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Exhibit 2.3
EXECUTION
COPY
SECOND AMENDING AGREEMENT
TO ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made as of
the 29th day of April, 2008 (this “ Agreement
”)
AMONG:
POPE & TALBOT,
INC. , a corporation organized under the laws of the State of
Delaware, POPE & TALBOT LTD. , a corporation
organized under the federal laws of Canada, POPE &
TALBOT LUMBER SALES, INC. , a corporation organized under the
laws of the State of Delaware, POPE & TALBOT SPEARFISH
LIMITED PARTNERSHIP , a limited partnership under the laws of
the State of South Dakota
(collectively, the “
Sellers ”)
AND:
INTERNATIONAL FOREST
PRODUCTS LIMITED , a British Columbia corporation
(the “ Purchaser
”)
WHEREAS, the Sellers and the
Purchaser entered into an Asset Purchase Agreement dated as of
November 19, 2007 and that certain amending agreement to the
Asset Purchase Agreement dated as of April 24, 2008 (together,
the “ Asset Purchase Agreement ”);
WHEREAS, the Purchaser
assigned the right to purchase certain assets situated in the
United States under the Asset Purchase Agreement to Interfor
Pacific Inc. (“ IPI ”), a Washington
corporation, pursuant to Section 10.06 thereof;
WHEREAS, IPI assigned the
right under the Asset Purchase Agreement to purchase the Spearfish
Mill and certain related assets (together the “ Spearfish
Assets ”) to Neiman Enterprises, Inc. (“
Neiman ”), a Wyoming corporation;
WHEREAS, Neiman, in turn,
assigned the right to purchase the Spearfish Assets under the Asset
Purchase Agreement to Spearfish Forest Products, Inc., a South
Dakota Corporation and Neiman Timber Company, LC, a Wyoming limited
liability company, (together, with IPI and Neiman, the “
Assignees ”); and
WHEREAS, none of the
assignments to the Assignees have relieved the Purchaser of any of
its obligations under the Asset Purchase Agreement, and
WHEREAS, the Sellers and the
Purchaser wish to further amend the terms of the Asset Purchase
Agreement, in the manner contemplated by this Agreement.
NOW THEREFORE in
consideration of good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by each party), the
parties covenant and agree that:
1.
Definitions . In this Agreement, words and
phrases defined in the Asset Purchase Agreement, and used but not
otherwise defined herein, have the meanings given in the Asset
Purchase Agreement.
2. Amendments to the
Asset Purchase Agreement . The Sellers and the
Purchaser agree that the Asset Purchase Agreement is hereby amended
as follows:
(a) Section 1.01
(definition of “Needles Foreshore Area”) .
Section 1.01 is amended by deleting the definition of
“Needles Foreshore Area” and replacing it with the
following:
““ Needles
Foreshore Area ” means the approximately 9.63 hectare
area shown outlined in bold on the diagram attached hereto as
Exhibit 1.01(j).”
(b) Section 1.01
(definition of “Postpetition Contracts ”).
Section 1.01 is amended by adding the following immediately
after the definition of “Post-Closing Period” as
follows:
““
Postpetition Contracts ” has the meaning given to it
in Section 5.28 .”
(c) Section 5.27
. Article V is amended by adding the following Section 5.27
immediately after Section 5.26:
“SECTION 5.27
Post-Closing Deliverable of Selected Material Contracts .
Following the Closing, the Sellers shall use commercially
reasonable efforts to seek approval of the Bankruptcy Court and the
Canadian Court to assume and assign to the Purchaser those Material
Contracts that may not have been identified to the Purchaser in
sufficient time prior to the Closing for the Sellers to obtain such
approval. To the extent that the Purchaser elects by notice in
writing to the Sellers given not later than the Closing Date or the
date of disclosure of such Material Contracts, for the applicable
Seller to assume and assign any such Material Contract to the
Purchaser to be included in the Purchased Assets, the Purchaser
shall satisfy all post-Closing obligations arising thereunder as
set forth in detail in the Transition Services Agreement. For the
avoidance of doubt, notwithstanding Section 2.09 or
Section 5.04, the Seller shall pay and satisfy all Cure Costs
associated with such Material Contracts.
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(d) Section 5.28
. Article V is amended by adding the following Section 5.28
immediately after Section 5.27:
“SECTION 5.28
Assignment of Postpetition Contracts.
(a) Section 5.28(a) of the Disclosure Schedule lists the
material Contracts of the Sellers entered into on or after
November 19, 2007 which relate primarily to the Business
(collectively, the “ Postpetition Contracts ”).
Copies of all Postpetition Contracts listed on
Section 5.28(a) of the Disclosure Schedule have been
provided to the Purchaser. Subject to Section 5.28(b) and
Section 5.28(c), the Sellers shall assign, and the Purchaser
shall assume, all Postpetition Contracts (collectively, the “
Assigned Postpetition Contracts ”) pursuant to one or
more assignment agreements to be entered into between Purchaser and
Sellers. For the avoidance of doubt, none of
Section 2.09 or Section 5.04 shall apply to
the Postpetition Contracts.
(b) The Purchaser may elect
to exclude any of the Postpetition
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