paying Agent and each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section.  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section), any Arranger and, to the extent expressly contemplated hereby, 








86



the sub-agents of any Co-Administrative Agent or the Paying Agent and the Related Parties of any Co-Administrative Agent, the Paying Agent, any Arranger, any Issuing Bank and any Lender) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)      (i) Subject to the conditions set forth in paragraph (b)(ii) of this Section, any Lender may assign and delegate to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, delayed or conditioned, except that, in the case of any assignment and delegation to any bank that is a member of the Farm Credit System, the Borrower may give or withhold its consent in its sole discretion) of:
(A)    the Borrower; provided that no consent of the Borrower shall be required for an assignment to a Lender or an Affiliate of a Lender or (2) if an Event of Default under clause (a), (b), (h) or (i) of Article VII  has occurred and is continuing, for any other assignment;
(B)    the Paying Agent; 
(C)    each Issuing Bank, in the case of any assignment of all or a portion of a Commitment or any Lender’s obligations in respect of its LC Exposure; and
(D)    the Swingline Lender, in the case of any assignment of all or a portion of a Commitment or any Lender’s obligations in respect of its Swingline Exposure.
(ii)    Assignments shall be subject to the following additional conditions:
(A)    except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Paying Agent) shall not be less than $5,000,000 unless each of the Borrower and the Paying Agent otherwise consents; provided that no such consent of the Borrower shall be required if an Event of Default under clause (a), (b), (h) or (i) of Article VII has occurred and is continuing;
(B)    each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement; provided that this clause (B) shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;








87



(C)    the parties to each assignment shall execute and deliver to the Paying Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500, provided that only one such processing and recordation fee shall be payable in the event of simultaneous assignments from any Lender or its Approved Funds to one or more other Approved Funds of such Lender, provided further that the Paying Agent may at its sole discretion waive such processing and recordation fee; and
(D)    the assignee, if it shall not be a Lender, shall deliver to the Paying Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain MNPI) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable law, including Federal, State and foreign securities laws.
(iii)    Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03).  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.
(iv)    The Paying Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and records of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Agents, the Issuing Banks and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by the Borrower and, as to entries pertaining to it, any Issuing Bank or Lender, at any reasonable time and from time to time upon reasonable prior notice.








88



(v)    Upon receipt by the Paying Agent of an Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder) and, if required under clause (C) of paragraph (b)(ii) of this Section, the processing and recordation fee, the Paying Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that the Paying Agent shall not be required to accept such Assignment and Assumption or so record the information contained therein if the Paying Agent reasonably believes that such Assignment and Assumption lacks any written consent required by this Section, provides for an assignment and delegation to a Defaulting Lender or is otherwise not in proper form, it being acknowledged that the Paying Agent shall have no duty or obligation (and shall incur no liability) with respect to obtaining (or confirming the receipt) of any such written consent or with respect to the form of (or any defect in) such Assignment and Assumption, any such duty and obligation being solely with the assigning Lender and the assignee.  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.  Each assigning Lender and the assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the Paying Agent that all written consents required by this Section with respect thereto (other than the consent of the Paying Agent) have been obtained and that such Assignment and Assumption is otherwise duly completed and in proper form, and each assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the assigning Lender and the Paying Agent that such assignee is an Eligible Assignee.  Any assignment by a Lender pursuant to this Section shall not in any way constitute a novation, discharge, rescission, extinguishment or substitution of any Indebtedness or other obligation so assigned, and any Indebtedness or other obligation so assigned shall continue to be the same Indebtedness or other obligation and not a new Indebtedness or other obligation.
(c)      (1) Any Lender may, without the consent of the Borrower, any Agent, any Issuing Bank or the Swingline Lender, sell participations to one or more Persons (other than a Defaulting Lender or a natural person) (“Participants”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and Loans of any Class); provided that (A) in the case of any participation to any bank that is a member of the Farm Credit System, such Lender shall have received prior written consent of the Borrower (such consent to be given or withheld in the sole discretion of the Borrower), except that no such consent of the Borrower shall be required if an Event of Default under clause (a), (b), (h) or (i) of Article VII has occurred and is continuing, (B) such Lender’s obligations under this Agreement shall remain unchanged, (C) such Lender shall remain solely responsible to the other parties 








89



hereto for the performance of such obligations and (D) the Borrower, the Agents, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that (x) such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or modification of this Agreement that requires the consent of each directly affected Lender pursuant to clause (i), (ii) or (iii) of the first proviso to Section 9.02(b) and directly adversely affects such Participant and (y) no other agreement with respect to any amendment, waiver or modification of this Agreement may exist between such Lender and such Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 (subject to the requirements and limitations therein, including the requirements under Section 2.16(f) (it being understood that the documentation required under Section 2.16(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (x) agrees to be subject to the provisions of Sections 2.17 and 2.18 as if it were an assignee under paragraph (b) of this Section and (y) shall not be entitled to receive any greater payment under Section 2.14 or 2.16, with respect to any participation, than its participating Lender would have been entitled to receive, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent.  Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.18(b) with respect to any Participant.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.17(c) as though it were a Lender.  
(ii)    Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement or any other Loan Document (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under this Agreement or any other Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such 








90



Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Agents (in each case, in their capacity as such) shall have no responsibility for maintaining a Participant Register.
(iii)    Notwithstanding anything in this Section 9.04 to the contrary, any bank that is a member of the Farm Credit System that (A) has purchased a participation in the minimum amount of $10,000,000 on or after the Effective Date, (B) is, by written notice to the Borrower and the Agents (“Voting Participant Notification”), designated by the selling Lender as being entitled to be accorded the rights of a Voting Participant hereunder (any bank that is a member of the Farm Credit System so designated being called a “Voting Participant”), (C) receives the prior written consent of the Borrower (such consent to be given or withheld in the sole discretion of the Borrower) to become a Voting Participant, provided that no consent of the Borrower shall be required if an Event of Default under clause (a), (b), (h) or (i) of Article VII has occurred and is continuing and (D) receives the prior written consent of the Paying Agent to become a Voting Participant (to the extent such consent would be required pursuant to Section 9.04(b) if such transfer were an assignment rather than a sale of a participation), shall be entitled to vote (and the voting rights of the selling Lender shall be correspondingly reduced), on a dollar for dollar basis, as if such Participant were a Lender, on any matter requiring or allowing a Lender to provide or withhold its consent, or to otherwise vote on any proposed action.  To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (1) state the full name, as well as all contact information required of an assignee as set forth in Exhibit A hereto and (2) state the dollar amount of the participation purchased.  The Borrower and the Agents shall be entitled to conclusively rely on information contained in notices delivered pursuant to this paragraph.
(d)      Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other reserve bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.  












