Execution Version
Amendment No. 1 to
Asset Purchase and Sale Agreement
Reference is made to the Asset Purchase and Sale Agreement by and between Weyerhaeuser NR
Company, a Washington corporation with offices at 33663 Weyerhaeuser Way South, Federal Way,
Washington 98003 (“Seller”), and Cowlitz County, a political subdivision of the State of Washington,
with offices at 207 4th Avenue North, Kelso, Washington 98626 (“Buyer”), dated as of March 28, 2012
(as may be amended or supplemented from time to time, the “Agreement”). Capitalized terms used but
not defined in this Amendment No. 1 have the meanings given such terms in the Agreement.
Pursuant to Section 13.3 of the Agreement, the parties wish to amend the Agreement as provided
in this Amendment No. 1. Except as specified below, all provisions of the Agreement remain in full force
and effect.
1.
This Amendment No. 1 is effective as of February __, 2014.
2.
Seller and Buyer hereby amend the Agreement as follows:
(a)
Section 3.1 is amended to change the Purchase Price to $17,888,468 from $19,000,000.
(b)
Section 9.1(f) is amended in its entirety to read as follows:
“(f) NORPAC Approval. At or prior to Closing, Seller shall cause to be delivered to
Buyer (1) an original counterpart signature page of either the Joinder Agreement or the
Amended and Restated Industrial Waste Disposal Agreement executed by an authorized
officer of North Pacific Paper Corporation (NORPAC) and (2) an Incumbency Certificate
from the Secretary or an Assistant Secretary of NORPAC attesting to said officer’s
incumbency.”
(c)
Section 9.1 is amended to add a new Section 9.1(g) to read as follows:
“(g) Section 404 Permit. After Closing, Seller shall use its utmost efforts to
diligently (i) obtain Army Corps of Engineers approval of a plan to provide additional
compensatory wetlands to replace a 1.4 acre shortfall under the original mitigation plan
and a written notice of completion and release of all conditions required under Permit
#OYB-4-013812, and (ii) cause Weyerhaeuser Company to prepare and record a
restrictive covenant and/or other real estate instrument necessary to fulfill the conditions
of the Army Corps of Engineers’ approval.”
(d)
Section 9.2(c) is amended in its entirety to read as follows:
“(c) Bond Relief. Buyer shall, at or before the Closing Date, provide documentary
evidence of approval satisfactory to Seller from the Governmental Entity having
authority to do so to allow Seller to terminate Seller’s existing financial assurance bond.”
(e)
Section 10.1(g) is amended in its entirety to read as follows:
“(g) Intentionally left blank.”
(f)
Section 10.2(e) is amended in its entirety to read as follows:
“(e) Bond. Seller shall have received assurance satisfactory to Seller in its sole
discretion that Seller’s existing bond for closure and post-closure obligations with respect
to the Facility will be terminated on or shortly after Closing with no further obligation or
liability to Seller.”
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(g)
Section 10.2(g) is amended in its entirety to read as follows:
“(g) Waste Transport. Buyer shall have re-permitted the Facility to allow delivery of
waste, including all of Seller’s waste, to the Facility by truck, as contemplated in the
Waste Disposal Agreement.”
(h)
Section 12.5 is amended in its entirety to read as follows:
“12.5. Intentionally left blank.”
(i)
Section 14.6 is amended in its entirety to read as follows:
“14.6 Notices. All notices or other communications under this Agreement shall be in
writing and either personally delivered, sent by certified or registered mail (return receipt
requested, postage prepaid), sent by reputable overnight delivery service, or sent by
facsimile with telephone verification of receipt, to the respective addresses set forth
below (or to such other addresses as a party may designate by notice given as aforesaid).
If to Seller:
If to Buyer:
Weyerhaeuser NR Company
33663 Weyerhaeuser Way South
Federal Way, WA 98003
Attn: Vice President, Strategic Planning
Facsimile: (253) 924-2402
Board of County Commissioners
Administration Building
207 4th Ave. North, 3rd Floor, Room 305
Attn: Clerk of the Board of County
Commissioners
Kelso, WA 98626
with a copy to:
with a copy to:
Weyerhaeuser NR Company
33663 Weyerhaeuser Way South
Federal Way, WA 98003 USA
Attn: Law Department
Facsimile: (253) 924-5204
Cowlitz County Prosecuting Attorney
Attn: Chief Civil Deputy
312 S.W. 1st Ave.
Kelso, WA 98626
Facsimile:(360) 414-9121
with a copy to:
Summit Law Group
Attn: Polly McNeill
315 Fifth Avenue South, Suite 1000
Seattle, WA 98104
Facsimile: (206) 676-7073”
3.
Seller and Buyer further agree as follows:
(a)
Exhibit F originally attached to the Agreement is replaced by Exhibit F (Form of
Amended and Restated Waste Disposal Agreement) attached to this Amendment No. 1,
which for all purposes shall be the Waste Disposal Agreement referred to in the
Agreement.
(b)
Exhibit G originally attached to the Agreement is replaced by Exhibit G (Form of
Landfill Leachate Treatment Agreement) attached to this Amendment No. 1, which for
all purposes shall be the Landfill Leachate Treatment Agreement referred to in the
Agreement.
(c)
Exhibit H originally attached to the Agreement is replaced by Exhibit H (Form of
Landfill Gas Scrubber Liquor Supply Agreement) attached to this Amendment No. 1,
which for all purposes shall be the Landfill Gas Scrubber Liquor Supply Agreement
referred to in the Agreement.
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(d)
The Revised Schedules attached to this Amendment No. 1, pursuant to Section 9.1(c),
replace the correspondingly numbered Schedules that were originally attached to the
Agreement.
4.
No Further Changes. Except as specifically provided in this Amendment No. 1, the Agreement
remains in full force and effect as written. From the effective date set forth above, all references to or
concerning the “Agreement” shall mean the Agreement as amended by this Amendment No. 1, including
the attachments hereto.
[Remainder of page intentionally left blank]
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5.
Counterparts. This Amendment No. 1 may be executed in counterparts, each of which shall be
deemed an original but all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly
executed by their authorized representatives.
BUYER:
SELLER:
BOARD OF COUNTY COMMISSIONERS
OF COWLITZ COUNTY, WASHINGTON
WEYERHAEUSER NR COMPANY
By:______________________________
Michael A. Karnofski
Chairman
By:_____________________________
Name:
Title:
By:______________________________
James R. Misner
Commissioner
By:______________________________
Dennis P. Weber
Commissioner
Attest:
_________________________________
Tiffany Ostreim
Clerk of the Board
Approved as to Form:
_________________________________
Douglas E. Jensen
Chief Civil Deputy Prosecuting Attorney