91



SECTION 9.05.  Survival.  All covenants, agreements, representations and warranties made by the Borrower in this Agreement and the other Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the other Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that any Agent, any Arranger, any Issuing Bank, any Lender or any Affiliate of any of the foregoing may have had notice or knowledge of any Default or incorrect representation or warranty at the time this Agreement or any other Loan Document is executed and delivered or any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any LC Exposure is outstanding and so long as the Commitments have not expired or terminated.  Notwithstanding the foregoing or anything else to the contrary set forth in this Agreement or any other Loan Document, in the event that, in connection with the refinancing or repayment in full of the credit facility provided for herein, an Issuing Bank shall have provided to the Paying Agent a written consent to the release of the Lenders from their obligations hereunder with respect to any Letter of Credit issued by such Issuing Bank (whether as a result of the obligations of the Borrower (and any other account party) in respect of such Letter of Credit having been collateralized in full by a deposit of cash with such Issuing Bank, or being supported by a letter of credit that names such Issuing Bank as the beneficiary thereunder, or otherwise), then from and after such time such Letter of Credit shall cease to be a “Letter of Credit” outstanding hereunder for all purposes of this Agreement (other than Sections 2.14, 2.16 and 9.03) and the other Loan Documents, and the Lenders shall be deemed to have no participations in such Letter of Credit, and no obligations with respect thereto, under Section 2.05(d) or 2.05(f).  In addition, notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document, in the event that on the Maturity Date any Letter of Credit shall be a Backstopped Letter of Credit, then, unless on such date any unreimbursed LC Disbursement shall have been outstanding thereunder, such Letter of Credit shall cease to be a “Letter of Credit” outstanding hereunder for all purposes of this Agreement (other than Sections 2.14, 2.16 and 9.03) and the other Loan Documents and the Lenders shall be deemed to have no participations in such Letter of Credit, and no obligations with respect thereto, under Section 2.05(d) or 2.05(f).  The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06.  Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents and any separate letter agreement with respect to fees or the syndication of the credit facility provided for herein constitute the entire contract among the parties relating to the subject matter hereof 








92



and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof, including any commitment advices delivered in connection with the credit facility established hereunder.  Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Co-Administrative Agents and the Co-Administrative Agents shall have received counterparts hereof that, when taken together, bear the signatures of all the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07.  Severability.  Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08.  Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender and Issuing Bank, and each Affiliate of any of the foregoing, is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) or other amounts at any time held and other obligations (in whatever currency) at any time owing by such Lender or Issuing Bank, or by such an Affiliate, to or for the credit or the account of the Borrower against any of and all the obligations then due of the Borrower now or hereafter existing under this Agreement held by such Lender or Issuing Bank, irrespective of whether or not such Lender or Issuing Bank shall have made any demand under this Agreement and although such obligations the Borrower are owed to a branch, office or Affiliate of such Lender or such Issuing Bank different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness.  The rights of each Lender and Issuing Bank, and each Affiliate of any of the foregoing, under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, Issuing Bank or Affiliate may have.  Each Lender and Issuing Bank agrees to notify the Borrower and the Agents promptly after any such setoff and application; provided that the failure to give notice shall not affect the validity of such setoff and application.
SECTION 9.09.  Governing Law; Jurisdiction; Consent to Service of Process.  (a)This Agreement shall be governed by, and construed in accordance with, the law of the State of New York.
(b)      Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any 








93



thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each party hereto hereby irrevocably and unconditionally agrees that all claims arising out of or relating to this Agreement or any other Loan Document brought by it or any of its Affiliates shall be brought, and shall be heard and determined, exclusively in such New York State or, to the extent permitted by law, in such Federal court.  Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and, notwithstanding the foregoing, may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(c)      Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section.  Each party hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d)      Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 9.01.  Nothing in this Agreement or any other Loan Document will affect the right of any party hereto to serve process in any other manner permitted by law.
SECTION 9.10.  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11.  Headings.  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12.  Confidentiality.  Each of the Agents, the Lenders and the Issuing Banks agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Related Parties, including accountants, legal counsel and other agents and advisors on a need-to-know basis, it being understood 








94



that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential in accordance with the terms of this Section or be subject to a professional obligation of confidentiality (and such Agent, such Lender or such Issuing Bank, as applicable, shall be responsible for their compliance herewith), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners) (in which case (other than in the case of a bank audit), such Agent, such Lender or such Issuing Bank, as the case may be, agrees to inform the Borrower promptly thereof to the extent lawfully permitted to do so and to the extent practicable under the circumstances), (c) to the extent required by applicable law or by any subpoena or similar legal process (in which case, such Agent, such Lender or such Issuing Bank, as the case may be, shall inform the Borrower promptly thereof to the extent lawfully permitted to do so and, to the extent practicable under the circumstances, prior to such disclosure), (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies under this Agreement or any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing confidentiality undertakings substantially similar to those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its Related Parties) to any swap or derivative transaction relating to the Borrower or any Subsidiary and its obligations, (g) on a confidential basis to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the credit facility provided for herein, (h) with the consent of the Borrower or (i) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to any Agent, any Lender, any Issuing Bank or any Affiliate of any of the foregoing on a nonconfidential basis from a source other than the Borrower or any of its Related Parties.  For purposes of this Section, “Information” means all information received from the Borrower or any of its Related Parties relating to the Borrower or any Subsidiary or their businesses, other than any such information that is available to any Agent, any Lender or any Issuing Bank on a nonconfidential basis prior to disclosure by or on behalf of the Borrower and other than information pertaining to the terms of this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry; provided that, in the case of information received from the Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.  It is agreed that, notwithstanding the restrictions of any prior confidentiality agreement binding on any Agent or any Arranger, such parties may disclose Information as provided in this Section. 
SECTION 9.13.  Interest Rate Limitation.  Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, 








95



charges and other amounts that are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.14.  USA PATRIOT Act Notice.  Each Lender and each Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or such Agent, as applicable, to identify the Borrower in accordance with such Act.
SECTION 9.15.  No Fiduciary Relationship.  The Borrower, on behalf of itself and the Subsidiaries, agrees that in connection with all aspects of the transactions contemplated hereby and any communications in connection therewith, the Borrower and the Subsidiaries, on the one hand, and the Agents, the Lenders, the Issuing Banks and their Affiliates, on the other hand, will have a business relationship that does not create, by implication or otherwise, any fiduciary duty on the part of the Agents, the Lenders, the Issuing Banks or their Affiliates, and no such duty will be deemed to have arisen in connection with any such transactions or communications.  The Agents, the Arrangers, the Lenders, the Issuing Banks and their Affiliates may be engaged, for their own accounts or the accounts of customers, in a broad range of transactions that involve interests that differ from those of the Borrower and  the Subsidiaries, and none of the Agents, the Arrangers, the Lenders, the Issuing Banks or their Affiliates has any obligation to disclose any of such interests to the Borrower or any of its Subsidiaries.  
SECTION 9.16.  Non-Public Information.  (a) Each Lender acknowledges that all information, including requests for waivers and amendments, furnished by or on behalf of the Borrower or any Agent pursuant to or in connection with, or in the course of administering, this Agreement will be syndicate-level information, which may contain MNPI.  Each Lender represents to the Borrower and the Agents that (i) it has developed compliance procedures regarding the use of MNPI and that it will handle MNPI in accordance with such procedures and applicable law, including Federal, state and foreign securities laws, and (ii) it has identified in its Administrative Questionnaire a credit contact who may receive information that may contain MNPI in accordance with its compliance procedures and applicable law, including Federal, state and foreign securities laws.








96



(b)      The Borrower and each Lender acknowledge that, if information furnished by the Borrower pursuant to or in connection with this Agreement is being distributed by any Agent through the Platform, (i) such Agent may post any information that the Borrower has indicated as containing MNPI solely on that portion of the Platform designated for Private Side Lender Representatives and (ii) if the Borrower has not indicated whether any information furnished by it pursuant to or in connection with this Agreement contains MNPI, such Agent reserves the right to post such information solely on that portion of the Platform designated for Private Side Lender Representatives.  The Borrower agrees to use commercially reasonable efforts to identify all information provided to the Agents by or on behalf of the Borrower that is suitable to be made available to Public Side Lender Representatives, and the Agents shall be entitled to rely on any such designation by the Borrower without liability or responsibility for the independent verification thereof. 
SECTION 9.17.  Acknowledgement and Consent to Bail-In of EEA Financial Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among the parties hereto, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)      the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and 
(b)      the effects of any Bail-in Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.
[Signature pages follow]
















IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
WEYERHAEUSER COMPANY,
		
	by  /s/ Laura B. Smith
	 
Name:     Laura B. Smith  
Title:    Vice President and Treasurer










[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








JPMORGAN CHASE BANK, N.A., individually and as a Co-Administrative Agent and an Issuing Bank,


		
	by  /s/ Alex Rogin
Name:
	Alex Rogin 
Title:    Executive Director












[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








WELLS FARGO BANK, NATIONAL ASSOCIATION, individually and as a Co-Administrative Agent, the Paying Agent, the Swingline Lender and an Issuing Bank,


		
	by   /s/ Matt J. Perrizo 
Name:
	Matt J. Perrizo 
Title:    Vice President












[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as an Issuing Bank,


		
	by   /s/ Thomas J. Sterr 
Name:
	Thomas J. Sterr 
Title:    Authorized Signatory














[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








SIGNATURE PAGE TO 
REVOLVING CREDIT FACILITY AGREEMENT OF
WEYERHAEUSER COMPANY


      THE BANK OF TOKYO-MITSUBISHI UFJ, LTD
		
	by   /s/ Thomas J. Sterr 
Name:
	Thomas J. Sterr 
Title:    Authorized Signatory










[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]










SIGNATURE PAGE TO 
REVOLVING CREDIT FACILITY AGREEMENT OF
WEYERHAEUSER COMPANY


     Name of Institution:  Bank of America, N.A.
		
	by   /s/ Michael Contreras 
Name:
	Michael Contreras 
Title:    Vice President






[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]










Name of Institution:  Branch Banking and Trust Company
		
	by  /s/ Bradford F. Scott 
Name:
	Bradford F. Scott 
Title:    Senior Vice President






[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








SIGNATURE PAGE TO 
REVOLVING CREDIT FACILITY AGREEMENT OF
WEYERHAEUSER COMPANY


COÖPERATIEVE RABOBANK U.A., NEW YORK        BRANCH:
		
	by   /s/ Mike Falter 
Name:
	Mike Falter 
Title:    Executive Director


		
	by   /s/ Mark Abrams 
Name:
	Mark Abrams 
Title:    Managing Director










[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








SIGNATURE PAGE TO 
REVOLVING CREDIT FACILITY AGREEMENT OF
WEYERHAEUSER COMPANY


Name of Institution:  PNC BANK, NATIONAL ASSOCIATION
		
	by   /s/ Philip K. Liebscher
Name:
	Philip K. Liebscher 
Title:    Senior Vice President






[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








SIGNATURE PAGE TO 
REVOLVING CREDIT FACILITY AGREEMENT OF
WEYERHAEUSER COMPANY


Name of Institution:  The Bank of Nova Scotia
		
	by  /s/ Michelle C. Phillips 
Name:
	Michelle C. Phillips 
Title:    Director & Execution Head






[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








SIGNATURE PAGE TO 
REVOLVING CREDIT FACILITY AGREEMENT OF
WEYERHAEUSER COMPANY


      U.S. BANK NATIONAL ASSOCIATION,
		
	by   /s/ Kurban H. Merchant
Name:
	Kurban H. Merchant 
Title:    Vice President






[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








SIGNATURE PAGE TO 
REVOLVING CREDIT FACILITY AGREEMENT OF
WEYERHAEUSER COMPANY


      Name of Institution: GOLDMAN SACHS BANK USA
		
	by   /s/ Ryan Durkin 
Name:
	Ryan Durkin 
Title:    Authorized Signatory






[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








SIGNATURE PAGE TO 
REVOLVING CREDIT FACILITY AGREEMENT OF
WEYERHAEUSER COMPANY


                  Morgan Stanley Bank, N.A.,
		
	by   /s/ Michael King 
Name:
	Michael King 
Title:    Authorized Signatory






[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








SIGNATURE PAGE TO 
REVOLVING CREDIT FACILITY AGREEMENT OF
WEYERHAEUSER COMPANY


      Name of Institution:  THE BANK OF NEW YORK MELLON
		
	by   /s/ John T. Smathers 
Name:
	John T. Smathers 
Title:    First Vice President






[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








SIGNATURE PAGE TO 
REVOLVING CREDIT FACILITY AGREEMENT OF
WEYERHAEUSER COMPANY


Name of Institution:  The Northern Trust Company
		
	by   /s/ Fernando Rizzo
Name:
	Fernando Rizzo 
Title:    Vice President






[Signature Page to Weyerhaeuser Revolving Credit Facility Agreement]








Schedule 1.01
Unrestricted Subsidiaries
		
	1.
	WY Carolina Holdings LLC


		
	2.
	WY Georgia Holdings 2004 LLC


		
	3.
	WY Tennessee Holdings LLC








Schedule 1.01












Schedule 2.01
Lenders; Revolving Commitments


	
				
	Lender
	Revolving Commitment

	JPMorgan Chase Bank, N.A.
	

	$141,000,000.00
	


	Wells Fargo Bank, National Association
	141,000,000.00
	


	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	141,000,000.00
	


	Bank of America, N.A.
	141,000,000.00
	


	Branch Banking and Trust Company
	141,000,000.00
	


	Coöperatieve Rabobank U.A., New York Branch
	141,000,000.00
	


	PNC Bank, National Association
	141,000,000.00
	


	The Bank of Nova Scotia
	141,000,000.00
	


	U.S. Bank National Association
	141,000,000.00
	


	Goldman Sachs Bank USA
	69,000,000.00
	


	Morgan Stanley Bank N.A.
	69,000,000.00
	


	The Bank of New York Mellon
	69,000,000.00
	


	The Northern Trust Company
	24,000,000.00
	


	TOTAL:
	

	$1,500,000,000.00
	



















Schedule 2.01












Schedule 2.05
LC Commitments


	
				
	Issuing Bank
	LC Commitment

	JPMorgan Chase Bank, N.A.
	

	$50,000,000.00
	


	Wells Fargo Bank, National Association
	50,000,000.00
	


	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	50,000,000.00
	


	TOTAL:
	

	$150,000,000.00
	













Schedule 2.05












Schedule 3.06
Litigation
None.






Schedule 3.06





EXHIBIT A
to the Revolving Credit Facility Agreement





[FORM OF] ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment”) is dated as of the “Effective Date” inserted below by the Paying Agent (the “Effective Date”) and is entered into by and between the Assignor (as defined below) and the Assignee (as defined below).  Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 hereto (the “Terms and Conditions”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Terms and Conditions and the Credit Agreement, as of the Effective Date, (a) the interest in and to all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the Assignor’s outstanding rights and obligations under the facility identified below (including, without limitation, any Letters of Credit and Swingline Loans included in such facility) and (b) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clause (a) above (the rights and obligations sold and assigned pursuant to clauses (a) and (b) above being referred to herein collectively as the “Assigned Interest”).  Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment or the Credit Agreement, without representation or warranty by the Assignor.
		
	1.
	Assignor:     


		
	2.
	Assignee:     
and is [a Lender][an Affiliate of [Identify Lender]][an Approved Fund]1 


		
	3.
	Borrower: Weyerhaeuser Company


		
	4.
	Paying Agent: Wells Fargo Bank, National Association, as the Paying Agent under the Credit Agreement


__________________________
		
	1 
	Select as applicable.




EXHIBIT A-3











		
	5.
	Credit Agreement: The Revolving Credit Facility Agreement dated as of March 6, 2017, among Weyerhaeuser Company, the Lenders party thereto, JPMorgan Chase Base, N.A., as Co-Administrative Agent, and Wells Fargo Bank, National Association, as Co-Administrative Agent and Paying Agent


		
	6.
	Assigned Interest:


	
				
	Facility2
	Aggregate Amount of Revolving Commitments/Revolving Loans of all Lenders
	Amount of Revolving Commitment/Revolving Loans Assigned3
	Percentage Assigned of Revolving Commitments/ Revolving Loans of all Lenders4

	Revolving Commitments/ Revolving Loans
	$
	$
	%






Effective Date:                                 , 20     [TO BE INSERTED BY PAYING AGENT AND WHICH DATE SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR].
The Assignee, if not already a Lender, agrees to deliver to the Paying Agent a completed Administrative Questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain MNPI) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable law, including Federal, State and foreign securities laws.










__________________________
2    In the event any new Class of Loans is established under Section 2.21 of the Credit Agreement, refer to the Class of Loans assigned.
3    Must comply with the minimum assignment amounts set forth in Section 9.04(b)(ii)(A) of the Credit Agreement, to the extent such minimum assignment amounts are applicable.
4    Set forth, to at least nine decimals, as a percentage of the amount in Column 2.




EXHIBIT A-4












The terms set forth in this Assignment are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor, 
 
    by 
        _______________________________     
        Name: 
        Title:


[Signature Page – Assignment and Assumption]
EXHIBIT A-5









[NAME OF ASSIGNEE], as Assignee, 
 
    by 
        _______________________________     
        Name:
    Title:


[Signature Page – Assignment and Assumption]
EXHIBIT A-6










Consented to and Accepted: 
 
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Paying Agent, 
 
    by
 
        ______________________________     
        Name:
Title:


[Signature Page – Assignment and Assumption]
EXHIBIT A-7











[Consented to: 
 
WEYERHAEUSER COMPANY, as Borrower 
 
    by 
        _______________________________     
        Name:
Title:]1 




Consented to:2 
 

[WELLS FARGO BANK, NATIONAL ASSOCIATION], as Issuing Bank3 
 
    by 
        _______________________________     
        Name:
Title:




Consented to: 4
 
[WELLS FARGO BANK, NATIONAL ASSOCIATION], as Swingline Lender 
 
    by 
        ________________________________     
        Name:
Title:








                    
1    To be included only if Section 9.04(b)(i)(A) of the Credit Agreement requires the consent of the Borrower.
2    To be included only if Section 9.04(b)(i)(C) of the Credit Agreement requires the consent of the Issuing Banks.
3    If Section 9.04(b)(i)(C) of the Credit Agreement requires the consent of the Issuing Banks add signature blocks for the other Issuing Banks, if any.
4    To be included only if Section 9.04(b)(i)(D) of the Credit Agreement requires the consent of the Swingline Lender.


[Signature Page – Assignment and Assumption]
EXHIBIT A-8







ANNEX 1
to the Assignment and Assumption



STANDARD TERMS AND CONDITIONS FOR 
ASSIGNMENT AND ASSUMPTION
1.  Representations and Warranties.
1.1  Assignor.  The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with any Loan Document, other than the representations and warranties made by it herein, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of any Loan Document (other than this Assignment) or any collateral thereunder, (iii) the financial condition of the Borrower, any Subsidiary or any other Affiliate of the Borrower or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower or any Subsidiary or any other Affiliate of the Borrower or any other Person obligated in respect of any Loan Document of any of their respective obligations thereunder.
1.2.  Assignee.  The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it is an Eligible Assignee and satisfies all the other requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and to purchase the Assigned Interest, (v) it has experience and expertise in the making of or investing in commitments or loans such as the Assigned Interest, as the case may be, (vi) it has, independently and without reliance upon the Paying Agent, the Co-Administrative Agents, the Arrangers, the Assignor or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decisions to enter into this Assignment and to purchase the Assigned Interest, (vii) it has attached to this Assignment any tax documentation required to be delivered by it pursuant to the terms of the Credit Agreement (including Section 2.16(f) thereof), duly completed and executed by the Assignee, (viii) it will acquire the Assigned Interest for its own account in the ordinary course and without a view to distribution of the Assigned Interest within the meaning of the Securities Act or the Exchange Act or other United States federal securities laws (it being understood that, subject to the provisions of Section 9.04 of the Credit Agreement, the disposition of the Assigned Interest or any interests therein shall at all times remain within its exclusive control) and (b) agrees that (i) it will, independently and without 


EXHIBIT A-1-1




2



reliance on the Paying Agent, the Co-Administrative Agents, the Arrangers, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at that time, continue to make its own credit decisions in taking or not taking action under any Loan Document, and (ii) it will perform in accordance with their terms all of the obligations that by the terms of the Loan Documents are required to be performed by it as a Lender.
2.  Payments.  From and after the Effective Date, the Paying Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. 
3.  General Provisions.  This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns permitted in accordance with the Credit Agreement.  This Assignment may be executed in any number of counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment by facsimile or other electronic imaging shall be effective as delivery of a manually executed counterpart of this Assignment.  THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.






EXHIBIT A-1-2







EXHIBIT B
to the Revolving Credit Facility Agreement





[FORM OF] BORROWING/INTEREST ELECTION REQUEST/PREPAYMENT NOTICE
Wells Fargo Bank, National Association,  as Paying Agent                      [Date]
Ladies and Gentlemen:
Reference is made to the Revolving Credit Facility Agreement dated as of March 6, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Weyerhaeuser Company, a Washington corporation (the “Borrower”), the Lenders party thereto, JPMorgan Chase Bank, N.A., as Co-Administrative Agent, and Wells Fargo Bank, National Association, as Co-Administrative Agent and Paying Agent.  Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.
		
	 ̈ 
	Borrowing Request: The Borrower hereby gives you notice pursuant to Section [2.03][2.04] of the Credit Agreement that it requests the following [Revolving][Swingline] Borrowing:


		
	1.
	Aggregate principal amount of Borrowing:             $_______________________


		
	2.
	Date of Borrowing (To be a Business Day):                _______________________


		
	3.
	Type of Borrowing (Base Rate, Eurodollar or Swingline):      _______________________


		
	4.
	Initial Interest Period (For Eurodollar Borrowing):          _______________________


		
	5.
	Location and number of the account to which proceeds


of the requested Borrowing are to be disbursed:         [Name of Bank]
(Acct. No.:_______________)
		
	[6. 
	Name of Swingling Lender:                       _____________________]1 


		
	[7.
	Name of disbursing Issuing Bank:                  _____________________]2 


		
	 ̈ 
	Interest Election Request: The Borrower hereby gives you notice pursuant to Section 2.07 of the Credit Agreement that it requests the conversion or continuation of a Revolving Borrowing, and specifies the following information with respect to such Borrowing and each resulting Borrowing:


		
	 1.
	Revolving Borrowing to which this request applies:     
    Principal Amount:                    $_______________________ 
    Type (Base Rate or Eurodollar):                  _______________________ 
    Interest Period (Specify last day of current Interest Period):      _______________________


		
	2.
	Effective date of this election (Business Day):           _______________________


		
	3.
	Resulting Revolving Borrowing[s]:  
    Principal Amount:                    $_______________________ 
    Type (Base Rate or Eurodollar):                  _______________________ 
    Interest Period (For Eurodollar Borrowing):          _______________________


		
	 ̈ 
	Prepayment: The Borrower hereby gives you notice pursuant to Section 2.10 of the Credit Agreement that it intends to prepay the following [Revolving][Swingline] Borrowing under the Credit Agreement:


		
	1.
	Aggregate principal amount of Borrowing:             $_______________________


		
	2.
	Date of Prepayment (To be a Business Day):              _______________________


		
	3.
	Type of Borrowing (Base Rate, Eurodollar or Swingline):       _______________________


__________________________________
1    Applicable only to Base Rate Revolving Borrowings to the extent requested to finance the repayment or prepayment of any Swingline Loan.
2    Applicable only to Base Rate Revolving Borrowings or Swingline Borrowings, in either case, to the  extent requested to finance the reimbursement of an LC Disbursement pursuant to Section 2.05(f) of the Credit Agreement.


EXHIBIT B-1







        



Very truly yours, 

	
		
	WEYERHAEUSER COMPANY

	 

	By:
	 

	 
	Name:   

	 
	Title:   










[Signature Page – Borrowing/Interest Election Request]
EXHIBIT B-2







EXHIBIT C
to the Revolving Credit Facility Agreement





FORM OF CLAIM AGREEMENT
[Attached]






EXHIBIT C-1







EXECUTION VERSION



CLAIM AGREEMENT




THIS CLAIM AGREEMENT (this “Agreement”) is dated as of March 6, 2017, and made by WEYERHAEUSER NR COMPANY, a Washington corporation (“WNR”), in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, as paying agent (the “Paying Agent”) under the Revolving Credit Facility Agreement dated as of March 6, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Weyerhaeuser Company, a Washington corporation (the “Company”), the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as co-administrative agent, and Wells Fargo Bank, National Association, as co-administrative agent and paying agent.


RECITALS


A.    WNR is a wholly owned subsidiary of the Company.  WNR has agreed, as between the Company and WNR, to assume the payment obligations in respect of certain indebtedness of the Company pursuant to that certain Assumption Agreement dated as of January 1, 2009 (as amended, restated, supplemented or otherwise modified from time to time, the “First Assumption Agreement”), made by WNR in favor of the Company, and that certain Assignment and Assumption Agreement dated as of October 1, 2009 (as amended, restated, supplemented or otherwise modified from time to time, the “Second Assumption Agreement” and, together with the First Assumption Agreement and any Additional Assumption Agreement (as defined below), collectively, the “Assumption Agreements”), by and between WNR and the Company.


B.    It is a condition precedent to the obligation of the Lenders, the Issuing Banks and the Swingline Lender to make their respective extensions of credit to the Company under the Credit Agreement that WNR enter into this Agreement with the Paying Agent, for the benefit of the Credit Agreement Parties (as defined below).


NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, WNR hereby agrees with the Paying Agent, for the benefit of the Credit Agreement Parties, as follows:


		
	SECTION 1.
	Definitions.




(a)    Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings assigned to such terms in the Credit Agreement.










2





(b)    The following terms shall have the following meanings:


“Additional Assumption Agreement” means any agreement entered into by WNR after the date hereof pursuant to which WNR assumes payment obligations in respect of any indebtedness of the Company.


“Assumed Debt” means any indebtedness of the Company the payment obligations in respect of which shall have been assumed by WNR pursuant to one or more Assumption Agreements.


“Assumed Debt Agreement” means any indenture, credit agreement, note purchase agreement or other agreement, if any, pursuant to which the Company has incurred or will incur Assumed Debt and any note, instrument, agreement or other document evidencing or governing such Assumed Debt.


“Assumed Debt Claims” has the meaning specified in Section 2(a) hereof.


“Assumed Debt Party” means any Person to which Assumed Debt is owed and any trustee for, or other representative of, the holders of such Assumed Debt under any Assumed Debt Agreement.


“Credit Agreement Claims” has the meaning specified in Section 2(a) hereof.


“Credit Agreement Obligations” means the due and punctual payment by the Company of (a) the principal of and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans made to the Company, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (b) each payment required to be made by the Company under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral, and (c) all other monetary obligations of the Company to any of the Credit Agreement Parties under the Credit Agreement and each of the other Loan Documents, including obligations to pay fees, expense reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding).


“Credit Agreement Parties” means (a) the Lenders, (b) the Co-Administrative Agents, (c) the Paying Agent, (d) the Issuing Banks, (e) the Swingline Lender, (f) the beneficiaries of each indemnification obligation undertaken by the Company under the Credit Agreement and (g) the successors and assigns of each of the foregoing.








3





“Pro Rata Claim Amount” at any time means, in respect of the Credit Agreement Claim of any Credit Agreement Party, an amount equal to (a) the Credit Agreement Obligations owing to such Credit Agreement Party at such time, multiplied by (b) a fraction, the numerator of which is the amount of Assumed Debt (including accrued and unpaid interest and any related obligations in respect of premiums, fees and indemnities) owing at such time in respect of which Assumed Debt Claims exist and the denominator of which is the total amount of Assumed Debt (including accrued and unpaid interest and any related obligations in respect of premiums, fees and indemnities) owing at such time.


		
	SECTION 2.
	Credit Agreement Claims.




(a)    WNR hereby agrees with the Paying Agent, for the benefit of the Credit Agreement Parties, that the Credit Agreement Parties shall have rights and claims enforceable against WNR for payment of all or a portion of the Credit Agreement Obligations to the same extent that the Assumed Debt Parties (as opposed to the Company) have rights and claims, if any, enforceable against WNR for payment of all or any portion of the Assumed Debt (including accrued and unpaid interest and any related obligations in respect of premiums, fees and indemnities) pursuant to or by reason of any Assumption Agreement (such rights and claims of the Assumed Debt Parties, the “Assumed Debt Claims”), as if WNR and the Company had entered into an assumption agreement in respect of the Credit Agreement Obligations on the same terms as such Assumption Agreement that is the subject of the Assumed Debt Claims (such rights and claims of the Credit Agreement Parties, the “Credit Agreement Claims”).  It is understood and agreed that (i) if the Credit Agreement Parties have Credit Agreement Claims by reason of one or more, whether in whole or in part, but less than all, of the Assumed Debt being subject to Assumed Debt Claims, then the Credit Agreement Claims of any Credit Agreement Party shall be limited to its Pro Rata Claim Amount, and (ii) WNR shall be fully liable for any such Credit Agreement Claims subject only to the limitations expressly set forth in this Agreement.  Any Credit Agreement Claims due and owing by WNR hereunder shall be payable by WNR to the Paying Agent for the benefit of the Credit Agreement Parties.


(b)    The determination of whether any Assumed Debt Claim exists shall be based solely upon the successful assertion by the applicable Assumed Debt Parties of such Assumed Debt Claim, and the Credit Agreement Parties shall not be permitted to assert that an Assumed Debt Claim exists unless and until such Assumed Debt Claim is successfully asserted by the applicable Assumed Debt Parties; provided that, if any Assumed Debt Party asserts an Assumed Debt Claim, the foregoing shall not be construed to prevent the assertion that a Credit Agreement Claim exists if such assertion of an Assumed Debt Claim is successful.


For purposes of this Section 2(b), an Assumed Debt Claim shall be considered “successfully asserted” or shall be viewed as the subject to “successful assertion” upon the occurrence of any of the following:


(i)    an express agreement, stipulation, settlement or acknowledgment by WNR that (A) acknowledges liability of WNR directly to any Assumed Debt Party 






4





in respect of such Assumed Debt Claim or (B) provides consideration from WNR to any Assumed Debt Party as a result of such Assumed Debt Claim or in exchange for an agreement, stipulation, settlement or acknowledgment that such Assumed Debt Party has no, or will not assert any, Assumed Debt Claims; 


(ii)    at any time after the commitments under the Credit Agreement shall have terminated as a result of the occurrence of an event of default thereunder and the Credit Agreement Obligations shall have become due and payable, any subsequent action that has the effect of treating such Assumed Debt Claim in a manner, or results in a recovery to the holders of such Assumed Debt Claim in respect of their Assumed Debt Claim, in each case as a result of the applicable Assumed Debt Agreement, that is more favorable than the treatment of, or recovery in respect of, Credit Agreement Claims (unless the holders of such Credit Agreement Claims are offered and decline such treatment or recovery), including, but not limited to payment or grant of securities to any Assumed Debt Party or the assumption of any Assumed Debt by any third party; or 


(iii)    a final adjudication by a court or arbitrator that WNR is liable to any Assumed Debt Party for such Assumed Debt Claim.


(c)    WNR acknowledges and agrees that no occurrence or circumstance occurring after the date of this Agreement shall cause a reduction in WNR’s obligations to the Paying Agent, for the benefit of the Credit Agreement Parties, under this Agreement, other than (i) termination of this Agreement pursuant to Section 7 hereof or (ii) the payment by WNR in cash of any Credit Agreement Claims due and owing by WNR hereunder.


		
	SECTION 3.
	Obligations Absolute.




WNR’s obligations under this Agreement shall in all respects be continuing, absolute, unconditional and irrevocable, and shall remain in full force and effect until all of the Credit Agreement Obligations (other than contingent expense reimbursement and indemnification obligations) have been paid in full, no Letters of Credit are outstanding (other than Letters of Credit for which cash collateralization or other arrangements satisfactory to the applicable Issuing Bank have been provided) and all Commitments under the Credit Agreement have been terminated.  WNR agrees that any Credit Agreement Claims due and owing by WNR hereunder will be paid strictly in accordance with the terms of this Agreement, the Credit Agreement and the other Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Company or WNR with respect thereto.  The liability of WNR under this Agreement shall be absolute, unconditional and irrevocable irrespective of:


(a)    any change in the time, manner, or place of payment of, or in any other term of, the Credit Agreement Obligations, the Credit Agreement or any of the other Loan Documents or any other extension, compromise or renewal of the Credit Agreement Obligations;






5







(b)    any reduction, limitation, impairment or termination of the Credit Agreement Obligations for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and WNR hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment, or termination whatsoever by reason of the invalidity, illegality, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, the Credit Agreement Obligations;


(c)    any amendment to, rescission, waiver or other modification of, or any consent to departure from, any of the terms of Credit Agreement or any of the other Loan Documents;


(d)    any addition, exchange, release, surrender or non-perfection of any collateral, or any amendment to or waiver or release or addition of, or consent to departure from, any guaranty, securing any of the Credit Agreement Obligations; or


(e)    any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, the Company or WNR.


		
	SECTION 4.
	Continued Liability.




Notwithstanding the agreements by WNR in respect of the Credit Agreement Claims pursuant to Section 2(a), as between the Company and the holders of any Credit Agreement Obligations, the Company shall continue to be the primary obligor with respect to the Credit Agreement Obligations and the Company shall not be released from its obligations under the Credit Agreement Obligations as a result of this Agreement.  In no event shall this Agreement be construed to constitute an assignment or transfer of any of the rights or obligations of the Company under the Credit Agreement or the other Loan Documents.


		
	SECTION 5.
	Representations and Warranties.




WNR represents, warrants and affirms for the benefit of the Credit Agreement Parties as follows:


(a)    WNR is a corporation duly organized and validly existing under the laws of the State of Washington with all requisite power and authority to own and operate its properties, to conduct its business as proposed to be conducted and to enter into and perform its obligations under this Agreement.


(b)    This Agreement constitutes a legal, valid and binding obligation of WNR, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally.








6





		
	SECTION 6.
	Binding Effect, Etc.




This Agreement shall be binding upon WNR and its successors and assigns and shall inure to the benefit of the Credit Agreement Parties and their respective successors and assigns; provided, however, that (a) WNR may not assign any of its obligations or rights under this Agreement and (b) only the Paying Agent may enforce the rights of the Credit Agreement Parties hereunder.  Each of the Credit Agreement Parties is an intended beneficiary of the obligations of WNR under this Agreement and the Paying Agent shall be entitled to commence and pursue any action or proceeding against WNR with respect to WNR’s obligations under this Agreement.


		
	SECTION 7.
	Amendments; Termination.




This Agreement may not be amended, supplemented, modified or terminated without the prior written consent of the Paying Agent (acting at the direction of the Required Lenders), WNR and the Company; provided that this Agreement shall automatically terminate upon the payment in full of all Credit Agreement Obligations (other than contingent expense reimbursement and indemnification obligations), the termination of any Letters of Credit then outstanding (other than Letters of Credit for which cash collateralization or other arrangements satisfactory to the applicable Issuing Bank have been provided) and the termination of all Commitments under the Credit Agreement.


		
	SECTION 8.
	Counterparts.




This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging shall be effective as delivery of a manually executed counterpart of this Agreement.


		
	SECTION 9.
	Severability.




Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.








7





		
	SECTION 10.
	Reinstatement.




This Agreement shall continue to be effective, or be reinstated, as the case may be, if at any time (a) payment, or any part thereof, of any of the Credit Agreement Obligations is rescinded or must otherwise be restored or returned by any Credit Agreement Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Company or any substantial part of its property, or otherwise, all as though such payments had not been made or (b) (i) Credit Agreement Obligations remain outstanding and (ii) WNR enters into an Assumption Agreement in respect of Assumed Debt after this Agreement has been terminated in accordance with its terms.


		
	SECTION 11.
	Headings.




Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.


		
	SECTION 12.
	No Waiver; Remedies.




No failure on the part of the Paying Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.


		
	SECTION 13.
	Governing Law; Jurisdiction.




(a)    THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


(b)    EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT BROUGHT BY IT OR ANY OF ITS AFFILIATES SHALL BE BROUGHT, AND SHALL BE HEARD AND DETERMINED, EXCLUSIVELY IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.  EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE 






8





CONCLUSIVE AND, NOTWITHSTANDING THE FOREGOING, MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  


(c)    EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.


		
	SECTION 14.
	WAIVER OF JURY TRIAL.




EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 14.




[The remainder of this page is intentionally left blank.]
















IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered as of the date first above written.




WEYERHAEUSER NR COMPANY




By:    ______________________________________
Name:
Title:






ACKNOWLEDGED AND AGREED TO BY:


WEYERHAEUSER COMPANY




By:    _________________________________
Name:
Title:






ACKNOWLEDGED AND AGREED TO BY:


WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent




By:    _________________________________
Name:
Title:








[Signature Page to Claim Agreement]



EXHIBIT D-1
to the Revolving Credit Facility Agreement





[FORM OF] U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)


Reference is made to the Revolving Credit Facility Agreement dated as of March 6, 2017 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Weyerhaeuser Company, a Washington corporation, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Co-Administrative Agent, and Wells Fargo Bank, National Association, as Co-Administrative Agent and Paying Agent.  Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.
Pursuant to the provisions of Section 2.16 of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record and beneficial owner of the Loan(s) (as well as any note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (c) it is not a “10-percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Paying Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable.  By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Paying Agent, and (b) the undersigned shall have at all times furnished the Borrower and the Paying Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. 




	
		
	[NAME OF LENDER]

	By: ______________________________________

	 
	Name:

	 
	Title:




Date: ________ __, 20[  ]




EXHIBIT D-1-1







EXHIBIT D-2
to the Revolving Credit Facility Agreement





[FORM OF] U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)


Reference is hereby made to the Revolving Credit Facility Agreement dated as of March 6, 2017 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Weyerhaeuser Company, a Washington corporation, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Co-Administrative Agent, and Wells Fargo Bank, National Association, as Co-Administrative Agent and Paying Agent.  Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.
Pursuant to the provisions of Section 2.16 of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (b) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (c) it is not a “10-percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable.  By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (b) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.


	
		
	[NAME OF PARTICIPANT]

	By: ______________________________________

	 
	Name:

	 
	Title:




Date: ________ __, 20[  ]






EXHIBIT D-2-1







EXHIBIT D-3
to the Revolving Credit Facility Agreement



 [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)


Reference is hereby made to the Revolving Credit Facility Agreement dated as of March 6, 2017 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Weyerhaeuser Company, a Washington corporation, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Co-Administrative Agent, and Wells Fargo Bank, National Association, as Co-Administrative Agent and Paying Agent.  Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.
Pursuant to the provisions of Section 2.16 of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record owner of the participation in respect of which it is providing this certificate, (b) its direct or indirect partners/members are the sole beneficial owners of such participation, (c) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (d) none of its direct or indirect partners/members “10-percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code. 
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (a) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (ii) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.


	
		
	[NAME OF PARTICIPANT]

	By:   _____________________________________

	 
	Name:

	 
	Title:




Date: ________ __, 20[  ]




EXHIBIT D-3-1







EXHIBIT D-4
to the Revolving Credit Facility Agreement





 [FORM OF] U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)


Reference is hereby made to the Revolving Credit Facility Agreement dated as of March 6, 2017 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Weyerhaeuser Company, a Washington corporation, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Co-Administrative Agent, and Wells Fargo Bank, National Association, as Co-Administrative Agent and Paying Agent.  Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Credit Agreement.
Pursuant to the provisions of Section 2.16 of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record owner of the Loan(s) (as well as any note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any note(s) evidencing such Loan(s)), (c) with respect to the extension of credit pursuant to the Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (d) none of its direct or indirect partners/members is a “10-percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Paying Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (a) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Paying Agent, and (ii) the undersigned shall have at all times furnished the Borrower and the Paying Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.


	
		
	[NAME OF LENDER]

	By:   _____________________________________

	 
	Name:

	 
	Title:




Date: ________ __, 20[  ]




EXHIBIT D-4-1









EXHIBIT E
to the Revolving Credit Facility Agreement



[FORM OF] COMPLIANCE CERTIFICATE


The form of this Compliance Certificate has been prepared for convenience only, and is not to affect, or to be taken into consideration in interpreting, the terms of the Credit Agreement referred to below.  The obligations of the Borrower under the Credit Agreement are as set forth in the Credit Agreement, and nothing in this Compliance Certificate, or the form hereof, shall modify such obligations or constitute a waiver of compliance therewith in accordance with the terms of the Credit Agreement.  In the event of any conflict between the terms of this Compliance Certificate and the terms of the Credit Agreement, the terms of the Credit Agreement shall govern and control, and the terms of this Compliance Certificate are to be modified accordingly.


Reference is made to the Revolving Credit Facility Agreement dated as of March 6, 2017 (the “Credit Agreement”), among Weyerhaeuser Company, a Washington corporation (the “Borrower”), the Lenders party thereto, JPMorgan Chase Bank, N.A., as Co-Administrative Agent, and Wells Fargo Bank, National Association, as Co-Administrative Agent and Paying Agent.  Each capitalized term used but not defined herein shall have the meaning specified in the Credit Agreement.
The undersigned Financial Officer of the Borrower hereby certifies as of the date hereof, in such capacity and not in a personal capacity and without personal liability, as follows:
1.I am a Financial Officer of the Borrower.
2.I have reviewed the terms of the Credit Agreement and I have made, or have caused to be made under my supervision, a review in reasonable detail of the transactions and condition of the Borrower and the Restricted Subsidiaries during the [fiscal year of the Borrower ended [        ]][fiscal quarter of the Borrower ended [        ]] (the “Applicable Accounting Period”).  I have no knowledge of the existence of any condition or event that constitutes a Default or Event of Default as of the date of this Certificate[, except as set forth in a separate attachment, if any, to this Certificate, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto]1.
3.The calculations of (a) Total Adjusted Shareholders’ Equity as of the last day of the Test Period ended as of the last day of the Applicable Accounting Period, (b) Total Funded Indebtedness as of the last day of the Test Period ended as of the last day of the Applicable Accounting Period and (c) the ratio of Total Funded Indebtedness as of the last day of such Test Period to the sum of Total Adjusted Shareholders’ Equity and Total Funded Indebtedness, in each case, as of the last day of such Test Period are true and accurate on and as of the date of this Certificate.
The foregoing certifications are made and delivered on [       ], pursuant to Section 5.01(c) of the Credit Agreement.
_________________________________
1    Specify the nature and extent of any existing Default, if any, and any corrective action taken or proposed to be taken with respect thereto.


EXHIBIT E-1
 











WEYERHAEUSER COMPANY 
 
By:    ______________________________     
    Name: 
    Title: 






EXHIBIT E-2







ANNEX A TO
COMPLIANCE CERTIFICATE





FOR THE FISCAL [QUARTER] [YEAR] ENDED [mm/dd/yy].
	
		
	 
	($ Amounts in Millions)

	Total Adjusted Shareholders’ Equity: (a) – (b) – (c) – (d) =
	$[___]

	(a)    consolidated shareholders’ equity of the Borrower that would be reported as “total equity” on the consolidated balance sheet of the Borrower prepared as of the last day of the Applicable Accounting Period in accordance with GAAP:
	$[___]

	(b)    exclude any cumulative other comprehensive income (loss), in each case as reflected on the consolidated balance sheet of the Borrower prepared as of the last day of the Applicable Accounting Period in accordance with GAAP:
	 

	(c)    exclude treasury common shares in the Borrower:
	$[___]

	(d)    exclude the aggregate net book value (after deducting any reserves applicable thereto) of investments in Unrestricted Subsidiaries:
	$[___]

	Minimum Required:
	$3,000






	
		
	Total Funded Indebtedness:   (a) + (b) + (c) – (d) – (e) – (f) = 
	$[___]

	(a)    Loans and any other Indebtedness of the Borrower and the Restricted Subsidiaries that would be reported as “long-term debt” on the consolidated balance of the Borrower prepared as of the last day of the Applicable Accounting Period in accordance with GAAP:
	$[___]

	(b)    Loans and any other Indebtedness of the Borrower and the Restricted Subsidiaries that would be reported as “current maturities  of long-term debt” on the consolidated balance of the Borrower prepared as of the last day of the Applicable Accounting Period in accordance with GAAP:
	$[___]

	(c)    Loans and any other Indebtedness of the Borrower and the Restricted Subsidiaries that would be reported as “short-term debt” on the consolidated balance of the Borrower prepared as of the last day of the Applicable Accounting Period in accordance with GAAP:
	$[___]

	(d)    To the extent included in (a), (b) or (c), Indebtedness of Unrestricted Subsidiaries:
	$[___]

	(e)    To the extent included in (a), (b) or (c), Indebtedness that is non-recourse to the Borrower and the Restricted Subsidiaries, including any Indebtedness reported as “long-term debt (nonrecourse to the company) held by variable interest entities” on the consolidated balance sheet of the Borrower prepared as of the last day of the Applicable Accounting Period:
	$[___]

	(f)    To the extent included in (a), (b) or (c), Indebtedness secured by Timber Installment Notes Collateral in an amount equal to at least 90% of the outstanding principal amount thereof:
	$[___]






	
		
	Ratio of Total Funded Indebtedness to Sum of Total Adjusted Shareholders’ Equity and Total Funded Indebtedness:  (a) / (b) = 
	[___]%

	(a)    Total Funded Indebtedness:
	$[___]

	(b)    Sum of Total Adjusted Shareholders’ Equity and Total Funded Indebtedness:
	$[___]

	Maximum Permitted: 
	65%










EXHIBIT E-A-1